Com. v. Nevius, J. ( 2024 )

J-S38029-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN NEVIUS :
:
Appellant : No. 99 EDA 2024
Appeal from the Judgment of Sentence Entered November 22, 2023
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0004098-2021
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY BECK, J.: FILED NOVEMBER 27, 2024
Justin Nevius (“Nevius”) appeals from the judgment of sentence
imposed by the Lehigh County Court of Common Pleas (“trial court”) following
his convictions of third-degree murder and persons not to possess a firearm. 1
On appeal, Nevius challenges the discretionary aspects of his sentence. We
affirm.
On October 12, 2021, Nevius was driving southbound on Seventh Street
near Tilghman Street in Allentown, Pennsylvania, when another driver, Kippy
Reco Henry (“Henry”) cut Nevius off. After a verbal exchange, Nevius started
following Henry down nearby side streets. Subsequently, Nevius pulled
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(c), 6105(a)(1).
J-S38029-24
alongside Henry and fired multiple shots into Henry’s vehicle before driving
away. Police officers responded to a report of shots fired and found Henry
suffering from multiple bullet wounds. Henry was transported to hospital, and
eventually died as a result of his injuries.
Police arrested Nevius and charged him with criminal homicide and
persons not to possess a firearm. On May 3, 2023, Nevius entered an open
guilty plea to third-degree murder and persons not to possess a firearm.
Ultimately, the trial court sentenced Nevius to an aggregate term of thirty to
sixty years in prison, followed by twelve months of probation. 2 Nevius filed a
post-sentence motion, which the trial court denied.
Nevius timely appealed. On January 3, 2024, the trial court directed
Nevius to file a Pa.R.A.P. 1925(b) concise statement within twenty-one days.
Nevius filed a Rule 1925(b) statement on January 25, 2024.
On appeal, Nevius challenges the discretionary aspects of his sentence,
claiming that the trial court failed to properly consider mitigating factors, and
____________________________________________
2 Specifically, the trial court sentenced Nevius to twenty to forty years in prison
followed by twelve months of probation for the third-degree murder conviction
and a consecutive sentence of ten to twenty years in prison for the firearm
conviction. The sentence for the firearm conviction is the statutory maximum
for a first-degree felony. 18 Pa.C.S. § 1103(1).
-2-
J-S38029-24
failed to set forth reasons for the firearm sentence, which was above the
aggravated range.3 See Nevius’ Brief at 4.
Prior to addressing the claim raised, we must first decide whether the
untimely filing of Nevius’ Pa.R.A.P. 1925(b) concise statement results in
waiver of his appellate issues. Regarding to untimely filed concise statements,
Pa.R.A.P. 1925(c)(3) states the following:
If an appellant represented by counsel in a criminal case was
ordered to file and serve a Statement and either failed to do so,
or untimely filed or served a Statement, such that the appellate
court is convinced that counsel has been per se ineffective, and
the trial court did not file an opinion, the appellate court may
remand for appointment of new counsel, the filing or service of a
Statement nunc pro tunc, and the preparation and filing of an
opinion by the judge.
Pa.R.A.P. 1925(c)(3).
Here, although Nevius filed an untimely statement, we need not remand
for the appointment of new counsel or the filing and service of a statement
nunc pro tunc because Nevius’s counsel “filed a Rule 1925 concise statement
setting forth the alleged error, and the trial court has filed an opinion
addressing the issue presented in the 1925(b) concise statement.”
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009).
Accordingly, we will consider Nevius’ discretionary aspects of sentencing
challenge. See id.____________________________________________
3 We note that when a defendant enters an open guilty plea, he may challenge
the discretionary aspects of the sentence imposed. See Commonwealth v.
Brown, 240 A.3d 970, 972 (Pa. Super. 2020).
-3-
J-S38029-24
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Baker, 311 A.3d 12, 18 (Pa.
Super. 2024) (citation omitted). To invoke this Court’s jurisdiction, the
appellant must satisfy a four-part test:
(1) The appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of his appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Rivera, 312 A.3d 366, 376-77 (Pa. Super. 2024) (citation
and brackets omitted).
A substantial question is determined on a case-by-case basis and 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.” Commonwealth v. McCain, 176 A.3d 236, 240
(Pa. Super. 2017). A “substantial question determination does not require the
court to decide the merits of whether the sentence is clearly unreasonable.”
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Here, Nevius preserved his claim in a post-sentence motion and filed a
timely appeal. Further, Nevius’ brief contains a concise statement of reasons
relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f), wherein
he asserts that the trial court imposed an excessive sentence without properly
-4-
J-S38029-24
considering mitigating factors and without providing reasons for imposing an
aggravated range sentence for his firearms conviction. Nevius raises
substantial questions for our review. See Commonwealth v. Swope, 123
A.3d 333, 339 (Pa. Super. 2015) (stating that “an excessive sentence claim—
in conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question”) (citation omitted); Commonwealth
v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (concluding a claim that “the
lower court failed to state on the record adequate reasons for imposing
sentences in the aggravated range” raises a substantial question).
Our standard of review when a defendant raises a challenge to the
discretionary aspects of sentencing is well established:
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. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted). Further, “[t]he sentencing judge can satisfy the requirement that
reasons for imposing sentence be placed on the record by indicating that he
or she has been informed by the [presentence investigation report].”
Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa. Super. 2018) (citation
omitted).
-5-
J-S38029-24
Nevius argues that the trial court imposed an excessive sentence
without considering any mitigating factors. Nevius’ Brief at 9, 11. Nevius also
contends that the trial court did not provide reasons on the record for the
sentence for the firearms conviction, which was above the aggravated range.
Id. at 12.
The record reflects that the trial court considered the presentence
investigation report, sentencing memoranda, victim impact statements, the
sentencing guidelines, and Nevius’ mental health exam. N.T., 2/2/2024, at 5,
6-7, 14, 27. The trial court further recognized the trauma Nevius experienced
as a child, noting he was raised by a drug addicted mother and that he suffered
from abuse and torment, which “attributed to some of [his] later behavior.”
Id. at 28. The trial court noted that the impact of a prison sentence on Nevius,
who had a daughter and was only twenty-seven years old, as well as the
impact of the murder on Henry’s family. Id. at 30. The trial court also
observed that Nevius was a smart person who had made a “series of bad
choices,” And that Nevius was under supervision when he committed the
murder. Id. at 29-30.
The trial court noted that “[t]he sentence imposed in this case properly
reflected consideration of the severity of [Nevius’] behavior, the impact it had
on his victim’s family, and balanced that against mitigating factors stemming
from childhood trauma he endured.” Trial Court Opinion, 2/2/2024, at 12 n.1.
Moreover, in addition to the evidence considered, the trial court, as noted
-6-
J-S38029-24
above, had the benefit of a presentence investigation report, and we therefore
presume “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. Miller, 275 A.3d 530, 535 (Pa.
Super. 2022). Likewise, the trial court being informed by the presentence
investigation report satisfied the requirement of providing reasons for
imposing the sentence for each conviction. See Edwards, 194 A.3d at 638.
Therefore, Nevius’ claim is without merit.
Judgment of sentence affirmed.
Date: 11/27/2024
-7-