Commonwealth v. Carter

1

COMMONWEALTH OF PENNSYLVANIA v. CORDELL HASSAN CARTER Appellant

No. 600 MDA 2023

No. J-S35039-23

Superior Court of Pennsylvania

November 9, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered March 1, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002206-2021

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Cordell Hassan Carter, appeals from the judgments of sentence following guilty pleas to possessing a controlled substance with intent to deliver and flight to avoid apprehension entered before the Court of Common Pleas of Dauphin County.^[1] Specifically, Appellant argues the sentencing court abused its discretion by not giving more weight to mitigating factors when it imposed an aggregate term of six to twelve years' incarceration. We affirm.

Appellant failed to appear for a preliminary hearing for charges arising from a high-speed chase resulting in a collision (which charges are listed under CP-22-CR-0000387-2021). A bench warrant, one of several, was issued for his arrest. The United States Marshall's Task Force located Appellant in Swatara Township, Dauphin County on April 29, 2021. When the members of the task force approached and identified themselves, Appellant ran across a parking lot to avoid arrest. Appellant was apprehended after discarding a black bag. The bag was subsequently recovered and found to contain $2,600 and possible drug paraphernalia. While in the back seat of a patrol car, Appellant was apprised of, and waived, his rights to remain silent and to counsel, and agreed to reveal where additional drug-related items could be found. Under the rear passenger seat of Appellant's car parked in the lot, officers found a digital scale with white residue on it and a plastic bag containing 58 grams of cocaine. On January 24, 2023, Appellant entered guilty pleas to possessing a controlled substance with intent to deliver, a felony, and flight to avoid apprehension, graded as a felony of the third-degree.^[2] On March 1, 2023, Appellant was sentenced by the Honorable Edward M. Marisco, Jr. Two other dockets were consolidated for sentencing along with the instant matter: under Docket 387-2021 were six jury convictions in December 2022 arising from the high-speed chase on September 16, 2020; and under CP-22-CR-0002309-2020 were two convictions of possessing a controlled substance with intent to deliver crack cocaine, on November 27, 2019 and on January 16, 2020, to which Appellant had entered guilty pleas immediately prior to sentencing (the "controlled buy case"). Both of the sales of crack cocaine in the controlled buy case occurred before the high-speed chase in September 2020. The high-speed chase occurred before Appellant's arrest in possession of 58 grams of cocaine in the instant matter.

Appellant was represented by present counsel for sentencing on both drug-related cases, that is, the controlled buy case and the instant matter.

Appellant had separate counsel for sentencing on the jury convictions arising from the high-speed chase. The court read the sentencing memoranda submitted, and heard the arguments on the sentencing guidelines, pre-sentence investigation report ("PSI"), application of the substantial amount of time credit, interpretation of Appellant's lengthy criminal record, and Appellant's allocution. N.T. 3/1/13, 5-23.

The sentencing court noted its familiarity with the facts of each case and Appellant's record, specifically that Appellant was released from custody only to reoffend before the pending cases could be resolved. It turned to the instant matter first because it was the last incident to occur. The court imposed consecutive terms of incarceration of: five to ten years for possessing a controlled substance with intent to deliver; and one to two years for fleeing to avoid apprehension. The court ordered Appellant to pay costs but no fine and applied the full 28 months and three days credit to the aggregate term of six to twelve years' imprisonment. Crediting the full time possible to the instant matter made Appellant eligible sooner for drug rehabilitation while incarcerated. N.T. 3/1/22, 23-26.

For the high-speed chase case, the court imposed the following terms of incarceration consecutive to each other, and to the aggregate sentence imposed on instant matter, of: two and one-half to five years on fleeing apprehension and one to two years on criminal trespass. It imposed terms concurrent to the two-and-one-half to five-year term of: nine to 18 months incarceration for tampering with evidence, and six months' probation for driving under the influence. It also imposed costs and $800 in fines and ordered restitution of $1,750. No further penalty was imposed on the careless driving and reckless driving convictions. The aggregate term was three-and-one-half to seven years' imprisonment consecutive to the sentence imposed in the instant matter. For the controlled buy case, the court imposed concurrent terms of one-and-one-half to three years' incarceration on each of the convictions for possessing a controlled substance with intent to deliver and ordered 22 months and eight days' time credit. The aggregate term imposed on all three cases consolidated for sentencing was nine-and-one-half to 19 years' imprisonment, $800 in fines, and $1,750 restitution. N.T. 3/1/22, 26-29.

Appellant filed a post-sentence motion on March 13, 2023, seeking to withdraw his guilty pleas in the instant matter and, in the alternative, requesting the court to modify his sentence because it "abused its discretion and imposed an unduly harsh sentence, without considering the history and characteristics of [Appellant] and failed to state sufficient reasons on the record." Post-Sentence Motion ¶ 12. The court denied Appellant's motion by an Order entered on March 21, 2023. Appellant timely appealed.

Appellant raised the following claims of error for us to review:

The sentencing Court erred in imposing an aggregate sentence of six (6) to twelve (12) years of incarceration, and subsequently denying defendant's post-sentence motion, when this sentence is manifestly excessive as to constitute an abuse of discretion. The individual sentence at each count were excessive and unreasonable and constitute too severe a punishment considering the rehabilitative needs of [Appellant] as well as the Court's overall sentencing scheme.

Appellant's Rule 1925(b) Statement. Notably, Appellant's claim in his post-sentence motion that the court did not provide adequate reasons for the sentence imposed was not preserved in the Rule 1925(b) Statement. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived").

In his Statement of Questions Presented, Appellant raises a single claim that:

… the trial court abused its discretion when it imposed … a sentence of three and a half to seven years in state prison without considering the history and characteristics of [Appellant]; thus constituting a manifestly unreasonable sentence considering the rehabilitative needs of the [Appellant]

Appellant's Brief, 6.

Appellant's preserved claim is an assertion that the sentencing court abused its discretion when it allegedly failed to consider his history and characteristics and imposed terms, both individually and in the aggregate, that were "manifestly excessive," "manifestly unreasonable," or "unduly harsh" (as variously described in the documents), in light of his rehabilitative needs. As such, Appellant's claim is a challenge to the discretionary aspects of his sentence:

Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. Id. An appellant must satisfy all four requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022), appeal denied, 2023 WL 4755198 (Pa. July 26, 2023).

As discussed, Appellant satisfied the first two requirements. Thus, we turn to the Rule 2119(f) statement included in his brief to discern whether a substantial question has been raised.

We determine whether there is a substantial question on a case-by-case basis. Commonwealth v. Crawford, 257 A.3d 75, 78 (Pa. Super. 2021). "We cannot look beyond the statement of questions presented and the prefatory Rule 2119(f) statement to determine whether a substantial question exists." Crawford, 257 A.3d at 78-79 (quoting Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018)) (brackets omitted). A substantial question is presented where:

… an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which

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