Com. v. Brooks, B. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRIAN K. BROOKS, :
:
Appellant :
: No. 1108 WDA 2016
Appeal from the Judgment of Sentence June 24, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000660-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 23, 2017
Appellant, Brian K. Brooks, appeals from the June 24, 2016 Judgment
of Sentence entered in the Westmoreland County Court of Common Pleas.
On appeal, Appellant challenges the discretionary aspects of his sentence, as
well as the legality of his sentence under the proportionality requirement of
the Eighth Amendment to the United States Constitution and Article I,
Section 13 of the Pennsylvania Constitution. After careful review, we affirm.
The trial court summarized the relevant factual and procedural history
as follows:
On August 25, 2015, [Appellant] entered a general guilty plea
before [the Honorable Christopher A. Feliciani] to the following
Counts:
*
Retired Senior Judge assigned to the Superior Court.
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1.) Home Improvement Fraud: Receives any Advance
Payment for Services and Fails to Perform, in violation of 73
P.S. § 517.8(A)(2);
2.) Theft by Deception-False Impression, in violation of 18
Pa.C.S.[] § 3922(A)(1); and
3.) Deceptive Business Practices-Sale Less than the
Represented Quantity, in violation of 18 Pa.C.S.[] §
4107(A)(2).
A sentencing hearing was scheduled before [the c]ourt on June
24, 2016. Prior to sentencing, defense counsel requested that
the hearing be postponed to allow Tammy Jeffries, the owner of
Jeffries Paving, to testify on [Appellant’s] behalf. [Appellant]
relayed that he spoke to Mrs. Jeffries and he was negotiating
with her to try to get the money back that he owed to the victim,
Vincent McClure. Despite [Appellant’s] initial statement, he later
testified that he did not speak with Mrs. Jeffries and that he lied
under oath. [The court sentenced Appellant] to six (6) months
to five (5) years [of] incarceration at the Department of
Corrections at Counts One and Two. At Count Three, [the court
sentenced Appellant] to eighteen (18) months to five (5) years
[of] incarceration to run concurrent to Counts One and Two.
Further, he was also ordered to pay restitution in the amount of
$10,430.99 to Mr. McClure and to have no contact, directly or
indirectly, with the victims.
Trial Court Opinion, filed 9/9/16, at 1-2.
Appellant did not file any post-sentence motions. Appellant did file a
timely Notice of Appeal to this Court. Both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following two issues for our review:
1. Whether the court abused its discretion in imposing a
sentence of state incarceration[?]
2. Whether the court violated the Eighth Amendment and Article
I, Section 13, in imposing a sentence of state incarceration[?]
Appellant’s Brief at 6 (reordered).
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Discretionary Aspects of Sentence
Appellant challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d
1136, 1144 (Pa. Super. 2001). Prior to reaching 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, 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, our careful review of the record, including the
sentencing transcript, reveals that Appellant failed to properly preserve his
challenge to the discretionary aspects of his sentence. He did not raise the
issue at sentencing, and failed to file a Motion to Reconsider and Modify
Sentence. Therefore, Appellant has waived this claim. Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (finding that, although
the appellant raised a substantial question regarding the discretionary
aspects of his sentence, he waived the issue by failing to preserve it in a
post-sentence motion or at sentencing).
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Because we conclude that Appellant failed to preserve his challenge to
the discretionary aspects of his sentence we will not address the merits of
this claim.
Constitutional Challenge to Legality of Sentence
In his second issue, Appellant purports to challenge the legality of his
sentence under the ban on cruel and unusual punishment codified in the
Eighth Amendment to the United States Constitution and Article I, Section
13 of the Pennsylvania Constitution. Appellant’s Brief at 10. In fact,
Appellant’s claim is little more than a restatement of his challenge to the
discretionary aspects of his sentence. He fails to provide a single citation to
either the Pennsylvania Constitution or case law interpreting Article I,
Section 13’s proportional sentencing requirement. Although his Brief
includes a single paragraph with background on the Eighth Amendment’s
ban on cruel and unusual punishment, the discussion that follows is limited
to a discussion of the Sentencing Guidelines and the mitigating factors in
Appellant’s case. See Appellant’s Brief at 10-12 (listing the three criteria for
analyzing sentence proportionality under the Eighth Amendment outlined in
Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super. 1992), but
failing to discuss, analyze, or apply the criteria to the facts of his case)).
We conclude that Appellant waived this issue for failing to develop it as
required by our rules of appellate procedure. See Pa.R.A.P. 2101-2119;
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)
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(“Appellate arguments which fail to adhere to these rules may be considered
waived, and arguments which are not appropriately developed are waived.”
(citation and quotation omitted)); Commonwealth v. Kane, 10 A.3d 327,
331 (Pa. Super. 2010) (“This Court will not act as counsel and will not
develop arguments on behalf of an appellant.” (citation and quotation marks
omitted)).
Even if Appellant’s issues were not waived, we would conclude that
they are without merit. In Commonwealth v. Baker, our Supreme Court
analyzed and applied the three prong test for determining whether a
sentence violates constitutional prohibitions on cruel and unusual
punishment, which calls on courts to consider “(i) the gravity of the offense
and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.” Commonwealth v.
Baker, 78 A.3d 1044, 1047 (Pa. 2013) (citing Commonwealth v. Spells,
612 A.2d 458, 462 (Pa. Super. 1992) (en banc)). As our Supreme Court
noted, courts should only consider the second and third prong of the analysis
if “a threshold comparison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality.” Id. at 1047-48 (citation
and quotation omitted). If gross disproportionality is not found, the claim
should be denied, and “successful [proportionality] challenges are extremely
rare.” Id. at 1048.
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In the instant case, Appellant does not argue that the Sentencing
Guidelines prescribe a punishment that is disproportionate to the offense
committed. To the contrary, Appellant concedes that the Sentencing
Guidelines “set a consistent standard for sentencing throughout the
Commonwealth” and “result[] in generally proportional sentences for each
defendant.” Appellant’s Brief at 11. Nor does Appellant argue that his
sentence fell outside of the standard range of the Sentencing Guidelines.
Instead, Appellant avers that the trial court erred in not imposing a sentence
within the mitigated range of the Sentencing Guidelines, and that this
failure resulted in a disproportionate sentence. We disagree.
Appellant pled guilty to, inter alia, Deceptive Business Practices for
taking over $10,000 in payments from the victims and then not performing
any of the work for which he was paid. At the sentencing hearing, Appellant
deliberately misled the sentencing court and later in the proceedings,
admitted to lying to the court. Appellant had a prior record score of 3, and
the offense gravity score in the instant case was 7. Appellant and his trial
counsel presented the trial court with evidence about his individual
circumstances, including Appellant’s health and the health of his wife. As
the sentencing court explained in its 1925(a) Opinion, it imposed a sentence
in the standard range “[d]ue to the nature of the charges, [the victim’s]
testimony and position, and [Appellant’s] fraudulent misrepresentations to
the [sentencing c]ourt during the sentencing hearing[.]” Trial Court Opinion
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at 4. The aggregate sentence imposed, 18 months to 5 years of
imprisonment, fails to meet the threshold requirement of gross
disproportionality to the crime committed. We, therefore, conclude that
Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
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