Com. v. Jones, J.

J-S74021-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMAINE JONES, :
:
Appellant : No. 345 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0000183-2009
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 18, 2014
Jamaine Jones (“Jones”) appeals from the judgment of sentence
entered following the revocation of his probation. We affirm.
The trial court summarized the relevant factual history as follows:
On October 6, 2009, [Jones] entered an open guilty
plea to the charge of [p]ossession [w]ith [i]ntent to
[d]istribute in front of the Honorable Denis P. Cohen,
Judge of the Court of Common Pleas. [Jones] was
subsequently sentenced to six [] to twenty-three []
months [of] incarceration, followed by three [] years
of probation. On October 3, 2011, [Jones] was
arrested for possession of firearms. On September
10[,] 2013, a jury convicted [Jones] of [p]ersons not
to [p]osses, [u]se, [m]anufacture, [c]ontrol, [s]ell or
[t]ransfer [f]irearms before the Honorable Genece
Brinkley, Judge of the Court of Common Pleas. On
November 12, 2013, Judge Brinkley sentenced
[Jones] to five [] to ten [] years [of] incarceration.
On December 20, 2013, [Jones] appeared before
[the Honorable Judge Cohen] for a violation of
probation (VOP) hearing, at which [the trial court]
revoked [Jones’] original probation and sentenced
*Retired Senior Judge assigned to the Superior Court.
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[him] to two [] to four [] years [of] incarceration
consecutive to the sentence imposed by Judge
Brinkley.
On December 31, 2013, the Defender’s
Association of Philadelphia filed a post-sentence
[m]otion to [v]acate and [r]econsider [s]entence
[n]unc [p]ro [t]unc on behalf of [Jones]. On January
17, 2014, [Jones] filed a [n]otice of [a]ppeal. On
January 23, 2014, [the trial court] issued a 1925(b)
[o]rder. On February 11, 2014, [Jones] filed a
[s]tatement of [m]atters [c]omplained [of] [o]n
[a]ppeal, as well as a [m]otion for an [e]xtension of
[t]ime, as the relevant [n]otes of [t]estimony had
not been completed. On March 25, 2014, [the trial
court] issued an [a]mended 1925(b) order. On
March 26, 2014, [Jones] filed a supplemental
[s]tatement of [m]atters.
Trial Court Opinion, 6/30/14, at 1-2.
Jones presents one issue for our review:
Did not the [trial] court abuse its discretion and
impose a manifestly excessive and unreasonable
sentence following a revocation of probation hearing,
by imposing a sentence of [two] to [four] years [of]
incarceration to run consecutively to another
sentence of [five] to [ten] years [of] incarceration
where it was [] Jones’ first violation, the lower court
failed to properly consider the sentencing factors,
and a sentence of consecutive total confinement far
surpassed what is required to protect the public and
is well beyond what is necessary to foster [Jones’]
rehabilitation?
Jones’ Brief at 4.
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With this claim, Jones challenges discretionary aspects of his
sentence.1 “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa. Super. 2011) (citation omitted).
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (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. Evans, 901 A.2d
528, 533 (Pa. Super. 2006).
Id.Jones filed a timely notice of appeal, raised this claim in his post-
sentence motion,2 and included a statement pursuant to Pa.R.A.P. 2119(f) in
1
We note that in 2013, an en banc panel of this Court “unequivocally h[e]ld
that this Court's scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
2
Jones filed his post-sentence motion one day late. The Commonwealth
urges us to find this issue waived because Jones’ post-sentence motion was
untimely. The trial court also recognized the untimeliness of the post-
sentence motion, but addressed the merits of this issue in its Rule 1925(a)
opinion. See Trial Court Opinion, 6/30/14, at 3-4. Because the trial court
addressed this issue on its merits, we decline to find it waived. See
Commonwealth v. Garcia, 661 A.2d 1388, 1392 (Pa. Super. 1995)
(declining to find waiver “where the defendant raises the issue post-trial in a
procedurally defective manner and the trial court chooses to overlook the
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his brief. Accordingly, we consider whether he has presented a substantial
question that his sentence is not appropriate under the Sentencing Code.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Glass, 50 A.3d
720, 727 (Pa. Super. 2012).
A substantial question exists where an appellant
advances a colorable argument that the trial court's
actions were inconsistent with a specific provision of
the sentencing code, or contrary to the fundamental
norms underlying the sentencing process. In
determining whether a substantial question exists,
our inquiry must focus 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.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(internal citations omitted). Furthermore, this Court may not look beyond
the content of the 2119(f) statement to determine whether the appellant has
raised a substantial question. Id.In his Rule 2119(f) statement, Jones contends that the trial court
erred by imposing his sentence without considering the factors set forth in
42 Pa.C.S.A. § 9721(b). Jones’ Brief at 8. This claim raises a substantial
question. See Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.
defect and address the issue on its merits”); see also Commonwealth v.
Santiago, 822 A.2d 716, 723 (Pa. Super. 2003) (declining to find waiver of
issue Commonwealth failed to raise during suppression hearing and
belatedly raised in a motion to reconsider suppression ruling where trial
court addressed issue on its merits in Rule 1925(a) opinion).
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Super. 2013) (holding that claim the sentencing court failed to consider 42
Pa.C.S.A. § 9721 factors presents a substantial question).
Jones also states that his sentence is “manifestly excessive” because it
was ordered to run consecutively to the sentence imposed on his new
charges. Id. at 9. However, in his Rule 2119(f) statement, Jones does no
more than make the bald assertion that his sentence is excessive for this
reason. See id. Such a bald statement is not sufficient to invoke our
review. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa. 2014)
(holding that a bald claim of excessiveness due to the consecutive nature of
sentences does not raise a substantial question).3 Thus, we do not consider
this aspect of Jones’ argument.
Our standard of review for sentencing claims 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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
3
We note that such a claim can, under certain circumstances, present a
substantial question. See Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (“[T]he imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment[.]”). In
his Pa.R.A.P. 2119(f) statement, Jones does not allege how his incarceration
is unduly harsh in light of the nature of the crimes and the overall length of
the term of imprisonment. He states only that the consecutive sentence is
“disproportionate to the totality of [his] circumstances.” Jones’ Brief at 9.
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the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will. More specifically, 42
Pa.C.S.A. § 9721(b) offers the following guidance to
the trial court's sentencing determination: “[T]he
sentence imposed 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.A.
§ 9721(b). Thus, under 42 Pa.C.S.A. § 9721(b), a
sentencing court must formulate a sentence
individualized to that particular case and that
particular defendant.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (internal
citations omitted). Furthermore,
in all cases where the court resentences an offender
following revocation of probation ... the court shall
make as a part of the record, and disclose in open
court at the time of sentencing, a statement of the
reason or reasons for the sentence imposed and
failure to comply with these provisions shall be
grounds for vacating the sentence or resentence and
resentencing the defendant. A trial court need not
undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the
statute in question, but the record as a whole must
reflect the sentencing court's consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 2014 WL 5408189 at *9 (Pa. Super. Oct. 24,
2014) (internal citations omitted).
Jones argues that the trial court failed to give “individualized
consideration to [his] circumstances or rehabilitative needs.” Jones’ Brief at
17-18. We disagree. The trial court made the following statement when
imposing Jones’ sentence:
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The [c]ourt takes into account the history of
the case before us, everything that everyone said,
what you said, what both counsel said, what the
probation officer said.
The [c]ourt takes into account the whole
history of this matter before this [c]ourt. I have
notes in my file to refresh my recollection that since
the district attorney … is not the district attorney
back on October 6th, 2011 when you entered the
plea and since counsel here was not the counsel on
October 6th, they probably don’t have anything in
their file [sic] about it, but I have all sorts of
markings on my file.
First of all, this was an open guilty plea on
October the 6th. And the district attorney was asking
at that time for a sentence not too far different than
what [the district attorney] is asking for now, a
difference of a year both ways, except that [the prior
district attorney] was asking for probation and [the
present district attorney] is – if you remember, she
asked for sentence of [one] to [three] years state
incarceration and [four] years [sic] probation, and
she asked that to run consecutive [sic] to any
sentence.
What the [c]ourt did is the [c]ourt said – the
[c]ourt was giving you a big break. And given that
you already had a big hit before, the [c]ourt gave
you a big break, and the [c]ourt imposed a sentence
of [six] to [twenty-three] months concurrent
followed by [three] years [of] probation. So that
was a big break the [c]ourt gave you at the time … .
So I did not give you - I know you were
supervised with the sentence of [five] to [ten] that
you had started serving in 1999 when you were
convicted of the aggravated assault, so I gave you a
break. But I also made a note that I gave you a big
break at sentencing. And I made a note that if you
violate, then you’re going to have to pay the
consequence for violating. They already gave you
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the big break. Now is not the time to give you any
more breaks. You got your break from me before.
Now it’s time you have to take responsibility
for your conduct. And committing the offense you
committed under this [c]ourt’s probation is a very
serious offense.
So the [c]ourt is considering everything the
[c]ourt has said, the need to protect the community,
rehabilitative needs, and the impact of the violation
of the community – the [c]ourt will – you’re currently
on the [c]ourt’s probation, the [c]ourt will revoke
probation because of the direct violation; and the
[c]ourt is more focused on the direct violation than
the technical, without having the state parole officer
here, you’ve raised some issues, I’m not going to
make a decision based upon you not reporting but on
the direct violation.
So the [c]ourt is revoking probation. And the
[c]ourt will impose a sentence of [two] to [four]
years state incarceration, and this will run
consecutive [sic] to the sentence that you are
currently serving.
N.T., 12/20/13, at 9-12.
From these comments, we discern that the trial court imposed a highly
individualized sentence. The trial court presided over Jones’ open guilty plea
and, at that time, gave Jones a light sentence in consideration of the other
lengthy sentence he was serving. The trial court found that the nature of
the conviction that spawned Jones’ direct probation violation – persons not
to possess firearms – was a serious offense, thus considering the need to
protect the public. The probation officer testified that while on probation,
Jones was under the supervision of the Anti-Violence High Risk Unit because
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he was a high-risk offender. Id. at 4. Moreover, the trial court appears to
have determined that Jones is not amenable to rehabilitation, as it gave due
consideration to the fact that Jones squandered the “break” the trial court
had previously given him. We therefore find no merit to Jones’ claim.
The trial court’s statements at the time of sentencing “reflect [its]
consideration of the facts of the crime and character of the offender[,]”
Colon, 2014 WL 5408189 at *9, as well as the statutory factors contained in
42 Pa.C.S.A § 9721(b), and so we find no abuse of discretion by the trial
court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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