Commonwealth v. Rosario

1

COMMONWEALTH OF PENNSYLVANIA v. KEITH ANTHONY ROSARIO Appellant

No. 931 WDA 2022

No. J-S14041-23

Superior Court of Pennsylvania

June 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered March 25, 2022 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002611-2017

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Keith Anthony Rosario (Rosario) appeals from the March 25, 2022 judgment of sentence imposed by the Court of Common Pleas of Washington County (trial court) following this Court's remand for resentencing on his convictions for attempted homicide, two counts of aggravated assault, two counts of kidnapping and conspiracy to commit homicide, aggravated assault and kidnapping.^[1] The trial court resentenced him to an aggregate of 25 to 50 years' imprisonment followed by one year of re-entry supervision, a reduction from his original sentence of 35.5 to 90 years' imprisonment. Rosario challenges the discretionary aspects and legality of his sentence. We reverse and remand for resentencing.

I.

We recounted the factual and procedural history of this matter in detail in Rosario's direct appeal. See Commonwealth v. Rosario, 248 A.3d 599, 604-07, 612 (Pa. Super. 2021). Briefly, in September 2017, Rosario and two other individuals assaulted the victim, Marcus Stancik, as he was walking in an alley. They threw him into their van and drove him to a different location, where Rosario removed him from the vehicle and shot him at the base of his skull near his neck. He attempted to fire a second shot, but his gun jammed, preventing him from doing so. Stancik survived the gunshot wound and identified Rosario as one of his assailants to law enforcement.

Following a jury trial, Rosario was convicted of the above-mentioned offenses. On appeal, he argued in relevant part that his sentences for attempted homicide and conspiracy to commit aggravated assault were illegal, as the Sentencing Code prohibits multiple convictions for inchoate crimes "designed to commit or to culminate in the commission of the same crime." Id. at 616-19 (citing 18 Pa.C.S. § 906) (emphasis omitted). He additionally argued that his sentences for two counts of kidnapping under 18 Pa.C.S. § 2901(a)(2) and (3) violated double jeopardy principles because they arose from the same criminal act. Id. at 619. We agreed and vacated the sentences for conspiracy and kidnapping. Id. at 619, 621 (citing Commonwealth v. Lopez, 663 A.2d 746 (Pa. Super. 1995)).

Because our disposition upset the trial court's sentencing scheme, we remanded the matter for resentencing.

At the resentencing hearing, the parties stipulated to the entry of the presentence investigation report (PSI) prepared prior to Rosario's initial sentencing hearing in 2019. The report included details of Rosario's prior convictions, his family background and educational and employment history, character statements provided by family members and a victim impact statement. The trial court also considered excerpts of the transcript of the original sentencing hearing of statements by Rosario's mother and sister.

Rosario read a prepared statement on his behalf. While not admitting guilt, he expressed remorse to the individuals affected by the crime, particularly his own children. He regretted that his children would grow up without a father and said that he was working to be a productive member of society. He was employed as a janitor in state prison and was waiting to begin a barber shop training program. He was teaching himself Italian, learning about the law and writing a book. He said that he turned down a favorable plea deal for 11 to 22 years of incarceration and believed he was penalized for going to trial when he was sentenced to 35.5 to 90 years of incarceration. He said that he had no violent history in prison and was currently classified as a minimum security risk. He completed classes such as thinking for a change, violence prevention and batterers' intervention and was on the waiting list for additional classes such as money smart, seeking out safety, flaggers and building and planning. He believed that he was capable of rehabilitation and successfully reentering society.

After receiving this evidence, the trial court resentenced Rosario to an aggregate of 25 to 50 years of incarceration followed by one ear of reentry supervision. For ease of reference, the previous and current sentencing schemes are as follows:

Charge

June 3, 2019 Sentence

March 25, 2022 Sentence

Attempted homicide

120 to 240 months

120 to 240 months

Aggravated assault, (a)(1)

Merged

Merged

Aggravated assault with a deadly weapon, (a)(4)

36 to 120 months, consecutive

60 to 120 months, consecutive

Kidnapping, (a)(2)

90 to 240 months, consecutive

120 to 240 months, consecutive

Kidnapping, (a)(3)

90 to 240 months, consecutive

Merged

Conspiracy

90 to 240 months, consecutive

Merged

Aggregate

35.5 to 90 years

25 to 50 years

In resentencing Rosario to the statutory maximum on three of the counts, the trial court explained that it found several aggravating factors necessitating the sentence. First, Rosario had been paroled for a different firearms offense approximately four months prior to the instant offenses and he had also been on probation at the time for two prior drug offenses. The trial court considered Rosario's supervised release at the time of his crimes to be a separate aggravating factor from his prior record score and found that prior attempts at rehabilitating him had failed. Second, Rosario had involved a juvenile with whom he had a bond "much like father and son" in the crimes. N.T., 3/25/22, at 28. Third, the trial court stated that Rosario lacked remorse and had failed to take responsibility for his actions. He did not specifically express remorse to the victim during his allocution and had denied his guilt. Finally, the trial court found that the crime had a profound effect on the victim, who suffered medical issues stemming from the attack and still had the bullet lodged in his face at the time of trial. Based on those reasons, it concluded that the statutory maximum sentences were appropriate. Notably, its reasoning for imposing the sentences following remand were materially identical to the reasoning it provided in support of the original sentence. Compare N.T., 6/3/19, at 29-31, with N.T., 3/25/22, at 27-29.

Rosario timely filed a post-sentence motion, which the trial court denied after argument. He timely appealed and he and the trial court have complied with Pa. R.A.P. 1925.

II.

We begin with Rosario's challenges to the discretionary aspects of his sentence.^[2] He contends that the trial court abused its discretion because his sentences for aggravated assault with a deadly weapon and kidnapping exceeded the aggravated range of the sentencing guidelines and were unreasonable. He further contends that these sentences were excessive and that the trial court imposed maximum sentences without considering mitigating circumstances or his individual character.

A.

Before considering the merits of Rosario's claim, we must consider whether he has properly invoked this Court's jurisdiction. Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation omitted). A defendant must preserve his claims at the time of sentencing or in a post-sentence motion, file a timely notice of appeal, and include a statement of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief and raise a substantial question for review. Id. Rosario has complied with the first three requirements. Accordingly, we proceed to consider whether he has raised a substantial question.

"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." Commonwealth v. Clarke, 70 A.3d 1281, 1286-87 (Pa. Super. 2013) (citation omitted). We have previously held that a defendant presents a substantial question when he alleges that the trial court exceeded the aggravated range of the sentencing guidelines without justification. See Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008). Moreover, a defendant presents a substantial question when he or she alleges that the court imposed an aggravated range sentence without considering mitigating circumstances. See Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (citation omitted); Commonwealth v. Dodge, 77 A.3d 1263, 1270-71 (Pa. Super. 2013) (finding a substantial question for our review when a defendant alleged that the court imposed a manifestly excessive sentence without considering mitigating evidence). Rosario has alleged both of these abuses of discretion in his 2119(f) statement.^[3] As a result, we find that he has raised a substantial question and proceed to the merits of his claim.

B.

When imposing a sentence, a trial court must ensure that the sentence is "consistent with 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 § 9721(b). "The court is not required to parrot the words of the Sentencing Code, stating every factor that must be considered under Section 9721(b). However, the record as a whole must reflect due consideration by the court of the statutory considerations [enunciated in that section]." Commonwealth v. Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011) (citations omitted). A sentencing court is not...