J-S41009-23
2024 PA Super 22
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SCOTT ANDREW BAKER JR. : No. 300 WDA 2023
Appeal from the Judgment of Sentence Entered February 14, 2023
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002492-2021
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED: February 9, 2024
The Commonwealth of Pennsylvania appeals from the amended
judgment of sentence imposed following Scott Andrew Baker Jr.’s guilty plea
to various drug-related offenses. On appeal, the Commonwealth challenges
the discretionary aspects of his sentence. We affirm.
On September 22, 2021, Baker was charged by criminal information
with various drug-related offenses including conspiracy, possession with intent
to deliver, simple possession of a controlled substance, possession of a small
amount of marijuana, and use/possession of drug paraphernalia.
On December 16, 2022, Baker entered an open guilty plea to all
charges. The trial court deferred sentencing for preparation of a presentence
investigation report (“PSI”).
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On January 20, 2023, a sentencing hearing was held, during which
Baker requested to be sentenced to the Blair County Drug Court program,
which would entail a sentence of eight years’ probation. A sidebar was taken
between the court, defense counsel, and the Commonwealth to discuss the
option of the drug court program. After returning from sidebar, the trial court
entered an order sentencing Baker to eight years’ probation, subject to all
terms and conditions of the drug court program, and other conditions imposed
by the trial court. The court noted that Baker would remain in incarceration
until his evaluation for drug court and his release would depend on what the
drug court found to be an appropriate course of action.
A few days later, the Commonwealth filed a motion for reconsideration
of sentence, arguing the trial court abused its discretion in sentencing Baker
well below the mitigated range of the sentencing guidelines. Further, the
Commonwealth argued the court abused its discretion in sentencing Baker to
the drug court program, contending Baker was not eligible for the program
due to the weight of the drugs involved in the case. In response, Baker filed
a petition to dismiss the motion to modify, arguing that he did not plea to any
alleged weight of the controlled substance. Baker contended that while an
interoffice policy regarding weight eligibility for the drug court program can
provide the basis for an objection, it does not render a candidate ineligible.
A hearing on the motion for reconsideration was held over two days.
The court noted that there was not a “strenuous objection” at the time of
sentencing to not put Baker in the drug court program, so the court seemed
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a little confused about the post-sentence objection. See N.T, 2/13/23, Motion
to Modify, at 4. After more clarity surrounding the drug court program was
provided, the trial court acknowledged that while it still felt Baker would be a
good candidate for such a program, the court did not want to “shoehorn” a
defendant into drug court that the drug court judge opposes. Id. at 12; see
also N.T., Motion to Modify Day 2, 2/14/23, at 2-3. However, the court
maintained that it felt a probationary sentence was still appropriate, stating
its reasoning as follows:
So, to summarize, the Court, in sentencing [Baker], did consider
the pre-sentence investigation, it did consider the sentencing
memorandum on behalf of [Baker]. The Court noted that [Baker]
did have a prior criminal record but that his prior criminal record
included charges that were dismissed[,] involved misdemeanors
and did not reveal anything that said to the Court that in the past
[Baker] had been a major drug dealer or violent felony offender.
He was convicted of simple assault but not any felony assault
crime. Therefore, the Court, upon presentation and advocacy,
considered him to be an appropriate candidate for the Blair County
Drug Court.
However, the Court was not fully aware of the terms and
conditions of the Blair County Drug Court and is appreciative of
Commonwealth's Exhibit 1, which is the Policy and Procedure
Rules Manual for the Drug Court Treatment Court. As I said
previously, the Court is not going to attempt to shoehorn into the
Drug Court someone that the Assessment Team or the Drug Court
Judge deems to be inappropriate for the program because it would
just not be therapeutically good for the individual defendant or for
the other participants in the program and the Court does recognize
that its sentence at -- in the totality of this matter is -- well, I take
that back -- so, let's be a little more precise with our record –
[T]he Court notes on the 16th day of December, the matter came
before the Court at Plea Court and [Baker] entered a plea to Count
1, criminal conspiracy with object crime being possession with
intent to deliver. We note that in regards to the Pennsylvania
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Commission on Sentencing Guidelines, many of the crimes
[Baker] pled guilty to, such as simple possession, which is the first
charge listed on the sentencing guideline form, his standard range
is restorative sanctions or supervision to six months. At
possession of a small amount of marijuana, the standard range is
restorative sanctions to fifteen days. At possession of drug
paraphernalia, the penalty is restorative sanctions. At the charges
of criminal conspiracy with object crime being possession with
intent to deliver, the Court recognizes that its sentence was below
the standard range and below the mitigated range in regards to
those two charges but was convinced upon a totality of the
presentation, including the sentencing memorandum on behalf of
[Baker] and the several witnesses that testified on his behalf, as
well as the presentation by [Baker] that it was appropriate for the
Court to deviate below the mitigated range, especially when the
Court thought that [Baker] could benefit from the Blair County
Drug Treatment Court.
Recognizing at this date that he cannot, the Court still feels that
it is appropriate to impose the sentence of supervision conditioned
on the fact that he’s currently incarcerated and the Court is not
going to permit his release to the street but rather, as a condition
of his probationary sentence, orders that he be evaluated for
admission into inpatient treatment, he be transferred directly from
Blair County Prison to inpatient treatment. He shall remain there
until the period of inpatient treatment, which should be no less
than 30 days, is successfully completed. Thereafter, he is released
to Blair County Adult Parole and Probation supervision, including
random color testing in terms of blood, breath or urine for
compliance with the absolute prohibition against ingesting illegal
drugs or substances not prescribed for him by a physician and
taken in the manner prescribed.
N.T., Motion to Modify Day 2, 2/14/23, at 2-4 (reformatted for clarity). The
Commonwealth maintained its objection, asserting its belief that the weight
of the drugs should have been considered in sentencing. Specifically, the
Commonwealth argued that anything over 100 grams is interpreted as drug
trafficking, and therefore the Commonwealth did not believe this was a crime
of addiction. See id. at 6. Further, the Commonwealth noted the co-defendant
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in this case received a sentence of three to six years’ incarceration. Defense
counsel clarified that the co-defendant had prior delivery convictions and a
higher prior record score. See id.
The court corrected, on the record, the part of the sentencing order
directing Baker to comply with all terms and conditions of the drug court
program. See id. at 7. The court indicated which parts of the original
sentencing order to strike and directed new terms and conditions to insert in
place, in accordance with discussions at the hearing. See id. The court
thereafter continued to explain its reasoning for maintaining a probationary
sentence under the totality of the circumstances:
So, the record before the Court was that [Baker] had never been
arrested and accused of being a major drug dealer before. There
apparently was, because the Commonwealth has asserted it and
[Baker] and the co-defendant pled to it, a large amount of
substance found in the vehicle. At this point, it doesn't make any
sense to assign more or less blame to [Baker] or to the co-defendant. The Court believes that even though he possessed an
amount that was more than personal use, he still -- all the
evidence points to him as a person with a drug, who is appropriate
to treat. The Court is -- and he has not been sentenced to the
state correctional institution in the past. So, this is [Baker]’s last
chance to prove to the Court, to his family, who is in support of
him today and, most importantly, himself, as well as his probation
officers, who will be watching him very closely, that, you know,
he is not a major criminal but someone who has a history of petty
crimes and substance abuse and if the substance abuse problem
is addressed, he can be a good citizen and productive member of
society. So, basically, without putting him in the Blair County Drug
Court, I've sentenced him to the Blair County Drug Court with
perhaps a little more incarceration than most people in the Drug
Court get.
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Id. at 11-12. The Commonwealth again brought up the co-defendant’s
sentence and reiterated the amount of drugs and cash found during the traffic
stop leading to the instant charges. See id. at 13. The court noted the effect
that good advocacy can have during sentencing and persisted that it was
persuaded by the advocates on behalf of Baker. See id. The court stated its
belief that all the elements of the sentencing code have been met, and that it
based the sentence on the presentation in open court, defense counsel’s
advocacy, the statements of Baker and his family, and the PSI. See id. The
court noted that the co-defendant simply may not have had the benefit of a
similar presentation of advocacy. See id. at 14. Specifically, the court found
that it had been made clear at the co-defendant’s sentencing that she was not
an appropriate candidate for the drug court program, whereas it was not made
clear at all during Baker’s initial sentencing hearing that he may not be a good
candidate. See id. The court believed Baker could have benefited from the
drug court program, and therefore still structured the sentence to be similar
to the terms and conditions of the drug court program without formally being
sentenced to the drug court. See id. The court rejected the Commonwealth’s
presentation, which the court found to be a request for the court to impose a
sentence that is predominantly punitive. See id. The court believed it was
already being punitive by leaving Baker incarcerated on a probationary
sentence until he could be evaluated for inpatient treatment. See id.
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On the same day, the trial court issued an order setting forth the
amended sentence. This timely appeal followed.
After receiving the notice of appeal, the trial court issued an order
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), directing the
Commonwealth to file and serve a concise statement of errors complained of
on appeal no later than twenty-one days after the date of the order. The order
noted that any issue not properly included in the statement and timely filed
and served shall be deemed waived. See 1925(b) Order, 3/15/23. The docket
entry for this order confirms that it was served on the Blair County District
Attorney’s Office on March 15, 2023 by eService.
The Commonwealth filed its concise statement on May 18, 2023, which
is beyond the requisite 21-day period. On June 15, 2023, the trial court issued
its Rule 1925(a) opinion, in which it addressed the Commonwealth’s issue on
its merits, but stated in a footnote that it found the issue to be waived due to
the untimely filing of the concise statement.
It is well settled that only issues properly raised in a timely Rule 1925(b)
statement are preserved for appellate review. See Pa.R.A.P. 1925(b)(4)(vii).
However, this Court has held that “[i]f there has been an untimely filing, this
Court may decide the appeal on the merits if the trial court had adequate
opportunity to prepare an opinion addressing the issues being raised on
appeal.” Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009).
Under these circumstances, where the trial court had adequate opportunity to
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prepare an opinion addressing the issue raised, we decline to find waiver and
will address the issue on its merits.
In its sole issue on appeal, the Commonwealth argues the trial court
abused its discretion in sentencing Baker to probation, which is below the
mitigated range of the sentencing guidelines. See Appellant’s Brief, at 6. The
Commonwealth concedes this claim challenges the discretionary aspects of
sentence. “A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of a sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
[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
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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, the Commonwealth filed a timely appeal and preserved its issue
during objections at the amended sentencing hearing. The Commonwealth
also included a separate Rule 2119(f) statement in its brief. Accordingly, we
will review the statement to determine whether the Commonwealth has raised
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a substantial question. See Commonwealth v. Provenzano, 50 A.3d 148,
154 (Pa. Super. 2012) (stating that “we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” (citation omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citation omitted). “A substantial question [exists]
only when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.”
Id. (citation omitted).
In its Rule 2119(f) statement, the Commonwealth argues the trial court
abused its discretion by imposing a sentence below the mitigated range of the
sentencing guidelines resulting in an unreasonably lenient sentence. See
Appellant’s Brief, at 4-5. The Commonwealth’s argument raises a substantial
question. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001) (holding that the Commonwealth raised a substantial question where it
alleged defendant’s sentence was excessively lenient and unreasonably
deviated from sentencing guideline range and provided specific reasons why
the sentence violated sentencing norms). We will therefore consider the merits
of the Commonwealth’s claim.
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Our standard of review of a challenge to the discretionary aspects of a
sentence is well settled:
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,
the appellant must establish, by reference to the record, that
the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
In reviewing a record to determine if the sentencing court abused its
discretion, the Sentencing Code instructs this Court to consider the nature and
circumstances of the crime; the history and characteristics of the defendant;
the sentencing court’s findings as well as the court’s opportunity to observe
the defendant, including through presentence investigation; and the
sentencing guidelines. See 42 Pa.C.S.A. § 9781(d).
The Sentencing Code also instructs sentencing courts to consider “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). The balancing of these Section
9721(b) sentencing factors is within the sole province of the sentencing court.
See Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019).
The sentencing court must also consider the sentencing guidelines when
sentencing a defendant. See 42 Pa.C.S.A. § 9721(b). However, the sentencing
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guidelines are purely advisory in nature - they are not mandatory. See
Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). A court may
therefore use its discretion and sentence defendants outside the guidelines,
as long as the sentence does not exceed the maximum sentence allowed by
statute. See
id. at 1118-1119. When a court deviates from the sentencing
guidelines, it must state the reasons for doing so on the record. See
Commonwealth v. McLaine,
150 A.3d 70, 76 (Pa. Super. 2016). This Court
may vacate a sentence if it finds the “sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. §
9781(c)(3).
Further, the weight accorded to the mitigating factors or aggravating
factors presented to the sentencing court is within the court’s exclusive
domain. See Commonwealth v. Chilquist, 548 A.2d 272, 274 (Pa. Super.
1988). This Court has stated that when a court possesses a PSI, it is presumed
the court “was aware of and weighed all relevant information contained [in
the report] along with any mitigating sentencing factors.” Commonwealth v.
Marts,
889 A.2d 608, 615 (Pa. Super. 2005) (citation omitted).
During the initial sentencing hearing, the trial court provided the
following explanation for sentencing Baker to a probationary sentence:
Based on a totality of the circumstances, which is, number one,
you pled guilty and took full responsibility for these acts; number
two, you have a low prior record score of one; number three, you
only have one case; number four, this was not an investigation
where they had discovered that you were selling drugs to other
people. This was a vehicle stop where the drugs were found in the
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bag of your codefendant. Although, obviously you have taken
responsibility for those drugs in part. Next paragraph that
persuades me that you might be a successful candidate is the
support of your coparent and the fact that you are involved in your
child’s life. I think it is a benefit to your child if you can be a sober
person in that child’s life, and the final piece is you asking for the
drug court program because in the Court’s experience
administering a treatment court, people who want treatment are
the people who are going to be successful in treatment. You have
to do the work. It’s just like sit-ups. You can’t get a sixpack
without doing sit-ups. So you can’t get sober without doing the
work. I’m going to give you this chance but it is all up to you.
N.T., Sentencing, 1/20/23, at 18-19.
In amending the sentencing order, it is clear the court maintained the
above reasoning, while accounting for the fact that Baker would no longer be
sent to the drug court program. The court stated its reasons for deviating from
the guidelines in extensive discussions on the record. See N.T., Motion to
Modify Day 2, 2/14/23, at 2-4 (concluding that upon a totality of the
presentation, including consideration of the PSI, sentencing memorandum,
Baker’s history, and the advocacy on Baker’s behalf, it is still appropriate to
deviate from the guidelines); id. at 11-14 (applauding the advocacy on
Baker’s behalf and distinguishing the advocacy here from the co-defendant’s
circumstances). It is apparent the trial court considered all of the relevant
factors under Section 9721(b) in deviating from the sentencing guidelines.
Based on the court’s extensive and explicit consideration of the factors
set forth in Section 9781(d), and the general sentencing standards set forth
in Section 9721(b), along with the court’s consideration of the sentencing
guidelines and the PSI, we simply cannot say the trial court abused its
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discretion under the totality of the circumstances. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
President Judge Emeritus Stevens joins the opinion.
Judge Olson files a concurring opinion.
DATE: 02/09/2024
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