Commonwealth v. Marts

matically required its docket for an administrative decision ren- rearrange to ized run so as it judiciary, to accommodate Rule 600 dates the local over which dered (30) delay thirty days to avoid a or less. absolutely no had control. Gaines, Pa.Super. reasons, we 7 For above-stated (1991) 141, (citing Com trial court abused conclude 393, 403, Crowley, monwealth granting motion to Appellee’s discretion (1983) holding Accordingly, are constrained dismiss. we sufficiently eight-day delay that an was not trial court and to reverse the order of the court to

lengthy require so as to the trial for further proceedings. to remand docket). rearrange its ¶ 8 Order reversed. Case remanded. ¶ 5 In the case there is no judice, sub relinquished. Jurisdiction dispute period delay that no is attribut- therefore, defense, and, no able to the

period of time is from the me- excludable

chanical run date 2004. Our October

focus, thus, is whether the trial court determining discretion in

abused its due dili-

the Commonwealth did not use bringing trial before

gence Appellee to that the October 2004. conclude We Pennsylvania, COMMONWEALTH of light court did trial abuse its discretion Appellee, unavailability jurors trial dur- of the week of 12th. ing the October Christopher MARTS, Appellant. hampered 6 The Commonwealth was try ability

in its to within the Appellee Pennsylvania. Superior Court of days final week allotted 365 because the period not available within time Argued June 2005. judicial scheduling to issues. The due Decided Dec. judge of had deter- president the court jurors so pool mined not summon a could at- County judges

that the Mercer Pittsburgh.

tend a seminar Com- fail- may charged

monwealth be diligence during to exercise

ure due court, specifically, in which the more

week Although it is

jurors, were not available. had

certainly true the Commonwealth prior time the final week

the entire bring day period which to

the 365 within trial, that the true

Appellee equally have been de-

Commonwealth should not right of its utilize that last week.

prived penal- not be

The Commonwealth should judicial untimely for an due to filed motion basis extension precluded delay, of time review does not control the outcome extension delay judice. could serve matter sub of whether of five counts of numbers to a total docket conspira- four counts of criminal robbery, recklessly endangering cy, two counts from count of theft person another and one The trial court a motor vehicle.1 aggregate term of Appellant to an tenced A twenty years imprisonment. ten to filed modify to sentence was timely motion Appellant’s original appeal and denied. untimely but his quashed was tunc, pro nunc reinstated, fol- rights were to filing petition pursuant of a lowing his Relief Act. the Post-Conviction appeal §§ fol- 9541-9546. This C.S.A. lowed, challenges the Appellant in which of his sentence. discretionary aspects the trial court com- Appellant Both and affirm. plied with Pa.R.A.P. 1925. We result convictions are the robbery sports of a store gunpoint of the (Docket 200108809), gas station No. 200111417) (Docket in a and a woman No. 200305791). (Docket No. parking motel lot a co- robbery, Appellant and In a fourth delivery man conspirator pizza robbed a Morey, Pittsburgh, appel- K. Erin bat brandishing a small baseball while lant. (Docket 200108828).2 an of- No. Given gravity score of ten and fense Deputy Atty., Dist. Streily, Michael W. zero, adding and prior record score Barker, Atty., K. Asst. Dist. Margaret (used) enhancement, deadly weapon Com., Pittsburgh, appellee. guidelines for three applicable sentencing HUDOCK, BEFORE: STEVENS for a stan- provided the four robberies MONTEMURO,* forty JJ. to range minimum dard plus or fifty-four imprisonment, months of HUDOCK, BY J.:

OPINION aggravated months for the minus twelve Prior mitigated range, respectively. judgment from the appeal 1 This is an request- sentencing, to the Commonwealth Appellant after imposed upon of sentence five-year at these mandatory at four different ed guilty plea entered a * assigned Superior penalty Court. was Retired Justice lant contends that no further at imposed at "most” of the ten other dockets 3701, 903, §§ 2705 and 1. 18 Pa.C.S.A. pled guilty a multitude of respectively. theft, fraud, crimes, including access device forgery, burglary receiving property, stolen pled guilty a fifth Although Appellant penalty im- See robbery charge, possession drug paraphernalia. no further addition, penalty was posed. no further Appellant's at n. 1. The Common- Brief Appellant's for the imposed on convictions dispute does not these assertions. wealth Appel- his crimes listed above. remainder of imposed New (relating § flat sentence and one-half dockets. See Pa.C.S.A. York, ten-year sentence and his five to committed to sentences for violent crimes firearms). was to be served Docket No. 200108828 im The to the sentence consecutive mandatory minimum at each posed five to ten- Docket No. 200111417. robbery pizza de docket. For the Docket imposed at both year sentence man, livery mandatory no minimum was were to be and 200305791 Nos. 200108809 ap and no enhancement was requested his sentence at Dock- concurrent to served Thus, plied. applicable his for all of et No. 200111417. for a mini guidelines provided crimes, Appellant received Pennsylvania twenty-two thirty-six mum twenty of ten to aggregate sentence imprisonment, plus or minus months of years. aggravated months for the and mit twelve The five to

igated range, respectively. above, Appellant chal 4 As noted by the court at ten-year sentence discretionary aspects of sen lenges the suggested this docket deviated from the automatic tencing for which there is no re guideline ranges.3 The court was Koren, v. right appeal. Commonwealth therefore, quired, provide contempora a 1205, 499, 1207 Pa.Super. 646 A.2d 435 for neous written statement of the reasons (1994).4 therefore, is, more appeal This 9721(b); § deviation. 42 Pa.C.S.A. Com for al petition considered a appropriately 496, Canfield, Pa.Super. monwealth v. 432 9781(b). § appeal. 42 Pa.C.S.A. lowance of (1994). 46, 49 639 A.2d a must met before requirements Two be court’s statements made on the record of sentence will challenge judgment to the presence satisfy the defendant’s this statu Koren, A.2d merits. 646 be heard on the tory requirement. Id. First, set appellant ¶3 addition, five to ten- of the forth his brief a concise statement year upon appeal 200111417 for allowance of Docket No. reasons relied discretionary aspects of respect to a three to the was to be served consecutive Grant, 572 Pa. decision in Commonwealth v. 3. The Commonwealth contends that the 48, (2002), high tencing guidelines robbery were the 726 which the for this 813 A.2d and, that, general, same as those for the other robberies ineffectiveness court held therefore, review); Appellant’s five-year that com claims should await collateral Butler, 866, aggravated range. was in the A review of the pare v. 845 A.2d Commonwealth sentencing guideline form within the certified (reasoning (Pa.Super.2004) contin 869 weapon record reveals that the enhancement validity has been "cast ued of Johnson ranges guideline for this was not added to the Grant); light v. doubt” Therefore, guideline ranges crime. listed 571, Dent, 588 n. 9 above are accurate. 671, denied, A.2d 1143 appeal 581 Pa. 863 (2004) (same). Appellant did raise this claim in 4. While Moreover, statement, plea 1925(b) Appellant's did not because his Rule counsel is agreement as the sentence to be failing include an claiming her own ineffectiveness court, Thus, Appellant’s challenge to imposed by properly Appellant’s claim is do so. Wade, aspects discretionary of his sentence 867 before us. See Commonwealth 547, (holding properly before us. See (Pa.Super.2005) A.2d 555 16, Dalberto, Pa.Super. 20 648 Supreme plurality decision in Com Court's Johnson, (1994) (explaining where there have monwealth plea in the (2001), restrictions permits direct been no review on entry guilty plea will not agreement, of a appeal of claim of own ineffectiveness discretionary as- 1925(b) challenge preclude a state failing to raise issue in Rule sentencing). pects Supreme despite Court's ment remains viable 2119(f). Id.; if the sentence is tencing process: his sentence. Pa.R.A.P. Sec even limit”). Mouzon, ond, statutory or must show that there is a within the she im Nigro substantial that the sentence Justice observed under Sec 9781(c) Code, posed appropriate Sentencing is not under the Sen tion 9781(b); required § to vacate tencing Superior Code. Pa.C.S.A. Court Urrutia, they the Guidelines if Pa.Super. sentences within ” (1995). ‘clearly unreasonable.’ Id. [sic]. concluded, This Court has based ¶ 5 of whether The determination Mouzon, claim exces- appellant’s ques particular issue raises substantial respecting siveness the consecutive na case-by-case tion is to be evaluated on a ture of his standard sentences Maneval, basis. Commonwealth question. raises substantial Pa.Super. 1199-1200 (Pa.Su Dodge, (1997). however, in Generally, order to may review per.2004). this Court question, appel establish substantial [Appellant’s] claim. the merits of lant must show actions Appellant’s Brief Sentencing inconsistent with the ¶ contrary Code or to the fundamental complains 7 To the extent that he underlying sentencing process. norms the that his sentence on two of the four rob Id. imposed consecutively rather beries were concurrently, fails to than raise 2119(f) 6 Rule statement question. Long standing a substantial reads, part, pertinent follows: 42 precedent recognizes of this Court distinguished court The lower never section 9721 affords the sentenc Pa.C.S.A. [Appellant’s] how crime was worse than ing impose court discretion to its sentence by other instances of the same offense concurrently consecutively or to other sen prior defendants with similar record time or being imposed tences the same scores, consecutive, aggra such that the already imposed. to sentences sentences, range appropri vated were Graham, 173, 184, wealth v. 541 Pa. 661 give ate. The court failed to “careful 1367, (1995); A.2d 1373 see also Common consideration to all relevant factors 599, 2005 Perry, 883 Pa.Su Sierra, sentencing.” Commonwealth 10, (Pa.Super. August Lexis 2892 per. 910, (Pa.Super.2000). 913 2005), Any cited therein. the cases the lower court record does indicate challenge to the exercise of this discretion sufficiently laid considered the factors ordinarily does not raise a substantial 9721(b). § 42 out in Pa.C.S. Johnson, 873 question. Commonwealth than Absent more reasons stated (Pa.Super.2005); 709 n. 2 see record, [Appellant’s] aggregate total Hoag, also 445 Pa.Su manifestly sentence is “so excessive as (1995) (ex 1212, 1214 per. punishment.” a to constitute too severe that a defendant is not entitled to plaining Mouzon, crimes). for his or her a “volume discount” (2002) (holding appel of this question panel when 8 The recent decision of a lant raised a substantial argument Dodge, in Commonwealth v. “plausible she advanced Court [sic] 1) does not alter sentence was: inconsistent A.2d [her] fact, panel our In specific provision the sentenc conclusion. [of] 2) Code; holding. contrary Dodge to the funda noted the limitations of its ing or (explaining n. mental norms which underlie the sen- See id. (2005) granted, rule 868 A.2d 450 decision “is to be read a that a challenge twenty- of a aggregate consecutive nature sentence of (affirming always range sentence raises a imprisonment standard for ten years six to 100 question convictions). or an substantial constitutes robbery and related all are cognizant abuse discretion. We that he Appellant also claims sentencing can encompass wide vari because question has raised a substantial ation of factual we make scenarios. why explain court failed to again that clear these issues be ex he committed deserve robberies a case-by-case amined and determined on “typical” more sentence than the severe basis”) Dodge, the court con robbery. find that claim raises We this secutive, sentences on all essentially chal question, as substantial thirty-seven of counts theft-related given lenges adequacy reasons for an aggregate fenses 58to by for its choice. years imprisonment. The facts and Rodda, charged crimes in the case are (en banc) (explaining 214 (Pa.Super.1999) markedly Although pled different. that a is raised when substantial many guilty at more criminal dockets and appellant claims to additional crimes at each docket for for im sufficiently state reasons failed sentenced, Appellant he was guidelines). posing a sentence outside only sentenced for four robberies. however, claim, This is refuted the rec robberies, a handgun three of the he used ord. and, notice, upon the Commonwealth’s required impose

trial court was a five ¶ employed The standard year minimum sentence. sen reviewing discretionary aspects the when remaining robbery tence on the deviated Koren, 646 very is narrow. guideline the range. from if may only the 1208. We reverse ¶ short, panel majority 9 In as the itself or abused sentencing court its discretion noted, Dodge stand for does not the broad error of Id. We committed an law. that a proposition challenge imposi- decision accord the court’s tion of consecutive rather than concurrent it in the best great weight because was raises in sentences a substantial charac position review the defendant’s Dodge panel major- all cases. While in the ter, indifference, over or and the defiance that ity aggregation many concluded nature of crime. Id. all effect and ap- sentences rendered the sentencing, first noted At court excessive, overall no pellant’s sentence in guilty pleas that had entered Appellant such concern arises case. cases. court fur- a total fourteen The Whitman, See also Commonwealth ordered, had read and ther that it stated Pa.Super. Lexis 2525 that presentence report, a 2005) considered August (Pa.Super. (concluding, sentencing guide- possessed applicable factually Dodge, that aggre- case similar to lines, acknowledged it was re- and seventy- gate thirty-nine sentence mandatory quired impose five-year a eight years of was “unwar- imprisonment minimum for three the four robberies. unfair,” and sentence ranted “the is virtu- then Defense counsel informed grossly ally disparate a life sentence and is that, time, serving a Appellant was imposed on similar offend- to sentences burglary. ers.”); in New York for compare Boyer, Appellant stated Counsel further appeal and drug approximately started treatment two addressed the court years remaining stated that he had two on years ago drug and that his addiction was N.T., that he was on his New York sentence and of most of’ his crimes. “cause waiting a list for some more treatment 9/22/08, at 11. Defense counsel continued: “life programs get so that he could his very drug had a [Appellant] serious N.T., 9/22/03, Ap- back track.” problem. He started to address that pellant then stated “There’s no ex- representing while I him. done, that I anything cuse for that I’ve He then went to New York. He had a try get I have been involved in. want to girlfriend there. He shouldn’t have myself together.” back Id. jumped went. He bail and went to New then made the got York. He arrested there and was following comments: May burglary sentenced on 15th for a Well, [Appellant], THE COURT: charge and received a flat three-and-a- mitigating as a factor Court does find year my half of which under- you plea a to all 14 have entered me, standing, from what he told he has cases, however, I cases in multiple have percent to serve at least 85 of that sen- multiple front of me victims and tence, him eligible which would make A multiple situations. number of cases parole September sometime around in- robbery gun. involve a with a One bat, robbery volves with baseball [Appellant] has told me he has been is, by my calcula- the truth of the fact very jail drug active as far as the tions, you’re looking possible at a programs. alcohol awareness He is ad- tence, years a maximum sentence of 80 dressing problems he has. jail robbery charges]. the four [for say I can a lot personally he looks being there a time when So talking better than he has. He is a lot in favor of a Defendant addict can work past. more clearer than he has circumstance, such mitigating good to show a deal of He seems thefts, perhaps if some even there are remorse for has done. He is what he purse person goes snatch and the trying this. He wants to to beat rehab, successful, is successful or isn’t accept this and consolidate his cases and crimes; committing quits but at least put it him. behind reviewing my you in notes of what but run This would have been our wish to did, you very, very on a serious went anything doing this concurrent to he was spree of six months. crime period York to minimize his New to all of pled guilty You came and incarceration. you and two months after charges, the Id. at 12-13. Counsel also stated that that, you went to New York and did accept any length Appellant while “would committed another violent crime New you serving are now period probation that the Court York for which term of incarceration. continuing give would as a substitute incarceration,” acknowledged that just you I that are a candi- don’t feel your because of hands are kind of tied with these date for rehabilitation “[o]ur you certainly danger I then acts. feel Id. at 13. Counsel mandatories!.]” community. talking Ap- that he had been with stated years, randomly robbing for the last two in- pellant’s parents go You around people guns court informed counsel that it had nocent with or with other and the Appellant’s weapons. from father. kind[s] received a letter N.T., 9/22/03, true in the court then 16 The same is not 14-15. The re twenty-year Appellant case inasmuch as imposed aggregate the ten to Ini sentence. ceived an “individualized” sentence. sentencing that court tially, we note the comments, the find 15 Given above we presentence and considered possessed did a manifest the court below not commit Thus, arises that presumption the report. sentencing Ap of discretion abuse when and sentencing court aware of the was provided adequate reasons for pellant contained weighed all relevant information sentencing Citing its choice. Common any along mitigating sentenc therein Walls, (Pa.Su wealth v. 846 A.2d 152 e.g. factors. See ing granted, per.2004), appeal Tirado, (Pa.Super.2005). (2005), A.2d 1075 and Commonwealth argues that that Appellant To the extent Caraballo, 848 A.2d 1018 “did consid adequately the trial court Appellant sentencing asserts that the court factors, mitigating such a claim er” the distinguished “never crimes were [his] how question. raise a does substantial other worse than instances of the same Hanson, prior offense defendants with similar Moreover, (Pa.Super.2004). 1257-58 record scores.” Brief justifying imposed, factor Initially, note we that both and Car- Walls on the fact placed great emphasis aballo involved the of consecu imposition pleading guilty months after two tive, maximum deviated sentences that Appellant, Pennsylvania, by counsel’s own applicable sentencing guidelines. from the admission, “jumped bail” and committed While in this case one sentence another violent crime in New York. guidelines, deviated from the applicable addition, “sentencing an we note when aggregate imposed upon Ap permitted the trial appellant, court is statutory pellant was nowhere near the offense and consider the seriousness of robberies, for the maximum four let alone impact community.” the other crimes for stood Appellant Roden, (Pa.Su wealth v. “requirement” convicted. Finally, the fact that per.1999). Walls Caraballo con disagrees with the court’s court differentiate crime appellant’s regarding poten his rehabilitative clusion “similarly-situated” from other defendants render tial does not the sentence imposing when sentence in this case is of discretion. See Common abuse addition, inapposite. both Walls Gibson, 1275, 1279 Caraballo, this Court raised concerns (Pa.Super.1998). gen presenting clear, then, fashioning eralizations about nature of the crime It that in support committed to rather the sentences the court did consider the sentence concerning Appel than an individualized consideration individual circumstances many he committed. appellant’s circumstances. See also Com lant and the crimes Cortez, Twitty, 876 A.2d 1051 monwealth 860 A.2d See Commonwealth (Pa.Super.2005) (distinguishing (Pa.Super.2004) aggregate sen (vacating that the drug- holding for and Caraballo and thirty years tence of fifteen Walls alia, for because, inadequate claim of reasons appellant’s related convictions inter maximum sentence sentencing imposition statutory not support record did record); Han by the also “was refuted see appellant court’s comments that the son, (affirming aggra many 1259-60 throughout his cancer spreading families.”). terroristic range sentence neighborhoods many vated sentencing sentence”; threats where properly a similar “the critical upon particular relied circumstances of issue whether the arrived at conviction; appellant’s upon reliance granted constitutes an abuse of discretion actually Walls court.”); worked to his detriment sentencing to the repre Galletta, (Pa.Su because his conviction “was more 864 A.2d ‘typical’ hensible than a instance of terror- per.2004) (explaining “[although we threats.”); Smith, istic may impose not have chosen to the statu (af (Pa.Super.2004) tory case, maximum in this we find that firming ag sentence for sexual assault in sentencing court balanced the relevant gravated range clearly because it was indi and, therefore, factors as required did not vidualized and tailored to appellant manifestly by imposing its discretion abuse gravity based on the of the offense and the did.”) grant the sentence it To protect need to public); the sentence he deems “reasonable” this Diaz, merely case judgment would substitute our (Pa.Super.2005) (affirming aggregate sentence of for that of improp court-an twenty-four years twelve to imposed upon er appellate function. See Commonwealth seventy-four-year-old appellant where Stewart, (Pa.Su forty-two did sentence on all per.2005) (explaining that is not the “[i]t counts, rather, but sentenced him to three function of an court to determine year consecutive terms for each of three whether would have imposed the same year span activity); of criminal Boyer, 856 court.”); sentence as the trial see also A.2d at 154 (concluding that court did not (Stevens, J., Dodge, 859 A.2d at 785 dis abuse in imposing its discretion a series of senting) (explaining is not the “[i]t consecutive, sentences role of the appellate engage court to when court considered presentence report fact-finding, large part, because we are particular and the circumstance of the position in a to make assessments of crime). credibility.”) essence, Reduced to its above, 19 As noted we must accord the true claim on appeal only is that the “rea- great weight court’s decision sonable” sentence that he could have re- because it was in position the best to re- many ceived for his crimes at fourteen character, view the defiance or in Pennsylvania different dockets is one indifference, and the overall effect and na- “entirely concurrently” that runs Koren, ture supra. of the crime. After serving now New York. review, we cannot conclude that the sen- Appellant’s Brief at 19. This is not the tencing court considered these factors test “reasonableness” under such a manner that a manifest abuse Rather, C.S.A. section 9781. if the sen- discretion occurred. We therefore affirm court, tencing considering after appro- Appellant’s judgment of sentence. factors, priate section 9721 ¶ 20 Judgment of sentence affirmed. sentence, states valid reasons for its record, supported by this Court STEVENS, Concurring J. files a affirm partic- the decision even if the Opinion. panel agree weight ular does not with the J., STEVENS, Concurring. court accorded them. See Robertson, separately 1 I write e.g., Commonwealth v. to address the impact (Pa.Super.2005) (upholding Supreme Court’s recent deci — guidelines O’Berg, tence which deviated from the sion in v. (2005) -, though “possibly might even we appellate have 880 A.2d 597 has on Wade, A.2d at of ness trial counsel.”6 claim of her own ineffectiveness counsel’s discretionary (emphasis original). raise in failing Appellant’s in to claim in the court- aspect of O’Berg I not overruled has conclude 1925(b) statement. See ordered Pa.R.A.P. and, in absent Wade this Court’s decision O’Berg, 4. In Majority Opinion at 611 n. specific Supreme pronouncement Court Supreme Court examined Grant’s5 of inef- applicable to claims Grant general rule that of ineffective as- claims in appellate of counsel fective assistance of trial court should be deferred sistance in a court- failing precise issue to raise collateral and concluded that until review 1925(b) on ordered Pa.R.A.P. statement exception to there is no “short sentence” Majority agree I appeal,7 direct rule in general announced Grant. re- controlling permits that Wade is Supreme in doing, O’Berg Court so underlying of discretion- Appellant’s view specifically stated: aspect sentencing claim. ary of course of action is believe best [W]e our in to reaffirm decision Grant and rule, general

reiterate as a claims

of ineffective assistance of counsel will appeal.

not be on direct entertained Moreover, George opportunity we take this to Plante B. McNELIS and Jean disapprove any Supe- McNelis, of Appellants, decisions contrary. rior Court that v. O’Berg, 880 T. LEAR S. Robert Winifred ¶ 2 O’Berg subsequent was filed to this Lear, E. Lewis Little and in Court’s decision Little, Martha C. Wade, (Pa.Super.2005), upon Majority concluding

which the relies Obermayer, Rebmann, Maxwell & ineffective assistance of Hippel, G. William Schwartz counsel appellate claim is viable direct Sygenda, Appellees. Susan Wade, explained appeal. this Court general in pronouncement that Grant’s Superior Pennsylvania. Court applicable appellate assertions Argued Sept. 2005. failing counsel was ineffective raise Filed Dec. 2005. 1925(b) in a specific issue Pa.R.A.P. state very “by wording, ment. held that We applies allegations

Grant ineffective- Grant, failing raise a 5. Commonwealth that she was ineffective (2002). aspects claim discretionary 1925(b) statement. Pa.R.A.P. acknowledged 6. We in Wade that "Grant can by simply layering a be avoided claim of applied Supreme has 7. I note that the Court atop counsel ineffectiveness O'Berg find that assistance twice to ineffective of trial counsel.” claim ineffectiveness deferred claims should be of trial counsel Therefore, Wade, appel review. See Commonwealth until collateral late counsel's claim that he ineffective 3118048, - Pa. -, May, 2005 WL failing to raise a of trial counsel’s claim inef DeJesus, (Pa.2005); in a court-ordered Pa.R.A.P. fectiveness (Pa.2005). these 880 A.2d 608 Neither 1925(b) statement would result deferral of allegations regarding appel However, cases dealt with pursuant in the the claim to Grant. judice, claiming late counsel’s ineffectiveness. appellate counsel is case sub

Case Details

Case Name: Commonwealth v. Marts

Court Name: Superior Court of Pennsylvania

Date Published: Dec 14, 2005

Citation: 889 A.2d 608

Court Abbreviation: Pa. Super. Ct.