Com. v. Thomas, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEROY KENNETH THOMAS JR. :
:
Appellant : No. 1081 WDA 2022
Appeal from the Judgment of Sentence Entered October 25, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002243-2021
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: August 4, 2023
Appellant, Leroy Kenneth Thomas, Jr., appeals from the October 25,
2021 judgment of sentence1 entered in the Court of Common Pleas of
Allegheny County that imposed an aggregate sentence of 4 to 8 years’
incarceration to be followed by 3 years’ probation after Appellant pleaded
guilty to indecent assault – complainant is less than 13 years of age (Count
1) and unlawful contact with minor – sexual offenses (Count 3).2 We affirm.
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1 Appellant’s noticeof appeal purports to appeal from the August 16, 2022
order denying his post-sentence motion. “In a criminal action, appeal properly
lies from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa. Super. 2001), appeal denied, 800 A.2d 932 (Pa. 2002). The caption has
been corrected accordingly.
2 18 Pa.C.S.A. §§ 3126(a)(7) and 6318(a)(1), respectively.
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The trial court summarized the procedural history as follows:
On October 25, 2021, Appellant, [] at CP-02-CR-02243-2021
[(“CR-2243”)], pled guilty to [the aforementioned criminal
offenses. That same day, the trial court] sentenced Appellant to
an aggregate sentence of 4 to 8 years of incarceration, pursuant
to the plea agreement. Also on October 25, 2021, [the trial] court
found Appellant to have violated his probation at
CP-02-CR[-]09076-2013 [(“CR-9076”). The trial] court
resentenced Appellant [at CR-9076] to 7 to 20 years of
incarceration[, set to run consecutive[ly] to the term of
incarceration imposed at CR-2243. The trial court also imposed a
term of 3 years of probation, set to run consecutive[ly] to the term
of probation imposed at CR-2243. See N.T., 10/25/21, at 42.]
The post-sentence and appeal periods lapsed. On August 3, 2022,
[the trial] court granted Appellant's motion to reinstate
post-sentence and appellate rights [nunc pro tunc. Appellant filed
a post-sentence motion [nunc pro tunc] on August 12, 2022. The
trial] court denied Appellant's post-sentence motion[] on August
16, 2022.
Trial Court Opinion, 1/4/23, at 2 (extraneous capitalization omitted). This
appeal followed.3
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The trial court imposed a sentence of 2 to 4 years’ incarceration, to be followed
by 3 years of probation, on Count 1. Appellant was further ordered to comply
with all Tier III requirements under Pennsylvania’s Sexual Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 to
9799.42, which include lifetime registration with the Pennsylvania State
Police.
The trial court imposed a sentence of 2 to 4 years’ incarceration, to be followed
by 3 years of probation, on Count 3. The term of incarceration on Count 3
was set to run consecutively to the term of incarceration imposed on Count 1.
The term of probation on Count 3 was set to run concurrently to the term of
probation on Count 1.
3 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant raises the following issue for our review:
Is there a substantial question as to the discretionary aspects of
[Appellant’s] sentence [imposed at CR-2243] due to the trial
court’s sentence being manifestly unreasonable?
Appellant’s Brief at 4 (extraneous capitalization omitted).
Appellant’s issue challenges the discretionary aspects of his sentence,
arguing that the trial court abused its discretion when it imposed a manifestly
unreasonable sentence.4 Id. at 8.
It is well-settled that “the right to appeal [the] discretionary
aspect[s] of [a] sentence is not absolute.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where
an appellant challenges the discretionary aspects of a sentence,
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4 In its brief, the Commonwealth asserts that Appellant is precluded from
challenging the discretionary aspects of his sentence because he entered into
a plea agreement that included “a negotiated sentence.” Commonwealth’s
Brief at 5-6.
We agree, and it is well-established, that a defendant is not permitted to
challenge the discretionary aspects of his or her sentence when the negotiated
plea agreement includes “a sentence of specific duration” because to permit
such a challenge would “make a sham of the negotiated plea process[.]”
Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994), appeal
denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818 (1995).
Here, the record demonstrates that prior to entering his guilty plea, the trial
court reviewed the terms of the negotiated plea agreement with Appellant in
open court. N.T., 10/25/21, at 11. When the trial court inquired whether a
3-year term of probation was to be imposed at both Count 1 and Count 3, the
Commonwealth responded, “Your Honor, as to whether it’s [to be imposed at]
one count or two counts, that was not discussed by myself and [Appellant’s
counsel.]” Id. As such, we do not find Appellant’s negotiated plea agreement
included a “sentence of specific duration” thereby precluding Appellant, on this
ground, from raising a challenge to the discretionary aspects of his sentence.
Dalberto, 648 A.2d at 21.
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we should regard his[, or her,] appeal as a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162
(Pa. Super. 2007). As we stated in Commonwealth v. Moury,
992 A.2d 162 (Pa. Super. 2010):
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
[the] appellant [] 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 [the]
appellant's brief has a fatal defect, [see] 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).
[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis
whether a particular issue constitutes a substantial question about
the appropriateness of sentence. Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted), appeal denied, 220 A.3d 1066 (Pa. 2019). If an appellant
fails to challenge the discretionary aspects of a sentence either by presenting
a claim to the trial court at the time of sentencing or in a post-sentence
motion, then the appellant’s challenge is waived. Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc) (citation omitted),
appeal denied, 75 A.3d 1281 (Pa. 2013).
In determining whether a substantial question exists, this Court “cannot
look beyond the statement of questions presented and the prefatory Rule
2119(f) statement[.]” Commonwealth v. Christine, 78 A.3d 1, 10
(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015). The Rule 2119(f)
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statement “must explain where the sentence falls in relation to the sentencing
guidelines, identify what specific provision of the [Sentencing] Code [or] what
fundamental norm was violated, and explain how and why the [trial] court
violated that particular provision [or fundamental] norm.” Commonwealth
v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008), appeal denied, 963 A.2d
467 (Pa. 2008). While it is not necessary that the Rule 2119(f) statement
“provide elaborate factual and procedural details,” the statement must provide
more than “bald assertions or non-specific claims of error[. The Rule 2119(f)]
statement “must state the way in which the penalty imposed is inappropriate.”
Feucht, 955 A.2d at 384. A substantial question exists when an appellant
presents a colorable argument that the sentence imposed is either (1)
inconsistent with a specific provision of the Sentencing Code or (2) is “contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011).
Here, the record demonstrates that Appellant filed a timely notice of
appeal and properly preserved a challenge to the discretionary aspects of his
sentence in his post-sentence motion requesting that the trial court reconsider
the sentence imposed at CR-2243. In his Rule 2119(f) statement, Appellant
asserts,
The trial court abused its discretion in sentencing as [Appellant’s]
sentence was manifestly unreasonable. [Appellant’s] sentence
was contrary to the fundamental norms which underlie the
sentencing process and not consistent with the gravity of the
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offense, the need of the public for protection[,] and the
rehabilitative needs of [Appellant].
Appellant’s Brief at 8. In so arguing, we find that Appellant failed to raise a
substantial question. Appellant makes nothing more than a bald assertion
that his sentence was manifestly unreasonable and parrots the general
standards to be applied by a trial court in fashioning a sentence, as outlined
in Section 9721(b) of the Sentencing Code, to explain why his sentence is
manifestly unreasonable. Id.; see also 42 Pa.C.S.A. § 9721(b) (stating, “the
court shall follow the general principle that the sentence imposed should call
for total confinement that is consistent with section 9725 (relating to total
confinement) and 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”). Appellant failed to explain where his
sentence falls in relation to the sentencing guidelines, to identify what
fundamental norm, or Sentencing Code provision, was violated, and to explain
how and why the trial court violated that particular fundamental norm, or
provision.5 See Feucht, 955 A.2d at 384. Because Appellant failed to present
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5 To the extent that Appellant asserts his sentence was manifestly
unreasonable because the trial court failed to consider his rehabilitative needs
(see Appellant’s Brief at 12 (Argument Section)), this Court in
Commonwealth v. Grifflin, 65 A.3d 932, 936-937 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013) set forth ample precedent to support a
determination that Appellant’s assertion fails to raise a substantial question.
See Grifflin, 65 A.3d at 936-937. We rely on Grifflin, supra, and the
precedent set forth therein, to find that Appellant failed to raise a substantial
question.
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Moreover, insomuch as Appellant asserts his sentence was manifestly
unreasonable because the trial court failed to run the sentence imposed at
CR-2243 concurrently with the sentence imposed for his probation violation at
CR-9076, we find this assertion does not raise a substantial question.
“Pennsylvania law affords the [trial] 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. Austin, 66 A.3d
798, 808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013); see
also 42 Pa.C.S.A. § 9721(a) (stating that, a trial court may order sentences
to run consecutively or concurrently). “Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question.” Austin, 66 A.3d
at 808 (original quotation marks omitted). As this Court has long-held, an
appellant is not entitled to a “‘volume discount’ for his crimes by having all
sentences run concurrently.” Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa. Super. 1995). “[T]he 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.”
Lamonda, 52 A.3d at 372. The “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.” Austin, 66 A.3d at 808(citation omitted).
Here, the trial court, at CR-2243, sentenced Appellant to an aggregate
sentence of 4 to 8 years’ incarceration to be followed by 3 years’ probation for
the aforementioned convictions. The aforementioned convictions are similar
to the crimes Appellant pled guilty to at CR-9076. See N.T., 10/25/21, at 7
(explaining that, Appellant pled guilty at CR-9076 to involuntary deviate
sexual intercourse with a child, indecent assault, and sexual assault). As a
result of Appellant’s probation violation at CR-9076, the trial court sentenced
Appellant to an aggregate sentence of 7 to 20 years’ incarceration to be
followed by 3 years’ probation. The term of incarceration at CR-9076 was set
to run consecutively to the term of incarceration at CR-2243. As such,
Appellant’s overall aggregate sentence was 11 to 28 years’ incarceration to be
followed by 6 years of probation.
Appellant’s assertion that his sentence was manifestly unreasonable because
the sentences imposed at CR-9076 and CR-2243 were set to run consecutively
and not concurrently is merely a request by Appellant to receive a “volume
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a substantial question, we are without jurisdiction to address the merits of his
underlying claim that his sentence was manifestly unreasonable.
In the argument section of his appellate brief, Appellant asserts that the
trial court failed to give him “credit for time served prior to the probation
revocation.” Appellant’s Brief at 13. This assertion, raising a challenge to the
trial court’s failure to award credit for time served, presents a legality of
sentence claim that cannot be waived and may be raised sua sponte by this
Court. Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018);
see also Commonwealth v. Hills, 238 A.3d 399, 407 (Pa. 2020). Issues
relating to the legality of a sentence are questions of law for which our
standard of review is de novo and our scope of review is plenary. Gibbs, 181
A.3d at 1166.
Section 9760 of the Sentencing Code, governing how a trial court applies
credit for time served, states, in pertinent part,
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of
the criminal charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
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discount” on the two cases both of which involved Appellant committing
heinous sexual offenses against child-victims. Thus, in light of the criminal
conduct at issue in both cases, and the length of incarceration, we conclude
that the trial court’s imposition of a sentence at CR-2243 set to run
consecutively to the sentence at CR-9076 does not raise a substantial
question.
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42 Pa.C.S.A. § 9760(1).
Our Supreme Court in Gaito v. Pennsylvania Bd. of Probation and
Parole, 412 A.2d 568 (Pa. 1980) set forth rules governing the award of credit
for time served when a defendant has been detained both for a parole or
probation violation and prior to trial on new criminal charges. In relevant part,
Gaito states:
if a defendant is being held in custody solely because of a detainer
lodged by the [Pennsylvania Board of Probation and Parole] and
has otherwise met the requirements for bail on the new criminal
charges, the time which he spent in custody shall be credited
against his original sentence. If a defendant, however, remains
incarcerated prior to trial because he [] failed to satisfy bail
requirements on the new criminal charges, then the time spent in
custody shall be credited to his new sentence.
Gaito, 412 A.2d at 571 (emphasis in original). While the nuances of awarding
credit for time served can be daunting, the hallmark principles in awarding
such credit remain as follows: (1) that pursuant to Section 9760, a defendant
must be awarded credit for time served, and (2) that credit for time served
may only be awarded once. See 42 Pa.C.S.A. § 9760(1); see also
Commonwealth v. Hollawell, 604 A.2d 723 (Pa. Super. 1992) (stating that,
Pennsylvania courts do not deal in “volume discounts” and a defendant may
not receive a “windfall” on sentencing by having credit for time served
awarded more than once).
Here, the record demonstrates that, at CR-2243, Appellant was arrested
on the aforementioned criminal charges, and bail was set on March 16, 2021.
Because Appellant failed to post bail, he remained incarcerated as a result of
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these new charges from March 17, 2021, until October 25, 2021, a total of
223 days. On October 25, 2021, the trial court sentenced Appellant at
CR-2243 as discussed supra. That same day, the trial court found that
Appellant violated his probation and resentenced him at CR-9076 as discussed
supra. The term of incarceration imposed at CR-9076 (7 to 20 years’
incarceration) was set to run consecutively to the term of incarceration
imposed at CR-2243 (4 to 8 years’ incarceration). In other words, Appellant
was ordered to serve 4 to 8 years’ incarceration to be followed by 7 to 20
years’ incarceration for an aggregate of 11 to 28 years’ incarceration. The
trial court credited Appellant with 223 days for time served towards the
sentence imposed at CR-2243. Thus, the trial court correctly awarded credit
for the 223 days of time served towards Appellant’s sentence imposed on the
aforementioned criminal convictions in the case sub judice because he was
incarcerated pending trial on these new charges and was unable to post bail.
Gaito, 412 A.2d at 571.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2023
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