Com. v. Shields, T. ( 2017 )

J-S03006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY EUGENE SHIELDS
Appellant No. 2005 WDA 2015
Appeal from the Judgment of Sentence November 13, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003007-2009
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2017
Appellant, Terry Eugene Shields, appeals from the judgment of
sentence entered on November 13, 2015, as made final by the denial of
Appellant’s post-sentence motion on November 24, 2015. We affirm.
We previously explained the underlying facts of this case:
On November 11, 2008, at approximately 12:30 p.m., [J.B.]
and her fiancé[, P.D., ] were at home, in their living room,
with their two-year-old son. [J.B.], wearing only a tank top
and wrapped in a blanket, was sitting on the couch. Three
men broke down the locked front door and entered the
house. . . .
[P.D.] attempted to stop the three men, who repeatedly
struck him in the face with a gun. The men demanded to
know where they could find money and guns in the house,
but both [P.D.] and [J.B.] denied having either. One of the
three men then informed [P.D.] and [J.B.] that “Coke told
[them] everything,” so they knew there was money in the
house. [P.D.] testified that “Coke” was the nickname of a
* Retired Senior Judge assigned to the Superior Court.
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childhood friend. Eventually, [P.D.] told the three men
where they could find money and a gun.
Meanwhile, [Appellant], who was not wearing a mask,
picked [J.B.] up and threw her to the ground, bound her
hands and feet with duct tape, and taped her mouth. [J.B.]
further testified that [Appellant] slapped her across the face
numerous times as she pleaded with him not [to] do this to
her in front of her young son. [Appellant] then smacked
her across the buttocks and said she had a “fat ass.” The
other two men dragged [P.D.] upstairs to get the money
and gun, while [Appellant] remained downstairs with [J.B.],
who testified that [Appellant] continued to hit her
repeatedly, and then inserted his fingers into her vagina
and rectum. [Appellant] then said he was going to force
her to perform oral sex on him. [J.B.] continued to plead
with [Appellant] not to do so in front of her son.
[P.D.] came back downstairs with the two men, who
attempted to flee but could not open the door because they
had broken it coming in. They screamed at [J.B.] asking
how to get out, and she directed them to use the back door
downstairs. The other two men left while [Appellant] waited
with [J.B.] to make sure they got out. He then grabbed the
necklace and earrings [J.B.] was wearing, and followed the
other men. Throughout the ten-minute attack, the
intruders broke numerous pieces of furniture including a
television and a table that [Appellant] broke over [J.B.’s]
arms.
[J.B.] testified that once the men left, she put on
sweatpants and went to the neighbor’s home to call the
police. . . .
On February 2, 2009, [J.B.] was at a Pittsburgh Municipal
Court building with a friend when she spotted [Appellant]
standing within ten feet of her. She immediately contacted
police, who arrested [Appellant].
Commonwealth v. Shields, 83 A.3d 1059 (Pa. Super. 2013) (unpublished
memorandum) at 1-3 (internal citations omitted), appeal denied, 81 A.3d 77(Pa. 2013).
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The jury found Appellant guilty of two counts of robbery and one count
each of burglary, aggravated indecent assault, unlawful restraint, and
criminal conspiracy to commit robbery.1 On June 29, 2012, the trial court
sentenced Appellant to serve an aggregate term of 15 to 45 years in prison;
Appellant’s sentence included five-year mandatory minimum sentencing
terms under 42 Pa.C.S.A. § 9712, as the sentencing court determined that
Appellant was convicted of violent crimes and, during the commission of the
offenses, Appellant visibly possessed a firearm that placed the victim in
reasonable fear of death or serious bodily injury. See 42 Pa.C.S.A. § 9712
(held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa.
Super. 2014)). Moreover, during the original sentencing hearing, the trial
court explained:
This is the time set for sentencing [Appellant]. I do have a
pre-sentence report. I have read it.
...
Aside from the heinous nature of this offense, I have to take
into consideration his history.
At age 15, he was adjudicated of defiant trespass, a
misdemeanor [three], a minor offense, for which he
received a period of probation and was placed in the
Academy Day-Evening Treatment Program.
However, his ongoing failure to adjust on two occasions in
that program, and then subsequently at Summit Academy,
Vision Quest, and, ultimately, YDC New Castle, led to the
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1
18 Pa.C.S.A. §§ 3701, 3502, 3125, 2902, and 903, respectively.
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extraordinary result of him having a total of six placements
precipitated by one misdemeanor [three] charge.
When he finally was released, it wasn’t terribly long until he
was rearrested on this case.
While incarcerated in this case, he was involved in another
conspiracy, assault by a prisoner, which led to the assault
by prisoner, but it is of note to me that during the assault,
the victim believes that he was raped.
Those charges were withdrawn for a plea agreement, but
the behavior there is concerning and frighteningly similar:
aggravated indecent assault, involuntary deviate sexual
intercourse.
And I must take that into consideration as well in imposing
a sentence here today.
Similarly, I generally follow the philosophy that where there
are multiple victims in a case, each victim deserves to have
the particular crime that he suffered receive fair
consideration by the court.
N.T. Sentencing Hearing, 6/29/12, at 16-18 (some internal capitalization
omitted).
This Court affirmed Appellant’s judgment of sentence on August 6,
2013 and, on December 18, 2013, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Shields,
83 A.3d 1059 (Pa. Super. 2013) (unpublished memorandum) at 1-6, appeal
denied, 81 A.3d 77 (Pa. 2013).
Appellant filed a timely petition under Pennsylvania’s Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and claimed that his
sentence was illegal, as he was sentenced under a mandatory minimum
sentencing statute that was rendered unconstitutional by Alleyne v. United
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States, ___ U.S. ___, 133 S.Ct. 2151 (2013). On July 30, 2015, this Court
held that Appellant’s sentence was illegal under Alleyne. Commonwealth
v. Shields, ___ A.3d ___, 2015 WL 6134012 (Pa. Super. 2015)
(unpublished memorandum) at 1-6. Therefore, we vacated Appellant’s
judgment of sentence and remanded for resentencing. Id.On November 13, 2015, the trial court held Appellant’s resentencing
hearing. During the hearing, the trial court stated:
I do recall this case. I recall the facts of the case.
Unfortunately for [Appellant], I recall them quite clearly.
And at the time of the original sentencing, my sentence was
driven in part at least by the mandatories and by the desire
to not stack up [Appellant] with what would essentially
amount to a life sentence, given his young age, but,
nevertheless, to impose a sentence that would recognize
the severity and cruelty of the crime that he committed and
the individual victims, in particular, the separate crime –
when I say “separate,” it was part of the same criminal act,
but a crime of a very different nature – committed on [J.B.]
And so in constructing a sentence that does not entail
mandatories, I have taken into consideration the guidelines,
my knowledge of [Appellant’s] history, [and] the nature of
the crimes involved for each of the victims here.
N.T. Sentencing Hearing, 11/13/15, at 4-5.
The trial court then sentenced Appellant to serve: at Count 2 (robbery
against J.B.), a term of 50 to 100 months’ incarceration; at Count 3
(aggravated indecent assault against J.B.), a term of 50 to 100 months’
incarceration, consecutive to the term imposed at Count 2; at Count 5
(robbery against P.D.), a term of 50 to 100 months’ incarceration,
consecutive to the term imposed at Count 3; at Count 6 (criminal
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conspiracy), a term of 30 to 60 months’ incarceration, consecutive to the
term imposed at Count 5; a concurrent term of 30 to 60 months’
incarceration for burglary; and, no further penalty for unlawful restraint.
The trial court thus sentenced Appellant to serve an aggregate term of 180
to 360 months’ incarceration (or, 15 to 30 years in prison). All of Appellant’s
sentencing terms fell within the standard sentencing range. See Appellant’s
Post-Sentence Motion, 11/23/15, at ¶ 18.
Appellant filed a timely post-sentence motion and claimed that “[t]he
aggregate sentence of 15 to 30 years’ imprisonment was manifestly
excessive and unreasonable insofar as [the trial] court failed to consider the
nature and characteristics of [Appellant] before imposing consecutive
sentences totaling a term of imprisonment for a non-homicide that was just
[five] years less than the statutory maximum for third degree murder.” Id.
at ¶ 20 (some internal capitalization omitted). Appellant further claimed:
Here, there were pertinent factors . . . that made the
sentence imposed unreasonable. . . . [Appellant] was only
19 years old at the time of the incident. His father had
passed away, as well as his other grandmother with whom
he had been close. . . . When his father passed away,
[Appellant] lost interest in activities he shared with his dad.
Both losses caused him to lapse into a deep depression from
which he never really recovered. The rest of his family was
very supportive of him. [Appellant] was diagnosed with
attention deficit disorder and oppositional defiant disorder.
He was exposed to violence in his neighborhood, including
witnessing his best friend getting shot in the head. There is
no indication that the [trial] court gave careful consideration
to the above factors when resentencing [Appellant].
Id. at ¶ 22 (internal citations omitted).
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The trial court denied Appellant’s post-sentence motion on November
24, 2015 and Appellant filed a timely notice of appeal. Appellant raises one
claim on appeal:
Did the [trial] court abuse its discretion in imposing a
manifestly excessive and unreasonable aggregate sentence
of 15 to 30 years’ imprisonment in that it failed to craft a
sentence based on consideration of all of the sentencing
factors set forth in 42 [Pa.C.S.A.] § 9721(b); rather[,] did it
focus on the nature of the offenses to the exclusion of the
other relevant factors under the Sentencing Code?
Appellant’s Brief at 5 (some internal capitalization omitted).
Appellant’s claim on appeal is a challenge to the discretionary aspects
of his sentence. “[S]entencing is a matter vested in the sound discretion of
the sentencing judge, whose judgment will not be disturbed absent an abuse
of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.
Super. 2001). Moreover, pursuant to statute, Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach 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, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. Moreover, within Appellant’s post-sentence motion,
Appellant claimed that the trial court abused its discretion at sentencing
because the trial court “failed to consider” certain mitigating factors. These
mitigating factors were, specifically: Appellant was 19 years old when he
committed the crimes; Appellant’s father and grandmother had passed away
before he committed the crimes; Appellant was diagnosed with attention
deficit disorder and oppositional defiant disorder; and, Appellant had been
exposed to violence in his neighborhood. Appellant’s Post-Sentence Motion,
11/23/15, at ¶ 22.
On appeal, Appellant repeats his claim that the trial court failed to
consider the above mitigating factors and Appellant attempts to raise the
additional claim that the trial court “focused entirely on the nature and
circumstances of the offenses.” Appellant’s Brief at 15-16 and 19. The
latter claim is waived, as Appellant failed to raise the claim in his post-
sentence motion. Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not raised
in the lower court are waived and cannot be raised for the first time on
appeal”). We will now determine whether Appellant’s claim that the trial
court “failed to consider” certain mitigating factors presents a “substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code.” Cook, 941 A.2d at 11.
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Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining
whether an appellant has raised a substantial question, we must limit our
review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.
This limitation ensures that our inquiry remains “focus[ed] 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. at 727(internal emphasis omitted).
In his brief to this Court, Appellant acknowledges that all of his
sentences fell within the “standard” sentencing range. Appellant’s Brief at
14-15. Yet, as Appellant claims, his aggregate sentence of 15 to 30 years in
prison was manifestly excessive because the trial court failed to consider
such mitigating evidence as: Appellant’s young age when he committed the
crimes; the fact that Appellant’s father and grandmother had passed away
before he committed the crimes; the fact that Appellant was diagnosed with
attention deficit disorder and oppositional defiant disorder; and, the fact that
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Appellant had been exposed to violence in his neighborhood. Id. at 15 and
20.
Appellant’s claim does not raise a substantial question under the
Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003) (“an allegation that the sentencing court did not consider
certain mitigating factors does not raise a substantial question”); see
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n
allegation that the sentencing court ‘failed to consider’ or ‘did not adequately
consider’ various factors does not raise a substantial question that the
sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also
Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a
claim that the trial court “erred by imposing an aggravated range sentence
without consideration of mitigating circumstances raises a substantial
question”) (emphasis added). Therefore, we may not reach the merits of
Appellant’s claim.2, 3
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2
To the extent that Appellant has raised a substantial question, we conclude
that Appellant would not be entitled to relief because the trial court had the
benefit of a pre-sentence investigation report. See Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (“[W]here the sentencing
judge had the benefit of a presentence investigation report, it will be
presumed that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors”).
3
We note that Appellant baldly claims that the trial court erred in
“sentenc[ing] him without providing sufficient reasons for the sentence
(Footnote Continued Next Page)
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
_______________________
(Footnote Continued)
imposed.” See Appellant’s Brief at 12 and 14. This claim is waived, as
Appellant never expounded upon the claim in his brief. Commonwealth v.
Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme
Court] has held that an issue will be deemed to be waived when an appellant
fails to properly explain or develop it in his brief”). Further, to the extent
Appellant preserved this claim in his post-sentence motion, the claim was
based solely on the contention that the trial court erred in sentencing him in
the aggravated range for the burglary conviction, without placing adequate
reasons on the record. Appellant’s Post-Sentence Motion, 11/23/15, at ¶ 19.
However, Appellant was sentenced to a concurrent term of 30 to 60 months
in prison for the burglary conviction and Appellant acknowledges that “[f]or
the charge of burglary, the minimum standard [sentencing] range was 30 to
42 months[’] imprisonment, with +/- 12 months for aggravating or
mitigating factors.” Id. at ¶ 18. Therefore, Appellant received a standard
range sentence for his burglary conviction. Appellant’s claim that the trial
court “failed to place adequate reasons on the record” in sentencing him to
an aggravated range sentence would, thus, be baseless if Appellant properly
raised the claim in his brief to this Court.
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