Com. v. Chapman, S.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2019
• Docket: 949 WDA 2018
• Status: Unpublished

Opinion

J-S13017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SULEMAN CHAPMAN : : Appellant : No. 949 WDA 2018

Appeal from the Judgment of Sentence Entered March 15, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004923-2017

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.: FILED MAY 20, 2019

Suleman Chapman appeals the judgment of sentence imposed on March

15, 2018, in the Court of Common Pleas of Allegheny County. Following a

December 19, 2017 non-jury trial, the court found Chapman guilty of one

count each of burglary, aggravated assault, and terroristic threats, and two

counts of simple assault.1 On March 15, 2018, the trial court sentenced him

to 6 to 12 years’ imprisonment, to be followed by a consecutive term of five

years’ probation. The sole issue raised in this appeal is a challenge to the

discretionary aspects of his sentence. Based on the following, we affirm.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3502(a)(1)(i), 2702(a), 2706(a)(1), and 2701(a)(1), respectively. J-S13017-19

As we write primarily for the parties, and as the only issue Chapman

raises on appeal concerns his sentence, a detailed factual and procedural

history is unnecessary. We note that Chapman’s conviction arose from a

February 6, 2017 incident wherein, in violation of a protection from abuse

order, Chapman, carrying a gun, broke into the home of his estranged

girlfriend, threatened to kill her and his children, and hit her on the head with

the gun, before eventually leaving the residence to take the children to school.

N.T. Trial, 12/19/2017, at 8-26; Trial Court Opinion, 12/07/2018, at 1.

As noted above, on March 15, 2018, the trial court imposed sentence.

On March 19, 2018, defense counsel moved to withdraw; that same day, the

trial court granted the motion and appointed new counsel. On March 21, 2018,

Chapman filed a post-sentence motion for reconsideration of sentence. On

April 25, 2018, after receiving leave of court, Chapman filed a supplemental

post-sentence motion. The trial court denied the motion on June 7, 2018.

The instant, timely appeal followed. On July 18, 2018, in response to the trial

court’s order, Chapman filed a concise statement of errors complained of on

appeal. The trial court issued an opinion on December 7, 2018.

On appeal, Chapman challenges the discretionary aspects of his

sentence. Specifically, he claims that the trial court failed to advise him of his

right of allocution and that the trial court failed to place reasons on the record

justifying the sentence. Chapman’s Brief, at 5. We disagree.

The principles that guide our review are well settled:

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. . . [t]he right to appeal a discretionary aspect of sentence is not absolute. Rather, where an appellant challenges the discretionary aspects of a sentence, an appellant’s appeal should be considered as a petition for allowance of appeal. As we stated in Commonwealth v. Moury, 2010 PA Super 46, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct 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, 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, 42 Pa.C.S.A. § 9781(b).

Id. at 170. Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by- case basis.

Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super. 2018)

(quotation marks and most citations omitted).

Chapman has complied with the procedural requirements for his

discretionary aspects of sentencing challenge by filing a timely appeal to this

Court, preserving the sentencing issues in his post-sentence motion, and

including a Pa.R.A.P. 2119(f) statement in his brief. The final requirement is

that Chapman’s Rule 2119(f) statement must raise a substantial question.

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We have stated that a substantial question exists

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. [W]e cannot look beyond the statement of questions presented and the prefatory [Rule] 2119(f) statement to determine whether a substantial question exists.

Radecki, supra, 180 A.3d at 468 (quotation marks and citations omitted).

In reviewing a challenge to the discretionary aspects of the sentence,

we recognize:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, 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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Further, where, as here,

the trial court sentenced within the guidelines, we may only vacate the

judgment of sentence if it is “clearly unreasonable.” 42 Pa.C.S.A. §

9781(c)(2).

In his first claim, Chapman alleges that “[t]he trial court failed to place

reasons on the record evidencing its consideration of the factors it was

statutorily required to consider under 42 Pa.C.S.[A.] § 9721(b) and 42

Pa.C.S.[A.] § 9725.” Chapman’s Brief, at 25. Chapman’s complaint does not

merit relief.

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The on-the-record disclosure requirement does not require the trial

court to make “a detailed, highly technical statement.” Commonwealth v.

Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation omitted), appeal

denied, 880 A.2d 1237 (Pa. 2005). Where the trial court has the benefit of a

Pre-Sentence Investigation Report (PSI), our Supreme Court has held that “it

is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d 161 (Pa. 2009).

Where the trial court has reviewed the PSI, it may properly “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.” Id.; see also

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (holding

that where sentencing court had benefit of PSI, “this fact alone [is] adequate

to support the sentence, and due to the court’s explicit reliance on that report,

we are required to presume that the court properly weighed the mitigating

factors present in the case.”).

Our review of the transcript of the sentencing hearing confirms the trial

court considered the PSI and the sentencing guidelines at the sentencing

hearing. See N.T. Sentencing Hearing, 3/15/2018, at 9. Furthermore, the

trial court imposed a standard range sentence. In this regard,

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[w]here the sentencing court impose[s] a standard-range sentence with the benefit of a pre-sentence report, we will not consider the sentence excessive. In those circumstances, we can assume the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). See also

Radecki, supra, 180 A.3d at 471. Chapman’s first claim fails.

In his second and final claim, Chapman contends that “[t]he trial court

failed to advise [him] of or permit him to exercise his right [to] allocution prior

to sentencing.” Chapman’s Brief, at 28. We disagree.

The Pennsylvania Rules of Criminal Procedure require that “[a]t the time

of sentencing, the judge shall afford the defendant the opportunity to make a

statement in his or her behalf[.]” Pa.R.Crim.P. 708(D)(1); see also

Pa.R.Crim.P. 704(C)(1). It is the sentencing court’s obligation to inform the

defendant of his right to speak prior to sentencing. Commonwealth v.

Thomas, 553 A.2d 918, 919 (Pa. 1989). Where the trial court fails to inform

the defendant of his right, a resentencing hearing is required. Id.; see also

Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003) (holding

that failure to afford defendant right to allocution requires remand to allow for

allocution prior to resentencing), appeal denied, 878 A.2d 863 (Pa. 2005).

Here, the trial court did provide Chapman the right to allocution. The

record reflects that, at the start of sentencing, the trial court asked defense

counsel if he had anything to say on behalf of his client. N.T. Sentencing

Hearing, 3/15/2018, at 2. Counsel immediately responded that Chapman had

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prepared a statement and wanted to address the court. Id. Counsel then

spoke in mitigation of the sentence, after which, he asked Chapman to address

the court. Id. at 2-4. Chapman then addressed the court in detail, mostly

criticizing counsel’s performance, accusing the trial court of bias, and

proclaiming his innocence, although he also admitted to making bad decisions

on the night in question and apologized to the victim. Id. at 4-7. Thus, it is

evident that Chapman, a repeat felon,2 was well aware of his right to

allocution, had prepared in advance to do so, and made his statement before

the trial court had the opportunity to inform him of the right.

In addition, it appears that Chapman’s claim is less that the trial court

did not make him aware of his right to allocution, but that it did not advise

him that he should speak in mitigation. Chapman’s Brief, at 31-32. Chapman

fails to point to any legal support for the notion that the trial court is required

to advise the defendant of what it is beneficial to say when exercising the right

to allocution.

Moreover, those cases cited by Chapman in support of his claim that he

is entitled to resentencing are inapposite, as they concern situations where

the defendant was not given any opportunity to speak at sentencing. See

Thomas, supra at 919 (holding defendant entitled to evidentiary hearing on

claim counsel was ineffective for not informing him of right to allocution, when

2 See id. at 9; Commonwealth’s Brief, at 6.

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defendant had no opportunity to speak at sentencing hearing);

Commonwealth v. Hardy, 99 A.3d 597, 580-581 (Pa. Super. 2014)

(remanding for resentencing where defendant was not afforded opportunity

to speak at sentencing); Commonwealth v. Anderson, 603 A.2d 1060,

1063-1064 (Pa. Super. 1992) (holding defendant has right to allocution at

resentencing and remanding where court did not afford defendant that

opportunity). Here, Chapman was aware that he could speak at sentencing,

prepared remarks in advance, and delivered them, our law requires nothing

further. Chapman’s final claim lacks merit.

Therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/20/2019

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