Com. v. Islam, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ASHRAFUL ISLAM :
:
Appellant : No. 2330 EDA 2020
Appeal from the Judgment of Sentence Entered July 21, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001689-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MAY 28, 2021
Appellant, Ashraful Islam, appeals from the judgment of sentence
entered on July 21, 2020, as made final by the denial of Appellant’s
post-sentence motion on November 17, 2020. We affirm.
The trial court ably summarized the underling facts of this case:
On January 21, 2019, at approximately 5:17 a.m., Upper
Gwynedd Township Police responded to [a particular
address,] due to a report of domestic violence. The caller,
A.N., is the daughter of [Appellant] and his wife, [D.I.
(hereinafter “the Victim”)], and [A.N.] met police outside the
residence upon their arrival. A.N. indicated that she had been
awaked approximately [20] minutes prior to their arrival by
the sound of her parents arguing. A.N. explained that she
went to her parents’ bedroom and found [Appellant] choking
[the Victim] while positioned on top of her in bed. A.N. stated
that while [Appellant] was choking [the Victim], she heard
[the Victim] say “air, air, air” as if to indicate that she was
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* Retired Senior Judge assigned to the Superior Court.
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unable to breathe. A.N. directed [Appellant] to stop and [the
Victim] instructed [A.N.] to contact the police.
As the responding officer stood outside the residence, he
could hear yelling emanating from inside. Another officer
arrived on the scene and both officers subsequently entered
the residence. The officers encountered [Appellant] on the
second floor as he was yelling at [the Victim]. [The Victim]
was located in the bedroom and was sobbing and sitting at
the foot of the bed. [The Victim] informed the officers she
was not injured but one of the officers observed a fresh
laceration on her left eyelid which was bleeding slightly. [The
Victim] would not respond to questions regarding her injury
and the officers did not observe any additional injuries on her
person. The officers asked A.N. what she witnessed and she
explained that [Appellant] was “over top of [the Victim]” and
had “his hand[s] on her throat” as she said “air, air, air.” A.N.
also said that [the Victim] did kick [Appellant], but only to
get him away from her.
One of the officers asked [Appellant] what had occurred and
he explained how he had argued with [the Victim] regarding
A.N. and how she did not come home on Friday night.
[Appellant] stated that he had woken up and wished to
discuss the matter with [the Victim], so he grabbed her by
the wrist to get her up. [Appellant] later indicated [the
Victim] had kicked him in his knee from a lying position when
he was standing at the side of the bed and had told him to
go to work. When asked if he [were] on top of [the Victim]
at any point or if he had struck her, [Appellant] repeatedly
stated he only grabbed her wrist, but at the same time
motioned with his hands in a pushing motion. In response to
questions about the pushing motion, [Appellant] initially
denied pushing [the Victim], but eventually admitted doing
so and telling her to go back to bed. [Appellant] said he only
did this after she had kicked him. The officer questioning
[Appellant] informed him that this was not consistent with
how he had previously explained the position from which [the
Victim] had kicked him.
The officer asked [Appellant] how [the Victim] received the
cut on her face and he responded that it was possibly from
when he pushed her away. [Appellant] stated he had only
grabbed her wrist and pushed her after being kicked by her.
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When the officer informed [Appellant] that A.N. had
witnessed him choking [the Victim], [Appellant] denied his
daughter's description of the event and indicated he may
have thrown a blanket over [the Victim]. The officer
confronted [Appellant] with A.N.’s claim that [the Victim] was
yelling “air, air, air” during the incident, and [Appellant]
responded that she was not saying “air.” When asked what
he believed [the Victim] was saying, [Appellant] could not
provide an explanation. The officer told [Appellant] about
[the Victim’s] instruction to A.N. to call the police, and
[Appellant] confirmed this had occurred but had no
explanation as to why police intervention would be necessary
if the incident [were] as minor as he had described.
Authorities subsequently took [Appellant] into custody.
Trial Court Opinion, 1/20/21, at 1-3.
Following a bench trial, the trial court found Appellant guilty of simple
assault and unlawful restraint.1 On July 21, 2020, the trial court sentenced
Appellant to serve two years of probation for the simple assault conviction and
to serve a consecutive term of two years of probation for the unlawful restraint
conviction. N.T. Sentencing, 7/21/20, at 15. The trial court thus imposed an
aggregate sentence of four years of “telephone reporting probation in which
[Appellant] would potentially be eligible for nonreporting probation provided
he did not have any issues during the first [two] years of his supervision.”
Trial Court Opinion, 1/20/21, at 3.
On July 28, 2020, Appellant filed a timely post-sentence motion, where
he sought reconsideration of his sentence. Within the motion, Appellant
claimed that his sentence was excessive because:
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1 18 Pa.C.S.A. §§ 2701(a)(1), and 2902(a)(1), respectively.
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1. [Appellant] is 58 years old with a Prior Record Score
[“PRS”] of 0.
2. During the course of his case he has fully complied with all
the terms and conditions of his bail and incurred no bench
warrants.
3. Though this has been difficult for him, as he still loves his
family and wishes to return to a state of normalcy, he has
abided by all the requirements the justice system has
imposed on him.
4. [Appellant] served four days in jail because of his arrest
on this matter. This situation caused him to re-evaluate his
life circumstances and the circumstances that led to his
arrest.
5. He takes the incident that occurred very seriously, and
understands that a violation of his supervision will result in
further, much lengthier, incarceration.
6. [Appellant] is well-liked and well-regarded by many
members of the community who know him well. Many of
them were present to support him at sentencing and provided
letters regarding [Appellant’s] character.
7. [Appellant] also has significant medical issues, including
diabetes which has halted his recovery from what would
otherwise be minor injuries.
8. He is not a danger to the community, as evidenced by his
PRS of 0, his age, his medical issues, and the many people
who came to support him at his sentencing.
9. There is every reason to believe that [Appellant] will
successfully complete his supervision without any issues.
Nonetheless, it is respectfully submitted that four years of
probation is too lengthy a period of supervision given his very
limited criminal history, his age, and his medical problems.
10. [Appellant’s] sentence also included an order to stay
away from the victim in this case, his wife.
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11. Four years of having no contact with his wife will lead to
tremendous hardship and emotional turmoil for [Appellant].
12. [Appellant] is currently disabled and staying at a friend’s
house. He uses his disability money to pay the mortgage on
the house he owns, which is where his wife lives.
13. [Appellant] feels that this situation is untenable for
another four years.
14. [Appellant] respectfully requests that the [c]ourt consider
reducing the total length of his probation given all of the
aforementioned circumstances.
Appellant’s Post-Sentence Motion, 7/28/20, at 2-4.
The trial court denied Appellant’s post-sentence motion on November
17, 2020 and Appellant filed a timely notice of appeal. Appellant raises two
claims on appeal:
Was [Appellant’s] aggregate sentence of four years [of]
probation manifestly excessive pursuant to 42 Pa.C.S.A.
§ 9721(b) where:
[1.] Studies show that the impact and effectiveness of
supervision decreases after two years when most
re-offenses are likely to occur[?]
[2.] Appellant had a Prior Record Score of 0, incurred no
bench warrants or new arrests through the life of the case
and abided by the terms of bail for more than one year[?]
Appellant’s Brief at 3.
Appellant’s claims on appeal challenge the discretionary aspects of his
sentence. “[S]entencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001). Pursuant to statute, Appellant does not have an automatic right to
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appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach 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, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
First, Appellant claims that his sentence is manifestly excessive because
“[s]tudies show that the impact and effectiveness of supervision decreases
after two years when most re-offenses are likely to occur.” Appellant’s Brief
at 3. Appellant did not raise this claim before the trial court. Therefore,
Appellant waived his first claim on appeal. Commonwealth v. Cartrette, 83
A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived”) (quotations and citations omitted).
Next, Appellant claims that his aggregate sentence of four years of
probation is excessive, as he “had a Prior Record Score of 0, incurred no bench
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warrants or new arrests through the life of the case and abided by the terms
of bail for more than one year.” Id. Appellant preserved this claim by raising
it in his post-sentence motion and in his Rule 2119(f) concise statement. We
must now determine whether Appellant's claim presents a “substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge's actions were: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. McKiel,
629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). Additionally, in determining whether an appellant has raised a
substantial question, we must limit our review to Appellant's Rule 2119(f)
statement. Goggins, 748 A.2d at 726. This limitation ensures that our
inquiry remains “focus[ed] on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary only to decide
the appeal on the merits.” Id. at 727 (emphasis omitted).
Appellant’s claim essentially contends that his sentence is excessive
because the trial court failed to consider certain mitigating circumstances.
Under our precedent, Appellant’s claim presents a substantial question, thus
permitting our review. See Commonwealth v. Johnson, 125 A.3d 822, 826
(Pa. Super. 2015) (“an excessive sentence claim – in conjunction with an
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assertion that the court failed to consider mitigating factors – raises a
substantial question”).2
We have explained:
sentencing is vested in the discretion of the trial court, and
will not be disturbed absent a manifest abuse of that
discretion. An abuse of discretion involves a sentence which
was manifestly unreasonable, or which resulted from
partiality, prejudice, bias or ill will. It is more than just an
error in judgment.
Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009) (quotations
and citations omitted).
Appellant claims that the trial court failed to adequately consider the
fact that his prior record score was zero, that he incurred no new arrests
during the pendency of his case, and that he “abided by the terms of bail for
more than one year.” See Appellant’s Brief at 3. This claim fails because,
during Appellant’s sentencing hearing, the trial court expressly stated that it
considered the pre-sentence investigation report. See N.T. Sentencing,
7/21/20, at 4. Given this fact, we must “presume that the sentencing judge
was aware of relevant information regarding [Appellant's] character and
weighed those considerations along with mitigating statutory factors.”
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2 We note that we have also “held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (quotations, citations, and corrections omitted); see also
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)
(collecting cases). Nevertheless, in light of our conflicting precedent, we will
review the merits of Appellant's discretionary aspects of sentencing claim.
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Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, during
sentencing, the trial court expressly stated that Appellant’s prior record score
was zero and Appellant’s counsel reiterated that Appellant “incurred no bench
warrants throughout the life of this case, no new arrests[,] . . . [and Appellant]
did not in any way violate the terms and conditions of his bail.” N.T.
Sentencing, 7/21/20, at 3 and 7.
Simply stated, there is no evidence to rebut the presumption that “the
sentencing judge was aware of relevant information regarding [Appellant's]
character and weighed those considerations along with mitigating statutory
factors.” Devers, 546 A.2d at 18. Thus, Appellant’s claim on appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
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