Com. v. Melton, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYHEEM MELTON :
:
Appellant : No. 186 EDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006840-2015
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED JULY 14, 2021
Tyheem Melton appeals nunc pro tunc from his judgment of sentence of
twenty-five to fifty years of imprisonment. We affirm.
In 2012, Appellant, who was prohibited from possessing a firearm based
upon a prior conviction, brandished a semiautomatic weapon and fired
multiple shots at a rival drug dealer at a bar where the two both engaged in
their trade. The rival was killed, as was an innocent bystander. Appellant
absconded and evaded arrest for two years until he was detained in Tennessee
in 2014.
Upon return to Philadelphia, Appellant negotiated an agreement
pursuant to which he entered nolo contendere pleas to two counts of third-
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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degree murder and possession of a firearm prohibited in exchange for the
dismissal of the remaining charges and an aggregate sentence no lower than
twenty to forty years, but with the Commonwealth’s abstention from invoking
the statute requiring a sentence of life imprisonment without possibility of
parole for the second murder conviction. See Commonwealth v.
Thompson, 106 A.3d 742, 761 (Pa.Super. 2014) (holding sentence of life
without parole for second conviction of third-degree murder is mandated by
42 Pa.C.S. § 9715 even when both convictions arose in the same case from
the same incident). The trial court accepted the plea and on November 23,
2016, imposed two concurrent terms of twenty to forty years for the murder
convictions and a consecutive five to ten years for the firearms conviction.
Appellant filed no post-sentence motion or direct appeal.
Through a timely petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), Appellant obtained the reinstatement of his direct appeal rights, but
not his right to file post-sentence motions. On appeal from that order, this
Court remanded the case “to the trial court to reinstate Appellant's post-
sentence and direct appeal rights nunc pro tunc to provide Appellant with an
opportunity to litigate in post-sentence motions those issues requiring
preservation in the trial court.” Commonwealth v. Melton, 240 A.3d 116(Pa.Super. 2020) (non-precedential decision at 10) (emphasis in original).
Back in the trial court, Appellant filed a post-sentence motion seeking
the withdrawal of his plea or reconsideration of his sentence. He ultimately
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abandoned the first claim, and the trial court denied the second. Appellant
then filed the instant appeal and complied with the trial court’s order to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
This Court, observing that the trial court had never entered the order
reinstating Appellant’s post-sentence and direct appeal nunc pro tunc,
directed it to do so and provide a copy to this Court. The trial court complied,
the parties have filed their briefs, and the appeal is ripe for adjudication.
Appellant presents one question for our review:
Whether the Court erred when it denied the Appellant’s post
sentence motion for reconsideration of sentence when the
sentencing court had some discretion as to the length of the
sentence and where there was a substantial question as to the
sentence because it was unduly harsh and excessive under the
circumstances and contrary to the norms underlying the
Sentencing Code?
Appellant’s brief at 6 (unnecessary capitalization omitted).
Appellant seeks to challenge the discretionary aspects of his sentence.
The following legal principles govern our consideration of his claim:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
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Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (internal
quotation marks omitted).
Appellant filed a timely notice of appeal and preserved the issue in his
nunc pro tunc post-sentence motion seeking reconsideration of his sentence.
Appellant’s brief contains a statement of reasons relied upon for his challenge
to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).
Thus, we consider whether Appellant has raised a substantial question.
Appellant avers that the aggregate sentence is unreasonable and
excessive in light of the conduct at issue, and that the trial court “did not
utilize and give due weight to the factors set forth in the Sentencing Code.”
See Appellant’s brief at 8. We conclude that Appellant has raised substantial
questions. See, e.g., Commonwealth v. White, 193 A.3d 977, 983
(Pa.Super. 2018) (noting “that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question”). Therefore, we proceed to consider the merits of his
claim.
It is well established that, “[w]hen reviewing sentencing matters, this
Court must accord the sentencing court great weight as it is in the best
position to view the defendant’s character, displays of remorse, defiance or
indifference, and the overall effect and nature of the crime.” Commonwealth
v. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot
re-weigh the sentencing factors and impose our judgment in the place of the
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sentencing court.” Commonwealth v. Macias, 968 A.2d 773, 778
(Pa.Super. 2009). Accordingly, we review the sentence for an abuse of the
trial court’s 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
While its discretion is broad, “the trial court’s discretion is not
unfettered.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super.
2011). “When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant. In
considering these factors, the court should refer to the defendant’s prior
criminal record, age, personal characteristics and potential for rehabilitation.”
Antidormi, supra at 761 (citations and quotation marks omitted). “And, of
course, the court must consider the sentencing guidelines.” Coulverson,
supra at 144 (cleaned up). The sentence “should call for confinement that is
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.” 42 Pa.C.S. § 9721(b).
Appellant acknowledges that the trial court’s sentence did not violate
the law or the plea agreement. His argument is that the trial court’s imposition
of a sentence beyond the minimum allowed by the plea agreement was an
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abuse of discretion given Appellant’s “mental health and intellectual deficits,”
his acceptance of responsibility, and his rehabilitative needs. Appellant’s brief
at 22.
The trial court addressed Appellant’s sentencing challenge as follows:
Here, in fashioning an appropriate sentence, the court
explicitly considered everything presented during the course of
the case, including the sentencing guidelines, [Appellant]’s
psychosocial history report and neuropsychology report,
sentencing memoranda from both sides, and the accompanying
exhibits provided by the defense. The court also considered the
statements from the victims’ families, the mitigating statements
on behalf of [Appellant], and [Appellant]’s own statement. The
court took into account the acceptance of responsibility shown by
[Appellant] through his nolo contendere plea. The court explicitly
considered the required statutory sentencing factors, including
[Appellant]’s rehabilitative needs. In addition, the court
delineated and weighed both the mitigating and aggravating
factors in the case.
Under the negotiated plea agreement, the Commonwealth
and [Appellant] agreed to a minimum sentence of 20 to 40 years
incarceration. In addition, the Commonwealth agreed not to seek
the mandatory minimum sentence of life in prison without parole,
which otherwise would have applied as a result of [Appellant]’s
plea to two counts of third degree murder. [Appellant]’s
maximum exposure under the agreement[, which is what the
Commonwealth requested,] was 45-90 years incarceration, for
two counts of third degree murder (20 to 40 years each) and one
count of possession of a firearm by a prohibited person (5 to 10
years).
The court’s aggregate sentence was 25 to 50 years
incarceration, only 5 to 10 years higher than the minimum agreed
upon sentence, and 20 to 40 years less than the maximum. Both
the court’s sentences for third degree murder (20 to 40 years)
and firearm possession (5 to 10 years) were within the standard
range of the Sentencing Guidelines. The court allowed the 20 to
40 year sentences for third degree murder to run concurrently,
and only imposed a consecutive sentence of 5 to 10 years for
possession of a firearm by a prohibited person.
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The sentences imposed by the court were manifestly
reasonable. Moreover, the magnitude of [Appellant]’s criminal
behavior established by the record demonstrates that the court
was well within its discretion in running the firearms sentence
consecutive to the murder sentences in this case. [Appellant],
who had a history of violence and was prohibited from owning a
firearm, brought his gun to a crowded bar to confront a drug rival.
[Appellant] killed two people, one of whom was unquestionably an
innocent bystander. [Appellant] then fled Philadelphia and evaded
arrest for over two years until he was found in Tennessee after
being stopped for a traffic violation. [Appellant] is extraordinarily
fortunate not to be serving sentence of life in prison without parole
for this conduct.
Given the level of criminal conduct demonstrated by the
evidence, the aggregate sentence imposed by the Court was fully
justified and fair to [Appellant]. Because there is no basis to
[Appellant]’s claim that the sentence was unduly harsh or
excessive under the circumstances, it should not be disturbed.
Trial Court Opinion, 2/12/21, at 4-6 (citations, footnotes, and unnecessary
capitalization omitted).
We agree. Our review of the record belies Appellant’s claims that his
sentence is excessive and entered without consideration of mitigating factors.
First, because the court considered a presentence investigation report, we
presume that it properly considered and weighed all relevant sentencing
factors. See, e.g., Commonwealth v. Kitchen, 162 A.3d 1140, 1147
(Pa.Super. 2017). Furthermore, the trial court expressly acknowledged the
mitigating factors on the record before imposing the sentence. See N.T. Plea
and Sentencing, 11/23/2016, at 85-86 (reiterating mitigating factors). The
trial court observed that the statutory maximum sentence for each of the
crimes actually fell within the standard guideline sentencing range for
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Appellant. In consideration of the guidelines as well as the mitigating
evidence, the trial court concluded that the standard range sentences were
warranted, but gave Appellant the benefit of concurrent sentences for the
murder convictions.
While Appellant may have preferred to receive the minimum sentence
available pursuant to the plea agreement, he has failed to convince us that
the equally-permissible, standard-range sentence he did receive came about
because “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.” Antidormi, supra at 760. Appellant has
not established that the sentencing court abused its discretion, and no relief
is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2021
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