Com. v. Westbrook, G. ( 2018 )

J-S06020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE WESTBROOK :
:
Appellant : No. 3693 EDA 2016
Appeal from the Judgment of Sentence Entered on July 27, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012208-2014
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 23, 2018
George Westbrook appeals from the judgment of sentence imposed
following his convictions for aggravated assault, persons not to possess
firearms, and possession of an instrument of crime.1 Westbrook claims his
sentence, which was above the standard range of the Sentencing Guidelines,
was an abuse of discretion. We affirm.
The relevant facts and procedural history are as follows. On May 1,
2014, Westbrook met with Andrew Keeys at Keeys’ apartment. After seeing
a text message in Keeys’ phone, Westbrook became angry and pulled a gun
from his waistband and ordered Keeys to lie on the floor. After a brief
struggle between the two, Westbrook shot Keeys in the area of his left
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1 18 Pa.C.S.A. §§ 2702(a), 6105(a)(1), and 907(a), respectively.
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shoulder. On May 20, 2016, a jury found Westbrook guilty of aggravated
assault and possession of an instrument of crime. The same day, Westbrook
waived his right to a jury trial for the charge of persons not to possess
firearms and after a bench trial, the trial court found him guilty of that
charge. The trial court then ordered a pre-sentence investigation report with
a mental health evaluation.
The trial court later sentenced Westbrook on July 27, 2016 to a term
of ten to 20 years’ imprisonment for aggravated assault; a consecutive term
of two and a half to five years’ imprisonment for possession of an instrument
of crime; and two and a half to five years’ imprisonment for persons not to
possess firearms to run consecutive to the sentence on the aggravated
assault charge but concurrent to the sentence for the possession of an
instrument of crime charge. Westbrook’s aggregate sentence was 12½ to 25
years’ imprisonment. The sentence was above the aggravated range of the
Sentencing Guidelines.
Westbrook filed a Post-Sentence Motion on July 29, 2016, which was
denied by operation of law on November 29, 2016. On December 2, 2016,
he filed a timely Notice of Appeal. The trial court ordered, and Westbrook
timely filed, a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b). On May 24, 2017, the trial court filed its
opinion pursuant to Pa.R.A.P. 1925(a).
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Westbrook raises one question for our review:
Did not the lower court abuse its discretion and violate due
process by imposing an unreasonable aggregate sentence
of twelve-and-a-half to twenty-five years, a sentence
above the aggravated guideline range, by not
differentiating prior arrests and convictions, by issuing an
above guidelines sentence without stating its reasons for
doing so, and by failing to state adequate reasons for
issuing consecutive sentences?
Appellant’s Brief at 3.
Westbrook challenges the trial court’s discretion in imposing sentence.
As such, we must conduct a four-part analysis before reaching the merits of
his claim. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).
We must determine: (1) whether present appeal is timely, (2) whether the
instant issue argued was properly preserved, (3) whether a statement was
filed pursuant to Pa.R.A.P. 2119(f), and (4) whether there is a substantial
question that the sentence is not appropriate under the Sentencing Code.
Id.
In the instant case, Westbrook timely filed a Notice of Appeal, and
properly preserved his claims challenging the discretionary aspects of
sentencing in his Post-Sentence Motion. Westbrook also included a Pa.R.A.P.
2119(f) Statement in his brief. Appellant’s Brief at 10-11. Finally, Westbrook
has presented substantial questions for our review. Westbrook contends that
the trial court failed to state adequate reasons for deviating from the
Sentencing Guidelines, which raises a substantial question. See
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Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa.Super. 2008). His
additional argument that the trial court relied on impermissible factors in
fashioning his sentence also raises a substantial question. Appellant’s Brief
at 3; Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super. 2006).
Sentencing is within the discretion of the trial court and thus will not
be disturbed absent an abuse of discretion. Commonwealth v. Jones, 640
A.2d 914, 916 (Pa.Super. 1994). The only limitations on this discretion are
that the sentence imposed must be within the statutory limits; the record
must show that the court considered the Sentencing Guidelines; and if the
court deviates from the Sentencing Guidelines, the record must include a
statement of reasons for the departure. Commonwealth v. Warren, 84
A.3d 1092, 1097 (Pa.Super. 2014). When imposing a sentence, the court
must consider the protection of the public, the gravity of the offense as it
relates to the impact on the victim and the community, the defendant’s
rehabilitative needs, and the Sentencing Guidelines. Commonwealth v.
Feucht, 955 A.2d 377, 383 (Pa.Super. 2008).
Westbrook contends that the trial court considered two improper
factors when it fashioned his sentence: his prior convictions, which he notes
were accounted for by his prior record score, and his prior arrests, which he
argues the trial court treated as if they were convictions. The
Commonwealth did not file an Appellee’s Brief in this Court.
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Westbrook is correct that prior convictions are accounted for in the
prior record score, and a prior conviction therefore may not be used to
impose an aggravated range sentence. See 204 Pa.Code § 303.5;
Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super. 2000). But
see Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008)
(stating even where sentencing court relies on improper factor, there is no
abuse of discretion if court has significant other support for departing from
Sentencing Guidelines).
Westbrook is incorrect, however, that the trial court’s “extended”
discussion of his prior record shows that the court considered it as an
aggravating sentencing factor. Appellant’s Brief at 13. To the contrary, the
court never stated that it was using Westbrook’s prior record as an
aggravating sentencing factor. Rather, the trial court referred to Westbrook’s
history of arrests and convictions as part of its explanation of its sentence:
assessment of Westbrook’s potential for rehabilitation and the need to
protect the community:
You, sir, have a terrible record . . . . What strikes me here is that
your first arrest as a 17 year old was for aggravated assault, for
which you were adjudicated delinquent. And here you are 12
years later and we’re back again with an aggravated assault
charge. We simply cannot have folks walking the street who can
visit violence on a fellow citizen in the manner that you did in
this case.
N.T., Sentencing Hearing, 7/27/16 at 35.
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Furthermore, although the court made reference to Westbrook’s
arrests and convictions as both a juvenile and an adult, it is clear that the
court was making a complete record of the evidence that was presented to it
for purposes of sentencing. This is supported by what the trial court stated
to Westbrook prior to the discussion of his record:
I want you to appreciate that our judicial system requires that
sentencing be individualized; that is that we look at Mr.
Westbrook’s need for rehabilitation, who he is, his position in
life. But we must also take into account society’s need for
protection.
Id. at 34.
The court thus did not improperly consider Westbrook’s prior record as
an aggravating factor. Moreover, even if the trial court had considered his
prior record as an aggravating factor, doing so would not have been an
abuse of discretion because his prior record was not the sole reason for his
aggravated sentence. See Sheller, 961 A.2d at 192. The trial court stated
that it considered all the requisite factors such as society’s need for
protection, Westbrook’s need for rehabilitation, and the gravity of the
offense. N.T., Sentencing Hearing, 7/27/16 at 37. The court expressly stated
that it gave due consideration to the Sentencing Guidelines and read the
pre-sentence investigator’s report as well as the mental health evaluation,
which included the mitigating factor of Westbrook’s rough upbringing. Id. at
36.
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Westbrook also claims that the trial court conflated his prior arrests
with criminal convictions. However, the record is clear that the court
distinguished among Westbrook’s arrests, adjudications of delinquency, and
criminal convictions:
When I review the reports ordered for assistance of sentence in
this case, I see that you have four arrests as a juvenile and
three adjudications of delinquency; nine arrests as an adult and
five convictions.
Id. at. 35-36.
The court’s review of Westbrook’s arrest, delinquency, and criminal
history was not improper. See Commonwealth v. Johnson, 481 A.2d
1212, 1214 (Pa.Super. 1984) (stating sentencing court may consider
defendant’s prior arrests which did not result in convictions, as long as court
recognizes that defendant was not convicted of the charges).
Westbrook next contends that the trial court failed to state its reasons
for imposing his consecutive sentences. Appellant’s Brief at 14-15. Even
assuming for purposes of argument only that this claim states a substantial
question,2 this claim lacks merit.
The trial court heard testimony from Westbrook’s mother and his
child’s mother who spoke about his character and their support for him.
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2 See Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012)
(en banc) (stating challenge to imposition of consecutive sentences states a
substantial question if consecutive sentences “raise[] the aggregate
sentence to, what appears upon its face to be, an excessive level in light of
the criminal conduct at issue in the case.”).
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N.T., 7/27/16 at 17-25. Additionally, the court heard from the victim in the
case, Mr. Keeys, by way of a victim impact statement that the prosecutor
read into the record. Id. at 28-33. The court also considered the pre-
sentence investigation report as well as the mental health evaluation. Id. at.
36-37.
The court then, contrary to Westbrook’s claim on appeal, explained
how it had settled on the sentence it imposed on Westbrook. The court
explained that Westbrook’s four arrests as a juvenile and three adjudications
of delinquency, and nine arrests as an adult and five criminal convictions
showed that despite multiple prior opportunities at rehabilitation, Westbrook
had reoffended. Id. For that reason, the court concluded that the risk of
recidivism to be high, and stated, “We simply cannot have folks walking the
street who can visit violence on a fellow citizen in the manner that you did in
this case.” Id. at 35-36. The court also noted that Westbrook’s mother had
abused him and his father had abandoned him, but also pointed out that
Westbrook had now abandoned his own two children. Id. at 36. The court
then identified all of the all of the factors that it had considered in sentencing
Westbrook:
I have taken into consideration Mr. Westbrook, all of the factors
I’m required to, those imposed on this Court by our appellate
courts, as well as those imposed by the legislature. I’ve given
due consideration to the guideline computations. I have read the
presentence investigator’s report and the mental health
evaluation. I have considered your need for rehabilitation as well
as society’s need for protection. And I have taken into account
the gravity of the offense on which the jury found you guilty.
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Id. at 37.
Westbrook’s claim that the trial court failed to state its reasons for
imposing an aggravated-range sentence is patently meritless.
Finally, we address Westbrook’s claim that his aggregate sentence was
unreasonable. A sentence may be found to be unreasonable if the trial court
imposed it without consideration of the protection of the public, the gravity
of the offense in relation to the impact on the victim and the community,
and the rehabilitative needs of the defendant. Commonwealth v. Walls,
926 A.2d 957, 964 (Pa. 2007). A sentence may also be found to be
unreasonable after review of the factors set forth in Section 9781(d):
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any pre-sentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Id. (citing 42 Pa.C.S. § 9781(d)).
Here, we cannot say that Westbrook’s aggregate sentence was
unreasonable. As demonstrated above, the trial court considered and
weighed the required sentencing factors, and gave consideration to both
mitigating and aggravating circumstances before imposing sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/18
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