Com. v. Avery, F. ( 2018 )

J-S57042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FRED AVERY, JR., :
:
Appellant : No. 3947 EDA 2017
Appeal from the Judgment of Sentence November 6, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006321-2013
CP-51-CR-0006322-2013
BEFORE: PANELLA, J., PLATT, J.* and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 04, 2018
Fred Avery Jr. (Appellant) appeals from the judgment of sentence
imposed after he pleaded guilty to violations of the Uniform Firearms Act
(VUFA), possession of an instrument of a crime, two counts of terroristic
threats, two counts of simple assault, and two counts of recklessly
endangering another person (REAP). We affirm.
On April 9, 2013, Appellant was arrested and charged with, inter alia,
the above-referenced crimes after an altercation with his father and sister the
day before. As summarized by the Commonwealth at Appellant’s guilty plea
hearing:
[O]n April [8,] 2013, at approximately 4:45 p.m., [Appellant]
arrived at the home of his sister, Iris Washington, which is located
at 4451 North 20th Street here in the city and county of
Philadelphia. [Appellant] was in the car with his father, Fred
Avery, Sr.
*Retired Senior Judge assigned to the Superior Court.
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At th[at] time, [Appellant] exited the car, pointed a gun at
his sister, [Ms.] Washington, and threatened to kill her. … After
[Appellant] pointed the gun at his sister, he then turned the gun
on his father, Fred Avery, Sr., and threatened to kill him. Police
responded to the scene and [Appellant] threw the gun back into
the car. When police arrived, they recovered from a Ford Traveler
conversion van a 12 gauge single barrel shotgun and placed it on
a property receipt. The gun was sent to the Firearms Identification
Unit and that gun was tested and found to be operable. …
[Additionally, Appellant had] a felony conviction making him
ineligible to possess a firearm.
N.T., 3/3/2017, at 10-11.
On March 3, 2017, Appellant entered an open guilty plea. The trial court
ordered a pre-sentence investigation (PSI) report, mental health and drug and
alcohol evaluations and set a date for sentencing. After several continuances,
a sentencing hearing was held on November 6, 2017. At the hearing, the trial
court
reviewed the [PSI] report, mental health evaluation, and the
guideline calculations. The [trial c]ourt noted [Appellant] has a
history of bipolar disorder and a history of polysubstance abuse
and that the mental health examiner recommended a dual-
diagnosis treatment. The [trial c]ourt recognized that “due to the
aggressive nature of the charges against him, [Appellant] would
benefit from anger management therapy.” The [trial c]ourt noted
the evaluation summary on the [PSI] report indicated [Appellant]
was not an amenable candidate for community supervision and a
recommendation that the sentence include intensive supervision
during any period of community supervision, anger management,
require [Appellant] to submit to random urinalysis, abstain from
future drug and alcohol use, participate in job training in order to
assist with future employment, and obtain and maintain
employment. … The guidelines calculation indicated [Appellant]
had a prior record score of RFEL.[1]
1
Repeat felony offender.
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Trial Court Opinion, 3/26/2018, at 2-3. After listening to arguments by
Appellant and the Commonwealth, the trial court imposed an aggregate
sentence of five to ten years’ incarceration2 to run consecutive to a sentence
Appellant was currently serving.3
No post-sentence motion was filed and on December 6, 2017, Appellant
filed a timely notice of appeal.4 Appellant’s sole issue on appeal challenges
the discretionary aspects of his sentence. Appellant’s Brief at 12. Specifically,
Appellant avers the trial court “erred and abused its discretion when it ordered
[Appellant’s] sentence to run consecutively to the one [Appellant] was already
serving, thereby creating an aggregate sentence which far surpassed what
was required to protect the public, the complainant or the community and was
well beyond what was necessary to foster rehabilitation.” Id. (unnecessary
capitalization omitted).
2
Specifically, the trial court sentenced Appellant to 5 to 10 years’
incarceration for possession of a firearm by a prohibited person. Appellant’s
sentences of 3 to 7 years’ incarceration for firearm not be carried without a
license, 2 to 5 years’ incarceration for carrying a firearm on a public street in
Philadelphia, and 1 to 2 years’ incarceration for terroristic threats were all to
run concurrent to Appellant’s sentence for possession. There were no further
penalties imposed for Appellant’s conviction of simple assault and REAP.
3
At the time of his sentencing hearing, Appellant was already serving a
sentence of 25 to 55 years’ incarceration on an unrelated matter. N.T.,
11/6/2017, at 7. Appellant’s convictions in that prior case stemmed from his
assault on prison guards while he was incarcerated. Id. at 13.
4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his [or her] sentence must invoke this
Court’s jurisdiction by satisfying a four-part test:
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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
The record reflects that Appellant timely filed a notice of appeal.
However, Appellant did not present a challenge to his sentence at his
sentencing hearing, and our review of the certified record reveals Appellant
failed to file a post-sentence motion. Appellant, therefore, has waived his sole
issue on appeal. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.
Super. 2004) (“Issues challenging the discretionary aspects of sentence must
be raised in a post-sentence motion or by presenting the claim to the trial
court during the sentencing proceedings. Absent such efforts, an objection to
a discretionary aspect of a sentence is waived. This failure cannot be cured
by submitting the challenge in a [] 1925(b) statement.”) (citations and
internal quotation marks omitted). See also Commonwealth v. Tejada,
107 A.3d 788, 799 (Pa. Super. 2015) (holding discretionary aspects claims
not raised at sentencing or in a post-sentence motion are not subject to our
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review, even if raised in 1925(b) statement and addressed in the trial court’s
1925(a) opinion).
Even if he properly preserved this issue, Appellant’s claim that the trial
court abused its discretion by ordering Appellant’s sentence to be served
consecutively to a sentence he was already serving does not present a
substantial question for our review. “A court’s exercise of discretion in
imposing a sentence concurrently or consecutively does not ordinarily raise a
substantial question.” Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.
Super. 2015) (citation omitted). See also Commonwealth v.
Mastromarino, 2 A.3d 581, 586–87 (Pa. Super. 2010) (“Long standing
precedent of this Court recognizes that 42 Pa.C.S.[ § 9721] affords the
sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.”). Rather, “the imposition of consecutive, rather
than concurrent, 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. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en banc)
(citation omitted).
Here, at the time of Appellant’s sentencing hearing, Appellant was
already serving a 25 to 55 year sentence for, inter alia, aggravated assault
and attempted murder. Additionally, in the instant case Appellant had entered
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into an open guilty plea, allowing the trial court to decide the period of
incarceration and whether the sentence should run concurrently or
consecutively to the already imposed sentence. At sentencing, the trial court,
in its discretion, elected to impose Appellant’s 5-to-10-year sentence
consecutively because “[d]espite already serving lengthy sentences of
incarceration, [Appellant] chose to continue to commit violent crimes and has
not shown evidence of rehabilitation.” Trial Court Opinion, 3/26/2018, at 12.
At his sentencing hearing, Appellant asked the court to impose a
concurrent sentence, arguing that “adding additional consecutive time” would
be cruel and unusual and, because he just began serving his 25-[to-55-]year
sentence, he was already “going to die in jail.” N.T., 11/6/2017, at 11. In its
opinion to this Court, the trial court rejected Appellant’s argument, noting
Appellant “committed these crimes when he was 50 years old with a prior
record score of RFEL.” Trial Court Opinion, 3/26/2018, at 12. Furthermore,
the trial court found
it was within [its] power to make all sentences for the charges for
which [Appellant] entered a guilty plea [] run consecutive to each
other rather than concurrent. [Appellant] faced a total aggregate
sentence of 20 to 40 years[’] incarceration, which the [c]ourt
could have run consecutive to [Appellant’s] sentence [he was
already serving]. Instead, the [c]ourt ran all of [Appellant’s]
sentences in this case concurrent with each other and consecutive
to [his other] sentence. The sentence imposed is also lower than
the aggregate 6 to 12 years[’] incarceration to run consecutive[ly]
that was requested by the Commonwealth.
Id. at 11-12.
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In this case, because the trial court’s decision to sentence consecutively
did not raise the aggregate sentence to an excessive level in light of the
criminal conduct at issue, based on controlling case law, Appellant’s claim does
not present a substantial question warranting our review.5 Zirkle, 107 A.3d
at 133-34.
Based on the foregoing, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
5 The writer of this Memorandum is aware of the virtually unfettered discretion
given to trial judges who are deciding whether to impose consecutive or
concurrent sentences. See Commonwealth v. Zirkle, 107 A.3d 127, 136
(Pa. Super. 2014) (Strassburger, J., concurring). Nevertheless, the law is well
settled that a substantial question must be presented in order for this Court
to review the trial court’s discretion, and, based on that law, Appellant does
not present one here.
Moreover, even if this issue were to present a substantial question,
based on our case law, we would conclude that the decision to impose the
sentence consecutively in this case was within the trial court’s discretion. In
finding as such, we are cognizant of and sympathetic to Appellant’s mental
health struggles. Nonetheless, given the broad discretion afforded to trial
courts and because Appellant has failed to demonstrate that in imposing the
sentence at issue the trial 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[,]” we are without authority to disturb
Appellant’s judgment of sentence. Commonwealth v. Johnson, 125 A.3d
822, 826 (Pa. Super. 2015) (citation omitted). Finally, we note that the trial
court, aware of Appellant’s mental health issues, ordered Appellant to
undergo, inter alia, mental health treatment “while in jail and upon release.”
N.T., 11/6/2017, at 27.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
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