Com. v. Davi, M.

• Court: Superior Court of Pennsylvania
• Decided: November 30, 2020
• Docket: 2012 MDA 2019
• Status: Unpublished

Opinion

J-S34004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARENDA LENAY DAVI : : Appellant : No. 2012 MDA 2019

Appeal from the Judgment of Sentence Entered November 14, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003705-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARENDA LENAY DAVI : : Appellant : No. 316 MDA 2020

Appeal from the Judgment of Sentence Entered November 14, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001737-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 30, 2020

Marenda Lenay Davi appeals from the judgments of sentence entered in

the Dauphin County Court of Common Pleas following the revocation of her

probation. Davi contends that the sentencing court abused its discretion by

failing to consider her rehabilitative needs and ability to reform and by

imposing a manifestly excessive sentence. We affirm. J-S34004-20

In 2017, Davi was arrested for obtaining telecommunication and phone

services through fraudulent means and without consent of the service

providers. At docket number CP-22-CR-0003705-2017 (“the 2017 case”),

Davi pled guilty to theft of services and identity theft. The trial court sentenced

her to five years’ probation.

While on probation, Davi was twice charged with new criminal activity.

The Commonwealth ultimately declined to prosecute the first set of charges,

which included charges for bad checks. Davi’s probation continued, but she

was required thereafter to wear an ankle monitor. Later, police again arrested

Davi and charged her with forgery, identify theft, theft by unlawful taking,

receiving stolen property, access device fraud, and bad checks. At docket

number CP-22-CR-0001737-2019 (“the 2019 case”), Davi entered a guilty

plea to all charges, and the court ordered a presentence report.

In the meantime, Dauphin County Probation Services filed a detainer

alleging Davi’s guilty plea violated her probationary sentence. Davi appeared

before the court for a hearing. Ultimately, the court acceded to requests from

the Commonwealth and the probation officer to revoke Davi’s probation and

sentenced her to a term of incarceration.

The court resentenced Davi in the 2017 case to 2 ½-5 years’

incarceration. In the 2019 case, the court sentenced Davi to 1-2 years’

incarceration, consecutive with the revocation sentence imposed in the 2017

case. As a result, Davi received an aggregate sentence of 3 ½-7 years’

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incarceration. Davi filed a post-sentence motion to modify her sentence on

both dockets. Shortly thereafter, she filed timely notices of appeal at each

docket.1 This appeal is now properly before us.2

In her only issue, Davi challenges the discretionary aspects of her

sentences in both the 2017 and 2019 cases as well as the trial court’s decision

to impose these sentences consecutively. She claims that these sentences

were not consistent with the protection of the public, the gravity of the

underlying offenses or her rehabilitative needs. See Appellant’s Brief, at 23.

Davi also alleges that the aggregate sentence of 3 ½-7 years’ imprisonment

was unreasonable and manifestly excessive. See id., at 20.

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1In Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018), our Supreme Court held that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases.” Our review of the record reveals that Davi filed separate notices of appeal at each docket and therefore has complied with Walker. 2 The trial court entered the judgment of sentence on November 14, 2019 following the revocation of probation. Davi filed a timely post-sentence motion on November 21, 2019. Davi filed a notice of appeal on December 11, 2019. The trial court ruled on the post-sentence motion on December 18, 2019, after Davi filed her notice of appeal. Under Pa.R.Crim.P. 708(E), “[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.” Accordingly, the notice of appeal was timely filed. However, the trial court’s December 18, 2019 order is a legal nullity as the trial court was divested of jurisdiction as more than 30 days had elapsed after the judgment of sentence was imposed. The appeals were consolidated on February 27, 2020, upon Davi’s application to consolidate.

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The right to challenge the discretionary aspects of sentencing on appeal

is not absolute. See Commonwealth v. Bynum–Hamilton, 135 A.3d 179,

184 (Pa. Super. 2016). An appellant must petition this Court for permission

to appeal the discretionary aspects of her sentence. See Commonwealth v.

Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (citation omitted). Then, we must

conduct a four part analysis to determine whether: (1) the appeal is timely;

(2) the appellant preserved the issue; (3) the appellant’s brief does not

contain a fatal defect; and (4) the appellant raised a substantial question that

the sentence is inappropriate under the Sentencing Code. See

Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (en banc).

Here, Davi properly preserved her claims by filing a post-sentence

motion, referencing both dockets, and timely notices of appeal. Additionally,

Davi’s brief contains the required Pa.R.A.P. 2119(f) statement. Next, we must

determine whether Davi’s claim constitutes a substantial question.

This Court has held that “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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(internal quotations and citation omitted). An appellant’s contention that the

trial court failed to consider relevant sentencing criteria, including the

protection of the public, the gravity of the underlying offense, and her

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rehabilitative needs, presents a substantial question for our review. See

Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016). Further, a

substantial question also exists where an appellant alleges the sentencing

court failed to sufficiently state its reasons for the sentence imposed. See

Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003).

In her 2119(f) statement, Davi raises three challenges to the

discretionary aspects of her sentence. We therefore proceed to analyze

whether any of these challenges present substantial questions.

Davi’s first and second challenge focus on the sentences imposed in her

2017 and 2019 cases. Specifically, she claims that the court abused its

discretion by imposing sentences that focused solely on the nature of her

criminal conduct. In doing so, she argues the trial court failed to consider all

three of the sentencing factors required by 42 Pa.C.S.A. § 9721(b): (1) the

protection of the public, (2) the gravity of the underlying offenses, and (3) the

defendant’s rehabilitative needs. See Appellant’s Brief, at 18; see also 42

Pa.C.S.A. § 9721(b). Furthermore, Davi alleges the trial court failed to state

its reasons for imposing either sentence. See Appellant’s Brief, at 23.

Taken together, we find these challenges raise substantial questions.

See Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009)

(stating that “an averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question”); see also Commonwealth v. Coulverson, 34 A.3d

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135, 143 (Pa. Super. 2011) (recognizing that the trial court’s failure to offer

specific reasons for the sentence raises a substantial question).

Davi’s third challenge focuses on the trial court’s imposition of

consecutive sentences. In particular, she claims her aggregate sentence was

manifestly excessive given her limited criminal history. See Appellant’s Brief,

at 23-24.

Although a challenge to consecutive sentences ordinarily does not raise

a substantial question, we have held that this issue must be examined on a

case-by-case basis. See Commonwealth v. Marts, 889 A.2d 608, 612-613

(Pa. Super. 2005). “The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.” Moury,

992 A.2d at 171-172. To determine whether the imposition of consecutive

sentences presents a substantial question, we decide “whether the decision to

sentence consecutively raises the aggregate sentence to, what appears upon

its face to be, an excessive level in light of the criminal conduct at issue in the

case.” Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.

Super. 2010).

Here, we conclude that Davi has not established that her aggregate

sentence of 3 ½-7 years’ incarceration was so extreme and excessive in light

of the criminal conduct at issue in this case as to create a substantial question.

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However, even if this claim did present a substantial question, it would not

merit relief. Therefore, we turn now to the merits of each challenge.

In her first challenge, Davi argues the trial court failed to consider the

relevant sentencing factors set forth in 42 Pa.C.S.A. § 9721(b). Davi further

contends the trial court failed to provide reasons on the record for its

revocation sentence that comport with the considerations required by 42

Pa.C.S.A. § 9721(b).

Sentencing is within the sound discretion of the trial court, and a

sentence will not be disturbed absent an abuse of that discretion. See

Commonwealth v. Jones, 640 A.2d 914, 916 (Pa. Super. 1994). An abuse

of discretion is not merely an error of judgment, but a misapplication of the

law or an unreasonable exercise of judgment. See Commonwealth v. Sitler,

144 A.3d 156, 163 (Pa. Super. 2016) (en banc).

When imposing a sentence, the trial court must consider the factors set

forth in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, the gravity

of the offense, and the defendant’s rehabilitative needs. See Commonwealth

v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). The trial court must also

disclose on the record the reason or reasons for its sentence. See 42 Pa.C.S.A.

§ 9721(b). However, where the trial court had the benefit of reviewing a pre-

sentence report, we must presume the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

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1988) (stating that “it would be foolish, indeed, to take the position that if a

court is in possession of the facts, it will fail to apply them to the case at

hand”).

At the sentencing hearing following Davi’s revocation of probation, the

trial court heard from Davi’s counsel. Counsel for Davi argued against a

sentence of total confinement given Davi’s limited criminal history and her

traumatic childhood. See N.T., Revocation and Sentencing Hearing, 11/14/19,

at 6-7. Counsel also highlighted that Davi suffers from an unspecified mental

health condition, which contributed to her criminal conduct. See id., at 7.

Further, Counsel asserted that, if Davi were allowed to continue with her

probationary sentence, Davi would be able to seek the necessary mental

health treatment for her condition. See id.

Despite Counsel’s arguments, the trial court imposed a sentence of

incarceration. But the trial court specifically stated on the record that Davi was

to be housed at a mental health focused state correctional institution where

she could receive care for her mental health condition. See id., at 9. As such,

it is apparent from the record that the trial court considered the protection of

the public, the gravity of Davi’s offense and her rehabilitative needs when

imposing sentence.

Furthermore, even though the trial court did not disclose the above

mentioned reasons for its sentence, the record shows that the court reviewed

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the pre-sentence report before imposing a sentence of total confinement.3

Thus, the trial court satisfied the requirement that reasons for imposing

sentence be placed on the record by indicating it reviewed the pre-sentence

report. See Commonwealth v. Burns, 765 A.2d 1144, 1151 (Pa. Super.

2000).

Therefore, based upon the foregoing, we conclude the record confirms

the trial court properly considered the factors set forth in § 9721(b) and

reviewed the pre-sentence report before imposing its sentence. As such, we

discern no abuse of discretion.

Next, Davi claims, as she did previously, that the trial court failed to

consider the facts and circumstances of the case or her rehabilitative needs

as required by 42 Pa.C.S.A. § 9721(b) and imposed a sentence in the 2019

case without providing any reasons for the sentence.

Once again, it is clear that the trial court considered the facts and

circumstances of the case and Davi’s rehabilitative needs in the 2019 case. At

the sentencing hearing, the trial court made its sentencing decision after

hearing from the victims in the case who were Davi’s elderly aunt and uncle.

The trial court heard from the victims how Davi betrayed their trust and stole

3 “We’ll make the pre-sentence [report] part of the record, as well as the sentencing memorandum.” N.T., Revocation and Sentencing Hearing, 11/14/19, at 9.

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their money. See N.T., Revocation and Sentencing Hearing, 11/14/19, 3-6.

Furthermore, the trial court also had the benefit of reviewing yet another pre-

sentence report before imposing a sentence in the 2019 case.4 See Devers,

546 A.2d at 18. Therefore, we cannot conclude that the trial court abused its

discretion here.

In her final challenge, Davi contends that her consecutive sentences

resulted in a manifestly excessive aggregate sentence of 3 ½-7 years’

incarceration.

As noted above, the trial court imposed consecutive sentences following

the revocation of Davi’s probation. Despite describing her criminal history as

minor, we note that Davi continued to commit fraudulent crimes while she

was on probation for the convictions in the 2017 case. The trial court was

entitled to consider this recidivism as more than minor criminal conduct.

Further, the trial court was clearly concerned with providing Davi mental

health treatment while eliminating the temptation to commit yet more crimes.

As Davi has not presented any circumstance that indicates the trial court erred

or imposed an unreasonable aggregate sentence, we cannot conclude that the

trial court abused its discretion in imposing consecutive sentences. See

Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015).

4 “A county pre-sentence [report] was completed, and I had an opportunity to review that, as well as . . . a sentencing memorandum completed by [counsel].” N.T., Revocation and Sentencing Hearing, 11/14/19, at 3.

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Additionally, we conclude that Davi’s aggregate post-revocation sentence of 3

½-7 years’ incarceration is not manifestly excessive in light of Davi’s criminal

conduct and the failure of rehabilitation through the previous sentence of

probation. Therefore, Davi’s final challenge merits no relief.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/30/2020

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