Com. v. Sommers, B. ( 2021 )

J-S11015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 267 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015164-2017
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 268 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0000488-2018
J-S11015-21
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 269 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015784-2017
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 270 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0000706-2018
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 271 WDA 2020
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J-S11015-21
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0001951-2018
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 272 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015817-2017
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 273 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0015163-2017
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 274 WDA 2020
-3-
J-S11015-21
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0000568-2018
____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON MICHAEL SOMMERS
Appellant No. 275 WDA 2020
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0002095-2018
BEFORE: STABILE, J. KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: MAY 21, 2021
Appellant, Brandon Michael Sommers, appeals from his judgment of
sentence of 8-16 years’ imprisonment following his guilty plea in the above
cases. Appellant contends that the court abused its discretion by imposing an
overly lengthy sentence. We affirm.
Appellant was charged in the above cases with perpetrating a series of
burglaries and other offenses between October 20, 2017 and November 21,
2017. His father participated in several of these burglaries. On June 21,
2018, Appellant entered an open guilty plea in all cases. On June 26, 2018,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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the court sentenced Appellant to a combination of consecutive and concurrent
sentences for burglary, firearms, and receiving stolen property that totaled 8-
16 years’ imprisonment. Appellant did not file a direct appeal, but on
September 20, 2019, the court granted his petition under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, to reinstate his direct appeal
rights nunc pro tunc. In the same order, the court granted Appellant 45 days
to file post-sentence motions.
On November 4, 2019, Appellant, through counsel, filed a motion to
modify his sentence, alleging that the court failed to consider his rehabilitative
needs, drug addiction, mental health issues, and adverse influence from his
father. On January 23, 2020, the court denied Appellant’s motion. This timely
appeal followed. Both Appellant and the court complied with Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal: “Did the court abuse its
discretion in imposing consecutive terms of imprisonment resulting in a
manifestly excessive and unreasonable aggregate sentence of 10 to 20 years’
imprisonment[1] for the instant offenses?” Appellant’s Brief at 4.
Appellant’s claims implicate the discretionary aspects of sentencing. We
note:
[A]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. We determine
whether the appellant has invoked our jurisdiction by considering
the following four factors:
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1 The sentencing hearing transcript reveals that the trial court imposed a
sentence of 8-16 years’ imprisonment, not 10-20 years’ imprisonment.
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(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).
***
What constitutes a substantial question must be evaluated on a
case-by-case basis. A substantial question exists “only when 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.” A
claim that a sentence is manifestly excessive might raise a
substantial question if the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms
underlying the sentencing process.
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).
Here, Appellant filed a timely notice of appeal and raised these
discretionary sentencing claims before the trial court in post-sentence
motions. Additionally, his appellate brief properly includes the required
Pa.R.A.P. 2119(f) statement.
Appellant presents a substantial question for our review by asserting
that the court imposed an excessive sentence without taking his rehabilitative
needs or mitigating factors into account. Commonwealth v. Swope, 123
A.3d 333, 340 (Pa. Super. 2015) (challenge to imposition of consecutive
sentences as unduly excessive, together with claim that court failed to
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consider rehabilitative needs and mitigating factors upon fashioning its
sentence, presents substantial question). Appellant also argues that the
court’s reference to his past criminal conduct was improper because it was
already taken into consideration by his prior record score. This, too, raises a
substantial question for review. Commonwealth v. Clemat, 218 A.3d 944,
959 (Pa. Super. 2019) (claim that court relied on factors already considered
in sentencing guidelines, resulting in “double counting” of these factors, sets
forth substantial question).
Sentencing is within the sound discretion of the trial court, and we will
not disturb a sentence absent a manifest abuse of discretion.
Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011). The trial court has
broad discretion 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. Id.; Commonwealth v. Ventura,
975 A.2d 1128, 1134 (Pa. Super. 2009).
In this case, Appellant’s sentence was a proper exercise of discretion
because the court took into account Appellant’s rehabilitative needs and all
mitigating factors presented, as well as the other statutory factors required
by the Sentencing Code, when imposing sentence.
Having presided over the guilty plea hearing, the court knew of the
circumstances involved in this matter wherein Appellant committed nine
burglaries, some with his father, over a one-month period. The crimes
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involved multiple victims, and the stolen items included jewelry and firearms.
During the guilty plea hearing, Appellant admitted his involvement in all of the
crimes and cooperated with police. N.T., 6/21/18, at 10.
During the sentencing hearing, Appellant acknowledged waiving his
right to a presentence report, because he was satisfied with the history set
forth in a recently completed report prepared in an unrelated case. The court
indicated that it had taken this prior report into consideration. N.T., 6/26/18,
at 2, 4, 25-26. Thus, the court presumably was aware of and weighed all
information regarding Appellant’s background and character along with
mitigating statutory factors. Commonwealth v. Proctor, 156 A.3d 261, 274
(Pa. Super. 2017) (where court is informed by PSI, court is presumed aware
of all appropriate sentencing factors and considerations, and where the court
has been so informed, its discretion should not be disturbed).
In addressing the court, Appellant provided an overview of his
background, included his abusive, drug addicted father and claims that he had
been sexually assaulted as a teenager and had attempted suicide. He said
that his childhood traumas caused him to suffer from PTSD and bipolar
depression. He also discussed his drug use. N.T., 6/26/18, at 4-6. Appellant
stated that he relapsed when his father moved into his house, which led to
the commission of the current crimes. Id. at 6. Nevertheless, he accepted
the fact that he had made the decision to commit the offenses and expressed
remorse for his actions. Id. at 17-18. Appellant also stressed that he had
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helped police recover the stolen items and understood that he could “never
completely heal the traumatic wounds that [he had] caused.” Id. at 6-7. He
noted that he had been incarcerated multiple times but had learned a lot from
these experiences and saw the sentence herein as “a chance to positively
change.” Id. at 14-15. He acknowledged that the court would sentence him
at its discretion but requested that no tail be imposed. Id. at 7.
Appellant’s grandmother and mother spoke on his behalf. His
grandmother stated that he suffers from mental health issues requiring proper
medication and hoped he would receive treatment. She described the abuse
inflicted by Appellant’s father and stated her belief that his return to drug use
was the result of his father moving in with him. Id. at 8-11. Appellant’s
mother likewise remarked that he has mental health issues and believed that
his father’s neglectful nature accounted for Appellant’s behavior. She added
that when Appellant was a teenager, he had been sexually abused by a vice
principal. Id. at 12-13.
Defense counsel reiterated that Appellant had accepted responsibility
for his actions, cooperated with police, and helped to ensure the return of all
of the stolen items. Id. at 15. Counsel requested that the court take into
account Appellant’s history of mental illness and drug abuse, as well as his
potential for rehabilitation, and impose a reasonable sentence, preferably boot
camp with a tail or, if imprisonment, a sentence with no tail at the end. He
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pointed out that Appellant was only 29 years old and had previously been
employed as a carpenter. Id. at 17, 21-22.
The prosecutor argued that Appellant’s crimes occurred in eight
separate communities and affected 22 victims, many of whom were elderly
and infirm, including a 94-year-old woman. He noted that many of the jewelry
items were family heirlooms, and that one of the victims had no front door
during several winter months because it had been damaged by Appellant and
could not be repaired due to inclement weather. All of the victims lost their
sense of security as a result of Appellant’s actions. Id. at 18-19. The
prosecutor remarked upon Appellant’s history of similar misconduct, including
the entry of guilty pleas in 2011 and 2013 to felony burglaries, and confirmed
that he was facing parole violations before a different judge as a result of the
current offenses. Id. at 19-20.
After listening to this evidence and argument, the court offered the
following, detailed explanation of its sentencing decision:
This presents a dilemma for the court at such a young man with
a terrible history; and on the other side . . . you have heard it
hundreds of times in your experience over the years, is how a
burglary impacts the victims[] in their own homes, security and
their peace of mind. That is forever lost. I am really not going to
sentence him to 20 to 40 years, just warehousing him. But at the
same time, there has to be a kind-of give and take, because there
[are] multiple victims, their ages and the impact on their life. [It
is] my practice to sentence consecutively for separate harms in
separate cases. I am deviating from that. At some point in time
he will just fall off a cliff here, in terms of sending him to jail for
almost a life sentence.
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[T]he court has taken into account my sentencing responsibilities
under Title 42, that is the impact of the crimes on the victims,
which has been significant, the protection of the public which is,
again, paramount in terms of his re-offending on at least two
occasions after being sentenced for similar or same type of
activity.
[The] court has taken into account the statements made by
[Appellant] on his own behalf, three separate statements, so to
speak today, the statements made by his mother, his
grandmother; the cumulative history which indicates his father’s
drug abuse, an overt and perhaps subconscious influence on
[Appellant], his own manifest mental health problems, post[-]
traumatic stress, the ADHD, suicide attempts, the heroin addiction
that led to his criminal conduct, and the purported abuse by
another adult during his youth.
[The] court takes into account the plea that he has undertaken,
completed in this matter, saving the victims from testifying; and
also the cooperation with the authorities in terms of recovering
some or all of the items. The court notes that while his mother
and grandmother attribute much of the responsibility or, in plain
English, the blame on his father, upon specific inquiry [Appellant]
accepts his own decision-making process, accepting full
responsibility for the conduct.
Id. at 23-25 (some capitalization omitted). The court stated, “I could
sentence you to 25 to 50 years, no one would blink.” Id. at 31.
Contrary to Appellant’s argument, the court did not ignore his mental
illness and drug addiction, or any other mitigating factor, including his father’s
adverse influence, when it imposed sentence. The court took these factors
into account, but it fashioned a sentence it felt was warranted based upon the
number of crimes and victims involved, the effect upon the victims, public
protection, and Appellant’s history. The court took into consideration that
Appellant committed multiple burglaries involving numerous victims and found
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consecutive sentences necessary under the circumstances. At the same time,
however, the court took Appellant’s mitigating evidence into account by
imposing a more lenient sentence than it otherwise might have. This explains
why the court observed that “no one would [have] blink[ed]” had it imposed
a 25- to 50-year sentence. Id.
Furthermore, the court properly considered Appellant’s criminal history
as a ground for imposing consecutive sentences. When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. Commonwealth v. Burns, 765 A.2d 1144,
1150–51 (Pa. Super. 2000). In particular, the court should refer to the
defendant’s prior criminal record, his age, his personal characteristics, and his
potential for rehabilitation. Id. at 1151. Thus, we cannot fault the trial court
for doing so in this case.
For these reasons, we conclude that the trial court properly exercised
its discretion in sentencing Appellant to an aggregate term of eight to sixteen
years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2021
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