J-S07024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NATHAN HOYE : : Appellant : No. 913 WDA 2021
Appeal from the Judgment of Sentence Entered April 22, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004077-2018
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: May 6, 2022
Nathan Hoye (“Hoye”) appeals from the judgment of sentence imposed
following his convictions for aggravated assault and assault by prisoner.1 We
vacate the judgment of sentence and remand for resentencing.
The relevant factual and procedural history can be summarized as
follows. Hoye was incarcerated in Allegheny County Jail in January 2018, and
one evening, he threatened to harm himself. Corrections officers put him in
a “suicide gown” and placed him in a “processing cell.” N.T., 5/6/19, at 7-8.
Officers ordered Hoye to submit to handcuffing, but he refused. Instead,
Hoye, an HIV-positive inmate, reached into his toilet and threw urine on one
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2702(a)(3), 2703(a). J-S07024-22
of the officers, striking him in the upper torso and head. See id. at 7-8; N.T.,
8/6/19, at 18. The officer was transported to the emergency department at
UPMC Mercy for treatment. N.T., 5/6/19, at 8. The Commonwealth charged
Hoye with, among other crimes, aggravated assault and assault by prisoner.
He later pleaded guilty to these two offenses. The court imposed a
consecutive 40-to-80-month sentence on each count, for an aggregate
sentence of 80 to 160 months of imprisonment. See N.T., 8/6/19, at 23. The
sentence imposed on each count was above the aggravated range.
Hoye filed a direct appeal of his sentence. This Court vacated the
judgment of sentence and remanded for resentencing because the lower court
failed to determine Hoye’s eligibility under the Recidivism Risk Reduction
Incentive (“RRRI”) Act.2 See Commonwealth v. Hoye, 249 A.3d 1157 (Pa.
Super. 2021) (unpublished memorandum).3 The sentencing court held a
resentencing hearing and determined Hoye was RRRI ineligible. Relying on
its prior reasoning, it reimposed the same sentence. See N.T., 4/22/21, at 7.
Hoye filed a post-sentence motion, which the court denied. Hoye then timely
appealed; both he and the trial court complied with Pa.R.A.P. 1925.
2 See 61 Pa.C.S.A. §§ 4501 – 4512.
3 Hoye also challenged the discretionary aspects of his sentence. But, given our disposition, we concluded this second issue was moot, and we therefore did not address it. See id. at *2 n.4.
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Hoye presents the following issue for our review: “Did the sentencing
court abuse its discretion in sentencing [him] to 80 to 160 months of
incarceration?” Hoye’s Brief at 3 (unnecessary capitalization omitted).
Hoye’s issue presents a challenge to the discretionary aspects of his
sentence. A challenge to the discretionary aspects of a sentence does not
entitle an appellant to review as of right. See Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Rather, such a challenge must be
considered a petition for permission to appeal. See Commonwealth v.
Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the
merits of a discretionary sentencing issue,
[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).
Moury, 992 A.2d at 170 (internal citation and brackets omitted).
In this case, Hoye timely appealed his judgment of sentence, preserved
his discretionary sentencing challenge in a post-sentence motion, and included
a Rule 2119(f) statement in his brief. We will therefore review Hoye’s Rule
2119(f) statement to determine whether he has raised a substantial question
for our review. See Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa.
Super. 2000) (en banc) (holding that this Court reviews the Rule 2119(f)
statement to determine whether appellant has raised a substantial question).
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In his Rule 2119(f) statement, Hoye alleges that the sentencing court
imposed a sentence at each count that was above the aggravated range of
the sentencing guidelines without stating its reasons for doing so on the
record. This claim raises a substantial question. See Commonwealth v.
Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009) (explaining that a trial
court’s alleged failure to state on the record its reasons for deviating from the
guidelines presents a substantial question). We therefore grant Hoye
permission to appeal the discretionary aspects of his aggravated assault and
assault by prisoner sentences and proceed to review the issue on its merits.
Our standard of review for a challenge to the discretionary aspects of a
sentence is as follows:
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.
Garcia-Rivera, 983 A.2d at 780 (internal citations omitted).
While a sentencing court may deviate from the sentencing guidelines,
the court must place on the record its reasons for the deviation. See 42
Pa.C.S.A. § 9721(b). Further, an upward deviation from the guidelines also
requires the following:
[T]he court must demonstrate that it understands the sentencing guidelines ranges . . . [and it] must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of
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sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.
Garcia-Rivera, 983 A.2d at 780 (internal citations and quotations omitted).
A sentencing court’s failure to state on the record the reasons for its deviation
from the guidelines is grounds for vacating the sentence and remanding for
resentencing. See 42 Pa.C.S.A. § 9721(b); see also Commonwealth v.
Mrozik, 213 A.3d 273, 278 (Pa. Super. 2019) (vacating a judgment of
sentence and remanding for resentencing where the sentencing court “did not
state its reasons for imposing an aggravated-range sentence on the record or
on the Guidelines Sentence Form”).
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J-S07024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NATHAN HOYE : : Appellant : No. 913 WDA 2021
Appeal from the Judgment of Sentence Entered April 22, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004077-2018
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: May 6, 2022
Nathan Hoye (“Hoye”) appeals from the judgment of sentence imposed
following his convictions for aggravated assault and assault by prisoner.1 We
vacate the judgment of sentence and remand for resentencing.
The relevant factual and procedural history can be summarized as
follows. Hoye was incarcerated in Allegheny County Jail in January 2018, and
one evening, he threatened to harm himself. Corrections officers put him in
a “suicide gown” and placed him in a “processing cell.” N.T., 5/6/19, at 7-8.
Officers ordered Hoye to submit to handcuffing, but he refused. Instead,
Hoye, an HIV-positive inmate, reached into his toilet and threw urine on one
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2702(a)(3), 2703(a). J-S07024-22
of the officers, striking him in the upper torso and head. See id. at 7-8; N.T.,
8/6/19, at 18. The officer was transported to the emergency department at
UPMC Mercy for treatment. N.T., 5/6/19, at 8. The Commonwealth charged
Hoye with, among other crimes, aggravated assault and assault by prisoner.
He later pleaded guilty to these two offenses. The court imposed a
consecutive 40-to-80-month sentence on each count, for an aggregate
sentence of 80 to 160 months of imprisonment. See N.T., 8/6/19, at 23. The
sentence imposed on each count was above the aggravated range.
Hoye filed a direct appeal of his sentence. This Court vacated the
judgment of sentence and remanded for resentencing because the lower court
failed to determine Hoye’s eligibility under the Recidivism Risk Reduction
Incentive (“RRRI”) Act.2 See Commonwealth v. Hoye, 249 A.3d 1157 (Pa.
Super. 2021) (unpublished memorandum).3 The sentencing court held a
resentencing hearing and determined Hoye was RRRI ineligible. Relying on
its prior reasoning, it reimposed the same sentence. See N.T., 4/22/21, at 7.
Hoye filed a post-sentence motion, which the court denied. Hoye then timely
appealed; both he and the trial court complied with Pa.R.A.P. 1925.
2 See 61 Pa.C.S.A. §§ 4501 – 4512.
3 Hoye also challenged the discretionary aspects of his sentence. But, given our disposition, we concluded this second issue was moot, and we therefore did not address it. See id. at *2 n.4.
-2- J-S07024-22
Hoye presents the following issue for our review: “Did the sentencing
court abuse its discretion in sentencing [him] to 80 to 160 months of
incarceration?” Hoye’s Brief at 3 (unnecessary capitalization omitted).
Hoye’s issue presents a challenge to the discretionary aspects of his
sentence. A challenge to the discretionary aspects of a sentence does not
entitle an appellant to review as of right. See Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Rather, such a challenge must be
considered a petition for permission to appeal. See Commonwealth v.
Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the
merits of a discretionary sentencing issue,
[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).
Moury, 992 A.2d at 170 (internal citation and brackets omitted).
In this case, Hoye timely appealed his judgment of sentence, preserved
his discretionary sentencing challenge in a post-sentence motion, and included
a Rule 2119(f) statement in his brief. We will therefore review Hoye’s Rule
2119(f) statement to determine whether he has raised a substantial question
for our review. See Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa.
Super. 2000) (en banc) (holding that this Court reviews the Rule 2119(f)
statement to determine whether appellant has raised a substantial question).
-3- J-S07024-22
In his Rule 2119(f) statement, Hoye alleges that the sentencing court
imposed a sentence at each count that was above the aggravated range of
the sentencing guidelines without stating its reasons for doing so on the
record. This claim raises a substantial question. See Commonwealth v.
Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009) (explaining that a trial
court’s alleged failure to state on the record its reasons for deviating from the
guidelines presents a substantial question). We therefore grant Hoye
permission to appeal the discretionary aspects of his aggravated assault and
assault by prisoner sentences and proceed to review the issue on its merits.
Our standard of review for a challenge to the discretionary aspects of a
sentence is as follows:
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.
Garcia-Rivera, 983 A.2d at 780 (internal citations omitted).
While a sentencing court may deviate from the sentencing guidelines,
the court must place on the record its reasons for the deviation. See 42
Pa.C.S.A. § 9721(b). Further, an upward deviation from the guidelines also
requires the following:
[T]he court must demonstrate that it understands the sentencing guidelines ranges . . . [and it] must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of
-4- J-S07024-22
sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.
Garcia-Rivera, 983 A.2d at 780 (internal citations and quotations omitted).
A sentencing court’s failure to state on the record the reasons for its deviation
from the guidelines is grounds for vacating the sentence and remanding for
resentencing. See 42 Pa.C.S.A. § 9721(b); see also Commonwealth v.
Mrozik, 213 A.3d 273, 278 (Pa. Super. 2019) (vacating a judgment of
sentence and remanding for resentencing where the sentencing court “did not
state its reasons for imposing an aggravated-range sentence on the record or
on the Guidelines Sentence Form”).
Hoye contends the sentencing court “failed to properly consider” the
section 9721(b) sentencing factors, given the court “did not disclose in open
court at the time of sentencing why the sentence imposed . . . at both counts
fell above the aggravated range” of the sentencing guidelines. Hoye’s Brief at
15. Hoye observes that the sentence for the aggravated assault conviction
exceeded the aggravated range by over a year, and the sentence for the
assault by prisoner conviction exceeded the aggravated range by ten months.
Id. at 15-16. He argues that the only statements made by the court at the
sentencing hearing relate to the nature of the crime. Id. at 17. He also
observes that the sentencing court informed the parties that it had not read
the most recent presentence investigation report (“PSI”). Id. at 18.
-5- J-S07024-22
The sentencing court considered Hoye’s discretionary sentencing claim
and dismissed it as meritless. The court explained in its Rule 1925(a) opinion
the reasons why it imposed sentences above the aggravated range, including,
among other things, Hoye’s throwing urine at a prison guard while being HIV
positive, and his failure to avail himself of resources in Allegheny County’s
mental health court. See Trial Court Opinion, 9/14/20, at 4. The sentencing
court additionally claimed that its “statement on the record of the reasons for
th[e] sentence[s] reflect this [same] consideration.” Id. at 4.4
Our review of the record discloses that the sentencing court did not
provide the reasons for its decision to sentence Hoye above the aggravated
range of the sentencing guidelines. As explained above, when the sentencing
court imposes a sentence outside the sentencing guidelines, it must set forth
on the record, and in the defendant’s presence, the permissible range of
sentences under the guidelines. It must also give the factual basis and specific
reasons which compelled it to deviate from the sentencing guidelines. The
4 The sentencing court—which only determined Hoye’s RRRI eligibility on remand—relied upon the reasoning from the initial sentencing hearing. See Trial Court Opinion, 10/4/21, at 4. Hoye alleges the court failed to explain its reasoning for the aggravated sentence at the initial sentencing and consequently on resentencing.
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sentencing court, however, failed to do so.5 It is therefore necessary that we
vacate the judgment of sentence at both counts and remand for resentencing.
Judgment of sentence vacated; case remanded for resentencing in
accordance with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/6/2022
5 We acknowledge the sentencing court explained the reasons for its sentence in its 1925(a) opinion. See Trial Court Opinion, 9/14/20, at 3-4. But “a sentencing court’s reasons for a particular sentence must be given contemporaneously with the imposition of the sentence. A more extensive explanation in an opinion filed pursuant to Rule 1925(a) will not cure a failure to articulate reasons at the time of sentencing.” Commonwealth v. Serrano, 150 A.3d 470, 475 n.7 (Pa. Super. 2016) (internal citation omitted).
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