The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARTOR BROWN :
:
Appellant : No. 2759 EDA 2017
Appeal from the Judgment of Sentence July 5, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000915-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 05, 2019
Gartor Brown appeals from the judgement of sentence entered in the
Chester County Court of Common Pleas on July 5, 2017. He argues the court
abused its discretion in sentencing Brown outside the standard guidelines
range thereby fashioning an excessive sentence without addressing his
rehabilitative needs. He also argues the court abused its discretion in relying
on impermissible factors when imposing an aggravated range sentence. We
affirm.
On June 14, 2017, following a non-jury trial, Brown was found guilty of
aggravated harassment by prisoner. He was found not guilty of possessing an
instrument of crime. On July 5, 2017, Brown was sentenced to 24-28 months
in prison. During the same hearing, he was also sentenced for unrelated
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charges of Burglary, Theft by Unlawful Taking and Criminal Trespass. The
sentences were imposed to run consecutively.
On July 14, 2017, Brown filed a motion to modify sentence. The trial
court denied his motion. This timely appeal followed.
On appeal, Brown raises two challenges to the trial court’s exercise of
discretion in imposing sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We 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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
internal citations omitted). Brown has satisfied the first three requirements:
he timely filed a notice of appeal, he sought reconsideration of his sentence in
a post-sentence motion, and he has included a Rule 2119(f) statement in his
brief to this Court. We next consider whether he has raised a substantial
question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
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exists only when the appellant advances a colorable argument that the
sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Foust, 180 A.3d
416, 439 (Pa. Super. 2018) (citation omitted).
First, Brown argues that the trial court abused its discretion by
sentencing him outside the standard guideline range thereby fashioning an
excessive sentence without addressing his rehabilitative needs as required by
42 Pa. C.S.A. 9721(b). Appellant’s brief, at 14. The guideline range here was
twelve to eighteen months in the standard range, plus or minus six in the
aggravated or mitigated range.1 Brown was sentenced within the aggravated
range, at twenty-four to forty-eight months.
A “bald assertion that a sentence is excessive does not by itself raise a
substantial question justifying this Court’s review of the merits of the
underlying claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012) (citation omitted). However, an excessive sentence claim, in
conjunction with a claim that the trial court failed to properly consider
mitigating factors, raises a substantial question. See Commonwealth v.
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1 Based on the guidelines that have been adopted by the Pennsylvania
Commission on Sentencing, this range would indicate a prior record score of
three. We could not independently verify the prior record score based on the
record in front of us, but note that this range has been uncontested. See
Appellant’s Brief, at 4.
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Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Here, Brown argues that the
sentence is excessive, and that the trial court failed to adequately consider his
rehabilitative needs. Pursuant to Raven, he has raised a substantial question,
and we proceed to address the substance of his argument.
Brown centers his first issue around the contention that the trial court
failed to adequately consider his rehabilitative needs. The trial court made it
clear at sentencing that one of its main concerns was that Brown repeatedly
committed crimes while on probation and parole, and thus has not been
amenable to rehabilitation while under supervision. See N.T., Sentencing,
7/5/17, at 16. Admittedly, the sentencing court did not explicitly address
Brown’s rehabilitative needs. However, the court concluded, “The problem is
you’re committing crimes while you’re on probation and parole. And that to
me is an aggravating factor.” Id., at 16. Thus, the court considered Brown’s
rehabilitative needs; it merely found they he had failed to be amenable to
rehabilitation as evidenced by his supervision status at the time of the current
offense, and prior offenses.
Further, we note that the trial court reviewed a pre-sentence report.
Where the trial court had the benefit of reviewing a pre-sentence report, we
must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
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sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence report, the
sentencing court’s discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can
be demonstrated that the judge had any degree of awareness of
the sentencing considerations, and there we will presume also that
the weighing process took place in a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at
hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). As the trial court
in this case had the benefit of a pre-sentence report2, combined with the trial
court’s explicit consideration of Brown’s probationary status at the time of his
offenses, the seriousness of the offense, and the impact on the victim, we
conclude that it considered all relevant sentencing factors. Thus, Brown’s first
issue on appeal merits no relief.
In his final argument, Brown contends the trial court relied upon
impermissible factors in imposing an aggravated sentence. Specifically, he
argues the trial court relied on his prior convictions and the elements of the
offense in imposing an aggravated sentence. A claim that a sentencing court
imposed a sentence outside the standard guidelines without stating adequate
reasons on the record presents a substantial question. See Commonwealth
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2Brown did not note any changes or corrections to the pre-sentence report
when given the opportunity. See N.T., Sentencing, 7/5/17, at 2.
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v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citation omitted).
Therefore, we conclude that Brown has presented a substantial question.
Brown’s argument challenges the imposition of a term of imprisonment
in the aggravated range of the sentencing guidelines. For such challenges, the
following standard of review has been set forth.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).
It is well-established that Pennsylvania has an indeterminate guided
sentencing scheme. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117
(Pa. 2007). The sentencing judge is required to consider the sentencing
guidelines that have been adopted by the Pennsylvania Commission on
Sentencing. See 42 Pa.C.S.A. § 9721(b). It is recognized however that the
sentencing guidelines are purely advisory in nature and are merely one factor
among many that the court must consider in imposing a sentence. See
Yuhasz, 923 A.2d at 1118. “[A] trial court judge 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.” Shugars, 895 A.2d at 1275.
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It is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing
or decreasing a sentence to the aggravated or mitigated range.
Trial courts are permitted to use prior conviction history and other
factors already included in the guidelines, if they are used to
supplement other extraneous sentencing information.
Id., at 1275 (quotation omitted).
In imposing sentence, the trial court provided the following reasoning.
The other victim is the prison guard, Correctional Officer
McGroaty. And whether Mr. Brown knew it or not, the fact of
throwing feces on him clearly frightened Mr. McGroaty. As a prison
guard you expect certain indignities, but not that. He really had
no connection to Mr. Brown. He happened to be the guy on shift
to get your food from you.
If you look at the seriousness of the crime, it’s a very serious crime
to do that. Imagine you or anybody else, a member of your family,
someone came up on the street and flung feces at them, how
upset they would be. It’s a very dangerous crime. On the danger
to the public, the last factor, other than the theft, but basically in
2011 you had a criminal trespass, 2012 a loitering, 2015
marijuana, 2015 receiving stolen property, 2016 identity theft,
2016 receiving stolen property. The problem is you’re committing
crimes while you’re on probation and parole. And that to me is an
aggravating factor.
N.T., Sentencing, 7/5/17, at 16.
We conclude the record belies Brown’s claim. First, the sentencing court
did not rely on his prior convictions as the sole reason for imposing aggravated
range sentences. While the trial court did consider Brown’s prior criminal
history in a negative light, it conditioned this consideration on the fact that
Brown repeatedly committed crimes while on supervision, indicating that
Brown had consistently failed to rehabilitate himself in any manner. This is a
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circumstance distinct from the purely mechanical consideration of a prior
record score. Furthermore, the trial court noted his history of committing
offenses while on probation and parole to demonstrate the danger he presents
the public. That the court may not exclusively use criminal history in
sentencing does not mean that it must ignore it.
As we have concluded that the court relied on permissible factors in
sentencing Brown in the aggravated range, we find his contention that the
court impermissibly relied on elements already included in the offense equally
without merit. Although the court noted elements of the offense, they were
not the only factors relied upon in sentencing Brown in the aggravated range.
Further, the court considered the elements of the offense to demonstrate the
impact the offense had on the victim, a permissible consideration under the
sentencing code. See id., at 16; See also 42 Pa. C.S.A. 9721(b).
The circumstances are certainly sufficient to justify the trial court’s
aggravated sentence. We conclude that the trial court did not abuse its
discretion, and therefore Brown’s final argument merits no relief.
As we conclude none of Brown’s issues on appeal merit relief, we affirm
the judgement of sentence.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/19
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