Com. v. Jones, W. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM JONES, : No. 1495 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, September 21, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006579-2014
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 31, 2019
William Jones appeals from the September 21, 2015 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County after
he entered open guilty pleas to possession of a firearm by a prohibited person,
carrying a firearm without a license, and carrying a firearm on public streets
or property in Philadelphia. The trial court imposed a sentence of 5 to 10 years
of incarceration for possession of a firearm by a prohibited person, followed
by consecutive probationary terms of 7 years for carrying a firearm without a
license and 5 years for carrying a firearm on public streets in Philadelphia. We
affirm.
The trial court set forth the following factual history:
On May 21, 2014, [appellant] was arrested on the
1600 block of South 54th Street in the city and county
of Philadelphia, after Philadelphia Police Officers
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stopped a vehicle traveling on the 1600 block of
South 54th Street. Officers took everyone out of the
vehicle and searched both them and the car. Upon
search of [appellant’s] person, officers found an
empty firearm holster. Officers checked the floor of
the vehicle and found a .45 caliber pistol with brown
wood grip, loaded with eight (8) live rounds in the
magazine, and one live round in the chamber, in the
front of the seat where [appellant] was sitting.
Several of the other men in the vehicle were also
armed. [Appellant] was arrested and charged with
one (1) count Violation of the Uniform Firearm Act
(“VUFA”) – Possession of a Firearm by Persons
Prohibited, 18 Pa. C.S.A. § 6105; one (1) count VUFA
– Firearm Not to Be Carried Without a License, 18 Pa.
C.S.A. § 6106; and one (1) count VUFA – Carrying
Firearms on Public Streets or Public Property in
Philadelphia, 18 Pa. C.S.A. § 6108.
Trial court opinion, 7/19/18 at 1-2 (citations to record omitted).
The trial court set forth the following procedural history:
On September 29, 2015, [appellant] filed a timely
Motion for Reconsideration of Sentence. On March 3,
2016, the motion to reconsider was heard and then
continued without a ruling.[1] [Appellant] filed a
pro se petition pursuant to the Post Conviction Relief
Act (“PCRA”)[2] on March 6, 2017. Counsel was
appointed on March 16, 2017. On August 27, 2017,
counsel filed an amended PCRA petition. On May 14,
2018, this Court granted [appellant’s] motion to
re-instate his appellate rights. On May 18, 2018,
[appellant] filed a Notice of Appeal to the Superior
Court of Pennsylvania. On May 31, 2018, this Court
issued an Order directing [a]ppellant to file a Concise
Statement of [Errors] Complained of on Appeal
1 We note that the motion would have been deemed denied by operation of
law on July 1, 2016. See Pa.R.Crim.P. 720 (deeming a post-sentence motion
denied where trial court fails to decide the motion within 120 days or grant an
extension).
2 42 Pa.C.S.A. §§ 9541-9546.
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pursuant to Pa.R.A.P. 1925(b). On June 15, 2018,
[appellant] filed a Concise Statement.
Id. at 2-3. Thereafter, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
With respect to the sentence imposed upon
[a]ppellant by the lower court, did that court abuse its
discretion by imposing an aggregate sentence of not
less than 5, nor more than 10 years of incarceration
followed by 12 years of probation?
Appellant’s brief at 5.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not 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. In
more expansive terms, our Court recently offered: An
abuse of discretion may not be found merely because
an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review
is that the sentencing court is in the best position to
determine the proper penalty for a particular offense
based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
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Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke this
Court’s jurisdiction by satisfying a four-part test:
[W]e 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).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, appellant filed a timely notice of appeal, and appellant’s brief
includes a Rule 2119(f) statement. Appellant also filed a timely motion to
reconsider sentence which preserved the following issue:
It is believed and averred the sentence imposed was
unfairly and unreasonably severe upon consideration
of [appellant’s] entering a non-negotiated guilty plea
to all charges, and the characteristics of [appellant].
[Appellant] pled guilty and accepted responsibility for
the crimes alleged against him. His actions saved the
Court and the Commonwealth both time and
resources.
Appellant’s “motion to reconsider sentence pursuant to Pa.R.Crim.P. 720,”
9/29/15 at 2. In his brief to this court, however, appellant attempts to
advance the following three discretionary sentencing challenges: (1) the
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sentencing court abused its discretion because it “indicated that the sentence
given [a]ppellant was in the bottom of the mitigated portion of the guidelines”
but was within the standard range; (2) “the sentencing court did not
adequately set forth its reasons on the record for [a]ppellant’s sentence”; and
(3) the sentence imposed was “clearly unreasonable and excessive” because
it “shows a lack of any mitigation.” (Appellant’s brief at 13-14.) Because
appellant failed to preserve his first and second challenges in his motion for
reconsideration, appellant fails to invoke our jurisdiction to entertain those
challenges. We must now determine whether appellant’s third complaint
raises a substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d
1013, 1018 (Pa.Super. 2003) (citation omitted). 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.” Sierra, 752 A.2d at 912-13. “Generally, if the
sentence imposed falls within the sentencing guidelines, no substantial
question exists.” Commonwealth v. Maneval, 688 A.2d 1198, 1199-2000
(Pa.Super. 1997) (citation omitted).
Here, appellant received a standard range sentence but complains that
his sentence was excessive because the trial court failed to consider mitigating
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factors; specifically, appellant’s acceptance of responsibility as demonstrated
by his guilty plea, appellant’s difficult upbringing, and the fact that appellant
“was active in prison trying to do positive things to better himself.”
(Appellant’s brief at 14-15.) Appellant fails to explain how his sentence was
inconsistent with a specific provision of the Sentencing Code or how his
sentence was contrary to the fundamental norms underlying the sentencing
process. Therefore, appellant has failed to raise a substantial question.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/19
3 We note that notwithstanding appellant’s failure to raise a substantial
question for our review, the record belies appellant’s claims. At the sentencing
hearing, appellant’s counsel requested leniency in light of appellant’s guilty
plea. (Notes of testimony, 9/21/15 at 5-8.) Appellant’s counsel also informed
the trial court of the positive strides appellant has made while in prison, as
did appellant. (Id. at 7-8. 16.) Additionally, appellant’s grandmother testified
as to appellant’s difficult upbringing. (Id. at 8-9.)
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