Commonwealth v. Bonner

135 A.3d 592

COMMONWEALTH of Pennsylvania, Appellee

v.Dante Alan BONNER, Appellant.

No. 176 WDA 2015

Superior Court of Pennsylvania.

Submitted Jan. 4, 2016.

Filed Feb. 23, 2016.

Brandon M. Herring, Pittsburgh, for appellant.

Amy E. Constatine, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON and STRASSBURGER,^* JJ.

OPINION BY OLSON, J.:

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 record 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 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,¹ two counts of possession of a firearm by a prohibited person,² possession of a small amount of marijuana,³ possession of a controlled substance,⁴ possession with intent to deliver a controlled substance,⁵ evidence tampering,⁶ attempted homicide,⁷ assault of a law enforcement officer,⁸ recklessly endangering another person,⁹ receiving stolen property,¹⁰ aggravated assault,¹¹ resisting arrest,¹² fleeing the scene of an accident,¹³ and four summary offenses. In exchange for his guilty pleas, the Commonwealth requested that the sentences at cases 12173 and 8642 run concurrently with the sentence at case 8568. After the completion of a presentence 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. 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

[a]lthough the [Pennsylvania Commission on Sentencing], rather than the General Assembly itself, directly adopts the [s]entencing [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, 575 Pa. 197, 836 A.2d 2, 4 n. 9 (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, ––– Pa. ––––, 117 A.3d 247, 255 (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 sentencing guideline will not be declared unconstitutional “unless it clearly, palpably and plainly violates the Constitution[.]” Commonwealth v. Hitcho, ––– Pa. ––––, 123 A.3d 731, 756–757 (2015) (citation omitted).

The Eighth Amendment provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments 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, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (internal quotation marks, alteration, 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, 111 S.Ct. 2680, 115 L.Ed.2d 836 (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, ––– U.S. ––––, 132 S.Ct. 2455, 2463, 183 L.Ed.2d 407 (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 society's standards, as expressed in pertinent legislative enactments and state practice[.]” Roper v. Simmons, 543 U.S. 551, 563, 125 S.Ct. 1183, 161 L.Ed.2d 1 (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, 130 S.Ct. 2011 (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 birthday, and

(2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the [first-degree misdemeanor [ ] 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]core 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

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