Com. v. Brockington, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
DOUGLAS MAURICE BROCKINGTON
Appellant No. 2306 EDA 2015
Appeal from the Judgment of Sentence June 11, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002227-2015
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED MAY 12, 2016
Douglas Maurice Brockington appeals from the judgment of sentence
imposed June 11, 2015, in the Bucks County Court of Common Pleas.
Brockington was sentenced to an aggregate term of 33 to 84 months’
imprisonment, following his guilty plea to charges of terroristic threats and
simple assault.1 On appeal, Brockington challenges the discretionary
aspects of his sentence. For the reasons below, we affirm.
The facts underlying Brockington’s guilty plea were summarized at the
plea hearing as follows:
The victim in this case, who is present in the courtroom, is Ms.
Tammi Bresnen. She resides … in Morrisville, Pennsylvania.
[Brockington] is her fiancé and was at the time, on the date of
this offense.
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1
18 Pa.C.S. §§ 2706(a)(1) and 2701(a)(1), respectively.
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On March 21, 2015, while she was at home with
[Brockington], they got into an argument, at which point
[Brockington] – this occurred at two different times throughout
the day, Your Honor, once in the morning and then again when
Ms. Bresnen returned home from work.
During those two separate – that continuous argument,
depending on how you want to look at it, [Brockington]
assaulted her in the following ways: He threw a remote control
at her hands, which caused an injury to her left hand and that it
caused swelling and bruising. He punched her multiple times in
the head and pushed her head into a wall, causing a hole in the
wall. He punched her multiple times in the abdomen. He
threatened to cut her with a knife. He grabbed a golf club at one
point and threatened her.
He told her that if she went to the police he would hurt her
or have someone else hurt her for him.
N.T., 6/11/2015, at 9-10.
Brockington was subsequently charged with two counts of terroristic
threats, and one count each of simple assault, harassment, and possessing
an instrument of crime.2 As noted above, on June 11, 2015, he entered a
guilty plea to one count each of terroristic threats and simple assault, in
exchange for which the Commonwealth withdrew the remaining charges.3
The trial court proceeded to sentence Brockington that same day to a term
____________________________________________
2
See 18 Pa.C.S. §§ 2706(a)(1), 2701, 2709(a)(1), and 907(a),
respectively.
3
During the guilty plea/sentencing hearing, the prosecutor also stated that
“[as] a result of [Brockington] pleading open today, the Commonwealth has
agreed not to pursue intimidation, hindering, and charges of obstructing
governmental administration.” N.T., 6/11/2015, at 32. Although the record
does not identify the facts supporting these proposed charges, we presume
they were based upon Brockington’s harassment of the victim while he was
incarcerated. See infra.
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of 12 to 24 months’ imprisonment for simple assault, and a consecutive term
of 21 to 60 months’ imprisonment for terroristic threats. The sentence
imposed for terroristic threats was in the aggravated range of the sentencing
guidelines.
On June 19, 2015, Brockington filed a timely post-sentence motion
seeking reconsideration of his sentence. The trial court denied Brockington’s
motion, and this timely appeal followed.4
On appeal, Brockington raises two challenges to the discretionary
aspects of his sentence. First, he contends the trial court abused its
discretion when it failed to properly consider mitigating circumstances – in
particular the testimony of the victim and Brockington’s voluntary
participation in several rehabilitation programs - before imposing an
aggravated range sentence for his conviction of terroristic threats. See
Brockington’s Brief at 15-16. Second, Brockington argues the trial court’s
decision to run his sentences consecutively led to a manifestly excessive
sentence in light of the nature of the offense, the impact on the victim, the
protection of the public, and his own rehabilitative needs. See id.
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4
The trial court ordered Brockington to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brockington
complied with the court’s directive, and filed a concise statement on August
17, 2015.
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“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).
Brockington complied with the procedural requirements for this appeal
by filing a timely post-sentence motion for modification of sentence, and
subsequent notice of appeal, and by including in his appellate brief 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 determine whether Brockington 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)
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(citation omitted). “[A]n allegation that the sentencing court failed to
consider mitigating factors generally does not raise a substantial question for
our review.” Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa.
Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132
S.Ct. 1746 (U.S. 2012). However, an “excessive sentence claim[ ] in
conjunction with an assertion that the court did not consider mitigating
factors[,]” does present a substantial question for our review.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),
appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.
Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91
A.3d 161 (Pa. 2014). Moreover, a claim that the trial court imposed an
aggravated range sentence without placing adequate reasons on the record,
also raises a substantial question. Commonwealth v. Bromley, 862 A.2d
598, 604 (Pa. Super. 2004), appeal denied, 881 A.2d 818 (Pa. 2005), cert.
denied, 546 U.S. 1095 (2006). See also 204 Pa.Code § 303.13(c) (“When
the court imposes an aggravated or mitigated sentence, it shall state the
reasons on the record and on the Guideline Sentence Form, a copy of which
is electronically transmitted to the Commission on Sentencing in the manner
described in § 303.1(e).”).
Finally, while a challenge to the imposition of consecutive versus
concurrent sentences generally does not raise a substantial question, such a
claim may be addressed when the defendant alleges the “aggregate
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sentence is unduly harsh, considering the nature of the crimes and the
length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162, 171-
172 (Pa. Super. 2010). Therefore, because we find Brockington’s claims
nominally raise a substantial question, we proceed to an examination of his
arguments on appeal.
When considering a challenge to the discretionary aspects of
sentencing we must bear in mind the following:
Sentencing is a matter vested in the sound discretion of the
judge, and will not be disturbed on appeal absent a manifest
abuse of discretion. 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), appeal denied, 980 A.2d 607 (Pa. 2009).
In its opinion, the trial court explained it specifically considered the
mitigating factors Brockington cites, particularly, Brockington’s testimony at
the sentencing hearing regarding his voluntary participation in prison
programs, the death of his son, his recent disability, and his remorse, as
well as the victim’s testimony supporting him. See Trial Court Opinion,
10/19/2015, at 4-5. However, the court also considered the fact that
Brockington had three prior simple assault convictions in Pennsylvania, and
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three prior domestic assault convictions in Vermont.5 Id. at 5. In addition,
at the time of the current offense, he was on probation for a charge of
unauthorized use of a vehicle involving the same victim. Id. Nonetheless,
the most damning evidence contradicting Brockington’s expressions of
remorse, and the victim’s favorable comments, was the content of recorded
calls Brockington made to the victim while incarcerated, and despite being
subject to a non-contact order. The attorney for the Commonwealth
summarized the content of those telephone calls as follows:
[T]here have been upwards of 300 phone calls made by
[Brockington], using his and other inmates’ accounts to this
victim. Myself and an intern in my office have listened to as
many of these as we can over the last several weeks.
[Brockington] has never until today expressed any amount
of apology or sorrow or sympathy for Ms. Bresnen over what he
did. Instead the content of these phone calls have been largely
about that if she loved him she would come in and say she lied;
that she shouldn’t talk to the police about him; that she is
worthless for having opened her mouth; that she is the reason
he is where he is; that she shouldn’t have gone to the hospital,
she made too big of a deal out of it.
And in discussing the event itself, he says that what he
remembers about it is that she wouldn’t – and I believe this is a
direct quote – leave him the fuck alone when he told her to.
He has controlled her throughout this process since the
time of the preliminary hearing. He controls who she’s
permitted to speak with, who she’s not allowed to talk to,
including counselors at Women’s Place and Nova.
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5
The domestic assault convictions in Vermont involved a different victim.
See N.T., 6/11/2015, at 16.
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He has yelled at her for going to the gym when he told her
to come home. He has called her 19 times in a row when she
doesn’t answer right away. And I know because I was present
during one of those meetings where she came in to speak with
us and during that time he called her 19 times. And she
wouldn’t answer because she was speaking to me. She has
gone back and relayed everything that we talked about despite
knowing that I was aware of these phone calls.
He has done everything in his power to manipulate this
process so that we – she would come on the stand, either not
show up at all or come on that stand on a trial and lie for him. …
N.T., 6/11/2015, at 26-28.6 Therefore, the trial court was well within its
discretion in discounting the victim’s supportive testimony at the sentencing
hearing. Moreover, the court also explained that given Brockington’s
“multiple opportunities to avail himself of resources to address his
underlying issues, including a three to five year period of incarceration in a
Vermont state correctional facility for domestic assault, … it was appropriate
for the Court to give minimal value to [Brockington’s] recent participation
and completion of such programs.” Trial Court Opinion, 10/16/2015, at 9-
10. Accordingly, we find no abuse of discretion on the part of the trial court
in imposing an aggravated range sentence on Brockington’s conviction of
terroristic threats.
Similarly, we conclude Brockington’s assertion that the trial court
abused its discretion in imposing his sentences to run consecutively fails.
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6
Neither Brockington nor his attorney dispute the Commonwealth’s
allegations regarding the number or content of these phone calls.
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Indeed, considering his prior record – which included numerous assault
convictions - his post-arrest harassment of the victim, and his failure to avail
himself of rehabilitative programs in the past, we do not agree with his
contention that the aggregate sentence imposed by the trial court was
excessive. Accordingly, we find Brockington is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2016
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