“It is well established that the Sentencing Guidelines are purely advisory in nature.”
How later courts described this case
- “It is well established that the Sentencing Guidelines are purely advisory in nature.”
Written by the judges who cited it.
The opinion
J-S77019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEO SEH
Appellant No. 266 EDA 2014
Appeal from the Judgment of Sentence December 17, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002496-2013,
CP-09-CR-0002499-2013
BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 03, 2015
Appellant Aleo Seh (“Appellant”) appeals from the judgments of
sentence entered in the Bucks County Court of Common Pleas on October
28, 2013, following his guilty plea and nolo contendere convictions for
terroristic threats,1 criminal trespass,2 simple assault,3 recklessly
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2706.
2
18 Pa.C.S. § 3503.
3
18 Pa.C.S. § 2701.
J-S77019-14
endangering another person,4 harassment,5 delivery of a controlled
substance,6 conspiracy,7 and criminal use of a communication facility.8 After
careful review, we affirm in part and vacate in part.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case as follows:
On October 28, 2013, [Appellant], Aleo Seh, pleaded guilty
to Delivery of a Controlled Substance, an ungraded felony,
Conspiracy to Deliver a Controlled Substance, an ungraded
felony, and Criminal Use of a Communication Facility, a felony of
the third degree, based upon his participation in a “controlled
buy” of cocaine on June 9, 2012. [Appellant] also pleaded guilty
to charges arising out of crimes he committed against his
mother, Olivia Saywhah, on March 8, 2013. In that matter,
[Appellant] pleaded guilty to Criminal Trespass, a felony of the
third degree, Terroristic Threats, a felony of the third degree,
Simple Assault by physical menace, a misdemeanor of the
second degree and Harassment, a misdemeanor of the third
degree. He entered a plea of nolo contendere to Recklessly
Endangering Another Person, a misdemeanor of the second
degree. [Appellant] was sentenced to an aggregate minimum
term of incarceration of five years. [Appellant] appealed from
the judgment of sentence challenging the discretionary aspects
of sentence.
The following facts served as the basis for the guilty plea
in [Appellant’s] drug case. On June 9, 2012, a confidential
informant contacted [Appellant’s] brother, Robert Nuahn, to
____________________________________________
4
18 Pa.C.S. § 2705. Appellant pleaded nolo contendere to this charge.
5
18 Pa.C.S. § 2709.
6
35 P.S. § 780-113(a)(30).
7
18 Pa.C.S. § 903.
8
18 Pa.C.S. § 7512.
-2-
J-S77019-14
negotiate the purchase of cocaine. Nuahn told the informant to
contact [Appellant] and to arrange for the delivery. The
informant contacted [Appellant] by telephone as instructed and
negotiated the delivery of cocaine. At approximately 1:25 p.m.
that same date, [Appellant] arrived at 2701 Veteran Highway,
Bristol Township, Bucks County, in a vehicle registered to Nuahn
and delivered 1.87 grams of cocaine to the informant.
The following facts served as the basis for the guilty plea
in the case involving [Appellant’s] mother. Ms. Saywhah had for
some time been attempting to exclude [Appellant] from her
home located at 42 Ironwood Road, Bristol Township, Bucks
County. Prior to the incident on trial, she had changed the locks
to her residence numerous times, but [Appellant] kept finding
ways to enter her home without her permission, including
climbing on the roof to gain access through a window. Prior to
March 2, 2013, [Appellant’s] mother obtained a temporary
Protection From Abuse (PFA) order against [Appellant]. On that
date, [Appellant] once again returned to the property. As of that
time, the temporary order had not yet been served upon
[Appellant]. [Appellant] was, however, aware that the order had
been issued. His mother had verbally advised him that she had
obtained a court order excluding him from her residence. Ms.
Saywhah called the police and two Bristol Township Police
Officers responded to her home. When the police arrived, Ms.
Saywhah asked that they arrest [Appellant] for violating the
temporary PFA order. The officers advised Ms. Saywhah that
they could not arrest [Appellant] since the order had not yet
been served, but advised her that they would serve the order
and direct [Appellant] to leave the premises. The police then
entered Ms. Saywhah’s residence, served [Appellant] with the
temporary PFA order and notice of hearing regarding Ms.
Saywhah’s request for a final PFA order, and directed him to
leave the residence. Officer Mark Titus, one of the officers who
responded to the scene on that date, described [Appellant’s]
response as “not tak[ing] us serious.” When police allowed
[Appellant] to retrieve his belongings, he got his belongings “one
shoe at a time.” [Appellant] prolonged the process for so long
that the responding police were forced to call for assistance.
When [Appellant] finally left the residence after backup arrived,
he stood on the edge of the property smiling.
On March 6, 2013, a final PFA order was entered. On
March 8, 2013, in violation of that order and while his drug case
was pending, [Appellant] again entered his mother’s home. At
-3-
J-S77019-14
approximately 9:15 a.m., Ms. Saywhah returned home from
work and was confronted by [Appellant]. [Appellant] came down
the steps from the second floor of the residence and began
cursing at her. He took her phone from her hand and refused to
return it. He then poured a brown substance on her clothing and
told her he was “going to burn you and the house down.” He
told her, “You are lucky I don’t have a match or I would set you
ablaze” and then began searching for something to ignite a fire.
When he was unsuccessful, he stood in front of the door and
would not allow his mother to leave her home. When police
arrived, the officers observed a brown substance that smelled
like paint thinner on the front of Ms. Saywhah’s shirt and the
back of her coat. [Appellant], who had run upstairs and locked
himself in a bedroom, refused to open the bedroom door and
repeatedly told police, “You are going to have to kick the door in
or shoot me through the door.” The police forced open the door
and took [Appellant] into custody. After he was placed in the
back of a patrol vehicle, [Appellant] continued to use vulgar
language, screaming at both his mother and police. While being
transported to police headquarters, [Appellant] repeatedly
threatened the officers, stating “I will kick your a--. You haven’t
seen the last of me. You don’t know who I am or who my
friends are. I don’t care how long I am sent away for, I will be
back for you.” [Appellant] continued to threaten officers while at
police headquarters.
At the time of sentencing, Ms. Saywhah was 63 years old.
[Appellant] was 36 years old. [Appellant’s] criminal history is as
follows. In 1994, [Appellant] was adjudicated delinquent of
Indecent Assault for an incident that occurred on June 16, 1994
in Bucks County. In 1994, [Appellant] was also adjudicated
delinquent of Terroristic Threats for an incident that occurred
August 2, 1994 in Bucks County. In 1995, he was adjudicated
delinquent of Indecent Exposure for an incident that occurred on
March 29, 1995 in Bucks County. In 1996, he was convicted of
Carrying Weapons without Permission in Minnesota. In 1998, he
was convicted of False Reports in Philadelphia. In 2006, he was
convicted of Resisting Arrest and Possession of a Controlled
Substance in Bucks County. In 2008, [Appellant] was convicted
of summary Disorderly Conduct, Defiant Trespass and Excessive
Noise. In 2009, [Appellant] was convicted of Defiant Trespass.
In April 2014, [Appellant] was convicted on four Disorderly
Conduct offenses, two Simple Trespass offenses, Harassment
and Criminal Mischief.
-4-
J-S77019-14
The 2009 Defiant Trespass case involved circumstances
that were very similar to those involved in the instant case. In
that matter, [Appellant] had been issued a non-traffic citation for
trespassing into his mother’s home and was advised by police
not to return to the residence. Despite police intervention,
[Appellant] returned to the residence two days later.
[Appellant’s] Mother called the police to report his presence.
When police arrived, [Appellant] was taken into custody. While
in police custody, [Appellant] directed profanity at the officers.
On October 28, 2013, [Appellant] was sentenced as
follows. On count two of Information number 2499-2013,
Delivery of a Controlled Substance, [Appellant] was sentenced to
a term of incarceration of one to five years. A consecutive term
of incarceration of one to five years was imposed on count one,
Conspiracy to Deliver a Controlled Substance. No further
penalty was imposed on count three, Criminal Use of a
Communication Facility. On Information number 2496-2013,
[Appellant] was sentenced to a term of incarceration of 18
months to 36 months on count five, Criminal Trespass, and a
consecutive term of incarceration of 18 to 36 months on count
four, Terroristic Threats.22 No further penalty was imposed on
counts six, seven and eight, Simple Assault, Recklessly
Endangering Another Person and Harassment. The sentences on
the two cases were run consecutively to one another for an
aggregate minimum sentence of five years.
22
The [c]ourt [originally] imposed a maximum sentence
of seven years [84 months] on each count. On December
17, 2013, the [c]ourt reduced the maximum sentences to
36 months on each count.
On November 6, 2013, [Appellant] filed a motion for
reconsideration of sentence. On December 17, 2013, a hearing
was held on [Appellant’s] motion. At that hearing, the
Commonwealth submitted corrected sentencing guidelines. The
original guidelines reflected a prior record score of two as a
result of the improper inclusion of [Appellant’s] juvenile
adjudications in calculating the prior record score. The corrected
guidelines reflected a prior record score of one. The [c]ourt
noted that the standard range of the guidelines for Delivery of a
Controlled Substance and Conspiracy to Deliver a controlled
Substance as reflected in the original guidelines called for a
minimum sentence of 9 to 16 months. The corrected guidelines
called for 6 to 14 months. The [c]ourt imposed a minimum
-5-
J-S77019-14
sentence of 12 months. The [c]ourt intended to impose a
sentence within the standard range of the sentencing guidelines.
Since the sentence imposed fell within the standard range of
both the original guidelines and the corrected guidelines, the
prior record score error had no impact on the [c]ourt’s
sentencing decision.
The original guidelines for the Criminal Trespass called for
an aggravated sentence of 9 to 12 months. The corrected
guidelines called for an aggravated range of 6 to 9 months. The
original guidelines for the crime of Terroristic Threats called for
14 to 17 months. The corrected guidelines called for 12 to 15
months. In imposing the original sentence, the [c]ourt imposed
sentences of 18 to 84 months on each offense, sentences
outside the aggravated ranges of the sentencing guidelines. The
corrected guidelines were not significantly different with regard
to the top of the aggravated ranges. The Criminal Trespass
guidelines differed by three months. The Terroristic Threats
guidelines differed by two months. The [c]ourt found that [the]
difference did not warrant a modification of the minimum
sentence. The [c]ourt did modify the maximum sentence on
each count, reducing the original maximum sentences imposed
from 84 months to 36 months.
Trial Court Pa.R.A.P. 1925(a) Opinion, April 11, 2014 (“1925(a) Opinion”),
pp. 1-6 (some footnotes omitted). Appellant timely appealed the December
17, 2013 sentences. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
A. Did the sentencing court err in imposing a sentence that
exceeded the guidelines for a defendant with a prior record score
of “1”, where the Commonwealth agreed that Appellant’s prior
record score is “1”, but the court sentenced Appellant well
outside those guidelines?
B. Did the sentencing court err in ordering that Appellant may
only interact with his mother while he is incarcerated and not
after he is released, even though Appellant’s mother was present
-6-
J-S77019-14
during sentencing to support Appellant and did not request any
such order be imposed?
Appellant’s Brief, p. 7 (all capitals omitted).
Appellant first claims the trial court erred in sentencing him beyond
the standard range of the sentencing guidelines and did not adequately
specify reasons for the upward departure. See Appellant’s Brief, pp. 14-22.
This claim raises a challenge to the discretionary aspects of Appellant’s
sentence. “Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Allen, 24 A.3d at 1064. “The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005).
“Generally, however, in order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms underlying the
-7-
J-S77019-14
sentencing process.” Commonwealth v. Titus, 816 A.2d 251, 255
(Pa.Super.2003).
Here, Appellant filed a timely notice of appeal, and preserved his
issues in a motion for reconsideration of sentence. Further, Appellant’s brief
includes a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, pp. 14-15.
Accordingly, we now determine whether Appellant has raised a substantial
question for review and, if so, proceed to a discussion of the merits of the
claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17
(Pa.1987).
In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial
court imposed an unreasonable sentence because (1) it sentenced him in the
aggravated range of the sentencing guidelines without providing adequate
reasons for the upward departure,9 and (2) it decided to run certain
sentences consecutive to one another. See Appellant’s Brief, pp. 14-15.
Initially, we note that Appellant’s claim that his sentence is
unreasonable because the trial court decided to run certain portions of it
consecutive to one another does not raise a substantial question for our
review. See Commonwealth v. Marts, 889 A.2d 608, 612
____________________________________________
9
Appellant concedes the trial court employed the correct sentencing
guidelines at the December 17, 2013 resentencing. See Appellant’s Brief, p.
18.
-8-
J-S77019-14
(Pa.Super.2005) (a claim that the consecutive nature of sentences violates
the Sentencing Code fails to raise a substantial question for review).
Appellant additionally alleges the trial court did not provide adequate
reasons for sentencing him beyond the standard guidelines range. “In every
case where a sentencing court imposes a sentence outside of the sentencing
guidelines, the court must provide in open court a contemporaneous
statement of reasons in support of its sentence.” Commonwealth v.
Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42 Pa.C.S. § 9721). A
claim that the sentencing court did not sufficiently state its reasons for the
sentence raises a substantial question. Commonwealth v. Twitty, 876
A.2d 433, 439 (Pa.Super.2005); see also Commonwealth v. Macias, 968
A.2d 773, 776 (Pa.Super.2009) (“The failure to set forth adequate reasons
for the sentence imposed has been held to raise a substantial question.”);
Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa.Super.2003) (an
allegation that a judge failed to offer specific reasons for a sentence raises a
substantial question).
Based on this authority, we conclude that Appellant raises a
substantial question for review because he asserts that the trial court did not
adequately place reasons on the record as to why it imposed the sentence it
did. We will therefore address the merits of Appellant’s discretionary
aspects of sentencing claim.
Where this Court reviews the sentence, we apply the following
standard of review:
-9-
J-S77019-14
[S]entencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias
or ill will. It is more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted). “[T]his Court’s review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and
(d).” Macias, 968 A.2d at 776-777.
Section 9781(c) of the Sentencing Code provides:
(c) Determination on appeal.--The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c) (emphasis provided).
Section 9781(d) of the Sentencing Code provides that when this Court
reviews the record on appeal, we must have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
- 10 -
J-S77019-14
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
As to the function of the Sentencing Guidelines, this Court has noted:
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, [592 Pa. 557, 570,] 926 A.2d 957, 965 (referring to the
Sentencing Guidelines as “advisory guideposts” which
“recommend ... rather than require a particular sentence”). The
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.[] § 9721(b).
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super.2008). “[A]
court can satisfy the requirement to prepare a contemporaneous written
statement of reasons for deviating from the sentencing guidelines by stating
- 11 -
J-S77019-14
those reasons on the record in the presence of the defendant.”
Commonwealth v. Jones, 942 A.2d 903, 908 (Pa.Super.2008).
When a sentence is outside the guidelines, therefore, our review
centers upon whether the sentence was unreasonable. 42 Pa.C.S. §
9781(c)(3). A sentence may be determined unreasonable after review of
the four elements contained in Section 9781(d) of the Sentencing Code or if
the sentencing court failed to consider the factors outlined in Section
9721(b) of the Sentencing Code.10 Macias, 968 A.2d at 777 (quoting
Walls, 926 A.2d at 963-964). “[W]hen the proper standard of review is
utilized, ‘rejection of a sentencing court’s imposition of sentence on
unreasonableness grounds [should] occur infrequently, whether the
sentence is above or below the guidelines ranges.’” Macias, 968 A.2d at
777 (quoting Walls, 926 A.2d at 964).
____________________________________________
10
Section 9721(b) of the Sentencing Code provides, in pertinent part:
(b) General standards.--In selecting from the alternatives set
forth in subsection (a), the court shall follow the general
principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the
defendant. The court shall also consider any guidelines for
sentencing and resentencing adopted by the Pennsylvania
Commission on Sentencing and taking effect under section
2155[.]
42 Pa.C.S. § 9721(b).
- 12 -
J-S77019-14
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. Instead, the trial court imposed a sentence that
was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
on the community, and considered Appellant’s rehabilitative needs, as
required by 42 Pa.C.S. § 9721(b).
The record in this case reveals that the trial court properly considered
all relevant sentencing factors in fashioning Appellant’s sentence outside of
the aggravated range of the sentencing guidelines. Specifically, the trial
court considered the sentencing guidelines, the nature and circumstances of
the offenses, Appellant’s background, character, and rehabilitative needs,
the protection of the public and the impact of the crimes, and the testimony
of various Commonwealth and defense witnesses at sentencing. See N.T.
10/28/2013, N.T. 12/17/2013.
At sentencing following Appellant’s motion for reconsideration, the trial
court explained the sentences imposed as follows:
THE COURT: All right. I have reviewed the sentencing
guidelines that were submitted to me at the time of the original
sentencing. I have reviewed the new sentencing guidelines that
were submitted to me with the corrected prior record score. I
reviewed my notes of the facts that were presented at the time
of the sentencing. I have reviewed -- I obviously have
considered the facts that were admitted here today.
I want to be clear on what has actually changed in terms
of the sentencing guidelines.
Let’s start with the possession with intent to deliver case,
2449 [sic] of 2013. The sentencing guidelines as they currently
- 13 -
J-S77019-14
read with [a] prior record score of one call for a standard range
of six to 14 for both possession with intent to deliver and
criminal conspiracy.
The sentence imposed by the [c]ourt of one to five is
within the standard range of those sentencing guidelines, so
nothing has changed in terms of the sentence the [c]ourt
imposed.
Nothing -- the fact that the guidelines have shifted haven’t
changed the standard range that was imposed.
The case of 2496 of 2013, the criminal trespass did call for
-- with a prior record score of two -- restorative sanctions to
nine months in the standard range. It now calls for restorative
sanctions to six months in the standard range.
With a prior record score of two it called for [an]
aggravated sentence of nine to 12. It now calls for [an]
aggravated sentence with [a] prior record score of one of six to
nine.
I notice -- I note that the sentence of the [c]ourt was
outside the sentencing guidelines when it was a prior record
score of two and, therefore, would be outside of the sentencing
guidelines with the corrected prior record score.
The crime of terroristic threats with a prior record score of
two called for a standard sentence of three to 14 months with an
aggravated sentence of 14 to 17 months. The sentence of the
[c]ourt exceeded those -- that sentencing guidelines range.
The sentencing guidelines now call with [a] prior record
score of one for a standard range of one to 12 and [an]
aggravated change [sic] range of 12 to 15. There is not a
significant difference in the sentencing guidelines with a prior
record score of two versus a prior record score of one.
In any case, the sentence imposed by the [c]ourt in both -
- even when it was a prior record score of two, the [c]ourt felt it
was important and necessary to exceed the guidelines based on
the fact that this individual has been involved in violent and
dangerous offenses since 1994. He has continued in his criminal
conduct despite the repeated intervention of law enforcement.
He has demonstrated his unwillingness to abide by the dictates
of the law regarding his presence on other people’s property.
- 14 -
J-S77019-14
He has specifically victimized this particular individual
before. It is supposed to be somebody he loves and cherishes,
but he has continued and, in my opinion, will continue to
victimize her in the future.
I find that he is a danger to the community and I find that
he will continue to engage in criminal offenses. It is necessary
to incarcerate him for an extended period of time to protect his
mother and to protect the community, and it is necessary to
incarcerate him for an extended period of time because he will
continue to reoffend as his criminal record going back to 1994
demonstrates.
So based on that on case [sic] -- and I incorporate all my
reasons as stated on the record at the time of the initial
sentencing.[11] In case 2449 [sic] of 2013, on the count of
possession with intent to deliver, [Appellant] is sentenced to pay
the cost of prosecution and shall undergo imprisonment for one
to five years. On [conspiracy to commit] possession with intent
to deliver, one to five years. On the conspiracy to deliver, those
sentences shall run consecutive to one another and not
concurrent.
On case 2496 of 2013, a felony committed while he was
pending sentence on the drug felony, I also find another
aggravating circumstance. On the count of criminal trespass, I
am sentencing outside the sentencing guidelines.
I have stated the reasons that I believe this case calls for a
sentence outside the aggravated range of the guidelines given
his criminal record, the fact that he was already pending
sentence as a drug dealer when he committed these crimes
against his mother, the fact that he has continued to repeatedly
engage in the same criminal conduct of defiant trespass and all
of the other reasons he is sentenced on the count of criminal
trespass to 18 to 36 months.
____________________________________________
11
The aggravating factors noted by the court at the original sentencing
conducted on October 28, 2013 included Appellant’s extensive criminal
record, the specific torturous nature of the physical harm with which he
threatened his mother, the fact that his felonious behavior against his
mother occurred while he was also charged with drug felonies, and his
complete lack of remorse. See N.T. 10/28/2013, pp. 68-76.
- 15 -
J-S77019-14
On the crime of terroristic threats he is sentenced to a
sentence of 18 to 36 months. Those sentences shall all run
consecutive to one another and not concurrently.
N.T. 12/17/2013, pp. 17-22.
While it is evident that Appellant’s sentence exceeded the guideline
ranges, we reiterate that the sentencing guidelines are but one, albeit
important, factor when determining an individualized sentence. See
Sheller, supra. Proper appellate review dictates this Court not disturb a
trial court’s sentence absent a finding that the trial court failed to weigh the
sentencing considerations in a meaningful fashion. When reviewing
sentencing matters, “[w]e must accord the sentencing court great weight as
it is in the best position to view the defendant’s character, displays of
remorse, defiance or indifference, and the overall effect and nature of the
crime.” Commonwealth v. Miller, 965 A.2d 276, 277 (Pa.Super.2009)
(citation omitted). Clearly, the trial court acted within its discretion.
Accordingly, Appellant’s discretionary aspects of sentencing claim fails.
In his second claim, Appellant alleges the trial court improperly
directed him to stay away from his mother as a part of his sentence because
the trial court lacked authority to enter such a condition. See Appellant’s
Brief, pp. 23-24. This claim raises a question as to the legality of the
sentence, which is a question of law over which we exercise de novo plenary
review. See Commonwealth v. Hawkins, 45 A.3d 1123, 1130
(Pa.Super.2012).
- 16 -
J-S77019-14
Our Legislature has vested exclusive authority in the Pennsylvania
Board of Probation and Parole (“Board”) over parole determinations for
prisoners sentenced to a maximum term of two years or more. 61 Pa.C.S. §
6132. The relevant statute provides, in pertinent part:
§ 6134. Sentencing court to transmit records to board
(b) Recommendations from judge.--
(1) A judge may make at any time a recommendation to
the board respecting the person sentenced and the term of
imprisonment the judge believes that person should be
required to serve before a parole is granted to that person.
(2) A recommendation made by a judge under
paragraph (1) respecting the parole or terms of
parole of a person shall be advisory only. No order in
respect to the recommendation made or attempted to be
made as a part of a sentence shall be binding upon the
board in performing the duties and functions conferred on
it by this chapter.
61 Pa.C.S. § 6134 (emphasis provided). Accordingly, a sentencing court
may make a recommendation to the Board at any time regarding a
prisoner’s parole date or the terms of parole. See 61 Pa.C.S. § 6134(b).
However, such recommendations are merely advisory. See id.
The trial court acknowledged that Appellant correctly challenged the
portion of his sentence that directed him to stay away from his mother, but
noted that the condition was merely advisory. See 1925(a) Opinion, p. 7.
The court noted:
On appeal, [Appellant] correctly challenges that portion of
the sentence imposed on Information number 2496-2013
directing that he have no contact with his mother upon his
release from incarceration. The Pennsylvania Board of Probation
- 17 -
J-S77019-14
and Parole has exclusive authority to determine parole when the
offender is sentenced to a maximum term of imprisonment of
two or more years. 61 Pa.C.S. § 6132. A judge may make a
recommendation to the board. However, “[a] recommendation
made by a judge respecting the parole or terms of parole of a
person shall be advisory only. No order in respect to the
recommendation made or attempted to be made as a part of a
sentence shall be binding upon the board in performing the
duties and functions conferred upon it.” 61 Pa.C.S. §
6134(b)(2). Therefore, any condition this [c]ourt purported to
impose on [Appellant] is advisory only.
1925(a) Opinion, pp. 6-7. The Commonwealth agrees that the trial court
improperly imposed the stay-away condition on Appellant, but suggests that
remand for sentencing is unnecessary because the condition did not affect
Appellant’s aggregate sentence. See Commonwealth’s Brief, pp. 17-18.
We agree that the trial court lacked authority to impose the condition
that Appellant stay away from his mother while on parole as part of his
sentence, and we vacate this condition of his sentence. See 42 Pa.C.S. §
706 (“An appellate court may affirm, modify, vacate, set aside or reverse
any order brought before it for review[.]”). Remand is unnecessary,
however, as our correction of the sentence does not alter the trial court’s
sentencing structure. See Commonwealth v. Thur, 906 A.2d 552, 569
(Pa.Super.2006) (explaining that, if Superior Court decision does not alter
the overall sentencing scheme, remand is not required).
Sentence condition that Appellant must stay away from his mother
while on parole vacated. Judgment of sentence affirmed in all other
respects.
- 18 -
J-S77019-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
- 19 -