COMMONWEALTH OF PENNSYLVANIA v. NATHAN HOYE
No. 913 WDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
May 6, 2022
J-S07024-22; NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.:
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 relevаnt 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. Cоrrections 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 inmаte, reached into his toilet and threw urine on one
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 Super. 2021) (unpublished memorandum).3 The sentencing court held a resentencing hearing and detеrmined Hoye was RRRI ineligible.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
* Retired Senior Judge assigned to the Superior Court.
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 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reсonsider and modify sentence, seePa.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 сase, 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).
Our standаrd 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, thе appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, рrejudice, 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
[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
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
Hoye contends the sentencing court “failed to properly consider” the section 9721(b) sentencing factors, given the court “did not disclose in open сourt 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 prisоner 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 repоrt (“PSI“). Id. at 18.
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
Judgmеnt 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