Commonwealth v. Marts

889 A.2d 608, 2005 Pa. Super. 418, 2005 Pa. Super. LEXIS 4214
CourtSuperior Court of Pennsylvania
DecidedDecember 14, 2005
StatusPublished
Cited by203 cases

This text of 889 A.2d 608 (Commonwealth v. Marts) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Marts, 889 A.2d 608, 2005 Pa. Super. 418, 2005 Pa. Super. LEXIS 4214 (Pa. Ct. App. 2005).

Opinions

OPINION BY

HUDOCK, J.:

¶ 1 This is an appeal from the judgment of sentence imposed upon Appellant after he entered a guilty plea at four different docket numbers to a total of five counts of robbery, four counts of criminal conspiracy, two counts of recklessly endangering another person and one count of theft from a motor vehicle.1 The trial court sentenced Appellant to an aggregate term of ten to twenty years of imprisonment. A timely motion to modify sentence was filed and denied. Appellant’s original appeal was quashed as untimely but his appellate rights were reinstated, nunc pro tunc, following his filing of a petition pursuant to the Post-Conviction Relief Act. 42 Pa. C.S.A. §§ 9541-9546. This appeal followed, in which Appellant challenges the discretionary aspects of his sentence. Both Appellant and the trial court complied with Pa.R.A.P. 1925. We affirm.

¶ 2 Appellant’s convictions are the result of the gunpoint robbery of a sports store (Docket No. 200108809), a gas station (Docket No. 200111417) and a woman in a motel parking lot (Docket No. 200305791). In a fourth robbery, Appellant and a co-conspirator robbed a pizza delivery man while brandishing a small baseball bat (Docket No. 200108828).2 Given an offense gravity score of ten and Appellant’s prior record score of zero, and adding the deadly weapon (used) enhancement, the applicable sentencing guidelines for three of the four robberies provided for a standard minimum range sentence of forty to fifty-four months of imprisonment, plus or minus twelve months for the aggravated and mitigated range, respectively. Prior to sentencing, the Commonwealth requested a mandatory five-year sentence at these [611]*611dockets. See 42 Pa.C.S.A. § 9712 (relating to sentences for violent crimes committed with firearms). The sentencing court imposed the mandatory minimum at each docket. For the robbery of the pizza delivery man, no mandatory minimum was requested and no enhancement was applied. Thus, the applicable sentencing guidelines provided for a standard minimum range of twenty-two to thirty-six months of imprisonment, plus or minus twelve months for the aggravated and mitigated range, respectively. The five to ten-year sentence imposed by the court at this docket deviated from the suggested guideline ranges.3 The court was required, therefore, to provide a contemporaneous written statement of the reasons for deviation. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46, 49 (1994). The sentencing court’s statements made on the record in the defendant’s presence satisfy this statutory requirement. Id.

¶3 In addition, Appellant’s five to ten-year sentence at Docket No. 200111417 was to be served consecutive to a three and one-half flat sentence imposed in New York, and his five to ten-year sentence at Docket No. 200108828 was to be served consecutive to the sentence imposed at Docket No. 200111417. The five to ten-year sentence imposed at both Docket Nos. 200108809 and 200305791 were to be served concurrent to his sentence at Docket No. 200111417. Thus, for all of his Pennsylvania crimes, Appellant received an aggregate sentence of ten to twenty years.

¶ 4 As noted above, Appellant challenges the discretionary aspects of sentencing for which there is no automatic right to appeal. Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207 (1994).4 This appeal is, therefore, more appropriately considered a petition for allowance of appeal. 42 Pa.C.S.A. § 9781(b). Two requirements must be met before a challenge to the judgment of sentence will be heard on the merits. Koren, 646 A.2d at 1207. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [612]*612his sentence. Id.; Pa.R.A.P. 2119(f). Second, he or she must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 710 (1995).

¶ 5 The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. Commonwealth v. Maneval, 455 Pa.Super. 483, 688 A.2d 1198, 1199-1200 (1997). Generally, however, in order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Id.

¶ 6 Appellant’s Rule 2119(f) statement reads, in pertinent part, as follows:

The lower court never distinguished how [Appellant’s] crime was worse than other instances of the same offense by defendants with similar prior record scores, such that the consecutive, aggravated range sentences, were appropriate. The court failed to give “careful consideration to all relevant factors in sentencing.” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). The record does not indicate the lower court sufficiently considered the factors laid out in 42 Pa.C.S. § 9721(b).
Absent more reasons than stated on the record, [Appellant’s] total aggregate sentence is “so manifestly excessive as to constitute too severe a punishment.” Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 624 (2002) (holding appellant raised a substantial question when she [sic] advanced “plausible argument that [her] sentence was: 1) inconsistent with a specific provision [of] the sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process: even if the sentence is within the statutory limit”). In Mouzon, Justice Nigro observed that under Section 9781(c) of the Sentencing Code, the Superior Court is required to vacate sentences within the Guidelines if they are ‘clearly unreasonable.’ ” Id. [sic]. This Court has concluded, based on Mouzon, that appellant’s claim of exces-siveness respecting the consecutive nature of his standard range sentences raises a substantial question. Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004). Thus, this Court may review the merits of [Appellant’s] claim.

Appellant’s Brief at 10.

¶ 7 To the extent that he complains that his sentence on two of the four robberies were imposed consecutively rather than concurrently, Appellant fails to raise a substantial question. Long standing precedent of this Court recognizes that 42 Pa.C.S.A. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995); see also Commonwealth v. Perry, 883 A.2d 599, 2005 Pa.Super. Lexis 2892 (Pa.Super. August 10, 2005), and the cases cited therein. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa.Super.2005); see also Commonwealth v. Hoag, 445 Pa.Super.

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Bluebook (online)
889 A.2d 608, 2005 Pa. Super. 418, 2005 Pa. Super. LEXIS 4214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-marts-pasuperct-2005.