Com. v. Lattimore, J. ( 2016 )

J-S09011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD LATTIMORE
Appellant No. 1099 MDA 2015
Appeal from the Judgment of Sentence December 23, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001493-2013
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 18, 2016
Appellant, James Edward Lattimore, appeals from the judgment of
sentence entered after he pled guilty to one count of burglary of a home
with a person inside. Lattimore contends that the trial court abused its
discretion in several respects during sentencing. After careful review, we
conclude that none of Lattimore’s arguments merit relief, and therefore
affirm.
Lattimore was originally charged with 10 crimes arising from a daylight
break-in of a residence in Roaring Brook Township. At the time of the
break-in, a mother and her teenaged son were inside the residence.
Pursuant to a negotiated agreement, Lattimore pled guilty to one count of
burglary – overnight accommodation, person present. Slightly over a month
J-S09011-16
later, the trial court sentenced Lattimore to term of imprisonment of six to
twelve years.
Lattimore filed a timely motion for reconsideration of sentence. On
December 30, 2014, the trial court entered an order denying Lattimore’s
motion in all aspects save his challenge to the amount of restitution
imposed. In May 2015, Lattimore and the Commonwealth agreed to an
amount of restitution, and the trial court entered an order revising the
amount of restitution imposed. This timely appeal followed.
On appeal, Lattimore raises three challenges to the trial court’s
exercise of discretion in imposing sentence. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
An appellant challenging the discretionary aspects of his
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.A. § 9781(b).
-2-
J-S09011-16
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Lattimore filed a timely appeal and raised the challenges
presented on appeal in a post-sentence motion. Lattimore’s appellate brief
also contains the requisite Rule 2119(f) concise statement, in which he
provides arguments supporting his contention that he has raised three
substantial questions.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.
2015) (citation omitted). “[W]e cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Christine, 78
A.3d 1, 10 (Pa. Super. 2013) (citation omitted).
We will address Lattimore’s issues in sequence. In his first two issues,
he argues that the trial court erred in calculating his prior record score. A
claim that a trial court miscalculated the defendant’s prior record score
raises a substantial question. See Commonwealth v. Johnson, 758 A.2d
1214, 1216 (Pa. Super. 2000). We therefore turn to the merits of this
argument.
-3-
J-S09011-16
Lattimore contends that the trial court erred in calculating his prior
record score in two respects. First, that it improperly counted a conviction
for which the sentence imposed was entirely concurrent to another sentence.
See, e.g., Commonwealth v. Spenny, 128 A.3d 234, 242 (Pa. Super.
2015). Second, Lattimore contends that the trial court improperly graded
New Jersey convictions for aggravated assault with bodily injury, theft,
forgery, and obstructing administration of law. Unfortunately, a copy of the
sentence guideline form utilized by the trial court in calculating sentence is
not included in the certified record.1 Our review of the record does not reveal
any other document revealing the calculations utilized by the trial court in
imposing sentence.
“It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to
allow a complete and judicious assessment of the issues raised on appeal.”
Everett Cash Mutual Insurance Company v. T.H.E. Insurance
Company, 804 A.2d 31, 34 (Pa. Super. 2002) (quoting Hrinkevich v.
Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996)). Ordinarily, we can only
consider documents which are part of the certified record. See Roth Cash
Register Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223
(Pa. Super. 2005). Absent the sentence guideline form, we cannot review
____________________________________________
1
There is a docket entry for this form, but the form was not numbered or
included in the certified record forwarded to this Court.
-4-
J-S09011-16
the calculations utilized by the trial court in imposing sentence. These
arguments are therefore waived.
In his final argument, Lattimore contends that the trial court relied
upon impermissible factors in imposing sentence. Specifically, he first argues
that the trial court utilized his prior criminal record as a reason to impose an
aggravated range sentence. He also contends that the trial court improperly
relied upon the fact that a teenaged minor was in the home Lattimore
burglarized to impose an aggravated range sentence, as he believes that
such a fact is already included as an element of the crime. A claim that a
sentencing court imposed a sentence outside the standard guidelines without
stating adequate reasons on the record presents a substantial question. See
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)
(citation omitted). Therefore, we conclude that Lattimore has presented a
substantial question.
Both of Lattimore’s arguments challenge the imposition of terms of
imprisonment in the aggravated range of the sentencing guidelines. For such
challenges, the following standard of review has been set forth.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing 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.
-5-
J-S09011-16
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).
It is well-established that Pennsylvania has an indeterminate guided
sentencing scheme. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117
(Pa. 2007). The sentencing judge is required to consider the sentencing
guidelines that have been adopted by the Legislature. See 42 Pa.C.S.A. §
9721(b). It is recognized however that the sentencing guidelines are purely
advisory in nature and are merely one factor among many that the court
must consider in imposing a sentence. See Yuhasz, 923 A.2d at 1118. “[A]
trial court judge has wide discretion in sentencing and can, on the
appropriate record and for the appropriate reasons, consider any legal factor
in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at
1275.
It is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing a sentence
into the aggravated range. See Commonwealth v. Simpson, 829 A.2d
334, 339 (Pa. Super. 2003). Specifically, “factors already used in Guideline
computations, including inter alia, prior convictions, may not be used to
justify an aggravated sentence.” Commonwealth v. McNabb, 819 A.2d 54,
57 (Pa. Super. 2003) (citation omitted).
In imposing sentence, the trial court provided the following reasoning.
This sentence, sir, is in the aggravated range, and the reasons
for this sentence are, this sentence is consistent with the
-6-
J-S09011-16
protection of the community, this sentence recognizes the
serious nature of this offense and the gravity of this offense, this
sentence recognizes the adult criminal history that I just had the
opportunity to discuss with you on the record demonstrating that
in the past 15 years until your arrest in 2013 that you were
either incarcerated or out on the street for a very short period of
time.
It does appear to me, sir, that during the past 14, 15, 16 years
you have failed to rehabilitate yourself when offered the
opportunity for parole and/or probation.
The last sentence[s] imposed were in 2010 … they were imposed
within three years, three years and a few days, of this new
offense.
While the crime of burglary, the one that you pled guilty to and
I’m sentencing you here today contemplates the home being
occupied at the time of the crime, in this case there were two
victims, a mother and her 16 year old son, this sentence takes
into consideration the fact there were multiple victims, the age
of the son, that he was a victim who locked himself in a closet
with his mother while they called for help.
The sentence also takes into consideration the very serious
impact this crime has had on them, and they have been robbed
of any peace in their home. That’s why in Pennsylvania, sir,
burglary of an occupied dwelling is, as the prosecutor stated,
one of the highest crimes you can plead guilty to or be convicted
of.
The court is also imposing this sentence because there is a – this
crime, the nature of this crime, was brazen and very frightening.
I can only imagine how terrifying it was – must have been for
the victims to be locked in a closet while an unknown individual
kicked in the door to their residence, entered the home and was
rummaging around until the crime was interrupted by members
of society.
N.T., Sentencing, 12/23/14, at 42-44.
We conclude that the trial court did not consider any improper factors
in imposing sentence. First, while the trial court did consider Lattimore’s
-7-
J-S09011-16
prior criminal history in a negative light, it conditioned this consideration on
the fact that Lattimore had rarely been out of jail for the past 15 years. This
is a circumstance distinct from the purely mechanical consideration of a prior
record score. Furthermore, the trial court noted that this 15 years of history
indicated that Lattimore had repeatedly and consistently failed to rehabilitate
himself in any manner.
Similarly, the trial court’s consideration of the presence of the teenage
son in the home was not consistent with the element of the crime to which
Lattimore had pled guilty. While Lattimore pled guilty to burglary of an
occupied home, the trial court emphasized the fact that there were actually
two victims inside the home at the time. Furthermore, the trial court focused
on the terror caused to the minor by the brazen home invasion. These
factors are not elements of the crime Lattimore pled guilty to, and therefore
are appropriate considerations in imposing an aggravated range sentence.
We therefore conclude that Lattimore’s final argument does not merit relief
on appeal.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2016
-8-