Com. v. Chambers, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
:
v. :
:
DAVON C. CHAMBERS :
:
APPELLANT : No. 250 MDA 2016
Appeal from the Judgment of Sentence February 4, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005515-2006
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 13, 2016
Appellant, Davon C. Chambers, appeals from the Judgment of
Sentence entered in the Dauphin County Court of Common Pleas on
February 4, 2015, following the revocation of his probation and parole. We
affirm.
The procedural history relevant to the instant appeal is as follows. On
March 21, 2007, Appellant entered a negotiated guilty plea to two counts of
Statutory Sexual Assault (“Count 1” and “Count 2”), three counts of
Indecent Assault Person Less than 13 Years of Age (“Count 3,” “Count 4,”
and ”Count 5 ”), one count of Indecent Assault Person Less than 16 years of
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Age (“Count 6”), and one count of Corruption of Minors (“Count 7”). 1 On
June 26, 2007, the court sentenced Appellant to an aggregate term of 2 to 4
years’ incarceration, and 10 years’ probation.
On December 16, 2010, the trial court held a parole and probation
revocation hearing, after which the court revoked Appellant’s sentence at
Count 3, a count for which Appellant initially received a sentence of
probation. The court then re-sentenced Appellant to a 6 to 12 month term of
incarceration. On June 4, 2011, the court granted Appellant’s release.
On September 15, 2013, Appellant appeared for a second revocation
hearing, following which the court imposed a 23-month intermediate
punishment sentence at Count 4, with the condition that Appellant undergo
sexual offender treatment. The court also sentenced Appellant to a term of
5 years’ probation on Counts 4, 5, and 6.
After failing to comply with the court’s order to undergo sexual
offender treatment, on February 4, 2015, Appellant appeared for a third
probation and parole revocation hearing. Appellant did not contest that he
failed to complete treatment. Following the hearing, the trial court
sentenced Appellant on Count 4 to a term of 22 to 44 months’ incarceration,
followed by 5 years’ probation. The trial court credited Appellant 6 months
and 24 days’ for time served.
1
18 Pa.C.S. § 3122.1, 18 Pa.C.S. § 3126(a)(7), 18 Pa.C.S. § 3126(a)(8),
and 18 Pa.C.S. § 6301(a)(1), respectively.
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On February 13, 2015, Appellant filed a timely Post-Sentence Motion,
seeking modification of his sentence. The Commonwealth filed a response
on March 2, 2015. Appellant did not file a timely Notice of Appeal from his
February 4, 2015 Judgment of Sentence. See Pa.R.Crim.P. 708(E)
(providing that, where the trial court sentences a defendant following a
violation of probation, the filing of a timely Post-Sentence Motion does not
toll the running of the 30-day appeal period).
On March 18, 2015, Appellant filed a pro se Petition pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46, seeking the reinstatement
of his post-sentence and direct appeal rights based upon ineffective
assistance of his court-appointed counsel for counsel’s failure to appeal his
February 4, 2015 revocation sentence. On January 11, 2016, the court
reinstated Appellant’s right to file a Post-Sentence Motion within ten days or
a direct appeal within thirty days.
On January 14, 2016, Appellant filed a Post-Sentence Motion, and on
February 9, 2016, he filed a Notice of Appeal from the February 4, 2015,
Judgment of Sentence. The trial court did not rule on Appellant’s Post-
Sentence Motion. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises the following issue:
Whether the trial court erred in denying Appellant’s Post
Sentence Motion where his sentence was excessive and
unreasonable and constitutes too severe a punishment in
light of the alleged gravity of the offense, Appellant’s
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rehabilitative needs, and what is needed to protect the
public?
Appellant’s Brief at 5.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We 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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and
Notice of Appeal. He also included a separate Pa.R.A.P. 2119(f) Statement
in his appellate brief. As to whether Appellant has presented a substantial
question, we note:
The determination of 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.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant avers in his Rule 2119(f) statement that the sentence
following revocation of his probation was excessive and that the trial court
failed to consider mitigating factors before re-sentencing him. He claims
that because he missed only two treatment sessions and was gainfully
employed, his probation should not have been revoked.
An argument that the sentencing court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004) (citing Commonwealth v. McNabb, 819 A.2d
54, 57 (Pa. Super. 2003)). See also Commonwealth v. Griffin, 804 A.2d
1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d
1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing
court did not adequately consider various factors is, in effect, a request that
this court substitute its judgment for that of the lower court in fashioning a
defendant’s sentence)).
Moreover, we note that Appellant does not allege that his 22 to 44-
month sentence is outside the statutory maximum sentence.2 Neither does
Appellant point to any specific provision of the Sentencing Code the
2
As a first degree misdemeanor, the statutory maximum sentence for
Indecent Assault Person Less than 13 Years of Age, 18 Pa.C.S. § 3126(a)(7),
is 5 years. See 18 Pa.C.S. § 1104(1).
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sentencing court ostensibly violated. Appellant’s bald assertion that his
sentence is excessive does not raise a substantial question. See
Commonwealth v. Trippett, 932 A.2d 188, 201-203 (Pa. Super. 2007)
(bald allegations of excessiveness insufficient to permit discretionary
review).
As we find that appellant has failed to raise a substantial question as
to the appropriateness of his sentence, we affirm the Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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