Com. v. Lewis, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DOMENIQUE JAMES LEWIS,
Appellant
No. 1673 WDA 2016
Appeal from Judgment of Sentence July 26, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008184-2010
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 10, 2017
Dominique James Lewis appeals from the judgment of sentence of
thirty-three and one-half to sixty-seven years incarceration, imposed upon
remand following our prior holding that Appellant received a constitutionally
infirm sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013).
We affirm.
We described the facts underlying Appellant’s criminal conviction in our
memorandum opinion on direct appeal as follows:
At trial, Megan [Wilsher] testified that on February 26, 2010,
while Lewis was sitting in her living room, he stood up, pulled
out a gun, smiled at her, and fired at her. [Wilsher] testified
Lewis shot her in the face, and after she fell, he shot her again.
Wilsher lost her right eye as a result of the shooting. In
* Retired Senior Judge assigned to the Superior Court.
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corroboration of this testimony, the Commonwealth presented
evidence that Lewis's fingerprints were found on a Coke can
recovered from the scene.
Furthermore, the Commonwealth, through the testimony of
Detective Scott Evans, introduced a recorded statement made by
Lewis to police, in which he admitted that on February 26, 2010,
he had engaged in a struggle with Brett Quinn over a gun that
discharged in the living room; he took the gun and fired at Quinn
multiple times, chased him and took his chain and watch;
returned to the house where he took $400 to $500 dollars from
Wilsher's purse, as well as her cellular phone; and then disposed
of the gun.
Commonwealth v. Lewis, 358 WDA 2012, at 6-7 (Pa.Super. 2013)
(unpublished memorandum, citations omitted, brackets in original).
Following a jury trial, Appellant was convicted of one count of carrying
a firearm without a license, and two counts each of the following crimes:
criminal attempt – murder, aggravated assault, and robbery. The trial court
imposed an aggregate sentence of thirty-three and one-half to sixty-seven
years incarceration, and we affirmed his judgment of sentence. Id. Our
Supreme Court denied further review. Commonwealth v. Lewis, 74 A.3d
1030 (Pa. 2013).
Appellant filed a timely PCRA petition, which was denied. On appeal,
we sua sponte vacated and remanded for resentencing consistent with
Alleyne, supra, due to the fact that Appellant’s sentence included the
imposition of a mandatory minimum sentence. Upon remand, the trial court
imposed the same aggregate sentence, albeit structured in a different
manner. Appellant filed a post-sentence motion, which was denied. This
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timely appeal ensued, and Appellant complied with the order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
trial court authored its responsive opinion and the matter is now ready for
this Court's consideration. Appellant raises the following questions for our
review:
I. Is the imposition of the aggregate sentence of 33½ to 67
years of incarceration manifestly excessive, unreasonable, and
an abuse of the sentencing court’s discretion?
a. Specifically, does the aggregate sentence result in a
manifestly excessive sentence that is wholly unreasonable and
not in conformity to the goal of individualized sentencing, or to
the Sentencing Code (42 Pa.C.S. § 971(b)), instead evincing
an undue emphasis on retribution, not rehabilitation, and
resulting in a de facto life sentence?
b. Also, was the aggregate sentence imposed an abuse of
discretion in that the trial court refused to consider that Mr.
Lewis’s crimes were committed when he was a juvenile of 17
years, which requires that a distinct set of sentencing
considerations be applied because of the diminished culpability
of juveniles due to the biological immaturity of their brains as
well as the greater capacity for rehabilitation of a juvenile?
Appellant’s brief at 6.
Appellant’s overarching claim challenges the length of the sentence
imposed and therefore pertains to the discretionary aspects of his sentence.
We apply the following standard of review:
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.
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Commonwealth v. Shull, 148 A.3d 820, 831 (Pa.Super. 2016) (citing
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super 2014)). The
right to appeal the discretionary aspects of a sentence is not absolute. To
determine if Appellant has invoked our jurisdiction, we examine the following
four criteria:
(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. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)).
Appellant filed a timely notice of appeal, preserved his issue in a post-
sentencing motion, and his brief complies with Pa.R.A.P. 2119(f). The
remaining consideration is whether Appellant has presented a substantial
question.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question 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. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013) (citing
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (internal
citations omitted)).
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Appellant advances two separate substantial questions. First, he avers
that the trial court imposed the sentence based solely on the seriousness of
the crime and failed to consider other factors. Additionally, citing Miller v.
Alabama, 567 U.S. 460 (2012), which barred mandatory life imprisonment
without the possibility of parole for persons under the age of eighteen at the
time of their crimes, Appellant maintains that juveniles are “constitutionally
different from adults for the purpose of sentencing.” Appellant’s brief at 11.
We find that Appellant has presented a substantial question only with
respect to the first question.
We first dispose of Appellant’s Miller claim. Appellant avers that
Miller requires the sentencing court to treat Appellant differently. However,
Miller’s holding is limited to the mandatory nature of life without parole
sentences applied to juveniles. The flaw in those schemes is that they
“prevent the sentencer from taking account of these central considerations
. . . these laws prohibit a sentencing authority from assessing whether the
law's harshest term of imprisonment proportionately punishes a juvenile
offender.” Miller, supra at 474. Appellant recognizes that Miller narrowly
addressed only the constitutionality of imposing a mandatory life without
parole sentence, but maintains that the “principles set forth . . . have
implications any time that a juvenile is being sentenced.” Appellant’s brief
at 33.
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Appellant’s argument is a policy argument dressed up as a legal one;
Appellant does not explain exactly what these implications are or how the
trial court erred as a result. Apparently, Appellant interprets Miller to
require some type of undefined juvenile discount. However, Appellant
concedes that the trial court utilized the proper guidelines and could consider
Appellant’s age as a factor in fashioning an individualized sentence.
Additionally, this Court recently rejected a constitutional challenge to
the sentencing guidelines as applied to juveniles, in which the appellant
similarly contended that “the guidelines' primary focus on retribution does
not adequately take into account the evolution of recent United States
Supreme Court precedent recognizing the diminished culpability for
juveniles.” Commonwealth v. Fortson, 2017 PA Super 162 (Pa.Super.
2017) (published opinion, at 8). We disagreed, noting that the trial judge
has broad discretion in sentencing matters and, therefore, is permitted to
evaluate the individual circumstances before it, including the types of
considerations discussed in Miller. We held that this was sufficient.
The advisory nature of the guidelines ensures, as constitutionally
required, that the diminished culpability of juvenile defendants is
properly considered. In exercising its discretion, “[t]he
sentencing court must impose a sentence that is appropriate in
light of the individualized facts of the underlying incident.”
Commonwealth v. Johnson, 873 A.2d 704, 709 (Pa.Super.
2005). The court must consider aggravating and mitigating
circumstances. “In particular, the court should refer to the
defendant's prior criminal record, his age, personal
characteristics and his potential for rehabilitation.”
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Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013)
(quoting Griffin 804 A.2d at 10) (emphasis added)).
Id. at 12-13 (some citations omitted). Therefore, we find that Appellant has
failed to raise a substantial question with respect to this claim, and any
argument respecting Appellant’s age must go to weighing of the various
sentencing factors.
However, we find that Appellant has presented a substantial question
with respect to his allegation that the imposition of consecutive sentences
resulted in an excessive sentence, in that the trial court failed to consider
the other required statutory considerations. Generally, a challenge to the
trial court’s imposition of concurrent or consecutive sentences does not raise
a substantial question. Commonwealth v. Raven, 98 A.3d 1244, 1253
(Pa.Super. 2014). When paired with another assertion, such as the claim
advanced herein, we have found a substantial question. “[A]n excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.” Id. See also
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013)
(allegation that trial court focused solely on the nature of the offense
presented a substantial question). We therefore examine the merits of his
claim.
Our review of the discretionary aspects of sentencing is statutorily
limited by 42 Pa.C.S. § 9781, to wit:
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(c) Determination on appeal. — The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S. § 9781(c). Section 9781(d) provides that in reviewing the
record, we must take into account the following:
(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.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The parties do not dispute the calculation of the applicable guidelines.
Appellant’s prior record score was five, and the offense gravity score for the
attempted homicide charges was fourteen. Thus, the standard range at
those counts called for a minimum sentence between 210 and 240 months,
with the latter number representing the applicable statutory maximum. The
mitigated range called for a sentence of 198 months. Appellant received
consecutive sentences of 180 to 360 months at each of these charges, which
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is below the mitigated range. Additionally, Appellant received a consecutive
statutory maximum sentence of forty-two to eighty-four months
incarceration at the firearms charge, which was within the standard range.
Therefore, Appellant must show that application of the guidelines would be
clearly unreasonable.1
In Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007), our
Supreme Court noted that reasonableness is not defined in the statute and
“commonly connotes a decision that is ‘irrational’ or ‘not guided by sound
judgment.’” Id. at 963. Walls identified the two situations in which we can
deem a sentence unreasonable. The first is if the sentencing court did not
weigh the “general standards applicable to sentencing found in Section
9721[.]” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to
impose a sentence of imprisonment, “the court shall follow the general
principle that the 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.”). The other situation is where the
1
Technically, Appellant’s aggregate sentence was outside of the guideline
ranges, since his sentence fell below the total mitigated range at the three
charges. However, the downward departure was obviously to Appellant’s
benefit and we therefore apply the 42 Pa.C.S. § 9781(c)(2) standard which
applies to challenges to sentences within the sentencing guidelines.
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sentence is deemed unreasonable after review of the four elements provided
by 42 Pa.C.S. § 9781(d).
Presently, Appellant complains that the sentencing court failed to
impose an individualized sentence as required under § 9721(b), in that the
judge’s stated reasons discussed only the heinous nature of the crime,
Appellant’s inability to apologize, and Ms. Wilsher’s injuries. According to
Appellant, the record demonstrates that the court focused solely on
retribution and punishment.
While we agree that the sentencing transcript indicates that the court
largely directed its remarks at those points, we disagree that the trial court
failed to balance those considerations against the other § 9721(b) factors.
Significantly, Appellant submitted a sentencing memorandum, in which
Appellant’s position was fully outlined. It is presumed that jurists do not
willfully ignore pertinent information. “Where pre-sentence reports exist, we
shall continue to presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. A pre-sentence report
constitutes the record and speaks for itself.” Commonwealth v. Devers,
546 A.2d 12, 18 (Pa. 1988).
In support of reversal, Appellant cites Commonwealth v.
Coulverson, 34 A.3d 135 (Pa.Super. 2011), in which we vacated a sentence
as clearly unreasonable despite the fact that the court had access to and
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referenced a pre-sentence investigation report, and where the sentence was
technically within the standard range. He argues that this case is like
Coulverson in two ways: (1) the maximum sentence approaches a life
sentence and (2) the trial court had “[a]n intense focus on the crime’s
impact on the victim to the exclusion of all other factors.” Appellant’s brief
at 29-30.
We find that Appellant’s reliance upon Coulverson is misplaced.
Therein, the trial court’s maximum sentence was the maximum allowed by
law. Our review of the trial court’s stated reasons for the sentence
“reveal[ed] scant consideration of anything other than victim impact and the
court’s impulse for retribution on the victims’ behalf.” Id. at 148. We
observed that “the term of the maximum sentence . . . also bear[s] on the
extent to which sentencing norms are observed and an appropriate sentence
imposed.” Id. Thus, the trial court’s sentencing comments, when paired
with the maximum sentence, demonstrated that the sentence was not
individualized, and, as a result, clearly unreasonable.
Appellant maintains that his sentence was similarly flawed, as he will
likely spend the remainder of his life in prison if he serves the maximum
sentence. We find that Coulverson is readily distinguishable on this score.
We emphasized that the appellant therein “did not mount a challenge to the
minimum aggregate sentence.” Id. at 144. Hence, the challenge was to the
maximum period of incarceration, which was the statutory maximum. Here,
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the trial court imposed a maximum sentence that was twice the length of the
minimum, which was the lowest period permitted by statute. 42 Pa.C.S. §
9756(b)(1) (minimum sentence of confinement shall not exceed one-half of
the maximum). Therefore, unlike the appellant in Coulverson, Appellant is
in fact attempting to mount a challenge to the minimum sentence.2
Additionally, we do not find that the trial judge’s comments regarding
the gravity of the crime and Appellant’s inability to apologize to the court’s
satisfaction demonstrate an excessive focus on punitive measures. When
imposing the original sentence, Appellant’s counsel referenced mitigating
circumstances and the trial judge asked for any corrections or additions to
the pre-sentence report. N.T. Sentencing I, 9/8/11, at 2. Thus, the original
sentence already reflected a weighing of those factors. In context, the trial
court’s remarks at resentencing were effectively an invitation for Appellant
to demonstrate why the trial court should revisit its original sentence, which
was vacated on technical grounds. In other words, the trial court sought an
explanation for why it should deviate from its original sentence. See
Moury, supra at 173 (trial court did not improperly rely upon appellant’s
decision to stand trial when imposing sentence, in context “the court sought
2
We emphasize that the sentencing court imposed a sentence below the
mitigated range on each attempted murder charge. Were the court
motivated by purely punitive desires, it was within its discretion to impose a
harsher sentence.
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to understand why it should accept [a]ppellant’s apology and acceptance of
responsibility as a reason to deviate from the court’s regular sentencing
procedures.”).
The trial court framed its discussion of repentance in terms of
assessing Appellant’s rehabilitative prospects as follows:
They ought to start rehabilitation the day they get [to prison].
They assess people sort of the way I am, where is this person on
a continuum of narcissism? Where is this person on a continuum
of repentance? . . . Does he understand what he did to get
[himself] exiled from society? Does he understand this woman’s
pain? Does he understand the disabilities, the limitations on
what it does to her career, what it does to her life?
N.T. Sentencing II, 7/26/16, at 10-11. In contrast to Coulverson, the
sentencing court in the instant case provided Appellant the opportunity to
address those issues and gave him a chance to convince the court that a
lower sentence was warranted. Id. at 13-14. The sentencing judge “is not
required to parrot the words of the Sentencing Code . . . the record as a
whole must reflect due consideration by the court of the statutory
considerations.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super.
2008) (citations omitted). We are satisfied that the record as a whole
reflects due consideration of the § 9721(b) factors and we decline to deem
the sentence unreasonable on that basis.
Nor do we find that this sentence is clearly unreasonable pursuant to §
9721(b). First, a sentence that is within the standard range of the
guidelines, let alone below the mitigated range, is generally viewed as
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appropriate under the Sentencing Code. Moury, supra at 171. Appellant’s
only real complaint regarding the length of his sentence is the
aforementioned Miller argument, which we have rejected, in conjunction
with an argument that “[a] sentence for third-degree homicide could be
shorter than the sentence [Appellant] received.” Appellant’s brief at 29.
This point diminishes the nature of Appellant’s crimes. Third-degree
homicide, unlike attempted murder, is not a specific-intent crime. Appellant
was found to have intended to kill both victims. He twice shot a woman who
had invited him into her home, for apparently no reason whatsoever. He
chased his friend, who had accompanied him to the victim’s home, and tried
to kill him as well. These brutal acts justified a lengthy sentence, and
Appellant, who managed to amass a prior record score of five by age
seventeen, failed to convince the court that a lesser sentence was
warranted. After review of the four 42 Pa.C.S. § 9781(d) factors, we uphold
that sentence, and we, therefore, find no abuse of discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2017
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