Com. v. Junious, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAGENZA JUNIOUS
Appellant No. 879 MDA 2015
Appeal from the Judgment of Sentence February 17, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000639-2013
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 12, 2016
Lagenza Junious appeals the judgment of sentence imposed February
17, 2015, in the Dauphin County Court of Common Pleas. The trial court
sentenced Junious to a term of life imprisonment, pursuant to a negotiated
plea agreement, followed by a consecutive term of 20 to 40 years’
imprisonment, after Junious entered a guilty plea to charges of murder,
attempted murder, burglary and persons not to possess firearms.1 On
appeal, he challenges the discretionary aspects of his non-negotiated
sentence. We affirm.
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502, 901, 3502(a)(1), and 6105(c)(6), respectively.
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The facts underlying Junious’ guilty plea were summarized at his plea
hearing as follows:
[T]he factual basis underlying the plea stems from an incident
that occurred on December 20th, 2012 in the early morning
hours of that date. [Junious], as well as the deceased in the
case, Adreanne Evans, lived in adjoining apartments on North
Sixth Street right off of Forester in Harrisburg city.
They had, within the last couple of months, ended a
romantic relationship, and I think it is sufficient to say that
[Junious] had some difficulty with that break-up and there were
a number of events that culminated in what occurred on
December 20th; and that is, just after 6:00 a.m., [Junious]
armed with a shotgun, came over to the adjoining apartment
and forced his way in with the butt of the shotgun, breaking the
glass door, forcing his way into the occupied apartment.
Inside were several people. The deceased Adreanne
Evans, her new romantic interest Sterling Brown, Adreanne’s
mother Sage Evans, as well as [Junious] and Adreanne’s infant
child sleeping in there. The group was awoken by [Junious’]
forcible entry.
Upon entering, he pointed the shotgun at Adreanne, shot
her once in the chest; fired more shots at Sterling Brown,
striking him on the left side of his face. And then finally, as
Adreanne went to the ground, he pointed the shotgun at her face
and delivered a certainly fatal shot to her, dropped the shotgun,
and exited the apartment.
N.T., 2/17/2015, at 14-15.
Junious was charged with murder, attempted murder, aggravated
assault,2 burglary, persons not to possess firearms, and three counts of
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2
18 Pa.C.S. § 2702.
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recklessly endangering another person (“REAP”).3 On April 16, 2013, the
Commonwealth provided notice of aggravating circumstances, indicating its
intent to seek the death penalty. Thereafter, on February 17, 2015, Junious
entered a negotiated guilty plea to the above stated charges. Under the
terms of the agreement, the Commonwealth agreed not to seek the death
penalty for the crime of murder, and withdrew the charges of aggravated
assault and REAP. The trial court accepted the terms of the plea agreement,
and imposed a sentence of life imprisonment on the murder charge. With
regard to the remaining charges, for which there was no agreement as to
sentencing, the trial court sentenced Junious to a term of 20 to 40 years’
imprisonment for attempted murder, 10 to 20 years’ imprisonment for
burglary, and five to 10 years’ imprisonment for persons not to possess
firearms. The attempted murder sentence was imposed consecutively to the
sentence of life imprisonment for murder. The trial court ran the other
sentences concurrently.
Junious filed a timely post-sentence motion seeking reconsideration of
his non-negotiated sentence, namely, the court’s decision to run the
attempted murder sentence consecutively. He also sought leave to file an
amended post-sentence motion to challenge the trial court’s imposition of
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3
18 Pa.C.S. § 2705.
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fines and costs. The court denied both requests. This timely appeal
followed.4
Junious’ sole issue on appeal challenges the discretionary aspects of
his sentence.5 “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. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citation omitted). To reach the merits of a discretionary
issue, this Court must determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
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4
On May 26, 2015, the trial court ordered Junious to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Junious complied with the court’s directive, and filed a concise statement on
June 15, 2015.
5
It is well-settled that “where a defendant pleads guilty pursuant to a plea
agreement specifying particular penalties, the defendant may not seek a
discretionary appeal relating to those agreed-upon penalties.”
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009), appeal
denied, 990 A.2d 726 (Pa. 2010). However, a defendant may seek a
discretionary appeal of those sentencing terms that were not negotiated.
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Junious complied with the procedural requirements for this appeal by
filing a post-sentence motion for reconsideration of sentence and a timely
notice of appeal. Moreover, counsel included in the brief before this Court a
statement of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we
must consider whether Junious raised a substantial question justifying our
review.
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted). Here, Junious contends his sentence was excessive and
unreasonable because the trial court ordered that the 20 to 40 year
sentence for attempted murder run consecutively to his life sentence for
murder. He further asserts that the court’s structure of the sentence “does
not serve to protect the public or rehabilitate [him].” Junious’ Brief at 14.
“Generally speaking, the [trial] court’s exercise of discretion in
imposing consecutive as opposed to concurrent sentences is not viewed as
raising a substantial question that would allow the granting of allowance of
appeal.” Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa.
Super. 2010).
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Rather, the imposition of consecutive rather than concurrent
sentences will present 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.” Commonwealth v. Lamonda, 52
A.3d 365, 372 (Pa. Super. 2012), appeal denied, 621 Pa. 677,
75 A.3d 1281 (2013).
To make it clear, a defendant may raise a substantial
question where he receives consecutive sentences within
the guideline ranges 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), reargument denied (Nov. 21, 2013), appeal denied, 625
Pa. 648, 91 A.3d 161 (2014) (emphasis in original).
Commonwealth v. Swope, 123 A.3d 333, 338-339 (Pa. Super. 2015).
In Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (en
banc), appeal denied, ___ A.3d ___, 2015 WL 7288526 (Pa. 2015), an en
banc panel of this Court considered a similar challenge. In that case, the
trial court imposed an aggregate sentence of 31 to 62 years’ incarceration
following the defendant’s convictions of, inter alia, robbery, aggravated
assault and gun charges. With regard to his sentence, the defendant argued
the court’s imposition of consecutive sentences was excessive in relation to
his convictions, and the court failed to consider his rehabilitative needs. Id.
at 768. The en banc panel concluded the defendant’s claim raised a
substantial question for review. We find the same to be true in the present
case.
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Nevertheless, we conclude Junious is entitled to no relief. The trial
court, in its opinion, stated the following:
These offenses stemmed from [Junious’] heinous criminal
acts, which resulted in the first-degree murder of Adreanne
Evans and the attempted murder of Sterling Brown. In light of
the depraved criminal conduct at issue, this Court’s decision to
impose a consecutive sentence of 20 to 40 years imprisonment
for criminal attempt homicide is not excessive or extreme, even
in light of [Junious’] life sentence for first-degree murder.
Furthermore, this Court did not impose consecutive sentences
for the other offenses; Counts 4 and 5 were ordered to run
concurrent to Count 1. [Junious] was not entitled to a “volume
discount” for his multiple offenses. Based upon the foregoing,
we will not deem the aggregate sentence as excessive in light of
the violent criminal conduct at issue.
Trial Court Opinion, 8/5/2015, at 5. We find no reason to disagree. See
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(“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.”), appeal denied, 125 A.3d 1198 (Pa. 2015).
Moreover, to the extent Junious complains the trial court failed to
consider the protection of the public or his rehabilitative needs, these claims
amount to no more than bald allegations. Therefore, he is entitled to no
relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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