Opinion
J-S12037-17 No. 1082 MDA 2016
03-23-2017
COMMONWEALTH OF PENNSYLVANIA v. ANTOINE WILLIAM DAYD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 26, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0005196-2014 BEFORE: PANELLA, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Antoine William Dayd ("Dayd") appeals from the judgment of sentence imposed following his conviction of three counts of firearms not to be carried without a license, and one count each of possession of firearms prohibited, possessing instruments of crime, receiving stolen property, and fleeing or attempting to elude a police officer. We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 8/29/16, at 1-3.
Dayd filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Dayd raises the following issues for our review:
1. Whether the Commonwealth failed to provide sufficient evidence at trial to support the guilty verdict on the firearm[s] charges?Brief for Appellant at 5 (capitalization omitted, issues renumbered, footnote added).
2. Whether the verdict was against the weight of the evidence presented at trial?
3. Whether [Dayd] is serving an illegal sentence pursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013)?
4. Whether the sentence received was excessive, as the trial court failed to put reasoning on the record for said sentence?
In Alleyne , the Supreme Court of the United States held that "facts that increase mandatory minimum sentences must be submitted to the jury" and must be found beyond a reasonable doubt. Alleyne , 133 S. Ct. at 2155, 2163.
In his first issue, Dayd contends that the evidence was insufficient to convict him of the firearms charges; namely, firearms not to be carried without a license and possession of firearms prohibited. Id. at 10. Dayd asserts that the element of possession was not proven for either offense. Id. at 11. Dayd claims that there was no physical evidence tying him to the firearms, except his presence in the vehicle in which the firearms were discovered by police. Id. at 13. Specifically, Dayd argues that no fingerprints were found on the firearms; the firearms were not registered to him; he did not own the vehicle; and there was no evidence that the firearms were visible to him while he was driving the vehicle. Id.
In its Opinion, the trial court addressed Dayd's first issue, set forth the relevant law, and concluded that the evidence was sufficient to convict Dayd of the firearms charges. See Trial Court Opinion, 8/29/16, at 3-5. We agree with the reasoning of the trial court and affirm on this basis as to Dayd's first issue. See id.
In his second issue, Dayd contends that the verdict was against the weight of the evidence presented at trial. Brief for Appellant at 14. Dayd asserts that the jury rendered a contradictory verdict, as it found him guilty of the firearms charges, but not guilty of the drug and paraphernalia charges. Id. at 15. Dayd claims that the inconsistent verdicts "shocked one's sense of justice," requiring reversal of his convictions. Id.
In its Opinion, the trial court addressed Dayd's second issue, set forth the relevant law, and concluded that the verdict was not against the weight of the evidence presented at trial. See Trial Court Opinion, 8/29/16, at 5-6. We agree with the reasoning of the trial court and affirm on this basis as to Dayd's second issue. See id.
In his third issue, Dayd contends that his sentence is illegal under Alleyne. Brief for Appellant at 17. Dayd asserts that it is unclear from the record whether he is serving a mandatory minimum sentence. Id. Dayd claims that "[n]othing was said on the record, nor did the sentencing guidelines indicate that any mandatories apply." Id.
In its Opinion, the trial court addressed Dayd's third issue, and determined that his sentence does not violate Alleyne because no mandatory minimum sentences were imposed. See Trial Court Opinion, 8/29/16, at 6. We agree with the reasoning of the trial court and affirm on this basis as to Dayd's third issue. See id.; see also N.T., 1/26/16, at 1-14.
In his final issue, Dayd contends that his sentence is excessive. Brief for Appellant at 16. Dayd acknowledges that the trial court had the benefit of a presentence investigation report ("PSI"), which the trial judge reviewed and incorporated into the record, but claims that the trial judge failed to state the reasons for imposing her sentence. Id. Dayd argues that, because the trial court failed to sufficiently state the reasons for his sentence on the record, Dayd's sentence must be vacated. Id. at 17.
Dayd's final issue challenges the discretionary aspects of his sentence. See Commonwealth v. Smicklo , 544 A.2d 1005, 1009 (Pa. Super. 1988) (holding that claims relating to statement of reasons requirements are treated as challenges to the discretionary aspects of a sentence). "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] 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, [ see ] 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, [ see ] 42 Pa.C.S.A. § 9781(b).Moury , 992 A.2d at 170 (citation omitted).
In the instant case, Dayd filed a timely post-sentence Motion and a timely Notice of Appeal, and included in his appellate brief a separate Rule 2119(f) Statement. As such, Dayd is in technical compliance with the requirements to challenge the discretionary aspects of his sentence. See Commonwealth v. Rhoades , 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we will proceed to determine whether Dayd has presented a substantial question for our review.
In his Rule 2119(f) Statement, Dayd states that, when imposing his sentence, the trial court failed to state the reasons for the sentence on the record. Brief for Appellant at 9. A claim that a sentencing court failed to state adequate reasons on the record for the sentence imposed has been held to raise a substantial question. See Commonwealth v. Krysiak , 535 A.2d 165, 168 (Pa. Super. 1987).
Pursuant to 42 Pa.C.S.A. § 9721(b):
In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. . . . Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.42 Pa.C.S.A. § 9721(b). Thus, the requirement that the trial court articulate its reasons for the sentence imposed is not discretionary, but mandatory. See Krysiak , 535 A.2d at 168.
However, the sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the PSI, thus properly considering and weighing all relevant factors. See Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009)
Our review discloses that, while the trial judge did not place on the record her reasons for imposing sentence upon Dayd, she indicated that she had ample opportunity to review the PSI and Dayd's prior record, and incorporated the PSI into the record. See N.T., 1/26/16, at 6, 7. Because the trial court clearly relied upon the PSI, and the sentence imposed was neither outside the applicable guidelines nor unreasonable, we conclude that the trial judge did not abuse her discretion and, thus, there is no merit to Dayd's sentencing claim. See Ventura , 975 A.2d at 1135.
In his brief, Dayd also contends that the trial court should have taken into consideration the fact that Dayd has never received treatment for his addictions. Brief for Appellant at 16. However, this issue was not preserved for our review in Dayd's Rule 2119(f) Statement. See Commonwealth v. Feucht , 955 A.2d 377, 384 (Pa. Super. 2008) (holding that any discretionary sentencing issue that is not raised in the Rule 2119(f) statement is waived on appeal). Thus, we decline to address it. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/23/2017
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