J-S11020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DOMINQUE CHARLES ARTURE : : Appellant : No. 1016 WDA 2020
Appeal from the Judgment of Sentence Entered July 1, 2020, in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP-02-CR-0006939-2019.
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 8, 2021
Dominque Charles Arture appeals from the judgment of sentence
imposed following his guilty plea to person not to possess a firearm.1 Upon
review, we affirm.
On June 11, 2019, Arture was pulled over on Saw Mill Run Boulevard,
Allegheny County, Pennsylvania, for a missing passenger side mirror. Once
pulled over, the detectives observed Arture leaning his body forward, toward
the lower part of the steering column, and moving his arms. The officers
asked Arture and his passenger to get out of the vehicle. Upon conducting a
pat down of Arture, the detective found a handgun. Arture did not have a
concealed carry permit for the firearm and was not permitted to possess a ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1). J-S11020-21
firearm due to a prior conviction. Arture was arrested and charged with
various firearm and driving offenses.
On November 18, 2019, Arture pled guilty to person not to possess a
firearm. The trial court sentenced Arture to 4 to 8 years of incarceration.
Arture filed a post-sentence motion which the court denied.
Arture filed this timely appeal. The trial court and Arture complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Arture raises the following single issue:
I. The sentence of total confinement was unreasonable and an abuse of discretion because it was manifestly excessive and contrary to the dictates of the Sentencing Code as a whole, where the Court failed to consider Arture’s rehabilitative needs, unique history and circumstances, and his network of support, and focused solely on the need to protect society, the gravity of the offense, and placed undue weight on a prior incident that involved a BB gun.
Arture’s Brief at 6.
Arture challenges the discretionary aspects of his sentence. Challenges
to the discretionary aspects of sentencing do not entitle an appellant to
appellate review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912
(Pa. Super. 2000). This Court has explained that, to reach the merits of a
discretionary sentencing issue, we must conduct a four-part analysis to
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement
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raises a substantial question that the sentence is appropriate under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Arture satisfied the first three requirements under Colon.
Accordingly, we must consider whether Arture’s claim raises a substantial
question. A substantial question 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. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013) (citations
and quotations omitted). The existence of a substantial question must be
determined on a case-by-case basis. Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
In his 2119(f) statement, Arture claims that the trial court abused its
discretion in sentencing him. Specifically, he argues that the trial court’s
sentence of total confinement was excessive and did not consider certain
applicable mitigating factors and Arture’s rehabilitative needs. Arture’s Brief
at 14. Instead, the court unduly focused on the seriousness of Arture’s crime
and his participation in a prior robbery involving just a BB gun. Id.
We conclude that Arture has presented a substantial question invoking
our appellate jurisdiction of his discretionary sentencing claim. Allegations
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that the trial court failed to consider the relevant factors set forth in Section
9721(b), and imposed a “manifestly excessive and unreasonable sentence,”
raise a substantial question for our review. See Commonwealth v. Roane,
204 A.3d 998, 1002 (Pa. Super. 2019). Additionally, this Court has held that
a claim that the sentence is excessive because the trial court relied on
impermissible factors raises a substantial question. Commonwealth v.
Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). “[I]t 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.” Commonwealth v. Simpson,
829 A.2d 334, 339 (Pa. Super. 2003) (citations omitted). We therefore will
address the merits of Arture’s claim.
Our standard of review when deciding a sentencing claim is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing court, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion, which in this context, is not shown merely to be 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. Shull, 148 A.3d 820, 832 (Pa. Super. 2016). Based upon
our review of the record, we conclude that the trial court did not abuse its
discretion when it sentenced Arture.
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We first observe that, in sentencing Arture, the trial court had the
benefit of a presentence investigation report. The trial court specifically noted
that it reviewed that report in its entirety. N.T., 7/1/20, at 16. Where, as
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J-S11020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DOMINQUE CHARLES ARTURE : : Appellant : No. 1016 WDA 2020
Appeal from the Judgment of Sentence Entered July 1, 2020, in the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP-02-CR-0006939-2019.
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 8, 2021
Dominque Charles Arture appeals from the judgment of sentence
imposed following his guilty plea to person not to possess a firearm.1 Upon
review, we affirm.
On June 11, 2019, Arture was pulled over on Saw Mill Run Boulevard,
Allegheny County, Pennsylvania, for a missing passenger side mirror. Once
pulled over, the detectives observed Arture leaning his body forward, toward
the lower part of the steering column, and moving his arms. The officers
asked Arture and his passenger to get out of the vehicle. Upon conducting a
pat down of Arture, the detective found a handgun. Arture did not have a
concealed carry permit for the firearm and was not permitted to possess a ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1). J-S11020-21
firearm due to a prior conviction. Arture was arrested and charged with
various firearm and driving offenses.
On November 18, 2019, Arture pled guilty to person not to possess a
firearm. The trial court sentenced Arture to 4 to 8 years of incarceration.
Arture filed a post-sentence motion which the court denied.
Arture filed this timely appeal. The trial court and Arture complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Arture raises the following single issue:
I. The sentence of total confinement was unreasonable and an abuse of discretion because it was manifestly excessive and contrary to the dictates of the Sentencing Code as a whole, where the Court failed to consider Arture’s rehabilitative needs, unique history and circumstances, and his network of support, and focused solely on the need to protect society, the gravity of the offense, and placed undue weight on a prior incident that involved a BB gun.
Arture’s Brief at 6.
Arture challenges the discretionary aspects of his sentence. Challenges
to the discretionary aspects of sentencing do not entitle an appellant to
appellate review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912
(Pa. Super. 2000). This Court has explained that, to reach the merits of a
discretionary sentencing issue, we must conduct a four-part analysis to
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]pellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement
-2- J-S11020-21
raises a substantial question that the sentence is appropriate under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Arture satisfied the first three requirements under Colon.
Accordingly, we must consider whether Arture’s claim raises a substantial
question. A substantial question 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. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013) (citations
and quotations omitted). The existence of a substantial question must be
determined on a case-by-case basis. Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
In his 2119(f) statement, Arture claims that the trial court abused its
discretion in sentencing him. Specifically, he argues that the trial court’s
sentence of total confinement was excessive and did not consider certain
applicable mitigating factors and Arture’s rehabilitative needs. Arture’s Brief
at 14. Instead, the court unduly focused on the seriousness of Arture’s crime
and his participation in a prior robbery involving just a BB gun. Id.
We conclude that Arture has presented a substantial question invoking
our appellate jurisdiction of his discretionary sentencing claim. Allegations
-3- J-S11020-21
that the trial court failed to consider the relevant factors set forth in Section
9721(b), and imposed a “manifestly excessive and unreasonable sentence,”
raise a substantial question for our review. See Commonwealth v. Roane,
204 A.3d 998, 1002 (Pa. Super. 2019). Additionally, this Court has held that
a claim that the sentence is excessive because the trial court relied on
impermissible factors raises a substantial question. Commonwealth v.
Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). “[I]t 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.” Commonwealth v. Simpson,
829 A.2d 334, 339 (Pa. Super. 2003) (citations omitted). We therefore will
address the merits of Arture’s claim.
Our standard of review when deciding a sentencing claim is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing court, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion, which in this context, is not shown merely to be 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. Shull, 148 A.3d 820, 832 (Pa. Super. 2016). Based upon
our review of the record, we conclude that the trial court did not abuse its
discretion when it sentenced Arture.
-4- J-S11020-21
We first observe that, in sentencing Arture, the trial court had the
benefit of a presentence investigation report. The trial court specifically noted
that it reviewed that report in its entirety. N.T., 7/1/20, at 16. Where, as
here, the court is in possession of a presentence report (PSI), we “‘presume
that the sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with mitigating
statutory factors.’” Commonwealth v. Watson, 228 A.3d 928, 936 (Pa.
Super. 2020) (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988). Notwithstanding this, our review of the record reveals that the trial
court considered the relevant sentencing and mitigating factors when it
sentenced Arture.
As Arture observes, the trial court clearly considered the seriousness of
the instant offense, coupled with Arture’s previous guilty plea to robbery for
holding up a Rite Aid employee at gunpoint. Although the gun used during
that incident was allegedly a BB gun, the court still viewed it as a very serious
offense. However, contrary to Arture’s claim, the trial court did not focus only
on these factors.
The court specifically noted that Arture suffered from post-traumatic
stress disorder. It also acknowledged Arture’s addiction and considered a
proposed long-term treatment placement program for him. But, because the
mitigated range called for 48 months of incarceration, the court was not willing
to place him in such a program which would release him in a short time. See
N.T., 7/1/20, at 9-10, 16. The court further noted that with Arture’s second
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serious conviction, it had “grave concerns about where Mr. Arture is going in
his life,” and further observed that Arture’s conduct in this case “demonstrates
that [he] is not amenable to rehabilitation within the community.” Id. at 16;
Trial Court Opinion, 12/2/20, at 5. Consequently, the court was not inclined
to give him a lesser sentence than the mitigated range as dictated by Arture’s
prior record score and the offense gravity score.2 Trial Court Opinion,
12/2/20, at 4. Nonetheless, because Arture pled guilty in this case, the trial
court sentenced him in the mitigated range with no consecutive term of
probation. N.T., 7/1/20, at 16-17. The trial court explained: “the mitigated
range sentence of 4 to 8 years reflects this [c]ourt’s concerns for both
[Arture’s] need for treatment in a secure environment as well as the safety of
the community.” Trial Court Opinion, 12/2/20, at 5.
Based upon our review, we find that the court’s sentence thoughtfully
considered and rationally balanced the relevant factors in this case. On
appeal, “[w]e cannot re-weigh the sentencing factor’s and impose our
judgment in place of the sentencing court.” Commonwealth v. Macias, 968
A.2d 773, 778 (Pa. Super. 2009). We therefore conclude that the trial court
did not abuse its discretion in sentencing Arture, and his claim merits no relief.
Judgment of sentence affirmed.
____________________________________________
2 With an offense gravity score (OGS) of 11 and a prior record score (PRS) of
4, the guidelines for person not to possess provide for a mitigated range of 48 to 60 months, a standard range of 60 to 78 months, and an aggravated range of 78 to 90 months. See 204 Pa.Code § 303.16.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/8/2021
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