Com. v. Fulton, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFERY FULTON :
:
Appellant : No. 2683 EDA 2022
Appeal from the Judgment of Sentence Entered November 9, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004723-2019
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 11, 2023
Jeffrey Fulton appeals from the judgment of sentence imposed after he
pled guilty to multiple offenses arising from fleeing a police pursuit. Upon
review, we affirm.
On May 23, 2019, Philadelphia Police Officers Gillian and Small were on
patrol and saw a gray Subaru Forester traveling on Montgomery Street. They
conducted a NCIC/PCIC check which indicated that that the vehicle was stolen.
The officers attempted to stop the vehicle, but the driver refused to pull over.
After approximately 32 blocks, these officers ended their pursuit, but
other Philadelphia police officers continued to pursue the vehicle. The vehicle
was riding on its rim and headed east on Oxford Street. Meanwhile, Officer
Bernetti was driving west on Oxford when he stopped at a green light at the
intersection of 24th Street and Oxford to allow a pedestrian to cross the street.
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Fulton, who had not pulled over and was still running from the police, struck
Officer Bernetti's vehicle.
Officers Holmes and Ruth approached the scene and observed Fulton
trying to put the vehicle in reverse and revving the engine in an attempt to
flee again. Ultimately, the officers were able to secure Fulton and take him
into custody. Fulton was charged with multiple offenses.
On January 17, 2020, Fulton pled guilty to possessing an instrument of
crime (“PIC”), simple assault, receiving stolen property, unauthorized use of
a motor vehicle, and fleeing or attempting to elude a police officer.1
On November 9, 2020, the trial court sentenced Fulton to an aggregate
term of incarceration of 4 to 9 years’ incarceration as follows: simple assault
- 1 to 2 years, to run consecutive to, unauthorized use motor/other vehicles -
1 to 2 years, to run consecutive to, fleeing or attempting to elude an officer -
2 to 5 years, PIC - 3 years’ probation, and receiving stolen property - no
sentence.
On November 20, 2020, Fulton filed a post-sentence motion which the
trial court denied. No appeal was filed at that time.
On October 7, 2022, following an amended Post-Conviction Relief Act2
petition, Fulton’s appeal rights were reinstated. Fulton filed this timely appeal.
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1 18 Pa.C.S.A. §§ 907(a), 2701(a), 3925(a), 3928(a), and 75 Pa.C.S.A. §
3733(a).
2 42 Pa.C.S.A. §§ 9541-9546.
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Fulton challenges the discretionary aspects of his sentence claiming that
it was unduly harsh and excessive. Fulton’s Brief at 7. “It is well settled that,
with regard to the discretionary aspects of sentencing, there is no automatic
right to appeal.” Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.
Super. 2013) (citation omitted). This Court has explained that, to reach the
merits of a discretionary sentencing issue, we must conduct a four-part
analysis of the following factors to determine whether the appeal is proper:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant'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 Austin, 66 A.3d at 808).
Fulton timely filed his appeal after reinstatement of his rights; therefore,
he satisfied the first requirement under Colon. However, upon review of the
record, we observe that Fulton did not properly preserve his sentencing claim.
To adequately preserve a discretionary sentencing claim, the defendant must
present the issue in either a post-sentence motion or raise the claim during
the sentencing proceedings. Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006). Fulton did not raise his claim during the sentencing
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proceedings. And although Fulton filed a post-sentence motion and raised the
substance of his claim therein, the motion was untimely.
Pennsylvania Rule of Criminal Procedure 720(A)(1) provides that “a
post-sentence motion shall be filed no later than 10 days after imposition of
sentence.” Here, Fulton was sentenced on November 9, 2020. Therefore,
Fulton had to file his post-sentence motion by November 19, 2020, but he
filed it on November 20, 2020, a day late. This Court has held that “[a]n
untimely post-sentence motion does not preserve issues for appeal.”
Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa. Super. 2007) (citation
omitted).
Fulton did not ask to file the motion nunc pro tunc. That the trial court
addressed the merits of Fulton’s late post-sentence motion is no substitute for
an order expressly granting nunc pro tunc relief. See Commonwealth v.
Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Furthermore, Fulton did not
ask to reinstate his post-sentence motion rights in his PCRA petition.
Consequently, because Fulton failed to preserve this issue for appeal, he did
not meet the second requirement under Colon, and we cannot review his
sentencing claim.
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Nevertheless, even if Fulton had properly preserved his issue and
satisfied the remaining requirements under Colon, we would conclude that
the trial court did not abuse its discretion when it sentenced Fulton.3
Fulton claims that his sentence was unduly harsh and excessive. He
argues that the trial court failed to consider his mitigating circumstances and
rehabilitative needs.4 In particular, he argues that the court did not consider
his traumatic childhood, drug addiction, efforts to get treatment, employment,
____________________________________________
3 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).
4 We note that in his Rule 2119(f) statement, Fulton also claims that the trial
court failed to state the reasons for its lengthy sentence and sentence him
within the guidelines. However, he did not develop these issues in the
argument section of his brief and therefore would find them to be waived.
See Commonwealth v. Johnson, 985 A.2d 915, 924-25 (Pa. 2009) (stating
that “where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority[,] or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived. It is not the
obligation of this Court, ... to formulate [an a]ppellant's arguments for him.”
(citations omitted)).
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acceptance of responsibility by pleading guilty, and his wife’s illness. Fulton’s
Brief at 11, 14.
Upon review of the record, we observe that the trial court had a pre-
sentence investigation report (“PSI”) and reviewed it. N.T., 10/24/2211/9/20,
at 4. It is well-settled that where a sentencing court is informed by a PSI, “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) (citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988)). The court also had Fulton’s mental health evaluation. Additionally,
Fulton highlighted for the court the same factors that he now claims the court
failed to consider—his childhood trauma, substance abuse, mental illness,
employment, work injury, and wife’s diagnosis. Further, during his allocution,
Fulton apologized for his conduct and told the court that he was receiving
treatment while at Camp Hill and doing better.
It is evident that the trial court was aware of these factors and
considered them. However, the court did not accord them the weight that
Fulton believes it should have. 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).
Consequently, even if preserved, Fulton’s sentencing claim would fail.
Judgment of sentence affirmed.
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Date: October 11, 2023
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