Case Information
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellee
v.
DANTE ALAN BONNER,
Appellant No. 176 WDA 2015 Appeal from the Judgment of Sentence of September 4, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008568-2013; CP-02-CR-0008642-
2013 AND CP-02-CR-0012173-2012.
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
OPINION BY OLSON, J.: FILED FEBRUARY 23, 2016
Appellant, Dante Alan Bonner, appeals from the judgment of sentence entered on September 4, 2014, as made final by the denial of his post- sentence motion on December 12, 2014. In this appeal, we consider whether the Pennsylvania Sentencing Guidelines’ inclusion of certain juvenile adjudications in calculating a defendant’s prior record score violates the proportionality principles of the Eighth Amendment. We hold that it is constitutionally permissible to consider juvenile adjudications when calculating a prior rеcord score. As we also find Appellant’s discretionary aspects of sentencing claim without merit, we affirm.
The factual background of case CP-02-CR-0012173-2012 (“case 12173”) is as follows. On October 5, 2012, Allegheny County Housing *Retired Senior Judge assigned to the Superior Court.
Authority Police noticed a vehicle driving in reverse while failing to stop at a stop sign. Police observed Appellant, the front passenger in the vehicle, reach under his seat. A search of the vehicle found heroin, a firearm, and marijuana located under Appellant’s seat.
The factual background of case CP-02-CR-0008568-2013 (“case 8568”) is as follows. In the early morning hours of April 17, 2013, Pittsburgh Police conducted a traffic stop of a blue Dodge Avenger. Before the officers could exit their vehicle, Appellant, who was located in the rear seat of the Avenger, fled the vehicle. Officer Christopher Kertis pursued Appellant and, during that pursuit, Appellant fired three shots at Officer Kertis. At least one of those shots hit Officer Kertis. Officer Kertis received treatment at the hospital, but still suffers symptoms as a result of the shooting.
The factual background of case CP-02-CR-0008642-2013 (“case 8642”) is as follows. On February 15, 2013, Sergeant Cristyn Zett was driving her personal vehicle when Appellant backed his vehicle into Sergeant Zett. She exited her vehicle and identified herself as a law enforcement officer. A struggle between Sergeant Zett and Appellant ensued and Appellant fled the scene. Appellant was later located and Sergeant Zett identified him as the individual who backed into her vehicle.
The procedural history of this case is as follows. On June 10, 2014, Appellant pled guilty to two counts of carrying a firearm without a license, two counts of possession of a firearm by a prohibited person, possession of a small amount of marijuana, possession of a controlled substance, possession with intent to deliver a controlled substance, evidence tampering, attempted homicide, assault of a law enforcement officer, recklessly endangering another person, receiving stolen property, aggravated assault, resisting arrest, fleeing the scene of an accident, and four summary offenses. In exchange for his guilty pleas, the [1] 18 Pa.C.S.A. § 6106(a)(1).
[2] 18 Pa.C.S.A. §§ 6105(a)(1), 6105(c)(8).
[3] 35 P.S. § 780-113(a)(31).
[4] 35 P.S. § 780-113(a)(16).
[5] 35 P.S. § 780-113(a)(30).
[6] 18 Pa.C.S.A. § 4910(1).
[7] 18 Pa.C.S.A. §§ 901(a), 2501.
[8] 18 Pa.C.S.A. § 2702.1(a).
[9] 18 Pa.C.S.A. § 2705.
[10] 18 Pa.C.S.A. § 3925(a).
[11] 18 Pa.C.S.A. § 2702(a)(3). 18 Pa.C.S.A. § 5104. 75 Pa.C.S.A. § 3743(a).
Commonwealth requested that the sentences at cases 12173 and 8642 run concurrently with the sentence at case 8568. After the completion of a pre- sentence investigation report (“PSI”), on September 4, 2014, Appellant was sentenced to an aggregate term of 39 to 78 years’ imprisonment. [14] When calculating the sentencing guidelines range for Appellant, the trial court used prior juvenile adjudications to arrive at a prior record score of five. Specifically, Appellant received a four-point enhancement of his prior record score for a juvenile aggravated assault adjudication together with a one- point enhancement for a juvenile adjudication involving the carrying of a firearm without a license.
On September 15, 2014, Appellant filed a post-sentence motion. [15] On December 12, 2014, the trial court denied Appellant’s post-sentence motion. The aggregate sentence included 10 to 20 years for attempted homicide, 20 to 40 years for assault of a law enforcement officer, 1 to 2 years for recklessly endangering another person, 3½ to 7 years for carrying a firearm without a license, 2½ to 5 years for receiving stolen property, and 2 to 4 years for possession of a firearm by a prohibited person. In accordance with Appellant’s plea agreement, these sentences were imposed at case 8568, while punishments for the offenses charged at cases 12179 and 8642 were ordered to run concurrently to case 8568. The motion was timely as September 14, 2014 fell on a Sunday. See
Pa.R.Crim.P. 203(A).
On January 14, 2015, the trial court reinstated Appellant’s direct appeal rights nunc pro tunc . This appeal followed. [16]
Appellant presents two issues for our review: 1. Whether the application of juvenile offenses for the purpose[] of calculating a defendant’s prior record score is unconstitutional because it violates the proportionality principles of the Eighth Amendment[?]
2. Whether the trial court abused its discretion by imposing a manifestly excessive sentence when it sentenced the Appellant to an aggregate period of incarceration of not less than 39 and not more than 78 years where his entire prior criminal history was composed [] of juvenile offenses?
Appellant’s Brief at 4. [17]
Appellant argues that the use of juvenile adjudications when calculating prior record scores violates the Eighth Amendment to the United States Constitution as incorporated by the Fourteenth Amendment. [18] We note that
[16] On January 28, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On February 3, 2015, Appellant filed his concise statement. On April 23, 2015, the trial court issued its Rule 1925(a) opinion. Both issues raised on appeal were included in Appellant’s concise statement. We have re-numbered the issues for ease of disposition. Appellant also argues that such use violates Article 1, § 13 of
Pennsylvania’s Constitution. “The Pennsylvania prohibition against cruel and unusual punishment is coextensive with the Eighth and Fourteenth Amendment of the United States Constitution.” Commonwealth v. Yasipour , 957 A.2d 734, 743 (Pa. Super. 2008), appeal denied , 980 A.2d (Footnote Continued Next Page)
[a]lthough the [Pennsylvania Commission on Sentencing], rather than the General Assembly itself, directly adopts the [s]entеncing [g]uidelines [] and thus they are not statutes per se, the [g]uidelines nevertheless retain a legislative character, as the General Assembly may reject them in their entirety prior to their taking effect, subject, of course, to gubernatorial review.
Commonwealth. v. Hackenberger , 836 A.2d 2, 4 n.9 (Pa. 2003) (citations omitted). Thus, we review the constitutionality of a sentencing guideline in the same manner that we review the constitutionality of a statute.
As the review of the constitutionality of a sentencing guideline raises a pure question of law, our standard of review is de novo and our scope of review is plenary. See Commonwealth v. Hopkins , 117 A.3d 247, 255 (Pa. 2015) (citation omitted). We presume that, in promulgating the sentencing guidelines, the Pennsylvania Commission on Sentencing and the General Assembly did not intend to violate the Constitution. See 1 Pa.C.S.A. § 1922(3). A sentenсing guideline will not be declared unconstitutional “unless it clearly, palpably and plainly violates the Constitution[.]” Commonwealth v. Hitcho , 123 A.3d 731, 756-757 (Pa. 2015) (citation omitted).
The Eighth Amendment provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments (Footnote Continued) _______________________
111 (Pa. 2009) (citation omitted). Therefore, we do not conduct a separate analysis of Appellant’s state constitutional claim.
inflicted.” U.S. Const. Amend. VIII. “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to the offense.” Graham v. Florida , 560 U.S. 48, 59 (2010) (internal quotation marks, alterаtion, and citation omitted). Nonetheless, “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.” Harmelin v. Michigan , 501 U.S. 957, 1001 (1991) (internal quotation marks and citation omitted).
The Supreme Court of the United States developed a strand of precedent which “has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Miller v. Alabama , 132 S.Ct. 2455, 2463 (2012). Based upon Appellant’s brief, it is clear that he is seeking to invoke this line of precedent. He argues there should be a categorical rule against using prior juvenile adjudications when calculating a defendant’s prior record score. See Appellant’s Brief at 29. Appellant cites several factors in arguing against the use of juvenile adjudications in the calculation of prior record scores: (1) the failure of the sentencing guidelines to account for a youthful defendant’s diminished culpability; (2) the failure of the sentencing guidelines to consider philosophical differences between the juvenile justice system and the criminal justice system; and (3) the absence of trial by jury in the juvenile justice system.
When evaluating such a challenge we must first consider “objective indicia of soсiety’s standards, as expressed in pertinent legislative enactments and state practice[.]” Roper v. Simmons , 543 U.S. 551, 563 (2005). “Next, guided by the standards elaborated by controlling precedents and by [our] own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose, [we] must determine in the exercise of [our] own independent judgment whether the punishment in question violates the Constitution.” Graham , 560 U.S. at 61 (internal quotation marks and citations omitted).
The sentencing guideline challenged by Appellant provides as follows: (a) Juvenile adjudication criteria . Prior juvenile adjudications are counted in the [p]rior [r]ecord [s]core when the following criteria are met:
(1) The juvenile offense occurred on or after the offender’s 14th birthdаy, and
(2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the [first-degree m]isdemeanor [] offenses listed in § 303.7(a)(4).
(b) Only the most serious juvenile adjudication of each prior disposition is counted in the [p]rior [r]ecord [s]core. No other prior juvenile adjudication shall be counted in the [p]rior [r]ecord [s]core.
(c) Lapsing of juvenile adjudications . Prior juvenile adjudications for four point offenses listed in § 303.7(a)(1) shall always be included in the [p]rior [r]ecord [s]core, provided the criteria in subsection (a) above are met:
(1) All other juvenile adjudications not identified above in subsection (a) lapse and shall not be counted in the [p]rior [r]ecord [s]corе if:
(i) The offender was 28 years of age or older at the time the current offense was committed; and
(ii) The offender remained crime-free during the ten-year period immediately preceding the offender’s 28th birthday.
(iii) Crime-free . Included in the definition of crime-free is any summary offense and/or one misdemeanor offense with a statutory maximum of one year or less.
(2) Nothing in this section shall prevent the court from
considering lapsed prior adjudications at the time of sentencing.
204 Pa.Code § 303.6. As noted above, pursuant to this section, Appellant
had a prior record score of five – all resulting from juvenile adjudications.
Appellant relies on
Roper, Graham
, and
Miller
to argue that juvenile
adjudications must be treated differently than adult convictions when
calculating a prior record score. Neither this Court nor our Supreme Court
After this case was submitted, the Supreme Court of the United States
decided
Montgomery v. Louisiana
,
has considered whether section 303.6 violates the proportionality principles of the Eighth Amendment.
As noted above, when considering Appellant’s proportionality challenge
we must first consider “objective indiciа of society’s standards, as expressed
in pertinent legislative enactments and state practice[.]”
Roper
, 543 U.S. at
563. We agree with the United States Court of Appeals for the Tenth Circuit
that “states have not reached a meaningful consensus regarding the manner
in which juvenile adjudications may be considered in adult sentencing
proceedings.”
United States v. Orona
, 724 F.3d 1297, 1301-1302 (10th
We note that our Supreme Court recently decided
Commonwealth v.
Hale
,
Cir. 2013). [21] “Two states treat juvenile adjudications as convictions for purposes of broadly applicable habitual offender statutes.” Id. at 1302 (citations omitted). In addition to Pennsylvania, at least 16 “other[ states] allow prior juvenile adjudications to enhance a sentence in at least some circumstances.” Id. (citations omitted). “At least [23] additional states permit the sentencing court to consider prior juvenile adjudications in selecting a sentence within a statutory range.” Id. at 1304 (citations omitted). [22] Combined, at least 42 states permit the use of juvenile adjudications during adult sentencing proceedings. Thus, the objective indicia of society’s standards indicate that section 303.6’s use of prior juvenile adjudications when calculating a defendant’s prior record score constitutes neither cruel nor unusual punishment.
Next, we turn to our own independent review of the Eighth Amendment’s prohibition against cruel and unusual punishment so as to determine in the exercise of our independent judgment whether the sentencing guideline in question violates the Constitution.
Without triggering Eighth Amendment or due process concerns, federal courts of appeals have held that a prior juvenile adjudication can be used to We reviewed the Tenth Circuit’s citations and find that, but for one citation change, that court’s opinion continues to reflect accurately the state of the law today. We note that many of these jurisdictions have adopted variations of
section 33(b) of the Uniform Juvenile Court Act of 1968.
raise a mandatory minimum and/or maximum sentence.
See United
States v. Hunter
,
These ten cases all dealt with the use of a prior conviction to increase a mandatory minimum and/or maximum penalty. Although this is different from questiоning the constitutionality of a sentencing guidelines range applicable to a criminal defendant, we find the analogy helpful in our present inquiry. It is difficult to see how the use of a juvenile adjudication to raise the mandatory minimum and/or maximum penalty passes constitutional muster while enhancement of advisory sentencing guidelines violates the Eighth Amendment. Cf. Peugh v. United States , 133 S.Ct. 2072, 2087- 2088 (2013) (constitutional protections for raising mandatory minimum and/or maximum penalty are greater than the constitutional protections for raising an advisory sentencing guidelines range).
Appellant has not cited, and we are unaware of, any cases in which a
court has held that using juvenile adjudications when calculating an аdvisory
sentencing guidelines range violates the Eighth Amendment. In addition to
Pennsylvania’s sentencing guidelines, the United States’ sentencing
guidelines and Maryland’s sentencing guidelines use juvenile adjudications
when calculating a defendant’s prior record score. U.S.S.G. § 4A1.2(d);
Md. Code Regs. § 14.22.01.10(B)(2). We find persuasive the reasoning of
the United States Court of Appeals for the Ninth Circuit in
United States v.
Edwards
,
In that case, the defendant challenged United States Sentencing
Guideline § 4A1.2(d), which provides for inclusion of certain juvenile
adjudications when calculating a defendant’s criminal history score. The
Ninth Circuit “reject[ed] Edwards[’] contention and [held] that [
Roper
,
Graham
, and
Miller
] do not prevent [a] court from assigning criminal
history points for juvenile [adjudications].”
Edwards
,
adjudications in some manner when pronouncing sentence in adult criminal proceedings.
Roper, Graham
, and
Miller
all addressed the constitutionality of
sentencing a defendant for offenses committed as a juvenile. In this case,
Appellant was an adult when he committed the instant offenses. Thus,
Roper, Graham
, and
Miller
are inapposite.
See Commonwealth v.
Lawson
, 90 A.3d 1, 6-8 (Pa. Super. 2014);
Commonwealth v. Cintora
,
Appellant also argues that using prior juvenile adjudications during
criminal justice proceedings fails to account for the difference between the
juvenile justice system and the criminal justice system. As Appellant notes,
the purposes behind the two systems are different. The juvenile justice
system focuses on principles of balanced and restorаtive justice;
i.e.
, equal
concern for the public interest and the rehabilitation of the juvenile.
In the
Interest of J.B.
,
Appellant also argues that use of prior juvenile adjudications violates the Eighth Amendment because such use violates his right to a trial by jury and due process. He contends that the right to a jury trial, as interpreted by Apprendi v. New Jersey , 530 U.S. 466 (2000) and its progeny, prohibits using prior juvenile adjudications, which do not incorporate the right to a jury trial, when calculating a prior record score. This argument fails for two reasons.
Appellant concedes that the Supreme Court of the United States held
that trial by jury is not required in juvenile proceedings.
McKeiver v.
Pennsylvania
, 403 U.S. 528, 541-551 (1971) (Blackmun, J. opinion
announcing the judgment of the court);
see Commonwealth v. Hooks
,
Appellant relies on United States v. Tighe , 266 F.3d 1187 (9th Cir. 2001), to support his argument that Apprendi forbids the use of prior Appellant argues that McKeiver is not controlling because Justice Blackmun’s opinion did not garner a majority of the justices. The holding in McKeiver , however, that jury trials are not required in juvenile proceedings, did garner a majority of justices. Although the rationales offered by members of the Court differed, we focus on the holding and not the rationale behind that holding.
juvenile adjudications in calculating his prior record score. Appellant’s reliance on Tighe , however, is misplaced. In Tighe , the defendant was convicted of possession of a firearm by a convicted felon. Typically, this carries with it a maximum penalty of 10 years. See 18 U.S.C. § 924(a)(2). However, if a defendant is convicted of possession of a firearm by a convicted felon after previously being convicted of three violent felonies and/or serious drug offenses, the conviction carries with it a mandatory minimum of 15 years. See 18 U.S.C. § 922(e)(1). In Tighe , one of the three predicate offenses used to raise the mandatory minimum and maximum penalty was a prior juvenile adjudication “for reckless endangerment, robbery[,] and unauthorized use of a motor vehicle.” Tighe , 266 F.3d at 1191. In the case sub judice , Appellant’s prior juvenile adjudications did not raise his mandatory minimum and/or maximum penalty. Therefore, the use of his prior juvenile adjudications does not raise an issue under Apprendi or Alleyne v. United States , 133 S. Ct. 2151 (2013). As noted above, the Ninth Circuit has held that a trial court may, consistent with the Constitution, use prior juvenile adjudications to raisе a criminal history score. Edwards , 734 F.3d at 852. Thus, under the Ninth Circuit’s own precedent, Appellant would not be entitled to relief pursuant to Tighe .
Secondly, in relying upon the Supreme Court of the United States’ recitation of due process rights afforded to adults, the Ninth Circuit in Tighe ignored the difference in due process due to juveniles and adults. As noted above, the Supreme Court of the United States held that juries are not necessary in juvenile adjudication hearings while juries are necessary in criminal trials. As the Sixth Circuit stated, Appellant “received all process that was due when convicted—for adults that includes the right to a jury trial; for juveniles, it does not.” Crowell , 493 F.3d at 750 (citation omitted).
Moreover, as the United States Court of Appeals for the First Circuit stated, “the question of whether juvenile adjudications should be exempt from Apprendi ’s general rule should turn on an examination of whether juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.” United States v. Matthews , 498 F.3d 25, 35 (1st Cir. 2007) (internal alterations and citation omitted). As juveniles have a right to due process of law, see J.D.B. v. North Carolina , 131 S.Ct. 2394, 2408 (2011), and the Supreme Court of the United States has held that such due process does not require a jury trial, it naturally follows that non-jury juvenile adjudications are sufficiently reliable to comport with the requirements of due process.
Finally,
Tighe
represents the minority view of courts that have
considered the issue. We agreе with the majority view, espoused by the
United States Courts of Appeals for the Third, Fourth, Sixth, Eighth, and
Eleventh Circuits, along with the Supreme Courts of Kansas, Indiana, and
Washington, that a prior juvenile adjudication, even when the juvenile did
not have the right to a jury trial, falls within the prior conviction exception of
Almendarez–Torres v. United States
, 523 U.S. 224 (1998)(prior
conviction of a felony is merely a sentencing enhancement and not an
element of the crime of illegal reentry into United States).
United States v.
Wright
,
For all of these reasons, our own independent evaluation indicates that use of a juvenile adjudication in calculating an adult defendant’s prior record score does not violate the proportionality principles of the Eighth Amendment of the United States Constitution and Article 1, § 13 of the Pennsylvania Constitution. Instead, we hold that section 303.6 of the Pennsylvania Sentencing Guidelines fully complies with the Eighth Amendment as interpreted by Roper , Graham , and Miller . Accordingly, Appellant’s first issue on appeal is without merit.
In his second issue, Appellant argues that his sentence is excessive. This issue challenges the discretionary aspects of Appellant’s sentence. See Commonwealth v. Haynes , 125 A.3d 800, 806 (Pa. Super. 2015). Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a discretionary aspects claim,
[w]e conduct a four-part analysis to determine: (1) whether [the] 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 [the] 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).
Commonwealth v. Leatherby
,
“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to
the
fundamental norms underlying
the sentencing process.”
Commonwealth v. Treadway
, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Seagraves
, 103 A.3d 839, 841 (Pa. Super. 2014),
appeal denied
,
In his Rule 2119(f) statement, Appellant argues that this appeal presents a substantial question for two reasons. First, he argues that the sentence was excessive because the trial court failed to consider his rehabilitative needs. Second, he argues that the sentence is excessive because of the consecutive nature of the sentences given in case 8568. This Court has recently held that a “challenge to the imposition of [] consecutive sentences as unduly excessive, together with [a] claim that the [trial] court failed to consider [the defendant’s] rehabilitative needs upon fashioning its sentence, presents a substantial question.” Commonwealth v. Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) ( en banc ), appeal denied , 2015 WL 7288526 (Pa. Nov. 16, 2015). As Appellant raises such a claim, we conclude that he has raised a substantial question and proceed to consider the merits of Appellant’s discretionary aspects claim.
Pursuant to statute,
the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b). Furthermore, when sentencing a defendant, the
trial court is required to consider the sentencing guidelines.
See
Commonwealth v. Tobin
,
Apрellant contends that the trial court failed to consider his
rehabilitative needs. In support of this argument, he relies on
Commonwealth v. Simpson
, 510 A.2d 760 (Pa. Super. 1986),
appeal
denied
, 522 A.2d 49 & 522 A.2d 1105 (Pa. 1987).
Simpson
, however, is
easily distinguishable from the case at bar. In
Simpson
, the defendant had
no prior record and had served honorably in the armed forces.
Id.
at 762.
Contrast that with the case at bar, where Appellant began his string of
criminal behavior at the age of 12. From then until the time he was arrested
for the instant offenses, Appellant was routinely involved in the juvenile
justice system. He continually violated the terms of his probation and other
sentences. In short, Appellant rejected his chance at rehabilitation in the
juvenile justice system. In his brief, Appellant quotes our holding in
Simpson
that, “As the trial court aptly pointed out, [it] is unable to predict
the future, therefore, to the extent that we must make a judgment as to
future behavior, we cannot ignore and must be guided by the past.”
Appellant’s Brief at 19,
quoting
Simpson
,
that past indicated that the defendant was amenable to rehabilitation. On the other hand, Appellant’s past demonstrates that he is not amenable to rehabilitation.
A close examination of the sentencing transcript reveals that the trial
court discussed Appellant’s rehabilitative needs аt sentencing. Although the
trial court did not use the phrase “rehabilitative needs,” the trial court
discussed the fact that Appellant’s conduct in June 2014 indicated that he
was not amenable to rehabilitation.
See
N.T., 9/4/14, at 30-31. The trial
court found that if Appellant were truly remorseful, and thus amenable to
rehabilitation, he would not have made the comments he did in June.
See
id.
The trial court went on to find that Appellant was not amenable to
mental health treatment that may assist him.
Id.
at 33. Furthermore, the
trial court expressly indicated that it had considered the PSI.
Id.
at 8.
“Where [a PSI] exist[s], we [] presume that the [trial court] was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A [PSI] constitutes
the record and speaks for itself.”
Commonwealth v. Antidormi
, 84 A.3d
736, 761 (Pa. Super. 2014),
appeal denied
,
(Footnote Continued) _______________________
it.” George Santayana, Reason in Common Sense , in THE LIFE OF REASON , p. 284 (1905). In June, at his guilty plea hearing, Appellant told Officer Kertis “f[---] you,
I should have f[---]ing killed you.” N.T., 9/4/14, at 23-24.
Appellant cites to the injuries he suffered as a result of this incident, his mental illness, and his upbringing as reasons why he is amenable to rehabilitation. The trial court discussed all of these factors at sentencing. It noted that Appellant’s injuries were his own fault as he was the one that opened fire on police. See N.T., 9/4/14, at 34. The trial court’s review of the record indicated that Appellant was not interested in treatment for his mental illness. Id. at 32-33. The trial court stated that many defendants with tough upbringings do not resort to the type of criminal behavior in which Appellant was involved. Id. at 33. Thus, contrary to Appellant’s argument, the trial court carefully considered Appellant’s rehabilitative needs when fashioning an appropriate sentence. It determined that Appellant had little chance of rehabilitation and, when weighed against the other statutory factors, a lengthy prison sentence within the guidelines range was appropriate.
Appellant also argues that the consecutive nature of his sentences makes his sentence excessive. He argues that the mandatory minimum sentence of 20 to 40 years’ imprisonment would be sufficient to protect the public. The trial court determined, however, that Appellant should not receive a volume discount for his crimes. See id. at 31. This is consistent with the prior decisions of this Court. Commonwealth v. Swope , 123 A.3d The trial court also serves as the mental health court for the Allegheny County Court of Common Pleas.
333, 341 (Pa. Super. 2015) (citation omitted) (“Appellant is not entitled to a
volume discount for his crimes.”);
Commonwealth v. Zirkle
, 107 A.3d
127, 134 (Pa. Super. 2014),
appeal denied
,
This is not a case, like
Commonwealth v. Dodge
,
The trial court carefully considered the section 9721(b) factors when sentencing Appellant, including his rehabilitative needs. The trial court reviewed the PSI and other information at its disposal when determining that a lengthy prison sentence was necessary considering the gravity of the offenses, the impact on the victims, and the need to protect the public in the future. It therefore sentenced Appellant to consecutive terms of imprisonment which resulted in an aggregate term of 39 to 78 years’ imprisonment. This application of the guidelines was not “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). Accordingly, we conclude that the trial court did not abuse its discretion in sentencing Appellant to 39 to 78 years’ imprisonment.
In sum, we hold that section 303.6 of the Pennsylvania Sentencing Guidelines, which includes certain juvenile adjudications in the calculation of a defendant’s prior record score, does not violate the proportionality principles of the Eighth Amendment. Although we reach the merits of Appellant’s discretionary aspects claim, we ultimately conclude that his
discretionary aspects challenge is without merit. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016