Com. v. Nichols, D. ( 2022 )

J-S09027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIONA NICHOLS :
:
Appellant : No. 1922 EDA 2021
Appeal from the Judgment of Sentence Entered August 13, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002586-2018.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 3, 2022
Diona Nichols appeals the judgment of sentence imposed after she pled
guilty to murder in the third degree, endangering the welfare of a child
(“EWOC”), corrupting the morals of a minor (“CMOM”), possession of an
instrument of a crime (“PIC”), tampering with or fabricating physical evidence,
and abuse of a corpse.1 After careful review, we affirm.
The following facts are from the trial court’s opinion and the plea
colloquy. Nichols lived with a man she called her stepfather, her young
daughter, and the decedent, Anthony Ransom. According to Nichols, Ransom
had been living with her for some time while he was recovering from an
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 2502(c), 4304(a)(1), 6301(a)(1)(i), 907(a), 4910(1), and
5510.
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abusive relationship with an older man. Nichols also believed that Ransom
was prostituting himself and tried to dissuade him from his homosexuality.
On February 18, 2018, Nichols arrived home around 2:30 a.m. after
spending the night out and found the garage door open. Upon entering the
residence, she saw Ransom taking a shower in the basement. Nichols then
grabbed a blunt instrument and proceeded to attack Ransom, smashing the
glass shower in the process. Ransom, bleeding, ran upstairs into the living
room, where Nichols attacked him with a variety of other weapons, including
a broken golf club, a baseball bat, a curtain rod, and a knife.
At approximately 5:00 a.m., Nichols was seen on a nearby surveillance
camera dragging Ransom’s naked body outside of her house and leaving him
on the sidewalk. She went back inside and came out a few minutes later,
carrying her daughter, and kicked Ransom’s body. Nichols then walked to her
car, parked nearby, and moved it to her parking spot. While walking back to
the house, she stopped to pick up one of her shoes and turned over Ransom’s
body before going inside. At that point, it was unclear where her daughter
was. About two hours later, a pedestrian saw the body and alerted the police.
According to the medical examiner, Ransom sustained numerous facial
and skull fractures, a fractured rib, brain bruising, massive contusions over
his entire body, and over 60 distinct lacerations. He also suffered several stab
wounds to his head, chest, and extremities. The medical examiner also found
piercing injuries around Ransom’s rectum and perineum consistent with
sodomization by objects.
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After the police investigated the scene and interview Nichols, they arrested
her. Nichols was charged with multiple offenses, including first degree
murder.
On January 24, 2020, Nichols pled guilty to third degree murder, CMOM,
EWOC, PIC, abuse of a corpse, and tampering with evidence. The trial court
sentenced Nichols to 20 to 40 years’ imprisonment for the murder charge, two
and a half to five years’ imprisonment for EWOC, and two and a half to five
years’ imprisonment for CMOM, to be served consecutively, followed by
concurrent sentences of probation for the remaining charges. Nichols filed a
post-sentence motion, which the court denied.
Nichols filed this timely appeal. Nichols and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Nichols raises a single issue:
Did the sentencing court commit an abuse of discretion by denying
[Nichols’] motion for reconsideration of sentence because the
sentence imposed was excessive under the circumstances and the
honorable court did not consider or weigh the many mitigating
circumstances [Nichols] presented to the court during the
sentencing hearing [. . .] before deciding upon a sentence?
Nichols’ Brief at 2.
Nichols challenges the discretionary aspects of her sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). This Court has explained that, to reach the merits of
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a discretionary sentencing issue, we must conduct a four-part analysis to
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved [the] issue; (3) whether [a]pellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the sentencing code. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Nichols has satisfied the first three requirements in Colon. Accordingly,
we must determine whether Nichols has raised a substantial question.
In her Rule 2119(f) statement of reasons why she should be allowed to
appeal the discretionary aspects of her sentence, Nichols claims that the trial
court abused its discretion by imposing a manifestly excessive sentence
resulting from the imposition of consecutive sentences and failure to consider
multiple mitigating circumstances, particularly her rehabilitative needs.
According to Nichols, the court only considered the seriousness of the crime
and disregarded her individualized circumstances resulting in too severe
punishment for the underlying conduct which was tantamount to a life
sentence. Nichols’ Brief at 11.
A substantial question exists 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
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fundamental norms which underlie the sentencing process.” Commonwealth
v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (internal citations omitted). The
existence of a substantial question must be determined on a case-by-case
basis. Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super.
1995). Regarding the imposition of consecutive sentences and whether a
substantial question has been raised, this Court has held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present 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)].
[An appellant] may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(quotations and citations omitted).
Furthermore, “ordinarily, a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing factor does not raise
a substantial question.” Id. (emphasis in original). However, this Court has
held that “an excessive sentence claim—in conjunction with an assertion that
the court failed to consider mitigating factors—raises a substantial
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question.” Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super.
2015) (en banc).
Consequently, when we view Nichols’ challenge to the imposition of
consecutive sentences as unduly excessive, together with her claim that the
court failed to consider certain mitigating factors and her rehabilitative needs,
we conclude that she presents a substantial question. Therefore, we will
consider the merits of her sentencing claim.
Our standard of review of a sentencing claim is as follows:
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.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Nichols first claims that the court abused its discretion when it
sentenced her because it failed to consider the many mitigating factors and
her rehabilitative needs, and instead, only focused on the seriousness of the
crime. As a result, Nichols’ sentence was not individualized. We disagree.
Upon review of the record, we observe that trial court received a
plethora of information to consider in fashioning a sentence of confinement
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant. See 42 Pa.C.S.A. §
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9721(b); Commonwealth v. Jones, 640 A.2d 914, 917 (Pa. Super. 1994)
(noting that a trial court must balance these factors in arriving at a proper
sentence). Notably, at the outset of the sentencing hearing, the trial court
stated on the record:
I have reviewed everything that’s been submitted, all the reports,
all the psychiatric reports, all the letters of accommodation, all the
letters on both sides as well as the certificates of what has been
accomplished by the defendant. The prior record score, according
to the calculations, is a zero. The guidelines for murder of the
third-degree, if you used the normal guidelines, its 72 to 240
[months]. If you used the deadly weapon enhancement, its 90 to
240 [months].
N.T., 8/13/21, at 5-6. In particular, the referenced reports included a pre-
sentence report. While Nichols viewed the court’s statement as merely
perfunctory, we have stated that “where the trial court is informed by a pre-
sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted).
Additionally, the trial court had two mental health evaluations, one that
it ordered and one provided by Nichols. The court expressly remarked that it
reviewed this information. During the hearing, Nichols’ counsel highlighted
pertinent factors from these reports for the court. Counsel also presented
Nichols’ achievements since the incident, including courses she completed
while incarcerated, as well as her good behavior when she was released from
during the pandemic. Finally, the trial court had the opportunity to observe
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Nichols on several occasions and to hear from her directly during her allocution
why it should give her mercy. Critically, the court did not find her remorseful.
Trial Court Opinion, 11/1/21, at 7.
From all of this, the trial court was well informed of Nichols’ background
and history, her character, and her mental health and rehabilitative needs.
And, the court considered all of it. Id. at 6. Nonetheless, the court found it
insufficient to overcome the gravity of the crime and the impact it had on
Ransom’s family, friends, and the community. Before sentencing Nichols, the
court stated:
To the family of Anthony Ransom, I can't even imagine the pain
that you people are going through. My condolences. I am terribly,
terribly sorry for what you are going through.
Ms. Nichols, you need to thank your attorney. If this had gone to
trial, I have absolutely no doubt, none, that you would have been
convicted of first-degree murder and sentenced to life in jail. Only
because of his actions are you not doing that.
This is a brutal, cold, callous, merciless, senseless murder. The
man was beaten, stabbed, mutilated[; you] used a hammer, knife,
golf clubs and curtain rod, dragging his naked body and leaving
him on the sidewalk as the final humiliation.
N.T., 8/13/21, at 112–13.
In essence, Nichols argues that the court should have accorded greater
weight to the mitigating factors and Nichols’ rehabilitative needs than it did.
However, on appeal, “[w]e cannot re-weigh the sentencing factors and impose
our judgment in place of the sentencing court.” Commonwealth v. Macias,
968 A.2d 773, 778 (Pa. Super. 2009). Furthermore, although the court did
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not specifically reference the mitigation evidence, “a sentencing court need
not undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court's consideration of the facts of the crime and
character of the offender.” Commonwealth. v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010). We find that the record as a whole demonstrates
this.
Nichols next claims that the trial court erred when it sentenced her
because it imposed consecutive sentences which effectively amounted to a life
sentence.2 In support of this position, Nichols likens her sentence to those
imposed in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011),
Commonwealth v. Dodge, 95 A.2d 1198 (Pa. Super. 2008),
Commonwealth v. Whitman, 880 A.2d 1250 (Pa. Super. 2005) rev’d in
part, 918 A.2d 115 (Pa. 2007), and Commonwealth v. Simpson, 510 A.2d
760 (Pa. Super. 1986). Nichols’ Brief at 19–20. Again, we disagree.
This Court has long held that a sentencing court has broad discretion
regarding whether a defendant serves sentences consecutively or
concurrently. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014). The Sentencing Code 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. 42 Pa.C.S.A. § 9721;
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2 At time of sentencing, Nichols was 39 years old.
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Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).
Furthermore, Nichols is not entitled to a volume discount for her
crimes. See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.
1995).
Lastly, Nichols’ reliance on the cited cases do not alter the outcome here
as they are readily distinguishable from the instant facts. Though each of
those cases involved excessive sentences vacated on appeal, the reasoning
was based primarily upon the trial courts’ decisions to impose multiple
consecutive sentences for multiple lesser offenses.
In Coulverson, this Court vacated an aggregate sentence of 18 to 90
years’ imprisonment after a 19-year-old pled guilty to 18 charges, consisting
of maximum statutory imprisonment terms running consecutively.
Coulverson, 34 A.3d at 135. We concluded that the trial court failed to
adequately explain its decision and that the record suggested its willingness
to imprison the defendant for the longest amount of time regardless of any
mitigating factors. Id. at 148–150.
In Dodge, this Court determined that an aggregate sentence of 52 ½
to 111 years’ imprisonment resulting from 37 consecutive sentences was
unreasonable when it effectively amounted to lifetime incarceration for “non-
violent offenses with limited financial impact.” Dodge, 957 A.2d at 1202.
In Whitman, the trial court imposed a total sentence of 39 to 78 years
of imprisonment for 13 property crimes despite the defendant’s guilty plea
and potential for rehabilitation. Whitman, 880 A.2d at 1253–54.
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Similarly, in Simpson, we vacated the imposition of consecutive
sentences totaling 30 to 60 years’ imprisonment for multiple counts of robbery
when the trial court failed to consider the defendant’s potential for
rehabilitation in light of his background and young age. Simpson, 510 A.2d
at 763–64.
By contrast, Nichols’ sentence was based primarily on her conviction for
murder in the third degree, constituting 20 to 40 years of her 25 to 50 year
term of incarceration, with the remainder of her sentence based on her
convictions for endangering the welfare of a child and corruption of minors.
This case is not one in which the defendant’s lengthy aggregate sentence
resulted from the imposition of consecutive sentences for multiple lesser
crimes. Instead, Nichols was sentenced to a significant prison term for her
plea to third-degree murder, an offense much more serious than those
involved in the cases Nichols cites. The fact that Nichols faces decades in
prison for murder is not manifestly unreasonable given her crime, even if,
ultimately, she is incarcerated for most or the remainder of her life.
Additionally, the trial court here did not impose sentences of incarceration for
the remaining convictions.
In sum, we conclude that the trial court did not abuse its discretion in
rendering Nichols’ sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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