Com. v. Lucas, J. ( 2017 )

J-S43037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERMAINE LAVELL LUCAS
Appellant No. 148 WDA 2017
Appeal from the Judgment of Sentence December 6, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003431-2015
BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: July 20, 2017
Appellant, Jermaine Lavell Lucas, appeals from the judgment of
sentence imposed following his guilty pleas to two counts of possession with
intent to deliver (“PWID”) a controlled substance,1 and one count of
hindering apprehension or prosecution.2 Appellant challenges the
discretionary aspects of his sentence. We affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
Appellant pled guilty on October 4, 2016 to Possession
with Intent to Deliver Heroin, Possession with Intent to
Deliver Cocaine, and Hindering Apprehension or
Prosecution. The remaining counts were nolle prossed.
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 5105(a)(1).
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On December 6, 2016, Appellant was sentenced in the
standard range of the sentencing guidelines on each count.
He received 24-48 months at [PWID] Count 1, 20-[40]
months at [PWID] Count 2, and 3-[23½] months [for
hindering/apprehension]. Confinement was consecutive on
all three counts and consecutive to the sentence Appellant
received at his probation revocation hearing at Docket
Number 444 of 2014.
The aggregate sentence which results is 47 to [111½3]
months of incarceration for Docket Number 3431 of 2015.
Appellant understood when he entered his plea that the
maximum sentences for his crimes totaled 27 years (324
months). . . .
On December 16, 2016, Appellant filed a Motion for
Reconsideration of Sentence. Appellant claimed the
sentencing judge failed to consider mitigating factors such
as [] Appellant’s family situation, that he was remorseful
for his conduct and accepted responsibility in his plea of
guilty. Appellant averred that a sentence at the low-end of
the standard range was most appropriate in this case. The
motion was denied by Order dated December 19, 2016.
Appellant filed a Notice of Appeal [on January 18,
2017,] and a Concise Statement on February 8, 2017.
Appellant argued there was not sufficient grounds to
sentence him at the high end of the standard range and
that the sentences should have been concurrent instead of
consecutive. Appellant also argued that the [c]ourt failed
to adequately consider mitigating factors, including []
Appellant’s cooperation at arrest and admission of guilt,
Appellant’s guilty plea, Appellant’s remorse, and five minor
children. Appellant averred a more appropriate sentence
would be at the low end of the standard range with each
count running concurrently.
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We note the trial court’s opinion and Appellant’s brief misstate Appellant’s
sentence for count 2 of PWID as 20-46 months’ imprisonment and for
hindering/apprehension as 3-23 months’ imprisonment. However, the
sentencing order correctly indicates that Appellant’s sentence for count 2 of
PWID and for hindering/apprehension is 20-40 months’ and 3-23½ months’
imprisonment, respectively. See Sentencing Order, 12/6/16.
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Trial Ct. Op., 3/10/17, at 1-2 (citations omitted).
Appellant raises the following issue for our review:
Was the sentence in this case manifestly excessive and
clearly unreasonable, and not individualized as required by
law, especially in that the sentence did not properly take
into account the several mitigating factors present?
Appellant’s Brief at 3 (capitalization omitted).
Appellant challenges the discretionary aspects of his sentence.
Appellant argues his aggregate sentence of 47 to 111½ months’
imprisonment is manifestly excessive. Appellant also contends the trial
court failed to consider mitigating factors, including that he expressed
remorse, took responsibility for his actions, had a high school degree, and
has five children. Appellant concludes this Court should vacate his judgment
of sentence and remand for resentencing. No relief is due.
This Court has stated that:
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
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 there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)
(quotation marks and some citations omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
“Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. 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. Mouzon,
812 A.2d 617, 627 (Pa. 2002). However, “[a] claim that a sentencing court
failed to consider certain mitigating factors does not raise a substantial
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question . . . .” Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006) (citations omitted).
Instantly, Appellant timely appealed, preserved his discretionary
aspects of sentencing issue in his motion for reconsideration of sentence,
and included a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901
A.2d at 533. Appellant asserts the trial court imposed a manifestly
excessive sentence. Generally, such a bald assertion does not raise a
substantial question. See Mouzon, 812 A.2d at 627. In any event,
Appellant’s claim is meritless. This Court has stated:
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
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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
In making a reasonableness determination, a court should consider
four factors: (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 pre-sentence investigation;
(3) the findings upon which the sentence was based; and (4) the guidelines
promulgated by the commission. 42 Pa.C.S. § 9781(d)(1)-(4).
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A sentence may be found to be unreasonable if it fails to properly
account for these four statutory factors, or if it “was imposed without
express or implicit consideration by the sentencing court of the general
standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d
957, 964 (Pa. 2007). These general standards mandate that a sentencing
court impose a sentence “consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S. § 9721(b).
“[W]here the sentencing court imposed a standard-range sentence
with the benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.
2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (stating “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code” (citation omitted)). Under such circumstances, “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.” Corley, 31 A.3d at 298 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)) (quotation marks
omitted).
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Here, Appellant’s sentence is in the standard range of the Sentencing
Guidelines. Because the trial court reviewed Appellant’s pre-sentence
investigation report, we assume it took into consideration the mitigating
circumstances raised in Appellant’s brief, such as his high school degree and
five children. See Corley, 31 A.3d at 298. Moreover, the trial court
summarized its reasons for Appellant’s sentence as follows:
I have listened to the evidence presented here today. I
have read the revocation summary and the [pre-sentence
investigation report] for both docket numbers 444 of 2014
and 3431 of 2015.
I’m also familiar with the facts of the case at 3431,
since I presided over a pretrial hearing in that case. And I
do note to your credit, [Appellant], as to Docket 3431,
you’ve accepted responsibility by way of your plea in that
case.
And then I have to balance that. And I do take in
account your age and the fact you do have a high school
degree. I’m not sure what kind of parent you’ve been to
five children at such a young age that you are. When, in
fact, you spend most of your time in and out of the
criminal justice system as a juvenile and as an adult.
As a juvenile you had serious offenses, including
robbery, conspiracy to commit robbery. There were efforts
to work with you. You were revoked several times as a
juvenile.
You came into the adult system, and you’re given
benefit by Judge Garhart originally at Docket Number 444,
and I’m sure he took into account your age and the fact
this was your first adult offense, but they were serious; it
involves a firearm that you were carrying without a license
and a resisting arrest. But he allowed you to stay in the
community and gave you a sentence in the mitigated
range of the sentencing guidelines, and that was on April
29th of 2015.
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Unfortunately, the offenses at Docket 3431 were
committed less than six months later, on October 23rd of
2015, and in the meantime, you had already been called in
by your probation officer for—to your credit you admitted
smoking marijuana and services were in place for you, so
you had services in place. He didn’t detain you, he got
you services for the use of pot. So while you were
supposedly doing that, on October 23, 2015, you’re clearly
harboring a fugitive who’s wanted for homicide and you’re
clearly involved in dealing drugs out of this house.
And there’s a significant quantity of heroin, a significant
quantity of cocaine found in that house, and that is a
concern, because it tells me that you have made no
significant effort to change your lifestyle or your criminal
thinking. And that if left to your own devices, you would
continue on those ways and that’s unfortunate, because
possessing firearms and dealing drugs are a very
dangerous combination. And they’re a threat to the health
and safety of other people in this community.
N.T. Sentencing, 12/6/16, at 12-14. We discern no abuse of discretion in
the trial court’s reasoning. See Sheller, 961 A.2d at 190. Therefore,
Appellant’s sentence of 47 to 111½ months’ imprisonment was not
manifestly excessive. See Corley, 31 A.3d at 298; Moury, 992 A.2d at
171. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
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