J-S54027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

DESSIE LEWIS SEATON, III

                       Appellant                No. 2009 WDA 2015


        Appeal from the Judgment of Sentence December 3, 2015
              In the Court of Common Pleas of Erie County
          Criminal Division at No(s): CP-25-CR-0002538-2013


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                     FILED SEPTEMBER 20, 2016

     Dessie Lewis Seaton, III, appeals from the judgment of sentence

imposed on December 3, 2015, in the Erie County Court of Common Pleas,

following a remand by this Court for resentencing.   A prior panel found

Seaton’s original sentence, an aggregate term of five to 12 years’

imprisonment, was unconstitutional under Alleyne v. United States, 133

S.Ct. 2151 (2013), because it included the imposition of a mandatory

minimum sentence pursuant to 18 Pa.C.S. § 7508. See Commonwealth v.

Seaton, 122 A.3d 1139 (Pa. Super. 2015) (unpublished memorandum).

Upon remand, the trial court re-imposed the same sentence, absent the

mandatory minimum, for Seaton’s jury conviction of possession with intent

to deliver (“PWID”) heroin, possession of heroin, possession of drug
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paraphernalia and criminal conspiracy.1          On appeal, Seaton challenges the

discretionary aspects of his sentence. For the reasons that follow, we affirm.

       Seaton’s conviction is based upon his control of a sophisticated heroin

operation in Erie County, the details of which are aptly summarized in the

trial court’s opinion and need not be reiterated herein.          See Trial Court

Opinion, 6/21/2016, at 3-6. As noted above, he was originally sentenced to

an aggregate term of five to 12 years’ imprisonment, which included a

mandatory minimum sentence imposed on his conviction of PWID pursuant

to Section 7508(a)(7)(ii).2        Seaton filed a direct appeal, raising a double

jeopardy challenge. See Seaton, supra, unpublished memorandum at 3.3

Although the panel rejected the double jeopardy claim, it vacated the


____________________________________________


1
  35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S. § 903,
respectively.
2
  See 18 Pa.C.S. § 7508(a)(7)(ii) (mandatory minimum five years’
imprisonment for possession with intent to deliver five to 50 grams of heroin
and a prior drug trafficking conviction).
3
   The double jeopardy claim was based upon the fact that Seaton was
charged, under another docket number, with possession with intent to
deliver 49.9 grams of heroin seized from a vehicle on November 9, 2012.
See Docket No. 3652 of 2012. That same day, the police obtained a search
warrant for the apartment where Seaton stored the heroin that led to the
charges in the present case. See Trial Court Opinion, 8/1/2014, at 1-2.
Seaton argued his possession of the drugs in both locations “stemmed from
a single criminal act or episode.”            Seaton, supra, unpublished
memorandum, at 4. However, the panel concluded the offenses “stemmed
from discrete criminal episodes, being both logically and temporally distinct.”
Id. at 9.



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judgment of sentence, sua sponte, as violative of Alleyne, and remanded

the case to the trial court for resentencing. See id. at 9-13.

       Upon remand, the trial court conducted a resentencing hearing on

December 3, 2015. At the conclusion of the hearing, the court imposed the

following sentence:       (1) a term of five to 12 years’ imprisonment on the

charge of PWID, which fell within the aggravated range of the sentencing

guidelines;4 (2) a concurrent term of three and on-half to seven years’

imprisonment on the charge of conspiracy; and (3) a concurrent term of

three to 12 months’ imprisonment on the charge of possession of drug

paraphernalia.      The court found the charge of possession merged for

sentencing purposes, and directed that the aggregate sentence run

consecutively to the drug sentence imposed at Docket No. 3652 of 2012.

See    supra      n.3.      Seaton     filed   a   post-sentence   motion   seeking

reconsideration of his sentence.           The trial court denied the motion on

December 9, 2015, and this timely appeal followed.5




____________________________________________


4
  Seaton’s conviction of PWID called for a standard range sentence of 42 to
54 months’ imprisonment, with an aggravated term of 66 months’
imprisonment. See Guidelines Sentence Form, 12/3/2015.
5
  On December 23, 2015, the trial court ordered Seaton to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Seaton complied with the court’s directive, and filed a concise statement on
December 30, 2015.




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      Seaton’s sole claim on appeal is a challenge to the discretionary

aspects of his sentence. Specifically, he contends the sentence imposed was

“manifestly excessive and clearly unreasonable.”       Seaton’s Brief at 5.

Seaton argues the trial court failed to individualize his sentence when it

imposed “the exact same sentence upon resentencing” and failed to consider

his “accomplishments while in prison and … his heartfelt indication that he

had learned from this experience.” Id. at 4, 8. Moreover, he asserts the

trial court “double counted” his prior record by considering it “heavily” when

determining his sentence. Id. at 4.

      Preliminarily, we note “[a] challenge to the discretionary aspects of a

sentence must be considered a petition for permission to appeal, as the right

to pursue such a claim is not absolute.”     Commonwealth v. Hoch, 936

A.2d 515, 518 (Pa. Super. 2007) (citation omitted). Accordingly, to reach

the merits of a discretionary issue, this Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issue; (3) whether Appellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Seaton complied with the procedural requirements for this appeal by

filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a


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statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether he raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “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

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).    To the extent Seaton argues the trial court imposed a

manifestly    excessive      sentence     when    it   failed   to   consider   his

accomplishments in prison, we find that this claim raises a substantial

question.    See Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.

Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015) (finding defendant

presented a substantial question when he raised an “excessive sentence

claim[ ] in conjunction with an assertion that the court did not consider

mitigating factors.”) (citation omitted).     Furthermore, Seaton’s claims that

the court failed to impose an individualized sentence and improperly

“double-counted” his prior record also raise substantial questions for our

review.     See Commonwealth v. Walls, 926 A.2d 957, 966 (Pa. 2007)

(“Pennsylvania’s sentencing system, as evidenced by the Sentencing Code

and   our     case    law,   is   based    upon    individualized    sentencing.”);


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Commonwealth v. Robinson, 931 A.2d 15, 27 (Pa. Super. 2007) (en

banc) (claim that trial court “imposed a manifestly excessive sentence … by

impermissibly double-counting factors that are already incorporated into the

guidelines” raises a substantial question).        Accordingly, we proceed to an

examination of Seaton’s argument on appeal.

         When   considering   a   challenge   to   the   discretionary   aspects   of

sentencing, we must bear in mind the following:

         Sentencing is a matter vested in the sound discretion of the
         judge, and will not be disturbed on appeal absent a manifest
         abuse of discretion. An abuse of discretion is not shown merely
         by an error in judgment. Rather, the appellant must establish,
         by reference to the record, that the sentencing court ignored or
         misapplied the law, exercised its judgment for reasons of
         partiality, prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

         Our review of the trial court’s opinion, as well as the resentencing

hearing transcript, reveals no abuse of discretion on the part of the trial

court.     Indeed, the court provided a lengthy explanation for the sentence

imposed, in which it focused on “the level of sophistication of [Seaton’s]

drug operation.” Trial Court Opinion, 1/21/2016, at 11. The court stated:

         [Seaton’s] conviction is based off of a complex, interstate drug
         operation involving a hierarchical chain of command, with
         [Seaton] at the top, three mid-level operatives who would travel
         [from] Detroit to Erie and keep the heroin at the Granada
         Apartments, and a number of low-level distributors, often
         addicts themselves …, who would sell the heroin to others and
         be paid for in doses of heroin.


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Id. Moreover, the court emphasized “this entire operation was set up under

[Seaton’s] direction within three months of termination of state supervision

in the state of Michigan.”   Id.   Indeed, the trial court’s focus on Seaton’s

prior conviction was with regard to the short time period between the end of

his supervision in Michigan and the charges in the present case. See id. at

10. In this context, we find the court did not “double count” Seaton’s prior

record.

      Pursuant to Section 9721(b) of the Sentencing Code, a trial court

should impose an individualized sentence, taking into consideration the

following factors:

      [T]he court shall follow the general principle that the sentence
      imposed should call for confinement that 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). Here, it is evident the court did so. As the trial court

explained in its opinion:

      In summary, [Seaton’s] sentence was placed in the aggravated
      range for the following reasons: the level of sophistication of
      [Seaton’s] drug operation; his history of dealing in varying
      Schedule I controlled substances; the particularly grievous
      effects Schedule I controlled substances, specifically heroin, and
      [Seaton’s] distribution of heroin have had on the Erie
      Community; and the fact that [Seaton] was charged with the
      instant offenses within three months of state supervision in the
      state of Michigan.




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Trial Court Opinion, 1/21/2016, at 13.     The court’s considerations amply

support the imposition of a sentence in the aggravated range of the

guidelines.

      Lastly, although Seaton asserts the trial court should have considered

his accomplishments and good conduct in prison as mitigating factors, he

fails to demonstrate that the court abused its discretion. Indeed, the trial

court found that Seaton’s “accomplishments and positive adjustment [were]

considerations for parole” and “not necessarily relevant” for purposes of his

resentencing. Id. at 7. Seaton fails to provide this Court with any authority

to the contrary. Accordingly, no relief is warranted.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2016




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