Com. v. Peterson, R.

• Court: Superior Court of Pennsylvania
• Decided: February 8, 2018
• Docket: 1319 MDA 2017
• Status: Unpublished

Opinion

J-S84029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDELL LAMAR PETERSON : : Appellant : No. 1319 MDA 2017

Appeal from the Judgment of Sentence March 30, 2017 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001367-2014

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 08, 2018

Randell Lamar Peterson appeals from his judgment of sentence, entered

in the Court of Common Pleas of Lycoming County, after he entered an open

guilty plea to numerous drug-related charges at docket number CR-1367-

2014 (the “2014 charges”).1 Upon careful review, we affirm.

The charges in this matter arise from Peterson’s sale of cocaine to a

confidential informant. After his arrest, law enforcement officers searched

Peterson’s apartment and discovered heroin and cocaine, packaged for sale.

On July 18, 2016, Peterson entered an open guilty plea to the 2014 charges,

as well as charges related to docket number CR-652-2015 (the “2015

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1 Peterson pled guilty to three counts of possession with intent to deliver, 35 P.S. § 780-113(a)(30); two counts each of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession of drug paraphernalia, 35 P.S. § 780-113(a)(32); and one count of delivery of a controlled substance, 35 P.S. § 780-113(a)(30). J-S84029-17

charges”). Under the plea agreement with respect to the 2015 charges, the

Commonwealth had agreed to a sentence of 2 to 5 years’ incarceration, in

exchange for Peterson’s agreement to waive eligibility for the Recidivism Risk

Reduction Incentive (“RRRI”) program and boot camp, enter an open plea to

the 2014 charges, and serve his sentence on the 2015 charges consecutively

to that on his 2014 charges.

On September 27, 2016, Peterson appeared for sentencing. After the

court pronounced sentence on the 2015 charges, Peterson stated that he did

not understand that the plea agreement did not encompass the 2014 charges

and asked to withdraw his plea at that docket. However, on March 20, 2017,

the date set for argument on Peterson’s motion to withdraw his plea, he

agreed to be sentenced on the 2014 charges. As a result, Peterson received

an aggregate sentence of 45 to 96 months’ incarceration, consecutive to his

sentence on the 2015 charges. The court made Peterson RRRI eligible at a

minimum of 37 months and fifteen days. Peterson filed post-sentence

motions, which were denied. Peterson filed a timely notice of appeal on

August 17, 2017. Both Peterson and the trial court have complied with

Pa.R.A.P. 1925.

On appeal, Peterson claims that his sentence is “manifestly excessive

and unduly harsh” because the court did not give meaningful consideration to

all the sentencing factors, including Peterson’s personal situation. This claim

raises a challenge to the discretionary aspects of Peterson’s sentence. Such

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a claim does not entitle an appellant to review as a matter of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

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. Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

Here, Peterson filed a post-sentence motion raising his sentencing claim,

followed by a timely notice of appeal to this Court. He has also included in his

brief a concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). Accordingly, we must now determine whether he has raised a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “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

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(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citation and quotation marks omitted).

In his Rule 2119(f) statement, Peterson asserts that his sentence is

unreasonable because the sentencing court failed to consider all relevant

factors, such as Peterson’s learning disability, addiction recovery and time

already spent in prison. This issue, that the sentencing court failed to consider

all mitigating factors, does not raise a substantial question. See

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“[T]his

Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”); see also Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014) (“[W]e have held that a claim that a court did not weigh the

factors as an appellant wishes does not raise a substantial question.”).

Accordingly, we do not address the merits of Peterson’s claim.

Even if we were to determine that Peterson’s claim raised a substantial

question, he would be entitled to no relief. Peterson, who had a prior record

score of 5, was sentenced at the low end of the standard range of the

Sentencing Guidelines. Peterson could have been subject to a maximum

sentence of 35 years; he received a maximum of 8 years. The court was in

possession of a presentence investigation report (“PSI”) and cited extensively

to the PSI – including acknowledging Peterson’s learning disability, his

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previous time spent in prison and his addiction issues – at Peterson’s

sentencing hearing. See N.T. Sentencing, 3/30/17, at 5-8. Where the court

has the benefit of a PSI, we may assume it “was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988). Moreover, where the sentencing court imposed a standard-

range sentence with the benefit of a PSI, we will not consider the sentence

excessive. Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).

Peterson also made an extensive statement to the court in which he

repeatedly noted his learning disability and his efforts to obtain treatment and

change his life. In sum, the court considered all the mitigating factors noted

by Peterson on appeal and imposed a sentence that was not excessive under

the circumstances. Peterson is entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/08/2018

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