Com. v. Jones, Q. ( 2017 )

J-S40026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
QUINCY JONES, :
:
Appellant : No. 1011 EDA 2016
Appeal from the Judgment of Sentence November 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0201121-2004
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JUNE 29, 2017
Appellant, Quincy Jones, appeals from the Judgment of Sentence
entered in the Philadelphia County Court of Common Pleas on November 30,
2015, following a prior remand from this Court. With this appeal, Appellant’s
counsel, Stephen T. O’Hanlon, Esq., has filed a Petition to Withdraw and an
Anders1 brief, stating that the appeal is wholly frivolous. After careful
review, we affirm the Judgment of Sentence and grant counsel’s Petition to
Withdraw.
The procedural history relevant to the instant appeal is as follows. On
October 29, 2003, Appellant was incarcerated in the Philadelphia Industrial
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*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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Correctional Center awaiting trial on charges that he had murdered his
cousin.2 Appellant and another inmate, Andre Council, engaged in a “heated
verbal exchange.” Trial Court Opinion, filed 12/16/16, at 3. Later that
night, immediately prior to evening lockdown, Appellant entered Council’s
cell, removed a pen from his waistband, and stabbed Council in the left eye
with the pen. The pen ruptured the globe of Council’s eye and lacerated his
cornea. Despite surgery to repair the damage, Council remains blind in his
left eye.
Following a bench trial, the Honorable Harold M. Kane convicted
Appellant of Aggravated Assault, Recklessly Endangering Another Person,
Simple Assault, and Possession of an Instrument of Crime.3 On August 31,
2005, Judge Kane sentenced Appellant to 7½ to 15 years of imprisonment
for Aggravated Assault, graded as a felony in the second degree, and to no
further penalty on the remaining charges.
On September 5, 2006, Appellant filed a pro se Petition pursuant to
the Post-Conviction Relief Act (“PCRA”), arguing inter alia, that trial counsel
had failed to file a direct appeal as requested. On December 12, 2011,
appointed counsel filed an amended PCRA Petition. On February 3, 2012,
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2
Appellant was subsequently convicted of third-degree murder for the
shooting death of his cousin.
3
18 Pa.C.S. §§ 2702(a)(4), 2705, 2701(a)(1), and 907(a), respectively.
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following the retirement of Judge Kane, the PCRA Petition was reassigned to
the Honorable Denis Cohen.4
On July 30, 2013, Judge Cohen reinstated Appellant’s appellate rights
nunc pro tunc, and on July 31, 2013, Appellant filed an appeal to this Court.
On July 8, 2014, this Court vacated Appellant’s Judgment of Sentence,
noting that a sentence of 7½ to 15 years of imprisonment exceeds the
statutory maximum sentence for a second-degree felony. We remanded
Appellant’s case for a re-sentencing hearing.
On November 30, 2015, after reviewing the Pre-Sentence
Investigation Report, Judge Cohen re-sentenced Appellant to 5 to 10 years
of incarceration. That same day, Appellant filed a Post-Sentence Motion
challenging the discretionary aspects of his sentence. On January 4, 2016,
Appellant additionally filed a Motion for Resentencing, averring that he had
additional evidence of his “rotten social background” that he wished to
present to Judge Cohen. Motion for Resentencing, filed 1/4/16, at 2. On
March 31, 2016, Appellant’s motions were denied by operation of law.
Appellant filed a timely notice of appeal. Appellant and the trial court
complied with Pa.R.A.P. 1925.
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4
Although Judge Cohen reviewed the Petition in a prompt manner, we note
with displeasure the unexplained and inexplicable six-year delay in resolving
Appellant’s Petition prior to its reassignment to Judge Cohen.
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On appeal, Appellant raises a single allegation of error, which we have
reworded to reflect that Appellant raises two distinct claims:
1. The resentencing court abused its discretion when it
resentenced Appellant because, inter alia, the court did not
adequately consider Appellant’s extremely harsh background.
2. The resentencing court erred by not granting Appellant’s
Motion for Resentencing to allow him to present details of his
extremely harsh background in support of a mitigated
sentence.
See Appellant’s Pa.R.A.P. 1925(b) Statement; see also Appellant’s Brief at
Appendix A.
As Appellant’s counsel has filed an Anders Brief, we must consider his
request to withdraw as counsel prior to reviewing Appellant’s claims on the
merits. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010).
Counsel has complied with the mandated procedure for withdrawing as
counsel. See Commonwealth v. Santiago, 978 A.2d 349, 361
(articulating Anders requirements); Daniels, supra at 594 (providing that
counsel must inform client by letter of rights to proceed once counsel moves
to withdraw and append a copy of the letter to the petition). Appellant has
not filed a response.
As a result, we proceed to conduct an independent review to ascertain
if the appeal is indeed wholly frivolous. Commonwealth v. Flowers, 113
A.3d 1246, 1249 (Pa. Super. 2015).
In his first issue, Appellant challenges the discretionary aspects of his
sentence. A challenge to the discretionary aspects of sentencing is not
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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, Appellant met the first two elements by filing a
timely Notice of Appeal, and properly preserving the issue in a Post-
Sentence Motion to modify his sentence. Although the Anders Brief does
not include a Statement of Reasons Relied Upon for Allowance of Appeal
pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”), we may review
this issue notwithstanding the absence of a Rule 2119(f) Statement. See
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(addressing discretionary sentence issue despite absence of Rule 2119(f)
Statement in light of Anders, which “requires review of issues otherwise
waived on appeal” (citation omitted)). As to whether Appellant has
presented a substantial question, we note:
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The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and quotation omitted).
Here, Appellant avers that the trial court failed to adequately consider
his “extremely harsh background” as a mitigating factor before imposing the
statutory maximum sentence. Appellant’s Pa.R.A.P. 1925(b) Statement;
see also Appellant’s Brief at Appendix A.
An argument that the sentencing court failed to consider mitigating
factors in favor of a lesser sentence does not present a substantial question
appropriate for our review. Commonwealth v. Hanson, 856 A.2d 1254,
1257-58 (Pa. Super. 2004). See also Commonwealth v. Griffin, 804
A.2d 1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d
1385, 1388 (Pa. Super. 1989) (en banc) (concluding that an allegation that
the sentencing court did not adequately consider various factors is, in effect,
a request that this court substitute its judgment for that of the lower court in
fashioning a defendant’s sentence).
Moreover, we note that Appellant does not allege that his 5 to 10 year
sentence is outside the statutory maximum sentence. Neither does
Appellant point to any specific provision of the Sentencing Code that the
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sentencing court ostensibly violated. Appellant’s bald assertion that his
sentence is excessive does not raise a substantial question. See
Commonwealth v. Trippett, 932 A.2d 188, 201-03 (Pa. Super. 2007)
(bald allegations of excessiveness insufficient to permit discretionary
review).
In his second issue, Appellant avers that the trial court erred in not
granting his Motion for Resentencing. Specifically, Appellant avers that,
because he only appeared via teleconference, he was unable to allocute fully
about his “rotten social background of sexual abuse and drug addiction as
well [as his] recent rehabilitation.” Motion for Resentencing at 2. See also
Appellant’s Pa.R.A.P. 1925(b) Statement; Appellant’s Brief at Appendix A.
We review a sentencing court’s denial of a request for resentencing for
an abuse of discretion. Commonwealth v. Burtner, 453 A.2d 10, 12 (Pa.
Super. 1982).
The purpose of a petition for reconsideration of sentence is to
afford the sentencing court an opportunity, prior to appellate
review, to correct any errors that may have occurred at
sentencing. A modification of sentence hearing is only necessary
if the sentencing record discloses errors by the trial court.
Should the modification petition fail to raise such errors, then the
trial court is under no obligation to hold an obviously frivolous
hearing or write an unnecessary opinion supporting its denial of
the modification petition. It is within the trial court's discretion
to rely upon the sentencing record.
We do not hold that a sentencing judge cannot receive additional
evidence in response to an application to modify sentence.
However, the court is not required to afford the defendant a
second opportunity to present evidence not related to any
alleged error occurring at a prior proceeding. Where the
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sentencing procedure has been properly conducted, it is within
the court's discretion whether to receive additional evidence or
rely on the sentencing record.
Id. (internal citations and quotation marks omitted).
In the instant case, Appellant avers that his appearance at the
resentencing, via teleconference, prevented him from “consult[ing] with
counsel on an on-going basis” and from providing a full allocution on his
“rotten social background” and “recent rehabilitation.” Motion for
Resentencing, filed 1/4/16, at 2. However, by his own admission, Appellant
“previously wrote to the [resentencing court]” recounting these same
mitigating factors. Id. Moreover, as the resentencing court notes, Appellant
did address his recent rehabilitation during his allocution. Trial Court
Opinion at 4. Finally, the trial court carefully considered the contents of
Appellant’s Pre-Sentence Investigation prior to sentencing Appellant,
“including mitigating factors.” Id. at 5. We, therefore, conclude that the
trial court did not err in denying Appellant’s Motion for Resentencing where
Appellant sought only to supplement the record with his oral recitation of
mitigating evidence that the resentencing court had previously received and
considered.
Accordingly, we conclude that Appellant has failed to raise a
substantial question as to the appropriateness of his sentence and the
resentencing court did not err in denying his Motion for Resentencing. We
agree with counsel that these claims are wholly frivolous. Finally, our
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independent review of the record reveals no additional non-frivolous claims.
We therefore grant counsel’s Petition to Withdraw and affirm the November
30, 2015 Judgment of Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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