Com. v. Austin, R., 2782 EDA 2015

On April 8, 2015, following a non-jury trial, Robert Aatif Austin was convicted of aggravated assault, conspiracy to commit aggravated assault, possession of a firearm prohibited, carrying a firearm without a license, and carrying a firearm on a public street.
The underlying incident (May 23, 2010) involved a confrontation in Old City, Philadelphia, during which two men drew automatic handguns and fired on an unarmed victim (a corrections officer), who suffered multiple gunshot wounds and survived after surgery. Ballistics showed two different guns were fired.
Austin was identified by the victim in a photographic array; police later attempted arrest and found Austin had changed appearance before a scheduled lineup. A PSI was prepared and reviewed by the sentencing court.
On June 3, 2015 the trial court sentenced Austin to an aggregate term of 10 to 20 years’ imprisonment (aggravated assault) plus consecutive probation terms (totaling 15 years’ probation for other counts), a sentence one year above the aggravated guideline range.
Austin filed a timely post-sentence motion claiming the sentence was excessive and an abuse of discretion; the motion was denied and Austin appealed, challenging only the discretionary aspects of sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by imposing an aggravated-range (above-guideline) sentence without proper consideration of mitigating factors	Austin: court relied on improper/irrelevant considerations and failed to consider mitigating circumstances; sentence excessive	Commonwealth/Trial court: court reviewed PSI, considered statutory factors (public protection, gravity, rehabilitation), and articulated reasons for a one-year departure	Affirmed – no abuse of discretion; court considered required factors, stated contemporaneous reasons, and the sentence was reasonable

Lutes v. Commonwealth, 793 A.2d 949 (Pa. Super. 2002) (distinguishes discretionary-sentencing challenges)
Dunphy v. Commonwealth, 20 A.3d 1215 (Pa. Super. 2011) (procedural prerequisites to reach discretionary-sentencing claim on appeal)
Edwards v. Commonwealth, 71 A.3d 323 (Pa. Super. 2013) (substantial-question standard for sentencing review)
Bowen v. Commonwealth, 55 A.3d 1254 (Pa. Super. 2012) (imposing aggravated-range sentence without considering mitigation raises a substantial question)
Yuhasz v. Commonwealth, 923 A.2d 1111 (Pa. 2007) (guidelines are one factor among many; court must consider them)
Walls v. Commonwealth, 926 A.2d 957 (Pa. 2007) (reasonableness is the review standard for sentences outside the guidelines)
Gibson v. Commonwealth, 716 A.2d 1275 (Pa. Super. 1998) (requirement that reasons for departing from guidelines be placed on the record)
Moury v. Commonwealth, 992 A.2d 162 (Pa. Super. 2010) (where PSI was considered, appellate court may assume sentencing court was aware of relevant defendant information)