Com. v. Marts

• Decision Date: 14 December 2005
• Citation: 889 A.2d 608
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Christopher MARTS, Appellant.
• Court: Pennsylvania Supreme Court

889 A.2d 608

COMMONWEALTH of Pennsylvania, Appellee, v. Christopher MARTS, Appellant.

Superior Court of Pennsylvania.

Argued June 27, 2005.

Decided December 14, 2005.

COPYRIGHT MATERIAL OMITTED

Erin K. Morey, Pittsburgh, for appellant.

Michael W. Streily, Deputy Dist. Atty., Pittsburgh, for Com., appellee.

BEFORE: HUDOCK, STEVENS and MONTEMURO,^* JJ.

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 dockets. 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 his 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 excessiveness 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. 455, 665 A.2d 1212, 1214 (1995) (explaining that a defendant is not entitled to a "volume discount" for his or her crimes).

¶ 8 The recent decision of a panel of this Court in Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004), does not alter our conclusion. In fact, the panel in Dodge noted the limitations of its holding. See id. at 782 n. 13 (explaining that its decision "is not to be read a rule that a challenge to the consecutive nature of a standard range sentence always raises a substantial question or constitutes an abuse of discretion. We all are cognizant that sentencing can encompass a wide variation of factual scenarios. Thus, we make clear again that these issues must be examined and determined on a case-by-case basis.") In Dodge, the court imposed consecutive, standard range sentences on all thirty-seven counts of theft-related offenses for an aggregate sentence of 58½ to 124 years of imprisonment. The facts and crimes charged in the present case are markedly different. Although he pled guilty at many more criminal dockets and to additional crimes at each docket for which he was sentenced, Appellant was sentenced only for four robberies. In three of the robberies, he used a handgun and, upon the Commonwealth's notice, the trial court was required to impose a five year minimum sentence. Appellant's sentence on the remaining robbery deviated from the guideline range.

¶ 9 In short, as the panel majority itself noted, Dodge does not stand for the broad proposition that a challenge to the imposition of consecutive rather than concurrent sentences raises a substantial question in all cases. While in Dodge the panel majority concluded that the aggregation of many standard range sentences rendered the appellant's overall sentence excessive, no such concern arises in the present case. See also Commonwealth v. Whitman, 880 A.2d 1250, 2005 Pa.Super. Lexis 2525 (Pa.Super. August 1, 2005) (concluding, in case factually similar to Dodge, that aggregate sentence of thirty-nine to seventy-eight years of imprisonment was "unwarranted and unfair," "the sentence is virtually a life sentence and is grossly disparate to sentences imposed on similar offenders."); compare Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa.Super.2004), appeal granted, 582 Pa. 661, 868 A.2d 450 (2005) (affirming aggregate sentence of twenty-six to 100 years of imprisonment for ten robbery and related convictions).

¶ 10 Appellant also claims that he has raised a substantial question because the sentencing court failed to explain why the robberies he committed deserve a more severe sentence than the "typical" robbery. We...