Opinion
J-S14004-14 No. 2164 EDA 2012
03-28-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. RASHEEN REDGUARD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered June 29, 2012,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0008062-2011.
BEFORE: SHOGAN, OTT and PLATT, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Rasheen Redguard, appeals from the judgment of sentence entered on June 29, 2012, in the Philadelphia County Court of Common Pleas. We affirm.
On March 13, 2012, Appellant pled guilty to one count of theft from a motor vehicle. Sentencing was deferred for the preparation of a pre-sentence investigation report. On June 29, 2012, after receipt of the PSI, the trial court sentenced Appellant to a term of three to six years of incarceration, followed by one year of reporting probation. On July 13, 2012, Appellant filed a motion requesting leave of court to file a nunc pro tunc motion for modification of sentence. In an order filed that same day, the trial court permitted Appellant to file a nunc pro tunc motion for modification of sentence, but in a subsequent order the court denied relief on the request for modification of sentence. This timely appeal followed.
On appeal, Appellant raises the following issue for this Court's consideration:
Did not the lower court err and abuse its discretion by sentencing [Appellant] to an unreasonable sentence that was three months higher than the standard range of the Sentencing Guidelines, without giving adequate reasons, on the basis of considerations, including his prior criminal history, that were already factored into the Sentencing Guidelines and further err by failing to give proper consideration to [Appellant's] personal needs and mitigating factors?Appellant's Brief at 3. Appellant's issue is a challenge to the discretionary aspects of his sentence.
"A defendant who has pled guilty may challenge the discretionary aspects of his sentence as long as the defendant did not agree to a negotiated sentence as part of a plea agreement." Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000). In the instant case, Appellant entered an open guilty plea with no agreement as to sentencing. Accordingly, there is no bar to Appellant challenging the discretionary aspects of his sentence.
Where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, and an appellant's appeal should be deemed a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Here, the first three requirements of the four-part test are met because Appellant filed a timely appeal, filed a timely motion for modification of sentence, and included a statement pursuant to Rule 2119(f) in his brief. Moury, 992 A.2d at 170. Therefore, we address whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the sentencing court.
Allowance of appeal will be permitted only when the appellate court determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Id. This Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the Sentencing Code. Id. Indeed, our Supreme Court has clearly instructed that:
only where the Appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the sentencing code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of a sentence.Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).
In the instant case, Appellant raises three distinct claims: 1) the trial court abused its discretion in sentencing him outside of the sentencing guidelines; 2) the trial court abused its discretion in relying on facts that were already accounted for in his prior record score ("double counted"); and 3) the trial court failed to consider relevant mitigating factors. Appellant's Brief at 3, 6. We conclude that Appellant has presented substantial questions as to the first two issues. See Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008) (a claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guidelines presents a substantial question), and Commonwealth v. Whitmore, 912 A.2d 827, 830 (Pa. 2006) (a claim that the sentencing court relied on factors already included in the prior record score raises a substantial question). However, Appellant's third claim concerning mitigating factors fails to raise a substantial question. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (a claim that the trial court failed to consider mitigating factors does not raise a substantial question for our review).
Were we to reach this issue we would conclude that it lacks merit. As stated above, the trial court had the benefit of a pre-sentence investigation report. It is well settled that when a sentencing court has reviewed a presentence investigation report, we presume that it properly considered and weighed all relevant factors in fashioning the defendant's sentence. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013).
We note that sentencing is a matter vested in the sound discretion of the trial court, and a sentence will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted). An abuse of discretion is not just an error in judgment, and on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. Id.
When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it [is] not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118 (2007) ("It is well established that the Sentencing Guidelines are purely advisory in nature."); Commonwealth v. Walls, 926 A.2d 957, 965 [(Pa. 2007)] (referring to the Sentencing Guidelines as "advisory guideposts" which "recommend ... rather than require a particular sentence"). TheSheller, 961 A.2d at 190.
court may deviate from the recommended guidelines; they are "merely one factor among many that the court must consider in imposing a sentence." Yuhasz, 923 A.2d at 1118. A court may depart from the guidelines "if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community." Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). When a court chooses to depart from the guidelines however, it must "demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines." Eby, 784 A.2d at 206. Further, the court must "provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S.A. § 9721(b).
As set forth above, Appellant pled guilty to theft from a motor vehicle in violation of 18 Pa.C.S.A. § 3934. Appellant concedes that he had a prior record score of five. Appellant's Brief at 5. With a prior record score of five and an offense gravity score of six, the Pennsylvania Sentencing Guidelines provide a standard-range minimum sentence of twenty-one to twenty-seven months, plus or minus six months for mitigating or aggravating factors. 204 Pa.Code. § 303.16. In the instant case, Appellant was sentenced to a minimum term of thirty-six months, which is three months beyond the aggravated range of the sentencing guidelines.
As stated earlier, Appellant received a sentence of thirty-six to seventy-two months of incarceration. The theft crime to which Appellant pled guilty was graded as a felony of the third degree. Felonies of the third degree carry a statutory maximum sentence of eighty-four months of total confinement. 18 Pa.C.S.A. § 1103. Therefore, Appellant's sentence, while three months outside the guidelines, was a legal sentence.
After review of the record, we conclude that there is no merit to either of the Appellant's claims. The record reflects that the trial court was aware of the sentencing guidelines and Appellant's prior record score. N.T., 6/29/12, at 3-4. Appellant has an extensive criminal history with numerous terms of incarceration, probation violations, and revocations of parole or probation. Id. at 6. Additionally, Appellant's claim concerning his prior record score is specious. We note that, the only reason his prior record score is not higher than five is because five is the highest prior record score one can have without falling into the Repeat Violent Offender Category (REVOC) or Repeat Felony 1 and Felony 2 Offender Category (RFEL). 204 Pa.Code. § 303.4. "The Prior Record Score shall be the sum of the points accrued based on previous convictions or adjudications, up to a maximum of five points." Id. at § 303.4(3).
Moreover, the trial court explained its rationale for the sentence as follows:
A review of the record shows that the Court did not err in sentencing the appellant to three (3) to six (6) years of incarceration and one (1) year of reporting probation. While the appellant is correct that his rehabilitation needs comprise one of the factors under 42 Pa.[C.S.A.] § 9721(b), his needs are not the only factors affecting the sentence. Public safety is the first factor listed under 42 Pa.[C.S.A.] § 9721(b). The impact on the life of the victim and the community is the second factor. This Court took into consideration the fact that appellant, who is now twenty-eight (28) years old, has led a life of non-compliance to legal authority. (See N.T. June 29, 2012 p. 6). On his past criminal cases, he had violated probation and parole twenty-Trial Court Opinion, 7/19/13, at 2-4. In light of the foregoing, we discern no abuse of discretion. The trial court comprehensively set forth its reasons for sentencing Appellant outside the guidelines and did not increase Appellant's sentence using factors already considered in Appellant's prior record score.
three (23) separate times. (See N.T. June 29, 2012 p. 6). He has been incarcerated eighteen (18) different times.
Furthermore, this Court took into account the impact this crime had on the victim. The victim, a teacher, noticed a man in her car at 8:30 AM. The car was parked in the school parking lot. The victim approached, thinking that the man had made a mistake and entered the wrong car. She gets close to her vehicle and notices that he has her laptop, at which point the appellant states, "Bitch, get out of my way." (See N.T. June 29, 2012 p. 3). The victim was in close proximity to the appellant as he committed a crime and was shocked and scared.
This Court took into consideration all of the factors under 42 Pa.[C.S.A.] § 9721(b). The defendant has clearly demonstrated his recidivism by his prior conviction and probation violation record that a "lower" sentence simply would not rehabilitate him. Moreover, appellant was viewed by the Court as a danger to the community, as he has been continuously convicted of crimes and failing to follow the law throughout his entire adult life. Even in the instant matter, an unsuspecting teacher was traumatized at 8:30 AM in the parking lot of her school. Therefore, this Court did not sentence the appellant unfairly nor unreasonably, given the attendant circumstances.
The Court gave adequate reasons for sentencing appellant in the aggravated range of the sentencing guidelines and did not "double count" appellant's record in determining his sentence. (As set forth in appellant's 1925(b) statement). A Trial Court has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated range. Com. v. Shugars, 2006 PA Super 62, 895 A.2d 1270 (Pa. Super. Ct. 2006). The Court may consider the prior record in sentencing a defendant in the aggravated range as long as it is not the sole factor in the decision. Com. v. Shugars, 2006 PA Super 62, 895 A.2d 1270 (Pa. Super. Ct. 2006). This Court considered the appellant's history of convictions and violations. In addition to these factors, the Court also considered the circumstances of the crime. This Court sentenced in the aggravated range because rehabilitation has not proven effective for the appellant. As stated, he has violated probation twenty-three times. In fact, he
was on probation for a previous crime when he committed this theft.
This Court thoroughly examined the Pre-Sentence Investigation report in order to sentence Mr. Redguard appropriately. (N.T. June 29, 2012 p. 2, 7). This Court also afforded the appellant his right of allocution and also allowed his defense attorney's sentiments to be placed on the record. (N.T. June 29, 2012 p. 4). This Court even showed Mr. Redguard some leniency by terminating Parole (for which the Commonwealth sought an extra one (1) to (2) years incarceration consecutive to this sentence). (N.T. June 29, 2012 p. 8).
For the reasons set forth above, we conclude that Appellant is entitled to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary