OPINION BY DONOHUE, J.:
Appellant, Stefon Johnson ("Johnson"), appeals from the judgment of sentence entered on January 28, 2015 in the Court of Common Pleas, Erie County. Upon review, we find no support for Johnson's claim that the sentencing court abused its discretion by imposing a sentence that is manifestly excessive. We further conclude that the sentencing court properly considered Johnson's prior record score, as opposed to the number of prior convictions in his criminal record, in determining that Johnson was a repeat felony offender. We therefore affirm.
A brief summary of the relevant facts and procedural history is as follows. Between March 9 and March 17, 2014, Johnson entered three separate businesses with a small handgun and instructed the individuals therein to empty the contents of the cash registers. State police officers arrested Johnson on March 18, 2014 and charged him with conspiracy, robbery, receiving stolen property, firearms not to be carried without a license, terroristic threats with intent to terrorize another, theft by unlawful taking, persons not to possess a firearm, simple assault, recklessly endangering another person, and possessing instruments of crime.
On November 26, 2014, Johnson pled guilty to two counts of robbery, and in exchange, the Commonwealth nolle prossed all other charges. Johnson appeared for a sentencing hearing on January
Defense counsel also contested the presentence investigation report ("PSI Report"), which designated Johnson a repeat felony offender ("RFEL") pursuant to 204 Pa.Code § 303.4. Defense counsel asserted that a strict statutory construction of section 303.4(a)(2) requires six or more convictions or adjudications, not six or more points as reflected by the PSI Report. Since Johnson did not have six or more prior convictions or adjudications, defense counsel challenged the RFEL designation.
Following its review of section 303.4(a)(2), the sentencing court rejected defense counsel's argument, stating that a RFEL designation requires six points, not convictions, based upon the defendant's prior record score. The sentencing court determined that Johnson was appropriately designated a RFEL based on his prior record score of six for first- and second-degree felonies and that the sentencing guidelines in the PSI Report were calculated correctly. After considering the PSI Report, the statutorily required factors set forth in the Sentencing Code, and the testimony offered by Johnson and his witnesses, the sentencing court sentenced Johnson to two concurrent terms of 102 to 204 months of incarceration and ordered him to pay the costs of prosecution plus restitution in the amount of $793.
Johnson filed a motion for reconsideration on the same date as the sentencing hearing, requesting that the sentencing court reconsider its sentence and reduce the period of incarceration. Johnson alleged that he was improperly designated as a RFEL and that the sentencing court should have imposed a standard range guideline sentence rather than an aggravated range sentence. On January 29, 2015, the sentencing court denied Johnson's motion for reconsideration.
Johnson timely filed a notice of appeal on February 6, 2015 and a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On appeal, Johnson raises the following two issues for our review, which we have reordered for ease of disposition:
Johnson's Brief at 4.
In his first issue on appeal, Johnson challenges the discretionary aspects of his sentence. Johnson's Brief at 4. This Court has held, "[w]here an appellant challenges the discretionary aspects of a sentence, there is no automatic right to appeal and an appellant's appeal should be considered a petition for allowance of appeal." Commonwealth v. Crork, 966 A.2d 585, 590 (Pa.Super.2009).
Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa.Super.2013) (citing Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)).
In this case, Johnson filed a timely notice of appeal and preserved his claim on appeal in a post-sentence motion as well as in his Rule 1925(b) statement. Johnson also included a concise statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief. The question remaining for our determination, therefore, is whether Johnson raised a substantial question.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super.2013) (internal citations omitted).
In his Rule 2119(f) statement, Johnson argues that the sentencing court abused its discretion by imposing an excessive sentence "given the mitigating factors of his case." Johnson's Brief at 9. In support of his claim, Johnson relies on the testimony of his character witnesses that testified that he was immature and made mistakes, but that he had potential for rehabilitation. Id.
"This Court has held that an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question." Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super.2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).
Our standard of review for challenges to the discretionary aspects of sentencing is as follows:
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super.2012), appeal denied, 619 Pa. 686, 63 A.3d 774 (2013)).
Raven, 97 A.3d at 1253-54.
Johnson does not argue that the sentencing court applied the guidelines erroneously or sentenced him outside the guidelines. Rather, Johnson asserts that the sentence was excessive in light of mitigating factors testified to at his sentencing hearing that the sentencing court failed to consider. Johnson's Brief at 9. Our review of the record reveals, however, that the sentencing court had the benefit of a PSI Report when fashioning Johnson's sentence. "Where, as here, the trial court has the benefit of a pre-sentence report, we presume that the court was aware of relevant information regarding the defendant's character and weighed those considerations along with any mitigating factors." Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.Super.2014).
Furthermore, the record reflects that the sentencing court considered all mitigating factors prior to sentencing Johnson. At the sentencing hearing, the sentencing court detailed the factors it considered, stating:
N.T., 2/12/15, at 21. The sentencing court further stated that it considered Johnson's age, the seriousness of the offenses, and the fact that Johnson had a significant juvenile record. Id. at 21-22.
Thus, after reviewing the record, we conclude that there is no evidence of record to establish that the sentencing court "ignored or misapplied the law, exercised its judgement for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision." Disalvo, 70 A.3d at 903. Nor is there any basis for us to conclude that the sentencing court's application of the guidelines in this case was clearly erroneous. See Raven; 42 Pa.C.S.A. § 9781(c)(2). As a result, we
In his second issue on appeal, Johnson raises a question of statutory construction of the sentencing guidelines under 204 Pa. Code § 303.4. This is a question of law and "[t]hus, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Wilson, 101 A.3d 1151, 1153 (Pa.Super.2014) (italicization omitted) (citing Commonwealth v. Spence, 625 Pa. 84, 91 A.3d 44, 46 (2014)). "Consequently, we are not bound by the lower court's conclusions regarding the proper meaning of the applicable provisions of this statute." Commonwealth v. Devries, 112 A.3d 663, 670 (Pa.Super.2015) (citation omitted).
The statute in question provides:
204 Pa.Code § 303.4.
Johnson assails the sentencing court's application of the guidelines under section 303.4. Johnson's Brief at 7-8. Johnson contends that the language of subsection 303.4(a)(2) requires six prior convictions or adjudications, rather than six points, to designate an offender as a RFEL.
After conducting extensive research on this issue, we have not uncovered any Pennsylvania legal authority addressing the question raised. We must therefore undertake an interpretation of the statutory text to ascertain whether section 303.4 requires six points or six convictions or adjudications to designate an offender as a RFEL. In undertaking our review of this issue, we are mindful that the Statutory Construction Act guides our interpretation and provides that "[t]he object of all interpretation and construction of statutes is to ascertain the effectuate the intention of the General Assembly." 1 Pa.C.S.A. § 1921(a).
Commonwealth v. Gerald, 47 A.3d 858, 859-60 (Pa.Super.2012) (quoting Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898, 908 (2011)).
Our review of the statutory text of section 303.4(a)(2) reveals that it instructs, in relevant part, that "[o]ffenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which total 6 or more in the prior record" are deemed a RFEL. 204 Pa.Code § 303.4(a)(2). We agree with Johnson that it is unclear from this language alone whether the number six refers to prior convictions or prior record score points. Johnson's Brief at 7-8. As the statutory language is ambiguous in this regard, we must ascertain the legislature's intention. In so doing, the Statutory Construction Act states that we may consider:
1 Pa.C.S.A. § 1921(c).
Furthermore, the following presumptions may be used to determine the legislature's intention:
1 Pa.C.S.A. § 1922.
This Court has further established that
Commonwealth v. Berryman, 649 A.2d 961, 966 (Pa.Super.1994) (quoting Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329, 331 (1990)). "An interpretation of the language of a statute must remain consistent throughout the statute." Id.
Viewing section 303.4 in the context of the Criminal Sentencing Guidelines, we conclude that there is no support for Johnson's assertion that subsection 303.4(a)(2) requires six convictions or adjudications, and not six points on his prior record score. Section 303.2 provides the procedure for determining the guideline sentence. See 204 Pa.Code § 303.2. Pursuant to section 303.2, the sentencing court must, in relevant part, "[d]etermine the Prior Record Score as described in § 303.4—§ 303.8." 204 Pa.Code § 303.2(a)(2). Section 303.7 of the Criminal Sentencing Guidelines, entitled, "Prior Record Score—guideline points scoring[,]" establishes the points allocated to each prior conviction and adjudication on a defendant's criminal record. 204 Pa.Code § 303.7(a). Under section 303.7, the prior record score is determined by calculating the number of points for each conviction, which range from one to four points. Id. Section 303.7 further cites to section 303.15 of the Criminal Sentencing Guidelines, which provides a "listing of offenses" with a corresponding number of prior record score points allocated to each offense. See 204 Pa.Code § 303.15. Thus, sections 303.7 and 303.15 indicate that a defendant's prior record score is a calculation of points, not convictions or adjudications.
Viewing section 303.4 in this context, we find it significant that the language
Commonwealth v. Kinney, 777 A.2d 492, 495 (Pa.Super.2001) (quoting Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 907 (1999) (citations and emphasis omitted)).
We find further support for our conclusion in section 303.16(a), which provides the Basic Sentencing Matrix. See 204 Pa.Code § 303.16(a). The sentencing matrix in section 303.16(a) is based on the same prior record score categories as those defined in section 303.4 and delineates a sentencing recommendation for each category, increasing in severity with each subsequent category. See id. The categories are arranged beginning with the point-based categories in ascending order from zero to five, followed by the RFEL category, and ending with the REVOC. This lends support for the interpretation that after the point-based categories of zero to five points, the legislature intended to impose stricter punishments for those offenders whose prior record scores carry more than five points on their prior record scores. Thus, an offender with six or more points for first- and second-degree felonies is designated as a RFEL and faces a more severe sentencing recommendation. An offender that has two or more four point offenses (totaling eight or more) and meets the required offense gravity score, receives a designation in the REVOC and receives an even more severe sentencing recommendation than those designated as a RFEL.
Johnson baldly states that "a strict interpretation of [section 303.4] requires the [a]ppellant to have six (6) previous juvenile adjudications for Felony 1 or 2 offenses." Johnson's Brief at 8. Although we agree that we must strictly construe penal statutes,
Commonwealth v. Brown, 956 A.2d 992 (Pa.Super.2008) (internal citations omitted).
If we endorsed Johnson's interpretation of section 303.4, we would be determining that the legislature intended to require a sentencing court to designate an offender in the REVOC and point-based categories by considering the total number of points
Accordingly, we conclude that the sentencing court appropriately determined that a RFEL designation under subsection 303.4(a)(2) is based on a calculation of points in a defendant's prior record score rather than the number of convictions or adjudications in his criminal history. The sentencing court therefore properly designated Johnson as a RFEL. Finding no error in the sentencing court's determination, we affirm the judgment of sentence.
Judgment of sentence affirmed.
BOWES, J. joins the Opinion.
FITZGERALD, J. concurs in the result.