Com. v. Blackwell, U. ( 2021 )

J-S13019-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
UTIFE BLACKWELL :
:
Appellant : No. 1821 EDA 2020
Appeal from the Judgment of Sentence Entered September 7, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009149-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
UTIFE BLACKWELL :
:
Appellant : No. 1822 EDA 2020
Appeal from the Judgment of Sentence Entered September 7, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009807-2016
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MAY 05, 2021
Appellant, Utife Blackwell, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his open guilty plea to third-degree murder, robbery, and other related
offenses at three docket numbers, in connection with three home invasions
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant committed. We affirm.
The relevant facts and procedural history of this case are as follows. In
2016, Appellant and several accomplices committed three separate home
invasions; during one of those incidents, Appellant’s co-defendant beat and
stabbed Joseph Daly to death. (N.T. Plea Hearing, 6/11/18, at 57-61). On
June 11, 2018, Appellant entered an open guilty plea to multiple charges on
three dockets. (See id. at 62). Specifically, at CP-51-CR-0009807-2016
(“docket 9807-2016”), Appellant pled guilty to one count each of third-degree
murder, conspiracy to commit murder, burglary, and robbery;1 at CP-51-CR-
0009149-2016 (“docket 9149-2016”), Appellant pled guilty to burglary,
conspiracy to commit burglary, robbery, and terroristic threats;2 and at CP-
51-CR-0001074-2017 (“docket 1074-2017”), Appellant pled guilty to burglary
and theft.3
On September 7, 2018, the court imposed an aggregate sentence of 50
to 100 years of incarceration, across all dockets. Specifically, at docket 9807-
2016, the court imposed an aggregate of 35 to 70 years of incarceration; at
docket 9149-2016, the court imposed an aggregate of 10 to 20 years of
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c), 903(a)(1), 3502(a)(1), and 3701(a)(1)(i),
respectively.
2 18 Pa.C.S.A. §§ 3502(a)(1), 903(a)(1), 3701(a)(1)(iv), and 2706(a)(1),
respectively.
3 18 Pa.C.S.A. §§ 3502(a)(2) and 3921(a), respectively.
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incarceration; and at docket 1074-2017, the court imposed an aggregate of 5
to 10 years of incarceration. The court ran all sentences consecutively.
On September 17, 2018, Appellant timely filed a post-sentence motion.
On January 11, 2019, the court denied Appellant’s motion. On February 12,
2019, Appellant timely filed a notice of appeal, but this Court dismissed his
appeal due to his failure to file a docketing statement. On July 26, 2019,
Appellant timely filed a pro se petition pursuant to the Post Conviction Relief
Act (“PCRA”).4 The court appointed counsel for Appellant and on February 9,
2020, Appellant filed an amended PCRA petition. On September 18, 2020,
the court granted Appellant PCRA relief and reinstated his direct appeal rights
nunc pro tunc.
Appellant timely filed notices of appeal nunc pro tunc related to only
dockets 9149-2016 and 9807-2016. Appellant did not appeal the sentence at
docket 1074-2017. On September 29, 2020, the court ordered Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
On October 12, 2020, Appellant filed his concise statement.
Appellant raises the following issue for our review:
Did the trial court abuse its discretion in imposing an
aggregate sentence of forty-five (45) to ninety (90) years
on these two cases following an open plea?
(Appellant’s Brief at 5).
____________________________________________
4 42 Pa.C.S.A. §§ 9541-9546.
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Appellant argues that the trial court did not fully account for mitigation
evidence. Specifically, Appellant claims the court ignored that Appellant had
low mental functioning and was susceptible to negative influences; that
Appellant attempted to save the victim by calling 911; that Appellant chose to
plead guilty to spare the pain of trial for the victims’ families; and Appellant
could have been rehabilitated. (See Appellant’s Brief at 4). Additionally,
Appellant contends the court imposed consecutive sentences following his plea
without providing sufficient reasons on the record. Appellant admits that his
sentences for third degree murder and conspiracy were within the guideline
range, but emphasizes that his other sentences were upward departures from
the guidelines. (See id. at 10). As presented, Appellant’s issue challenges
the discretionary aspects of his sentence. See Commonwealth v. Disalvo,
70 A.3d 900, 903 (Pa.Super. 2013) (explaining claim that court failed to
consider certain mitigating factors presents challenge to discretionary aspects
of appellant’s sentence).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[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
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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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a timely filed post-
sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
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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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
This Court has observed that
[a]n allegation that the sentencing court failed to consider
certain mitigating factors generally does not necessarily
raise a substantial question. Commonwealth v. McNabb,
819 A.2d 54, 57 (Pa.Super. 2003). Accord
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super.
1999) (reiterating allegation that sentencing court “failed to
consider” or “did not adequately consider” certain factors
generally does not raise substantial question). Compare
Commonwealth v. Felmlee, 828 A.2d 1105, 1107
(Pa.Super. 2003) (en banc) (stating substantial question is
raised, however, where appellant alleges sentencing court
imposed sentence in aggravated range without adequately
considering mitigating circumstances).
“When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa.
671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record,
his age, personal characteristics and his potential for
rehabilitation.” Id. Where the sentencing court had the
benefit of a presentence investigation report (“PSI”), we can
assume the sentencing court “was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 519 Pa.
88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super.
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2005) (stating if sentencing court has benefit of PSI, law
expects court was aware of relevant information regarding
defendant’s character and weighed those considerations
along with any mitigating factors). Further, where a
sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under
the Sentencing Code. See Commonwealth v. Cruz-
Centeno, [668 A.2d 536 (Pa.Super. 1995)], appeal denied,
544 Pa. 653, 676 A.2d 1195 (1996) (stating combination of
PSI and standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). Although
a bald allegation that the court failed to consider mitigating factors generally
does not raise a substantial question, an assertion that the imposition of
consecutive sentences is disproportionate to the crimes, “in combination with
allegations that a sentencing court did not consider the nature of the offenses
or provide adequate reasons for its sentence, presents a plausible argument
that the length of the sentence violates fundamental sentencing norms.”
Commonwealth v. Dodge, 77 A.3d 1263, 1271–72 (Pa.Super. 2013).
Instantly, Appellant preserved his sentencing challenge by raising his
claims in a timely post-sentence motion and filing timely notices of appeal
nunc pro tunc. Appellant’s brief also contains an appropriate Pa.R.A.P. Rule
2119(f) statement. Nevertheless, even if Appellant’s claim raises a substantial
question under Dodge, it merits no relief.
This Court has explained:
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. In this
context, an abuse of discretion is not shown merely by an
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error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006). A
sentencing court must state its reasons for the sentence on the record.
Commonwealth v. Burns, 765 A.2d 1144, 1151 (Pa.Super. 2000). Where
the court had the benefit of a PSI, we can assume that the court “was aware
of relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Moury, supra at 171.
Here, the record belies Appellant’s claim that the court ignored
mitigation evidence. At sentencing, the court specifically noted that it
considered the PSI report, the mental health evaluation, and the testimony of
Dr. Anna Lawler, Appellant’s mitigation expert. (See N.T. Sentencing, 9/7/18,
at 60-61). The court acknowledged Appellant’s low mental functioning and
susceptibility, call to 911, and open plea. (See id. at 60-64). Ultimately, the
court decided that “the magnitude of [Appellant’s] criminal behavior
established by the record demonstrates not only that all of the [c]ourt’s
sentences were reasonable, but also that the [c]ourt was well within its
discretion in running some of the sentences consecutively in this case.” (Trial
Court Opinion, filed 12/4/20, at 6-7). Thus, the court determined that the
escalating and violent nature of the three incidents to which Appellant pled
guilty outweighed the mitigation evidence. (See id. at 7-8).
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We reiterate that the court had the benefit of a PSI report, so we can
presume the court considered all relevant and mitigating factors. See Tirado
supra at 366. Further, the record shows no indication of partiality, prejudice,
bias or ill will, or a manifestly unreasonable decision. See Shugars, supra.Under these circumstances, we see no reason to disrupt the court’s sentencing
rationale. See id. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2021
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