Com. v. Thomas, W., Jr. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM EDWARD THOMAS, JR.,
Appellant No. 133 MDA 2015
Appeal from the Judgment of Sentence December 15, 2014
in the Court of Common Pleas of Clinton County
Criminal Division at No.: CP-18-CR-0000325-2014
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 17, 2015
Appellant, William Edward Thomas, Jr., appeals from the judgment of
sentence imposed on December 15, 2014, following his open guilty plea to
receiving stolen property, possession of a small amount of marijuana,
possession of drug paraphernalia, and person not to possess firearms.1 We
affirm.
The relevant facts and procedural history are as follows. On November
6, 2014, Appellant entered an open guilty plea to the aforementioned
charges. (See N.T. Guilty Plea, 11/06/14, at 2). Following receipt of a pre-
sentence investigation report (PSI), on December 15, 2014, the trial court
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3925(a), 35 P.S. §§ 780-113(a)(31) and (32), 18 Pa.C.S.A.
§ 6105(a)(1), respectively.
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imposed sentence. (See N.T. Sentencing, 12/15/14, at 2, 6, 8). In
imposing sentence, the trial court stated that it had “received and reviewed”
the PSI, it noted that Appellant had a prior record as a result of a felony
conviction in New York State, and that it considered the comments of
Appellant and defense counsel. (Id. at 6; see id. at 6-7). The trial court
observed that Appellant acquired a high school diploma, had a child, secured
employment while awaiting sentence, and wished to further his education.
(See id. at 7-8). However, the trial court expressed considerable concern
over Appellant’s illegal possession of two weapons. (See id. at 8). It
disregarded speculation by the probation department that Appellant
possessed the drugs with intent to distribute. (See id.). The trial court
found Appellant to be eligible for the Recidivism Risk Reduction Incentive
Program (RRRI). (See id.). The trial court imposed an aggregate standard
range sentence of not less than thirty-six months nor more than eighty-four
months of incarceration to be followed by a consecutive term of probation.
(See id. at 9-10). It then imposed an RRRI minimum sentence of not less
than twenty-seven months of incarceration. (See id.).
On December 18, 2014, Appellant filed a post-sentence motion
arguing that his sentence was excessive and inappropriate because the trial
court failed to properly weigh mitigating factors and improperly focused on
the punitive aspect of sentencing. (See Motion to Modify Sentence,
12/18/14, at unnumbered page 2). Following oral argument, on January 6,
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2015, the trial court denied the motion. The instant timely appeal followed.
On January 28, 2015, Appellant filed a timely concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On February 2, 2015, the
trial court filed an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
1. Did the trial court abuse its discretion when it sentenced
[Appellant] to serve the maximum of his standard range
along with lengthy period of parole and probation despite the
totality of the circumstances?
(Appellant’s Brief, at 7).
On appeal, Appellant challenges the discretionary aspects of sentence.
(See id.). The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must
present “a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we have
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found that a substantial question exists. See Commonwealth v. Goggins,
748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d
920 (Pa. 2000). “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. (emphases in
original).
Here, Appellant has included a Rule 2119(f) statement in his brief.
(See Appellant’s Brief, at 12-13). It states that the trial court failed to
consider mitigating circumstances such as Appellant’s cooperation with the
criminal process, his pleading guilty, his minimal prior record, his being a
supportive and loving parent, and his constant maintenance of gainful
employment. (See id. at 13).
Our standard of review is settled.
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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(citation omitted).
Here, Appellant claims that his sentence was unreasonable and
excessive because the sentencing court did not consider mitigating factors.
(See Appellant’s Brief, at 15-17).
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We note that a bald claim of an excessive sentence does not generally
raise a substantial question. See Commonwealth v. Dodge, 77 A.3d
1263, 1269 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).
However, this Court has held that a claim of excessiveness in conjunction
with a claim that the sentencing court did not consider mitigating factors
presents a substantial question. See Gonzalez, supra at 731 (citing
Dodge, supra at 1272); see also Commonwealth v. Zeigler, 112 A.3d
656, 662 (Pa. Super. 2015). We will therefore address the merits of
Appellant’s claim.
In the instant matter, the sentencing court had the benefit of a PSI.
We have stated that:
[w]hen imposing a sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. . . . Where the sentencing court had
the benefit of a presentence investigation report [PSI], 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. Further,
where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some
internal quotation marks and citations omitted). Here, the sentencing court
stated that it had reviewed the PSI and imposed a sentence within the
standard range of the guidelines, as Appellant acknowledged at the hearing
on his post-sentence motion. (See N.T. Sentencing, 12/15/14, at 6; N.T.
Motion Hearing, 1/05/15, at 2).
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Additionally, Appellant has not demonstrated that his sentence was
manifestly excessive because the sentencing court failed to consider
mitigating factors. As discussed above, at sentencing, the trial court
acknowledged the PSI, considered Appellant’s and his counsel’s statements
made in favor of mitigation, and noted his prior record score, his educational
achievements, that he had a child, and his employment record. (See N.T.
Sentencing, 12/15/14, at 6-8). The trial court balanced this against
Appellant’s possession of two weapons despite his prior felony conviction.
(See id. at 8). The trial court thereafter imposed a standard range
sentence. (See id. at 9-10).
Clearly, the gist of Appellant’s argument is not that the sentencing
court did not consider the relevant sentencing factors, but rather that the
court did not weigh them as much in his favor as he wished. (See
Appellant’s Brief, at 15-17). Our review of the record does not show that
the sentencing court abused its discretion or that it entered a manifestly
unreasonable sentence. See Zeigler, supra at 662 (holding sentence not
manifestly unreasonable where sentencing court considered PSI, details of
crime, and explained reasons for sentence); see also Moury, supra at 171.
Appellant’s claim lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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