Commonwealth v. Luketic

162 A.3d 1149

COMMONWEALTH of Pennsylvania

v.Christopher LUKETIC, Appellant

No. 789 WDA 2016

Superior Court of Pennsylvania.

Argued November 30, 2016

Filed May 16, 2017

Ryan H. James, White Oak, for appellant.

Paul R. Scholle, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: LAZARUS, SOLANO, and STRASSBURGER,^* JJ.

OPINION BY SOLANO, J.:

Appellant, Christopher Luketic, appeals from his judgment of sentence of six to twelve months' incarceration. After careful review, we vacate the judgment of sentence and remand for resentencing.

On September 22, 2015, Appellant and his friend Nicole Stevens were arrested for purchasing heroin from a drug dealer named Lanel Buckner. The Commonwealth described the transaction and arrest as follows:

[Police detectives] were conducting surveillance in a high-crime, high-drug trafficking area of the City of Pittsburgh, when they observed the [co-] defendant, Lanel Buckner, texting and continuously looking down the street.

They then observed a vehicle driven by another defendant, Chris Luketic, pull into oncoming traffic and stop directly in front of Mr. Buckner.

They also were able to later identify the front seat passenger of Mr. Luketic's vehicle as the third co-defendant, Nicole Stevens.

At that time, detectives were able to observe a transaction where they observed Mr. Buckner hand Mr. Luketic suspected heroin in exchange for United States currency.

At that point, the detectives initiated a traffic stop on the vehicle in which Mr. Luketic and Miss Stevens were operating.

At that time, Miss Stevens did hand the detectives eight stamp bags of suspected heroin, and pointed out several more on the floor of the vehicle. They also observed a loaded syringe on the floor of the rear of their vehicle.

N.T., 6/1/16, at 18–19.

On June 1, 2016, Appellant entered an open plea of guilty to possession of a controlled substance.¹ Buckner also pleaded guilty, and he was sentenced immediately prior to Appellant to three to six years' incarceration in a state correctional institution. N.T. at 21.² While sentencing Buckner, the trial judge stated

I'm giving you three to six years in the State Correctional Institution. You'll be on probation for five years after you get through with that. And zero tolerance for drugs. Maybe marijuana will be legalized by then.

But I don't know how many more opportunities I can give you. You are not a dumb kid. You have just chosen you are going to sell dope to people. And that's the consequence. You have to deal with the consequences of having a blatant disregard for everyone else's life. You want to sell dope. You have dope fiends like him[ ] ( [i]ndicating [Appellant] )[.] He is going to jail, too. He is not walking out of here either.

N.T. at 21–22 (emphasis added).

At the conclusion of Buckner's sentencing hearing, the court ordered that Appellant's urine be tested. While Appellant was absent from the courtroom, the court had the following exchange with Appellant's defense counsel:

[APPELLANT'S COUNSEL:] ... I have concerns with my client being sentenced before the Court, given the Court's statement on the record and indicating that the Court was already predisposed to enter a jail sentence of some sort before I had the opportunity to elicit testimony—

THE COURT: He is sitting there sweating like a pig.^[3] I believe he is going to have hot urine.

[APPELLANT'S COUNSEL:] I'm objecting to the Court imposing sentence if the Court was willing to enter a jail sentence without me eliciting any mitigating factors, because his guidelines in the standard range are either RS [restorative sanctions] to 1 and RS to 9 or an RS—[¶] The District Attorney and I are on two different pages as to what his prior record score is.

THE COURT: Why don't you wait until your client comes back. I don't want to address anything you are saying without him being here. I'll give you an opportunity to address all of that.

N.T. at 26–27.

Upon Appellant's return, his sentencing proceeding began. The court began by inquiring about Appellant's urine test. Although the test showed that Appellant did have opiates in his system, the court determined that Appellant had a prescription for them. N.T. at 28.⁴

Defense counsel then renewed his objection to Appellant being sentenced by the court, in the following exchange:

[APPELLANT'S COUNSEL:] Briefly, Your Honor—as the Court instructed, we were waiting for [Appellant] to come back [from his urine test]. I want to impose an objection on the record since the Court indicated in this co-defendant case that the Court was inclined to send [Appellant] to jail.

THE COURT: I am going to send him to jail. Let's not have any equivocation. He is going to jail, because he and the guy who went to jail, they are both opposite sides of the same coin. That's why he is going to jail, because he creates the guy that is with him. But go ahead.

[APPELLANT'S COUNSEL:] If I can make a record on behalf of my client. The Court has already prejudged that matter before I got to even elicit any testimony out of my client that would bear upon any mitigating factors. [¶] My client, based upon a prior record score of one is within RS to 6 range. He is within a probationary range.^[5][¶] Our sentencing code is quite clear that before this Court imposes judgment of any kind, they need to pay attention in these matters.

THE COURT: I'm all ears. I'm all ears. Tell me something mitigating.

[APPELLANT'S COUNSEL:] I have concerns that this Court doesn't care what is mitigating, based upon that determined—already expressed—

THE COURT: Tell me what is mitigating. We don't have to have any guesswork. Tell me what is mitigating. Give me the mitigating facts.

N.T. at 28–29 (emphases added).

Appellant's counsel then presented a case for a mitigated sentence based on the following factors: Appellant's acceptance of responsibility,⁶ his drug addiction, the fact he is not a drug dealer, his attempts at recovery, his employment status, and his relationship with his three-year-old daughter. N.T. at 29–36. Neither the court nor defense counsel made any reference during this discussion (or at any other time) to any pre-sentence investigation report ("PSI") regarding Appellant, and there is no indication that the court ordered one, even though Appellant, who had a prior conviction for possession of a controlled substance, could have received a sentence in excess of one year of incarceration for his misdemeanor.⁷ There is no PSI in the record, and the record does not indicate whether either party waived ordering of a PSI.

During defense counsel's presentation regarding mitigating factors, after it was established that Appellant is 28 years old and has an opiate addiction, the court engaged with Appellant by asking him, among other things, what steps he had taken to pursue recovery from his addiction and what evidence he could provide of those steps. N.T. at 32–35.⁸ At the end of this exchange, the court stated:

We are here imposing sentencing for cases in which you pled guilty to, because we have a heroin epidemic in this region. We have people who sell dope. We have people who use dope. We have people who drive people to get dope, and they disseminate it throughout the county. I don't believe they are independent. I believe they are all a part of the same animal. Everyone is going to take some share of fat in the game, including you.

Id. at 35–36. When asked what else he would like to tell the court, Appellant stated, "I plan on attending treatment whenever I leave here," to which the court responded, "When you leave. We are going to get you some help." Id. at 36. Appellant's counsel requested a sentence of probation, house arrest, or work release, and for Appellant to go to treatment. Id. at 37. Defense counsel closed by saying, "And I would renew my objection to the Court imposing sentence, based upon a jail sentence, and having that predetermined before I even had the opportunity to elicit that information." Id.

The court then sentenced Appellant to serve six to twelve months' incarceration in county prison, and a year of probation. N.T. at 37. The court stated, "Hopefully you'll get some intervention while you are there." Id. The court noted that it was Appellant's second conviction for this offense, and stated to Appellant, "You are as guilty as the guy who was with you. You conspired to distribute drugs, to sell drugs, to consume drugs. He is going to the State Correctional Institution, and you are going to the Allegheny County Jail." Id.

Appellant filed no post-sentence motion following his sentencing, but filed a notice of appeal on June 2, 2016. Appellant's sentence was stayed pending the outcome of this appeal. See Order, 6/9/16.

In a Rule 1925(b) Statement, Appellant argued that the court's predisposition to sentence Appellant to jail meant that the court should have recused from participating in the sentencing proceeding and that the sentence was invalid because it was not individualized. In response, the trial court issued an opinion pursuant to Rule 1925(a) of the Rules of Appellate Procedure. The court began the opinion by stating its perspective on the case:

Mr. Luketic is a drug addict. He buys heroin and then consumes this poison. But, the poison is not self-centered. His purchase of this product allows others—like his co-defendant—to sell this modern day plague. Both the buyer and the seller deserve punishment. Luketic feels his 6–12 months in the county jail followed by a year's probation is too harsh. So [he] has appealed from the Court's June 1, 2016, sentence.

Luketic and a female friend drive to an area of the City of Pittsburgh known for its criminal activity. Lanel Buckner is open for business. He is seen texting and constantly looking around. A car pulls up. It stops in front of Buckner. Luketic is driving. Ms. Nicole Stevens is riding shotgun. Buckner hands Luketic what police believe to be heroin. Money goes to Buckner. Luketic drives away. He doesn't get far. Police converge on the

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