Com. v. Jones, L.

• Court: Superior Court of Pennsylvania
• Decided: February 11, 2022
• Docket: 1327 EDA 2021
• Status: Unpublished

Opinion

J-S04021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEWIS JONES : : Appellant : No. 1327 EDA 2021

Appeal from the Judgment of Sentence Entered August 16, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0002333-2018

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 11, 2022

Lewis Jones (Appellant) appeals nunc pro tunc from the judgment of

sentence imposed following a stipulated bench trial. In his sole issue,

Appellant challenges the discretionary aspects of his sentence. We affirm.

The trial court recounted the facts and procedural history as follows:

[Appellant] … was convicted of twenty-eight (28) counts, including aggravated indecent assault of a child under the age of 13, rape of a child, unlawful contact with a minor, indecent assault of a minor under the age of 13, and corruption of minors, following a one-day stipulated bench trial on May 7, 2019.[FN] 1

The case started as a jury trial, and following one [FN] 1

half day of testimony on May 6, 2019, counsel and [Appellant] switched to a stipulated bench trial.

[Appellant] is the father of the two female victims. The facts stipulated indicate that between January of 2004 and May of 2008, when the victims were between the ages of seven (7) and eleven

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* Former Justice specially assigned to the Superior Court. J-S04021-22

(11), [Appellant] sexually assaulted and raped them on multiple occasions.

[Appellant] was sentenced on August 16, 2019, after receiving both a [presentence investigation report (PSI)] and a [probation and parole intervention evaluation report (PPI)1]. … The total sentence to be served by [Appellant] is fifty (50) to one hundred (100) years in a state correctional institution.

On September 16, 2019, a timely Notice of Appeal was filed with the Superior Court of Pennsylvania. ...

On January 31, 2020, [Appellant] withdrew and discontinued his appeal with the Superior Court of Pennsylvania. On November 3, 2020, [Appellant] filed a petition under the Post-Conviction Relief Act seeking to reinstate his post-sentence rights. The undersigned entered an Order granting [Appellant’s] Motion on February 16, 2021[.]

Trial Court Opinion, 8/12/21, at 1-2 (citations omitted, one footnote in

original, one footnote added).

On March 19, 2021, Appellant filed a post-sentence motion asserting

the trial court erred by imposing an “unreasonable and manifestly excessive”

sentence without giving “proper weight to mitigating factors presented at

sentencing[.]” Post-Sentence Motion, 3/19/21, at ¶4(c)-(d). The trial court

denied Appellant’s motion on June 7, 2021. Appellant filed a notice of appeal

on July 1, 2021. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

Preliminarily, we address whether we have jurisdiction, as Appellant

filed his post-sentence motion 31 days after the reinstatement of his post-

1 A PPI is a drug and alcohol evaluation.

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sentence rights.2 See Pa.R.A.P. 105(b); Pa.R.A.P. 903(a); Commonwealth

v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (en banc) (the filing of

untimely post-sentence motions does not toll the 30-day period to file an

appeal from the judgment of sentence). “Generally, an appellate court cannot

extend the time for filing an appeal.” Commonwealth v. Patterson, 940

A.2d 493, 498 (Pa. Super. 2007). However, this Court has declined to quash

otherwise untimely appeals in circumstances where “the failure to file a timely

appeal [resulted from] a breakdown in the court system.” Commonwealth

v. Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019).

A breakdown in the court system occurs when the trial court “either

failed to advise Appellant of his post-sentence and appellate rights or

misadvised him.” Patterson, 940 A.2d at 498 (emphasis added).

Pa.R.Crim.P. 704(C)(3)(a) provides that the trial court, at the time of

sentencing, shall advise the defendant of his “right to file a post-sentence

motion and to appeal, of the time within which the defendant must

exercise those rights, and of the right to assistance of counsel in the

preparation of the motion and appeal.” Pa.R.Crim.P. 704(C)(3)(a) (emphasis

added).

2 On August 18, 2021, this Court issued a Rule directing Appellant to show cause why the appeal should not be quashed as untimely. We discharged the Rule and referred the matter to the merits panel on September 30, 2021.

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Here, the trial court reinstated Appellant’s post-sentence rights nunc pro

tunc on February 16, 2021. Accordingly, Appellant’s post-sentence motion

was due on or before February 26, 2021. Appellant did not file his post-

sentence motion until March 19, 2021. However, our review reveals that the

language in the trial court’s order implied that Appellant could not file his post-

sentence motion until the expiration of the Commonwealth’s 30-day appeal

period. The order states:

AND NOW, this 16th day of February, 2021, upon consideration of [Appellant’s] Petition in Support of Statutory Post Conviction Relief … it is hereby ORDERED and DECREED that [Appellant’s] Petition is GRANTED. [Appellant’s] post-sentence rights shall be reinstated. [Appellant] shall have ten (10) days from the expiration of the Commonwealth’s thirty-day appeal period, if no appeal is filed, to file his post-sentence motion.

Order, 2/16/19 (emphasis added).

As the court’s order may be read as misinforming Appellant about his

appellate rights and the time for filing his post-sentence motion, we conclude

there was a breakdown in the operations of the court which excuses

Appellant’s late filing. See Patterson, 940 A.2d at 498. Therefore, we

address the merits of Appellant’s claim.

Appellant presents the following question for review:

Whether an aggregate sentence of fifty to one hundred years of incarceration was clearly excessive and manifestly unreasonable?

Appellant’s Brief at 4.

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It is well-settled that the “right to appellate review of the discretionary

aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa. Super. 2014). When an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.

2007).

We have explained:

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test[.] We 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

In this case, Appellant filed his post-sentence motion and notice of

appeal in accordance with the PCRA court’s directive. Also, he included in his

brief the requisite concise statement of reasons relied upon for appeal

pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 6. We therefore examine

whether Appellant has raised a substantial question.

“We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Ahmad, 961

A.2d 884, 886-87 (Pa. Super. 2008). Allowance of appeal will be permitted

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only when the appellate court determines there is a substantial question that

the sentence is not appropriate under the Sentencing Code. Commonwealth

v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists

where an appellant sets forth a plausible argument that the sentence violates

a particular provision of the Sentencing Code or is contrary to the fundamental

norms underlying the sentencing process. Id.

[A] defendant may raise a substantial question where he receives consecutive sentences within the guidelines if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citation

omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant asserts the trial court

failed to give “individualized consideration to [Appellant’s] personal history,

rehabilitative needs, or background,” and focused only on the seriousness of

Appellant’s crimes. Appellant’s Brief at 10. Appellant contends the court’s

failure to consider mitigating factors resulted in the imposition of consecutive,

rather than concurrent, sentences, and an unduly harsh aggregate sentence.

Id. at 11.

Appellant has raised a substantial question. See Commonwealth v.

Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (a substantial question existed

where appellant claimed the trial court failed to consider certain sentencing

factors in conjunction with appellant’s assertion of an excessive sentence);

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Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“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.”). We therefore review Appellant’s substantive

argument.

Pertinently,

the proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion .... [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

Moury, 992 A.2d at 169–70 (citation omitted).

The Pennsylvania Supreme Court, in Commonwealth v. Walls, 926

A.2d 957, 964 (Pa. 2007), determined that a sentence may be unreasonable

if the trial court misapplies or disregards the factors in 42 Pa.C.S.A. §§

9721(b) and 9781(d). Section 9721(b) states:

[T]he court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with section 9725 (relating to total confinement) and the protection of the public, the gravity of the offense as it relates to the impact on

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the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing[.]

42 Pa.C.S.A. § 9721(b).

Section 9781(d) provides this Court “shall have regard” for:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the opportunity of the sentencing court to observe the defendant, including any presentence investigation; (3) the findings upon which the sentence was based; [and] (4) the guidelines promulgated by the sentencing commission.

42 Pa.C.S.A. § 9781(d); see also Commonwealth v. Ventura, 975 A.2d

1128, 1134-35 (Pa. Super. 2009).

In addition, “long standing precedent ... recognizes that [the Sentencing

Code] affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed.” Commonwealth v. Brown, 249 A.3d

1206, 1212 (Pa. Super. 2021) (quoting Commonwealth v. Marts, 889 A.2d

608, 612 (Pa. Super. 2005)). We will not disturb consecutive sentences unless

the aggregate sentence is “grossly disparate” to the defendant’s conduct, or

“viscerally appear[s] as patently unreasonable.” Commonwealth v.

Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010). Moreover, when

the trial court has the benefit of a PSI report, it is presumed that the court

was both aware of and appropriately weighed all relevant information

contained in the report. See, e.g., Commonwealth v. Griffin, 804 A.2d 1,

8 (Pa. Super. 2002).

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Appellant argues the trial court erred by sentencing him without

considering “[Appellant’s] prior criminal record, or his age at sentencing.”

Appellant’s Brief at 17. Appellant acknowledges the court received a PSI (as

well as a PPI), but claims the court was required to make “sufficient particular

findings and conclusions on the record in open court.” Id. Appellant concedes

the trial court “imposed the mandatory minimum sentences in accordance with

the law,” but contends the consecutive nature of his sentences created a

manifestly excessive aggregate sentence. Id. at 18.

The Commonwealth counters that the trial court properly and thoroughly

addressed the Section 9721(b) factors at sentencing, and “stated the reasons

for the aggregate sentence on the record in open court, including expressly

taking [Appellant’s] PSI into account.” Commonwealth Brief at 14. The

Commonwealth emphasizes that the court had discretion to run Appellant’s

mandatory and non-mandatory minimum sentences consecutively — as

requested by the Commonwealth — but did not do so. Id. The

Commonwealth argues the court’s decision to run some of Appellant’s

sentences concurrently demonstrated the court’s consideration of Appellant’s

mitigating factors. Id. at 14. We agree with the Commonwealth.

The record shows the trial court received a PSI, PPI, and a sexually

violent predator assessment, and had the benefit of each at sentencing. See

N.T., 8/16/19, at 3; see also Commonwealth v. Fowler, 893 A.2d 758, 766

(Pa. Super. 2006) (because the trial court considered the PSI report, “we are

required to presume [it] properly weighed the mitigating factors present in

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the case.”); see also Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa.

Super. 2004) (trial court’s indication that it reviewed PSI report satisfies the

requirement of stating its reasoning on the record).

Moreover, the trial court considered mitigating evidence. The court

heard defense counsel’s argument after considering statements from

Appellant’s brother and Appellant by way of allocution. See N.T., 8/16/19, at

3-28. The trial court further acknowledged that Appellant’s criminal history

(with a prior record score of four), did not involve sex offenses, in contrast to

the “reprehensible” nature of Appellant’s crimes in the underlying case. Id.

at 29.

Finally, Appellant’s sentence is within the standard range of the

sentencing guidelines, and as such, is presumptively reasonable. See 42

Pa.C.S.A. § 9781(c)(3) (appellate court must vacate sentence imposed within

the sentencing guidelines only if it “involves circumstances where the

application of the guidelines would be clearly unreasonable”).

In sum, the record belies Appellant’s claim that the trial court imposed

an excessive sentence without consideration of mitigating factors. See e.g.,

Commonwealth v. Leatherby, 116 A.3d 73, 84 (Pa. Super. 2015)

(“[h]aving been fully informed by the [PSI] report, the [trial] court’s discretion

should not be disturbed”); Boyer, supra.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/11/2022

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