Com. v. Jones, L.

J-S04021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEWIS JONES :
:
Appellant : No. 1327 EDA 2021
Appeal from the Judgment of Sentence Entered August 16, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0002333-2018
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 11, 2022
Lewis Jones (Appellant) appeals nunc pro tunc from the judgment of
sentence imposed following a stipulated bench trial. In his sole issue,
Appellant challenges the discretionary aspects of his sentence. We affirm.
The trial court recounted the facts and procedural history as follows:
[Appellant] … was convicted of twenty-eight (28) counts, including
aggravated indecent assault of a child under the age of 13, rape
of a child, unlawful contact with a minor, indecent assault of a
minor under the age of 13, and corruption of minors, following a
one-day stipulated bench trial on May 7, 2019.[FN] 1
The case started as a jury trial, and following one
[FN] 1
half day of testimony on May 6, 2019, counsel and
[Appellant] switched to a stipulated bench trial.
[Appellant] is the father of the two female victims. The facts
stipulated indicate that between January of 2004 and May of 2008,
when the victims were between the ages of seven (7) and eleven
____________________________________________
* Former Justice specially assigned to the Superior Court.
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(11), [Appellant] sexually assaulted and raped them on multiple
occasions.
[Appellant] was sentenced on August 16, 2019, after receiving
both a [presentence investigation report (PSI)] and a [probation
and parole intervention evaluation report (PPI)1]. … The total
sentence to be served by [Appellant] is fifty (50) to one hundred
(100) years in a state correctional institution.
On September 16, 2019, a timely Notice of Appeal was filed with
the Superior Court of Pennsylvania. ...
On January 31, 2020, [Appellant] withdrew and discontinued his
appeal with the Superior Court of Pennsylvania. On November 3,
2020, [Appellant] filed a petition under the Post-Conviction Relief
Act seeking to reinstate his post-sentence rights. The
undersigned entered an Order granting [Appellant’s] Motion on
February 16, 2021[.]
Trial Court Opinion, 8/12/21, at 1-2 (citations omitted, one footnote in
original, one footnote added).
On March 19, 2021, Appellant filed a post-sentence motion asserting
the trial court erred by imposing an “unreasonable and manifestly excessive”
sentence without giving “proper weight to mitigating factors presented at
sentencing[.]” Post-Sentence Motion, 3/19/21, at ¶4(c)-(d). The trial court
denied Appellant’s motion on June 7, 2021. Appellant filed a notice of appeal
on July 1, 2021. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Preliminarily, we address whether we have jurisdiction, as Appellant
filed his post-sentence motion 31 days after the reinstatement of his post-
____________________________________________
1 A PPI is a drug and alcohol evaluation.
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sentence rights.2 See Pa.R.A.P. 105(b); Pa.R.A.P. 903(a); Commonwealth
v. Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (en banc) (the filing of
untimely post-sentence motions does not toll the 30-day period to file an
appeal from the judgment of sentence). “Generally, an appellate court cannot
extend the time for filing an appeal.” Commonwealth v. Patterson, 940
A.2d 493, 498 (Pa. Super. 2007). However, this Court has declined to quash
otherwise untimely appeals in circumstances where “the failure to file a timely
appeal [resulted from] a breakdown in the court system.” Commonwealth
v. Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019).
A breakdown in the court system occurs when the trial court “either
failed to advise Appellant of his post-sentence and appellate rights or
misadvised him.” Patterson, 940 A.2d at 498 (emphasis added).
Pa.R.Crim.P. 704(C)(3)(a) provides that the trial court, at the time of
sentencing, shall advise the defendant of his “right to file a post-sentence
motion and to appeal, of the time within which the defendant must
exercise those rights, and of the right to assistance of counsel in the
preparation of the motion and appeal.” Pa.R.Crim.P. 704(C)(3)(a) (emphasis
added).
____________________________________________
2 On August 18, 2021, this Court issued a Rule directing Appellant to show
cause why the appeal should not be quashed as untimely. We discharged the
Rule and referred the matter to the merits panel on September 30, 2021.
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Here, the trial court reinstated Appellant’s post-sentence rights nunc pro
tunc on February 16, 2021. Accordingly, Appellant’s post-sentence motion
was due on or before February 26, 2021. Appellant did not file his post-
sentence motion until March 19, 2021. However, our review reveals that the
language in the trial court’s order implied that Appellant could not file his post-
sentence motion until the expiration of the Commonwealth’s 30-day appeal
period. The order states:
AND NOW, this 16th day of February, 2021, upon consideration of
[Appellant’s] Petition in Support of Statutory Post Conviction
Relief … it is hereby ORDERED and DECREED that [Appellant’s]
Petition is GRANTED. [Appellant’s] post-sentence rights shall be
reinstated. [Appellant] shall have ten (10) days from the
expiration of the Commonwealth’s thirty-day appeal
period, if no appeal is filed, to file his post-sentence
motion.
Order, 2/16/19 (emphasis added).
As the court’s order may be read as misinforming Appellant about his
appellate rights and the time for filing his post-sentence motion, we conclude
there was a breakdown in the operations of the court which excuses
Appellant’s late filing. See Patterson, 940 A.2d at 498. Therefore, we
address the merits of Appellant’s claim.
Appellant presents the following question for review:
Whether an aggregate sentence of fifty to one hundred years
of incarceration was clearly excessive and manifestly
unreasonable?
Appellant’s Brief at 4.
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It is well-settled that the “right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014). When an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
We have explained:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test[.] We conduct a four-part analysis to determine: (1) whether
appellant has 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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
In this case, Appellant filed his post-sentence motion and notice of
appeal in accordance with the PCRA court’s directive. Also, he included in his
brief the requisite concise statement of reasons relied upon for appeal
pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 6. We therefore examine
whether Appellant has raised a substantial question.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-87 (Pa. Super. 2008). Allowance of appeal will be permitted
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only when the appellate court determines there is a substantial question that
the sentence is not appropriate under the Sentencing Code. Commonwealth
v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists
where an appellant sets forth a plausible argument that the sentence violates
a particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Id.[A] defendant may raise a substantial question where he receives
consecutive sentences within the guidelines if the case involves
circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citation
omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant asserts the trial court
failed to give “individualized consideration to [Appellant’s] personal history,
rehabilitative needs, or background,” and focused only on the seriousness of
Appellant’s crimes. Appellant’s Brief at 10. Appellant contends the court’s
failure to consider mitigating factors resulted in the imposition of consecutive,
rather than concurrent, sentences, and an unduly harsh aggregate sentence.
Id. at 11.
Appellant has raised a substantial question. See Commonwealth v.
Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (a substantial question existed
where appellant claimed the trial court failed to consider certain sentencing
factors in conjunction with appellant’s assertion of an excessive sentence);
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Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“This
Court has held that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.”). We therefore review Appellant’s substantive
argument.
Pertinently,
the proper standard of review when considering whether to affirm
the sentencing court’s determination is an abuse of discretion ....
[A]n abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Moury, 992 A.2d at 169–70 (citation omitted).
The Pennsylvania Supreme Court, in Commonwealth v. Walls, 926
A.2d 957, 964 (Pa. 2007), determined that a sentence may be unreasonable
if the trial court misapplies or disregards the factors in 42 Pa.C.S.A. §§
9721(b) and 9781(d). Section 9721(b) states:
[T]he 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
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the life of the victim and on the community, and the rehabilitative
needs of the defendant. The court shall also consider any
guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing[.]
42 Pa.C.S.A. § 9721(b).
Section 9781(d) provides this Court “shall have regard” for:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the opportunity of the
sentencing court to observe the defendant, including any
presentence investigation; (3) the findings upon which the
sentence was based; [and] (4) the guidelines promulgated by the
sentencing commission.
42 Pa.C.S.A. § 9781(d); see also Commonwealth v. Ventura, 975 A.2d
1128, 1134-35 (Pa. Super. 2009).
In addition, “long standing precedent ... recognizes that [the Sentencing
Code] affords the sentencing 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. Brown, 249 A.3d
1206, 1212 (Pa. Super. 2021) (quoting Commonwealth v. Marts, 889 A.2d
608, 612 (Pa. Super. 2005)). We will not disturb consecutive sentences unless
the aggregate sentence is “grossly disparate” to the defendant’s conduct, or
“viscerally appear[s] as patently unreasonable.” Commonwealth v.
Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010). Moreover, when
the trial court has the benefit of a PSI report, it is presumed that the court
was both aware of and appropriately weighed all relevant information
contained in the report. See, e.g., Commonwealth v. Griffin, 804 A.2d 1,
8 (Pa. Super. 2002).
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Appellant argues the trial court erred by sentencing him without
considering “[Appellant’s] prior criminal record, or his age at sentencing.”
Appellant’s Brief at 17. Appellant acknowledges the court received a PSI (as
well as a PPI), but claims the court was required to make “sufficient particular
findings and conclusions on the record in open court.” Id. Appellant concedes
the trial court “imposed the mandatory minimum sentences in accordance with
the law,” but contends the consecutive nature of his sentences created a
manifestly excessive aggregate sentence. Id. at 18.
The Commonwealth counters that the trial court properly and thoroughly
addressed the Section 9721(b) factors at sentencing, and “stated the reasons
for the aggregate sentence on the record in open court, including expressly
taking [Appellant’s] PSI into account.” Commonwealth Brief at 14. The
Commonwealth emphasizes that the court had discretion to run Appellant’s
mandatory and non-mandatory minimum sentences consecutively — as
requested by the Commonwealth — but did not do so. Id. The
Commonwealth argues the court’s decision to run some of Appellant’s
sentences concurrently demonstrated the court’s consideration of Appellant’s
mitigating factors. Id. at 14. We agree with the Commonwealth.
The record shows the trial court received a PSI, PPI, and a sexually
violent predator assessment, and had the benefit of each at sentencing. See
N.T., 8/16/19, at 3; see also Commonwealth v. Fowler, 893 A.2d 758, 766
(Pa. Super. 2006) (because the trial court considered the PSI report, “we are
required to presume [it] properly weighed the mitigating factors present in
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the case.”); see also Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa.
Super. 2004) (trial court’s indication that it reviewed PSI report satisfies the
requirement of stating its reasoning on the record).
Moreover, the trial court considered mitigating evidence. The court
heard defense counsel’s argument after considering statements from
Appellant’s brother and Appellant by way of allocution. See N.T., 8/16/19, at
3-28. The trial court further acknowledged that Appellant’s criminal history
(with a prior record score of four), did not involve sex offenses, in contrast to
the “reprehensible” nature of Appellant’s crimes in the underlying case. Id.
at 29.
Finally, Appellant’s sentence is within the standard range of the
sentencing guidelines, and as such, is presumptively reasonable. See 42
Pa.C.S.A. § 9781(c)(3) (appellate court must vacate sentence imposed within
the sentencing guidelines only if it “involves circumstances where the
application of the guidelines would be clearly unreasonable”).
In sum, the record belies Appellant’s claim that the trial court imposed
an excessive sentence without consideration of mitigating factors. See e.g.,
Commonwealth v. Leatherby, 116 A.3d 73, 84 (Pa. Super. 2015)
(“[h]aving been fully informed by the [PSI] report, the [trial] court’s discretion
should not be disturbed”); Boyer, supra.Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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