Com. v. Pacely, E. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ELIJAH ESTES PACELY :
:
Appellant : No. 61 WDA 2019
Appeal from the Judgment of Sentence Entered May 5, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003690-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 13, 2019
Elijah Estes Pacely appeals nunc pro tunc from the judgment of sentence
entered in the Erie County Court of Common Pleas on May 5, 2017. Pacely
contends that the sentencing court failed to give weight to several mitigating
factors and also did not provide a legally sufficient statement in support of its
imposition of a consecutive sentence. As we find Pacely’s first issue does not
raise a substantial question and hold that his second issue lacks merit given
the existence of a pre-sentence report and on-the-record colloquy at
sentencing, we affirm.
Pacely was charged with various offenses stemming from an armed
robbery and hostage situation occurring at a Family Dollar store in Erie,
Pennsylvania. After his arrest, Pacely entered a negotiated plea wherein he
pleaded guilty to robbery, carrying a firearm without a license, and unlawful
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restraint.1 For these offenses, the court sentenced Pacely to an aggregate
period of 90 to 180 months of incarceration followed by 60 months of
probation. Pacely did not file a post-sentence motion nor did he file a direct
appeal.
Approximately one year later, Pacely filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546, asserting his
counsel was ineffective for not filing a direct appeal. Eventually, the PCRA
court reinstated his right to file a post-sentence motion nunc pro tunc,
ultimately allowing Pacely to pursue a direct appeal nunc pro tunc.
After the sentencing court denied his nunc pro tunc post-sentence
motion, Pacely filed the present nunc pro tunc appeal to this Court. The parties
have complied with the dictates of Pa.R.A.P. 1925, and this direct appeal is
now properly before us.
On appeal, Pacely asserts:
1) The sentencing court committed legal error and abused its
discretion in failing to afford due consideration and deference
to the mitigating factors presented and otherwise discernable
on behalf of Pacely, given, among other factors, his acceptance
of responsibility; and
2) The sentencing court committed legal error and abused its
discretion in imposing a consecutive sentencing scheme
without a legally sufficient contemporaneous statement in
support of its decision.
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1 See 18 Pa.C.S.A. § 3701(a)(1)(ii), 18 Pa.C.S.A. § 6106(a)(1), and 18
Pa.C.S.A. § 2902(a)(1), respectively.
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See Appellant’s Brief, at 2.
Pacely’s two issues implicate the discretionary aspects of his sentence.
“It is well settled that, with regard to the discretionary aspects of sentencing,
there is no automatic right to appeal.” Commonwealth v. Austin, 66 A.3d
798, 807–08 (Pa. Super. 2013) (citation omitted).
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of a sentence], we must engage in a four
part analysis to 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 [see Pa.R.A.P. 2119(f)]; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the [S]entencing [C]ode.... [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Id. (citation omitted).
Here, Pacely filed a timely notice of appeal and preserved both of his
challenges to the discretionary aspects of his sentence in the sentencing court.
See Motion for Reconsideration and Modification of Sentence Nunc Pro Tunc,
10/15/18, at 2 (unpaginated). Additionally, Pacely has included in his
appellate brief a separate Rule 2119(f) statement. See Appellant’s Brief, at 4.
Therefore, we proceed to determine whether he has presented a substantial
question that his sentence was somehow inappropriate.
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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations
and internal quotation marks omitted).
As to his first issue, Pacely, in his Rule 2119(f) statement, maintains
that “the fundamental norm violated was that the sentencing scheme was
compromised in that the sentencing court failed to afford due weight and
consideration to mitigating factors presented by [Pacely].” Appellant’s Brief,
at 4.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010) (citation omitted, brackets in original). Accordingly, as we find no basis
to conclude that Pacely is advancing anything beyond that of an “inadequate
consideration of mitigating factors” argument, his first issue on appeal does
not present a substantial question appropriate for our review.
However, Pacely’s second issue, where he claims the sentencing court
failed to place its reasons on the record when it imposed consecutive
sentences, does present a substantial question. See Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (“An allegation that the
sentencing court did not adequately set forth its reasons on the record does
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present a substantial question.”) (en banc) (citation omitted).2
The standard of review in sentencing matters is well settled.
Imposition of a sentence is vested in the discretion of the
sentencing court[, whose decision] will not be disturbed absent a
manifest abuse of discretion. An abuse of discretion is more than
just an error in judgment.... [O]n appeal, the trial court will not
be found to have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will.
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996) (citations omitted).
We afford the sentencing court great weight as it is in the best position
to review not only a defendant’s character, but also displays of remorse,
defiance, or indifference and the overall effect and nature of the crime. See
Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa. Super. 1990). Where
the court’s sentencing colloquy “shows consideration of the defendant’s
circumstances, prior criminal record, personal characteristics and
rehabilitative potential, and the record indicates that the court had the benefit
of the presentence report, an adequate statement of the reasons for the
sentence imposed has been given.” Commonwealth v. Phillips, 601 A.2d
816, 823-24 (Pa. Super. 1992).
Our Supreme Court has outlined the standard that governs whether a
sentencing court has properly stated its reasons for imposing a sentence on
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2 We note that a direct challenge to the imposition of consecutive sentences
“may raise a substantial question in only the most extreme circumstances,
such as where the aggregate 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) (citation omitted).
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the record:
Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself....
Having been fully informed by the pre-sentence report, the
sentencing court's discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Accordingly, if the
court states on the record that it has consulted a pre-sentence report, this
requirement is met. See id.; see also Commonwealth v. Rhoades, 8 A.3d
912, 919 (Pa. Super. 2010) (affirming that, when the sentencing court has
had the benefit of a pre-sentence investigation report, our Court will assume
it was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors).
Pacely avers that his sentence is “comprised of consecutive sentences
without a sufficient contemporaneous statement of the factors in support of
sentencing.” Appellant’s Brief, at 6. Pacely continues by suggesting that “the
sentencing court [did not] afford[] due and adequate consideration of the
mitigating factors presented on behalf of [Pacely] at time of sentencing.” Id.
“Moreover, the recitation of factors in support of the imposition of consecutive
sentences was insufficient as a matter of law to satisfy the requisite for a
contemporaneous statement in support of the sentence as contemplated and
mandated under the [S]entencing [C]ode.” Id.
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Here, the court explicitly stated that it read the pre-sentence report in
its entirety and listened to all of the evidence that was presented, both on
behalf of the Commonwealth and on behalf of Pacely. See Sentencing Hearing,
N.T., 5/5/17, at 12. The court “read the sentencing guidelines” and referenced
the fact that it read a letter from Pacely’s grandmother, wherein it both
described his “good qualities” as well as his drug use. Id. The court found that
Pacely faced many stressors in his life and was “someone who is remorseful
and [accepting of] responsibility.” Id., at 12-14. Undoubtedly, the on-the-
record acknowledgment of those elements implies consideration of the same.
However, the court also indicated that it had “to balance [Pacely’s mitigating
features] with the facts of [his] case, which [were] horrendous” and take into
account his prior criminal history. Id., at 10-11, 14. Considering all of this,
the court imposed a sentence in the standard range of the sentencing
guidelines. See id., at 15.
Based on this record, the sentencing court did not fail to state, on the
record, adequate reasons for the sentence imposed. See Devers, 546 A.2d
at 19 (rejecting the rule requiring “a meaningful explanation” of facts relied
upon in imposing sentence when the record reveals the court had sufficient
information to impose sentence). Accordingly, we affirm Pacely’s judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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