Com. v. Willis, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JULIAN WILLIS, No. 1588 EDA 2016
Appellant
Appeal from the Judgment of Sentence, January 8, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0009854-2013,
CP-51-CR-0010365-2013
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 06, 2017
Julian Willis appeals from the judgment of sentence of January 8,
2016, following his conviction of sexual offenses. On appeal, appellant
challenges the discretionary aspects of his sentence. We affirm.
The trial court has aptly summarized the history of this case as
follows:
On July 13, 2013, [appellant] was arrested and
charged on two separate bills of information with
inter alia[:] 1) Attempted Rape by Forcible
Compulsion and Unlawful Contact with a Minor at
CP-51-CR-0009854-2013;[Footnote 1][1] and,
2) Unlawful Contact with a Minor, Involuntary
Deviate Sexual Intercourse (IDSI) with a Child, and
Rape of a Child at CP-51-CR-0010365-
1The 11 -year -old victim, J.S., was sleeping in bed when appellant laid down
beside her, pulled her underwear down, and rubbed his penis between her
buttocks. (Notes of testimony, 1/8/16 at 5-6, 20.)
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2013.[Footnote 2][2] [Appellant] entered into an
open guilty plea on April 24, 2015, to these charges.
On January 8, 2016, [appellant] was sentenced to
consecutive periods of confinement in a state
correctional facility of two to five years on the charge
of Criminal Attempt to Commit Rape by Forcible
Compulsion at CP-51-CR-0009854-2013, five to ten
years on the charge of IDSI, and five to ten years on
the charge of Rape of a Child at CP-51-CR-0010365-
2013, resulting in an aggregate total of 12 to
25 years['] confinement. The Court entered an order
of guilt without further penalty on both charges of
Unlawful Contact with a Minor.
[Footnote 1] 18 Pa.C.S.A. [§] 901(a);
18 Pa.C.S.A. [§] 6318(a)(1).
[Footnote 2] 18 Pa.C.S.A.
[§] 6318(a)(1); [18 Pa.C.S.A.
§ 3123(b);] 18 Pa.C.S.A. [§] 3121(c).
On January 14, 2016, [appellant] timely filed a
Motion for Reconsideration of Sentence, which was
denied by Operation of Law pursuant to
Rule 720(B)(3)(c) of the Pennsylvania Rules of
Criminal Procedure on May 17, 2016. On May 19,
2016, [appellant] timely filed the instant appeal to
the Superior Court of Pennsylvania. On June 6,
2016, this Court filed and served on [appellant] an
Order pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure, directing [appellant] to
file and serve a Statement of Errors Complained of
on Appeal within 21 days of the Court's Order. On
June 10, 2016, [appellant] timely filed a Preliminary
Concise Statement of Matters Complained of on
Appeal pursuant to Pa.R.App.P. 1925(b).
Trial court opinion, 9/21/16 at 1-2.
Appellant has raised the following issue for this court's review:
2
Appellant repeatedly raped the 9 -year -old victim, K.B., orally and vaginally
over a four -month period. (Notes of testimony, 1/8/16 at 6, 9, 21.)
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I. Whether [appellant]'s sentence was an abuse
of discretion as he was sentenced by the court
to 2-5 followed by 10-20 years consecutive for
an aggregate 12-25 years[?] The court did not
thoroughly consider [appellant]'s already
lengthy incarceration, attempts at
rehabilitation, his ability for rehabilitation,
strong work ethic, acceptance of responsibility
through a plea, acceptance of responsibility
through giving a statement to police, his
rehabilitative needs, very young age, mental
health issues noted in the presentence
investigation, own abuse as a child and that it
was his first offense.
Appellant's brief at 5 (capitalization deleted).3
3 We note that appellant's statement of the case contains argument, in
violation of Pa.R.A.P. 2117(b), which provides: "(b) All argument to be
excluded. The statement of the case shall not contain any argument. It is
the responsibility of appellant to present in the statement of the case a
balanced presentation of the history of the proceedings and the respective
contentions of the parties." (Appellant's brief at 9.) Furthermore,
appellant's summary of the argument states that, "[The trial court]
sentenced [appellant] well above the guidelines in a consecutive manner."
(Id. at 10.) This statement is demonstrably false, as set forth infra. In
fact, appellant's sentences, while run consecutively, were at or below the
mitigated range of the guidelines. We caution counsel that,
An attorney's obligation to the court is
one that is unique and must be
discharged with candor and with great
care. The court and all parties before
the court rely upon representations made
by counsel. We believe without
qualification that an attorney's word is
his bond.
LaSalle National Bank v. First Connecticut
Holding Group, L.L.C. XXIII, 287 F.3d 279, 293
(3d Cir. 2002) (quoting Baker Industries, Inc. v.
Cerberus, Ltd., 764 F.2d 204, 212 (3d Cir. 1985)).
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Preliminarily, we note that "there is no absolute right
to appeal when challenging the discretionary aspect
of a sentence." Commonwealth v. Ahmad, 961
A.2d 884, 886 (Pa.Super. 2008). An appellant must
first satisfy a four-part test to invoke this Court's
jurisdiction. We examine
(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. Griffin, 65 A.3d 932, 935
(Pa.Super. 2013) (citation omitted).
Commonwealth v. Schrader, 141 A.3d 558, 563 (Pa.Super. 2016).
Here, appellant filed a timely notice of appeal. He also filed a timely
post -sentence motion challenging the discretionary aspects of his sentence.
Appellant has included the requisite Rule 2119(f) statement in his brief.
(Appellant's brief at 7-8.) Therefore, we turn to whether appellant has set
forth a substantial question for this court's review.
"The determination of what constitutes a substantial
question must be evaluated on a case -by -case
basis." Commonwealth v. Edwards, 71 A.3d 323,
330 (Pa.Super. 2013) (citations omitted). "A
Great Valley School Dist. v. Zoning Hearing Bd. of East Whiteland
Tp., 863 A.2d 74, 79 (Pa.Cmwlth. 2004), appeal denied, 876 A.2d 398(Pa. 2005).
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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." Id. (citations
omitted). "Additionally, we cannot look beyond the
statement of questions presented and the prefatory
2119(f) statement to determine whether a
substantial question exists." Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012).
Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa.Super. 2016), appeal
denied, A.3d , 2016 WL 6246754 (Pa. 2016).
In his Rule 2119(f) statement, appellant argues that the trial court
failed to give adequate weight to mitigating factors, including his mental
health issues, his cooperation with police, and the fact that he was also a
victim of child sexual abuse. (Appellant's brief at 7.) Appellant claims that
his aggregate sentence of 12 to 25 years' imprisonment was manifestly
excessive and unreasonable. (Id. at 7-8.)
The trial court heard testimony from appellant and his family, as well
as argument from counsel, and was well aware of the mitigating evidence in
appellant's favor. (Notes of testimony, 1/8/16 at 9-23.) The trial court also
had the benefit of a pre -sentence investigation ("PSI") report. "[W]here the
sentencing judge had the benefit of a [PSI] report, it will be presumed that
he or she was aware of the relevant information regarding the defendant's
character and weighed those considerations along with mitigating statutory
factors." Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.
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2013), appeal denied, 85 A.3d 481 (Pa. 2014), quoting Commonwealth
v. Bricker, 41 A.3d 872, 876 n.9 (Pa.Super. 2012) (quotation and quotation
marks omitted); Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)
("It would be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at hand").
To the extent appellant argues that the trial court gave insufficient
weight to certain mitigating factors, including his mental health issues and
acceptance of responsibility, he fails to raise a substantial question of
inappropriateness. Commonwealth v. Lopez, 627 A.2d 1229 (Pa.Super.
1993) (allegation that sentencing court failed to attach sufficient weight to
mitigating factors of record does not present a substantial question);
Commonwealth v. Jones, 613 A.2d 587 (Pa.Super. 1992), appeal
denied, 629 A.2d 1377 (Pa. 1993) (arguments that sentencing court
improperly weighed various legitimate factors does not raise a substantial
question); Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa.Super.
1989) (an allegation that the trial court did not adequately consider certain
mitigating factors is, in effect, a request that this court substitute its
judgment for that of the trial court in fashioning appellant's sentence).
Indeed, each of appellant's sentences in this case was within the mitigated
range of the sentencing guidelines. (Notes of testimony, 1/8/16 at 8, 23;
trial court opinion, 9/21/16 at 5-6.) The trial court rejected the
Commonwealth's sentencing recommendation of 24 to 48 years'
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incarceration. (Notes of testimony, 1/8/16 at 12.) See Commonwealth v.
Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997) ("Generally, if the
sentence imposed falls within the sentencing guidelines, no substantial
question exists."), citing Commonwealth v. Johnson, 666 A.2d 690, 692
(Pa.Super. 1995); Commonwealth v. Mobley, 581 A.2d 949, 952
(Pa.Super. 1990) (claim that sentence failed to take into consideration the
defendant's rehabilitative needs and was manifestly excessive did not raise a
substantial question where sentence was within statutory guidelines and
within sentencing guidelines).
Similarly, appellant's argument that the trial court abused its
discretion by running his sentences consecutively fails to raise a substantial
question. The trial court concluded that consecutive sentences were
appropriate where there were separate criminal acts involving multiple
victims. (Notes of testimony, 1/8/16 at 22-23; trial court opinion, 9/21/16
at 7-8.) "In imposing a sentence, the trial judge may determine whether,
given the facts of a particular case, a sentence should run consecutive to or
concurrent with another sentence being imposed." Commonwealth v.
Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (citations omitted).
Long standing precedent of this Court recognizes
that 42 Pa.C.S.A. section 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. Commonwealth v. Graham, 541
Pa. 173, 184, 661 A.2d 1367, 1373 (1995). . . .
Any challenge to the exercise of this discretion
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ordinarily does not raise substantial question.
a
Commonwealth v. Johnson, 873 A.2d 704,
709 n.2 (Pa.Super. 2005); see also
Commonwealth v. Hoag, 445 Pa.Super. 455, 665
A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a
defendant is not entitled to a "volume discount" for
his or her crimes).
Commonwealth v. Mastromarino, 2 A.3d 581, 586-587 (Pa.Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011), quoting Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010). "[T]he key to
resolving the preliminary substantial question inquiry is whether the decision
to sentence consecutively raises 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." Id. at 587, quoting Gonzalez-Dejusus, supra.
The aggregate sentence of 12 to 25 years' imprisonment is neither
grossly disparate to appellant's conduct nor does it "viscerally appear as
patently 'unreasonable.' Id. at 589, quoting Gonzalez-Dejusus, supra.
We agree with the trial court that given the facts of the case, consecutive
sentences were warranted. In fact, as the Commonwealth observes, the
trial court exercised considerable leniency in imposing a below -guideline
sentence. (Commonwealth's brief at 10.) There is nothing to review here.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 4/6/2017
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