Com. v. White, R.

• Court: Superior Court of Pennsylvania
• Decided: July 10, 2019
• Docket: 1818 WDA 2017
• Status: Unpublished

Opinion

J-S09004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYMOND CHARLES WHITE : : Appellant : No. 1818 WDA 2017

Appeal from the Judgment of Sentence January 24, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013546-2000

BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.: FILED JULY 10, 2019

Raymond Charles White appeals from the judgment of sentence entered

in the Allegheny County Court of Common Pleas, following resentencing on his

third-degree murder conviction. White contends that the court abused its

discretion in directing that this sentence run consecutively to a previous

sentence for third-degree murder. We affirm.

In May of 1999, Antwan Brooks was shot to death with his own firearm.

Police interviewed White shortly thereafter, but declined to prosecute him at

that time. At the time of Brooks’s death, White was seventeen years and

eleven months old.

A little over a year later, police arrested White in connection with

another, otherwise unrelated, murder (the “Second Murder”). While police ____________________________________________

 Retired Senior Judge assigned to the Superior Court. J-S09004-19

questioned White for a second time, White confessed to the murder of Brooks.

This appeal concerns the murder of Brooks.

In 2002, a jury convicted White of third-degree murder in the Second

Murder. As he was an adult when he committed the Second Murder, he was

tried as an adult. The court sentenced him to an aggregate sentence of thirty

to sixty years’ imprisonment on the Second Murder and associated crimes.

White was subsequently found guilty of the third-degree murder of

Brooks and conspiracy following a bench trial. On June 6, 2006, the trial court

sentenced White to a then-mandatory term of life imprisonment without the

possibility of parole. In imposing sentence, the court relied on White’s previous

conviction in 2002 for the other crimes.

In 2017, White was re-sentenced on the instant conviction pursuant to

Miller v. Alabama, 567 U.S. 460 (2012) (ruling imposition of mandatory life

without parole sentences on juvenile offenders is unconstitutional). The trial

court imposed a new sentence of ten to twenty years’ imprisonment to run

consecutively to any sentence he was currently serving.

On appeal, White challenges the trial court’s exercise of discretion in

imposing sentence. Specifically, he argues the trial court abused its discretion

in imposing a manifestly excessive and unreasonable sentence. He further

contends the trial court failed to consider relevant factors and relied on an

impermissible duplicative factor. Finally, White argues the trial court failed to

impose an individualized sentence.

-2- J-S09004-19

“A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

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).

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

omitted; brackets in original).

While White provides a Pa.R.A.P. 2119(f) statement, none of the issues

raised in his statement were included in his post-sentence motion or

supplemental post-sentence motion. Instead, he asserted in his post-sentence

motion that the trial court should consider newly provided mitigation evidence,

which he attached to the motion. In his supplemental post-sentence motion,

he sought to “supplement[] his previous filings with a love story – in the form

of a letter from his wife.” He therefore sought “re-sentencing so he may

present his substantial mitigating evidence through live witnesses.”

We find his issues waived for not being preserved in his post-sentence

motion, supplemental post-sentence motion, or at sentencing. See

-3- J-S09004-19

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (“Objections

to the discretionary aspects of a sentence are generally waived if they are not

raised at the sentencing hearing or in a motion to modify the sentence

imposed”); see also Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43

(Pa. Super. 2013) (en banc) (concluding substantial question waived for failing

to raise it at sentencing or in post-sentence motion).

We note White had numerous opportunities before and during the

resentencing hearing to either present mitigating evidence or accept the

benefit of a presentence report and chose not to do so. When advised of the

benefit of a presentence report – i.e. to learn how he had been doing while

incarcerated – he blatantly waived the opportunity.

THE COURT: Okay. Question becomes and I talked to your attorney about this, whether or not, Mr. White, this issue is going to be one of concurrent or consecutive, whether you would want a pre-sentence report, which would update me on what you have done while you have been in the penitentiary.

MR. NIGHTINGALE: So we can either proceed to sentencing today or we can request a presentence report, and the probation office will conduct an investigation, basically seeing about how things have been going since you have been in the penitentiary.

Do you want to proceed to sentencing today, or do you want the benefit of a pre-sentence report?

THE DEFENDANT: I want to proceed today.

N.T., Resentencing, 1/24/2017, at 3-4. Further, White was specifically asked

about his status since being incarcerated and the only information provided to

-4- J-S09004-19

the court was the fact that he has been written up a “few times”1 while

incarcerated. See id., at 4.

As we find White has waived his sole issue on appeal, we affirm the

judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/10/2019

____________________________________________

1 Our review of the record, including White’s own admission in his brief, indicates that he has had seventeen misconducts during his incarceration. See N.T., Sentencing, 1/24/17, at 7; Appellant’s Brief, at 11.

-5-