Com. v. Tramel, N.

• Court: Superior Court of Pennsylvania
• Decided: December 24, 2018
• Docket: 2118 EDA 2016
• Status: Unpublished

Opinion

J-S36020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NADIR TRAMEL, : : Appellant : No. 2118 EDA 2016

Appeal from the Judgment of Sentence June 2, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0001031-2015

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 24, 2018

Appellant, Nadir Tramel, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas after he entered

an open guilty plea to Robbery, Criminal Conspiracy, Persons Not to Possess

Firearms, and Carrying a Firearm Without a License.1 On appeal, he

challenges the discretionary aspects of his sentence. After careful review, we

affirm.

Briefly, on December 5, 2014, Appellant and an unidentified conspirator

robbed the victim of $5 and a Kindle tablet using a gun. Appellant pointed

the gun at the victim’s neck during the robbery and warned the victim not to

move while his conspirator searched the victim’s pockets in an alley.

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118 Pa.C.S. § 3701(a)(1); 18 Pa.C.S. § 903; 18 Pa.C.S. § 6105(a)(1); and 18 Pa.C.S. § 6106(a)(1), respectively. J-S36020-18

After the victim escaped and reported the crime, police located Appellant

and his conspirator nearby. They both fled from police. As he was running,

Appellant tossed the firearm, which police later recovered and determined was

operable. Appellant’s conspirator escaped, but police caught and arrested

Appellant. Appellant did not have a license to carry a firearm and he is

disqualified from carrying a firearm due to his prior Robbery adjudications.

See N.T. Plea, 3/10/16, at 10-11.

On March 10, 2016, Appellant entered an open guilty plea to the above

offenses. The trial court ordered a pre-sentence investigation report and

deferred sentencing.

On June 2, 2016, the court sentenced Appellant to an aggregate term

of five to twelve years’ incarceration. Appellant filed a timely Post-Sentence

Motion for Reconsideration challenging the court’s sentence as excessive,

which the trial court denied on June 8, 2016.

On July 3, 2016, Appellant filed a timely Notice of Appeal. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our review:

Did the lower court abuse its discretion in sentencing Appellant to [five to twelve] years[’] incarceration for this first adult offense, committed at the age of 18 while he was a senior in high school and was under the influence of a controlled substance?

Appellant’s Brief at 5.

Here, Appellant avers that the trial court failed to consider various

mitigating factors adequately, such as the details of his prior record score of

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repeat felony 1 and felony 2 offender, and imposed an excessive sentence as

a result. Appellant’s Brief at 4, 8-9. Appellant recognizes that his sentence

fell below even the mitigated range of the sentencing guidelines. Appellant’s

Brief at 7, 9.

Challenges to the discretionary aspects of sentence are not appealable

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015). Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a motion to reconsider and

modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a

separate section of the brief setting forth “a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence[;]” and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code. Id. (citation

omitted).

Appellant’s claim does not present a “substantial question” for review.

An appellant raises a “substantial question” when he “sets forth a plausible

argument that the sentence violates a provision of the sentencing code or is

contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation

omitted). Appellant acknowledges that his sentence fell below the mitigated

range of the sentencing guidelines. Appellant’s Brief at 7, 9.

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It is clear from our precedent that Appellant has failed to raise a

substantial question with respect to his sentencing arguments. See, e.g.,

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013) (claim

that the trial court failed to consider defendant’s rehabilitative needs in

imposing standard-range sentences did not raise a substantial question);

Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that

sentence failed to take into consideration the defendant’s rehabilitative needs

and was manifestly excessive did not raise a substantial question where

sentence was within statutory guidelines and within sentencing guidelines).

See also Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa. Super. 2017),

appeal denied, 170 A.3d 1042 (Pa. 2017) (holding that an argument that the

sentencing court failed to adequately consider mitigating factors in favor of a

lesser sentence does not present a substantial question appropriate for our

review); Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super.

1989) (en banc) (concluding that an allegation that the sentencing court did

not adequately consider various factors is, in effect, a request that this court

substitute its judgment for that of the lower court in fashioning a defendant’s

sentence).2

2 Moreover, even had Appellant presented a substantial question, he would not be entitled to relief. The trial court acknowledged and considered each of the factors Appellant points out, including the pre-sentence investigation report designating Appellant a repeat felony offender at age 18, the facts of this case, and Appellant’s open guilty plea. See Trial Court Opinion, filed

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In light of the foregoing, we affirm Appellant’s Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/24/18

9/8/17, at 2-4; N.T. Sentencing, 6/2/16, at 3-4, 13-18. Further, the trial court departed below even the mitigated range of the sentencing guidelines, which indicates that it recognized and credited mitigating factors. After thoroughly reviewing the record, including the sentencing transcript, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, there is no merit to Appellant’s sentencing claims.

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