Com. v. Hicks, T.

Opinion

J-S85037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRILL JAVON HICKS

Appellant No. 1152 WDA 2017

Appeal from the Judgment of Sentence imposed July 21, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0006205-2007

BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J: FILED MARCH 27, 2018

Appellant, Terrill Javon Hicks, appeals from the judgment of sentence

imposed on July 21, 2017 in the Court of Common Pleas of Allegheny County

following a remand from this Court for resentencing. Appellant claims the

sentence imposed on remand is manifestly excessive. Following review, we

affirm.

The facts and procedural history of this case were set forth in detail in

our November 18, 2016 opinion. Commonwealth v. Hicks, 151 A.3d 216,

218-20 (Pa. Super. 2016) (quoting Trial Court Opinion, 2/8/12, at 2-6 and

Trial Court Opinion on Remand, 2/29/16, at 2 (footnotes omitted)), appeal

denied, 168 A.3d 1287 (Pa. 2017). Briefly, in 2010, Appellant was convicted,

inter alia, of the first-degree murder of Kevin Harrison, the attempted J-S85037-17

homicide of Kendall Dorsey, and the aggravated assault of Michael Harris, all

stemming from events that occurred in 2006 when Appellant was fifteen years

old. Appellant was sentenced to life in prison without possibility of parole for

murder, as well as a consecutive term of ten to twenty years for attempted

homicide and a consecutive term of five to ten years for aggravated assault.

Following the United States Supreme Court’s decision in Miller v.

Alabama, 567 U.S. 460 (2012), a panel of this Court vacated Appellant’s

judgment of sentence and remanded for resentencing. Commonwealth v.

Hicks, 1822 WDA 2011 (Pa. Super. filed November 21, 2013), appeal denied,

91 A.3d 1293 (Pa. 2014). On remand, the trial court imposed consecutive

sentences of 35 years to life in prison for murder, ten to twenty years for

attempted homicide, and two-and-a-half to five years for aggravated assault.

Appellant appealed to this Court. In our published opinion, we vacated the

judgment of sentence and remanded for resentencing in accordance with

factors set forth in Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012)1

and Miller. Hicks, 151 A.3d at 216.

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1 In Knox, this Court identified factors to consider at resentencing, stating:

[A]lthough Miller did not delineate specifically what factors a sentencing court must consider, at a minimum it should consider a juvenile’s age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may

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On remand, the trial court conducted another sentencing hearing and

once again imposed consecutive sentences of 35 years to life for murder, ten

to twenty years for attempted homicide, and two-and-a-half years for

aggregated assault. Trial Court Order, 7/21/17, at 1. Appellant filed post-

sentence motions, which were denied on July 26, 2017. This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents one issue for this Court’s consideration:

1. Did the trial court err in denying Appellant’s post sentencing motions since Appellant’s murder 1 sentence of 35 years to life imprisonment, and the imposition of a consecutive sentence [of] 10-20 years’ imprisonment for attempted homicide, and a second consecutive sentence of 2.5-5 years’ imprisonment for aggravated assault, resulting in an aggregate sentence of 47.5 years to life imprisonment, were each and aggregately manifestly excessive since Appellant showed remorse and accepted responsibility for his crimes, he was taking steps to rehabilitate himself and demonstrated that he was a changed person, he has already served 10.50 years, and it is unreasonable to believe that it will take another 37 years (until the year 2054), when he will 62 years old, for Appellant to reach the point at which he can return to and become a productive, positive and contributing member of society?

Appellant’s Brief at 3. As such, Appellant presents a challenge to the

discretionary aspects of sentence.

have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation.

Id., 50 A.3d at 745 (citing Miller).

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“A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach

the merits of a discretionary aspects challenge,

[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 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (citations omitted)). Here, Appellant filed a timely notice of

appeal, preserved the issue in his post-sentence motions, and included a

statement in compliance with Pa.R.A.P. 2119(f). Therefore, we must

determine whether Appellant has presented a substantial question that his

sentence is not appropriate under the Sentencing Code. “The determination

of what constitutes a substantial question must be evaluated on a case-by-

case basis.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (citation omitted).

In Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002), our Supreme

Court explained that our Court need not accept bald allegations of

excessiveness as sufficient to present a substantial question.

Rather, only where the appellant’s Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in

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the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence.

Id. at 627 (citations omitted).

In his Rule 2119(f) statement, Appellant contends his aggregate

sentence of “47.5 years to life imprisonment[] individually and aggregately

constituted manifestly excessive sentences.” Appellant’s Brief at 21. Citing

Commonwealth v. Wilson, 935 A.2d 1267 (Pa. 2007), he asserts that a

claim a sentence is excessive and the trial court did not provide sufficient

reasons for the sentence raises a substantial question. Id. Further, “[c]laims

that a penalty is excessive and/or disproportionate to the offense can raise

substantial questions in the context of a sentence review. Id. (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)).

In his appeal from the sentence imposed in 2015, Appellant raised the

identical excessiveness issue. As we did then, we conclude Appellant has

raised a substantial question for review. Hicks, 151 A.2d at 227 (citing

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

(sentencing court’s failure to set forth adequate reasons for sentence imposed

raises a substantial question) and quoting Commonwealth v. Haynes, 125

A.3d 800, 807-08 (Pa. Super. 2015) (“While a bald claim of excessiveness

does not present a substantial question for review, a claim that the sentence

is manifestly excessive, inflicting too severe a punishment, does present a

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substantial question.”)). Therefore, we shall consider the merits of Appellant’s

sentencing issue.

“In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa. Super. 2011) (citation

omitted). Further, “this Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Macias, 968 A.2d at 776-77.

Section 9781(c) directs:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

Section 9781(d) directs that the appellate court, in reviewing the record,

shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

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(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

With regard to Section 9781(c), Appellant does not suggest the

sentencing court erroneously applied the guidelines or imposed an

unreasonable sentence outside the sentencing guidelines. Therefore,

Appellant must demonstrate that the trial court abused its discretion by

imposing a sentence that is within the guidelines but is clearly unreasonable

under the circumstances of the case. 42 Pa.C.S.A. § 9871(c)(2).

At Appellant’s resentencing hearing, the trial court acknowledged our

Supreme Court’s June 26, 2017 decision in Commonwealth v. Batts, 163

A.3d 410 (Pa. 2017) (“Batts IV”).2 Notes of Testimony (“N.T”), Resentencing

Hearing, 7/21/17, at 2-3. In Batts IV, our Supreme Court discussed the

legislative enactment of 18 Pa.C.S.A. § 1102.1 in the wake of the United

States Supreme Court’s decision in Miller v. Alabama, supra. In accordance

with 18 Pa.C.S.A. § 1102.1(a)(1), a court sentencing a juvenile convicted of

first-degree murder after June 24, 2012, i.e., after Miller, must impose a

2 We recognize that some recent decisions of this Court refer to the 2017 Batts case as Batts II. However, because we referred to Batts II and III in our 2016 opinion in Appellant’s case, we shall refer to the 2017 Batts decision as Batts IV.

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sentence of at least 35 years to life imprisonment. However, Appellant was

convicted prior to Miller. In Batts IV, our Supreme Court addressed the

sentence to be imposed on juveniles in that situation, stating:

For some of the juvenile first-degree murder cases, the only appreciable difference between offenders will be the date of conviction. Therefore, to promote uniformity in sentencing in pre- and post–Miller cases, when determining the appropriate minimum term of incarceration for pre–Miller offenders being sentenced to life with the possibility of parole, sentencing courts should be guided by the minimum sentences contained in section 1102.1(a) of twenty-five years for a first-degree murder committed when the defendant was less than fifteen years old and thirty-five years for a first-degree murder committed when the defendant was between the ages of fifteen and eighteen.

Batts IV, 163 A.3d at 458 (footnote omitted). Therefore, because Appellant

was fifteen years old at the time he committed murder, Batts IV directs that

the sentencing court be guided by the thirty-five year minimum contained in

§ 1102.1(a).

Mindful of Batts IV, the trial court correctly observed, and all counsel

agreed, “[I]t appears that my use of [Section] 1102 as a guideline would be

appropriate, as long as I also consider Knox and Miller, as well as the experts

report, the pre-sentence investigative report and the testimony that was

provided.” N.T., Resentencing Hearing, 7/21/17, at 3. The trial court then

asked Appellant’s counsel to identify any factors the court failed to consider

in its earlier sentence that should be considered on remand. Counsel replied,

“I believe you considered all of the relative factors.” Id. at 4. However,

counsel then suggested Appellant’s case was unusual because Appellant took

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responsibility for the shootings—explaining he meant only to scare the victims

and not “hit any of them.” Id. Counsel reminded the court that Appellant

had no positive male influences as a child, had expressed remorse, and had

taken steps to rehabilitate himself. Id.

In its Rule 1925(a) opinion, the trial court explained that it had

“considered that sentencing factors in Kane and Miller, the 18 Pa.C.S.

§ 1192.1(a)(1) factors, as well as the totality of information presented to

fashion an individualized sentence.” Trial Court Opinion, 11/13/17, at 5. The

court then quoted from the resentencing hearing during which the

Commonwealth “reviewed the Knox/Miller sentencing factors” with respect

to Appellant. Id. at 5-6. The court noted that Appellant was sentenced in the

standard range for his attempted homicide and aggravated assault convictions

and explained that “[n]one of these sentences are individually excessive

because they are each within the required or standard range proscribed by

the Pennsylvania Sentencing Guidelines. A standard range sentence carries

its own presumption of reasonability. Commonwealth v. Walls, 926 A.2d

957, 964-965 (Pa. 2007).” Id. at 6.

With regard to the imposition of consecutive rather than concurrent

sentences, the trial court explained:

[T]he aggregate sentence imposed is not excessive upon consideration of the sentencing factors of § 9721. Appellant heinously murdered 16 year-old Kevin Harrison on his own front porch and attempted to do the same to Kendall Dorsey and Michael Harris. Appellant is not entitled to a volume discount nor should he receive a benefit for his poor aim. It is this court’s

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obligation to protect the public from those who commit vicious crimes such as those committed by Appellant. This court did not act unreasonably or with prejudice. This sentence is thoroughly reflective of the gravity of the offense as it relates to the three victims, particularly Kevin Harrison who was robbed of his life, and of the need to protect the community, yet allows the possibility for Appellant to reenter society as a rehabilitated man after having served his aggregate minimum sentence of forty-seven and one half years.

Id. at 6 (some capitalization omitted).

We do not find that the trial court abused its discretion by imposing an

aggregate sentence of 47½ years to life for Appellant’s convictions of first-

degree murder, attempted murder, and aggravated assault. As the

Commonwealth observes, the trial court has discretion in sentencing and its

sentence is to be afforded great weight “because it is in the best position to

view the defendant’s character and his displays of remorse, defiance or

indifference, as well as the overall effect and nature of the crime.”

Commonwealth Brief at 18-19. Quoting Walls, the Commonwealth submits:

The sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed. Even with the advent of the sentencing guidelines, the power of sentencing is a function to be performed by the sentencing court.

Id. at 19 (quoting Walls, 926 A.2d at 961-62 (footnote omitted)).

The trial court properly considered the factors set forth in Knox and

Miller, in compliance with our directive. Finding no abuse of discretion on the

part of the trial court in imposing Appellant’s sentence, we affirm.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/2018

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