Com. v. Gary, R.

J-A29040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL ANTONIO GARY :
:
Appellant : No. 1203 WDA 2021
Appeal from the Judgment of Sentence Entered August 1, 2018,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0016250-1995.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL ANTONIO GARY :
:
Appellant : No. 1205 WDA 2021
Appeal from the Judgment of Sentence Entered August 1, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0003768-1996.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: January 24, 2023
Rafael Antonio Gary appeals from the judgment of sentence entered
against him following his convictions for murder of the first degree,
aggravated assault, and other crimes he committed when he was 17. Gary
had originally received a mandatory sentence of life imprisonment for the
murder and a consecutive term of 10 to 20 years’ imprisonment for the
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aggravated assault. In a proceeding under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546, the PCRA court resentenced him to 35
years to life for the murder and a consecutive 10-to-20-year term for the
aggravated assault. He challenges both sentences. We affirm.
Gary was 17 years and 8 months old on August 22, 1995, when he and
another person shot two women in their apartment. One woman died, and
the other had to have her arm amputated. Following trial, the jury convicted
Gary of murder of the first degree, aggravated assault, possession of a
prohibited offensive weapon, criminal attempt, and criminal conspiracy. On
October 7, 1996, the trial court sentenced Gary to life imprisonment for the
murder, ten to twenty years of imprisonment for the aggravated assault, and
no further penalty for the remaining offenses.
Gary timely appealed, this Court affirmed, and the Supreme Court of
Pennsylvania denied review. Eventually, on Gary’s fifth petition for post-
conviction collateral relief, the Commonwealth agreed that Gary was entitled
to resentencing under Miller v. Alabama, 567 U.S. 460 (2012) (holding that
mandatory life imprisonment without parole for juvenile homicide offenders
violates the Eighth Amendment).
The PCRA court granted Gary’s motions for resentencing and for a
mitigation specialist. On August 1, 2018, the court imposed a new sentence
of 35 years to life in prison for murder and a consecutive term of 10 to 20
years’ imprisonment for the aggravated assault.
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Gary filed a prior appeal from the resentencing, listing both docket
numbers on a single notice of appeal. This Court quashed based on
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Commonwealth v.
Gary, 2019 WL 5212428, at *2 (Pa. Super. Oct. 16, 2019) (non-precedential
memorandum) (citing Commonwealth v. Nichols, 208 A.3d 1087, 1090 (Pa.
Super. 2019)). After a separate PCRA proceeding, Gary’s appellate rights
were reinstated, and he filed separate notices of appeal from both judgments
of sentence.1 We consolidated the appeals.
Case 1203 WDA 2021 (Murder)
In his murder case, Gary frames his issue as follows: “Whether
Appellant’s sentence is an unconstitutional, de facto life sentence and/or an
excessive sentence?” Gary’s Brief, 1203 WDA 2021, at 6.2
We first address Gary’s claim that his sentence of 35 years to life
imprisonment is an unconstitutional de facto life sentence. He argues that the
PCRA court erred by failing to articulate on the record its consideration of the
factors in Miller and Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017).
Gary’s Brief, 1203 WDA 2021, at 15–17 (citing Commonwealth v.
Machicote, 206 A.3d 1110 (Pa. 2019)). Our Supreme Court had initially held
that a sentencing court must consider the Miller/Batts factors on the record
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1Gary also filed pro se notices of appeal from the denial of his post-sentence
motions, which this Court dismissed as duplicative.
2Prior counsel had also raised an issue about the constitutionality of the
minimum sentence term, which present counsel has elected not to argue.
Gary’s Brief, 1203 WDA 2021, at 11.
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for any juvenile exposed to a potential sentence of life without parole, even if
the juvenile is not ultimately sentenced to life without parole. Machiote, 206
A.3d at 1120.
However, two years later, Machiote was abrogated by Jones v.
Mississippi, 141 S. Ct. 1307 (2021). There, the United States Supreme Court
held that the Eighth Amendment does not require a finding of permanent
incorrigibility to sentence a juvenile homicide offender to life without parole
as long as the sentencing court has discretion not to impose such a sentence.
Jones, 141 S. Ct. at 1319–20. Following Jones, the Pennsylvania Supreme
Court recognized that its holdings in Batts and Machiote were no longer a
proper exercise of its authority. Commonwealth v. Felder, 269 A.3d 1232,
1243–44, 1243 n.13 (Pa. 2022). It held:
It logically and necessarily follows that if a discretionary
sentencing scheme is constitutionally sufficient to permit the
imposition of a life-without-parole sentence on a juvenile homicide
offender, so too can a court impose a sentence that is something
less than life without parole. This includes a term-of-years
sentence that may amount to a de facto life sentence. Stated
differently, as long as the sentence was the product of a
discretionary sentencing system that included consideration of the
juvenile’s youth, the Eighth Amendment is satisfied.
Id. at 1245–46.
Here, there is no dispute that the PCRA court had discretion to sentence
Gary to a lesser term than life without parole. Thus, there is no constitutional
defect in his sentence of 35 years to life imprisonment. Even if Gary ultimately
received a de facto life sentence, the court’s failure to articulate the Miller/
Batts factors on the record does not entitle him to resentencing.
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We next address whether Gary’s sentence is excessive. Preliminarily,
we address whether Gary adequately presented his excessiveness claim for
our review. “A challenge to an alleged excessive sentence is a challenge to
the discretionary aspects of a sentence.” Commonwealth v. Ahmad, 961
A.2d 884, 886 (Pa. Super. 2008) (citing Commonwealth v. Pennington,
751 A.2d 212, 215 (Pa. Super. 2000)).
Challenges to the discretionary aspects of sentence are not
appealable as of right. Commonwealth v. Leatherby, 116 A.3d
73, 83 (Pa. Super. 2015). Rather, an appellant challenging the
sentencing court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence; and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or
sentencing norms. Id. An appellant must satisfy all four
requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022). Rule
2119(f), the third requirement for invoking our jurisdiction, provides:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of the
sentence.
Pa.R.A.P. 2119(f).
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A defendant’s Rule 2119(f) statement must specify “(1) where his or her
sentence falls in the Sentencing Guidelines, (2) what provision of the
Sentencing Code has been violated, (3) what fundamental norm the sentence
violated, and (4) the manner in which it violated the norm.” Commonwealth
v. Moye, 266 A.3d 666, 676 (Pa. Super. 2021) (citing Commonwealth v.
Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012)). A Rule 2119(f) statement that
“simply lists [the] sentencing issues” is deficient, and we may deny review of
a defendant’s claim based on this deficiency. Commonwealth v. Sauers,
159 A.3d 1, 16 (Pa. Super. 2017).
Here, Gary’s Rule 2119(f) statement provides in full:
Mr. Gary raises one substantial question in challenging the
validity of the sentence as it relates to the homicide conviction.
Mr. Gary raises another substantial question in challenging the
validity of his sentence as it relates to the consolidated trial and
sentencing matter now docketed for appeal at 1205 WDA 2021.
The question alleges that the trial court entered a de facto LWOP
sentence which was excessive and/or illegal.
Gary’s Brief, 1203 WDA 2021, at 10.
The Commonwealth argues that this statement is insufficient.
Commonwealth’s Brief at 19–21. We agree. Gary’s bald assertion that his
sentence “was excessive and/or illegal” fails to articulate how his sentence
violates the Sentencing Code or fundamental norms of sentencing. Therefore,
we cannot review of Gary’s excessiveness challenge. Sauers, supra.-6-
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Case 1205 WDA 2021 (Aggravated Assault)
In his aggravated assault case, Gary presents one issue: “Did the trial
court err by failing to consider the sentencing guidelines?” Gary’s Brief, 1205
WDA 2021, at 6. This is a challenge to the discretionary aspects of his
sentence. Commonwealth v. Archer, 722 A.2d 203, 210–11 (Pa. Super.
1998) (en banc).
As in the murder case, the Commonwealth challenges the adequacy of
Gary’s Rule 2119(f) statement. Commonwealth’s Brief at 34–35. Here, Gary’s
Rule 2119(f) statement provides:
Mr. Gary raises one substantial question[] in challenging the
validity of his sentence as it relates to the Aggravated Assault
conviction. Mr. Gary raises other substantial questions in
challenging the validity of his sentence as it relates to the
consolidated trial and sentencing matter now docketed for appeal
at 1203 WDA 2021. The question alleges that the trial court did
not consider the relevant sentencing guidelines at the time of
sentencing. Commonwealth v. Walls, 926 A.2d 957[, 964] (Pa.
2007), quoting Commonwealth v. Sessoms, 532 A.2d 775[,
781] (Pa. 1987) (“‘The guidelines must only be “considered” and,
to ensure that such consideration is more than mere fluff, the
court must explain its reasons for departure from them.’”).
Gary’s Brief, 1205 WDA 2021, at 10.
Gary’s statement alleges a violation of the sentencing court’s obligation
to consider the guidelines. Moye, supra. However, it fails to allege where
Gary’s sentence falls within the guidelines, and Gary does not provide what
the guidelines were for his aggravated assault conviction. He explains that in
reviewing the record, he was not able to locate a copy of the guidelines. Gary’s
Brief, 1205 WDA 2021, at 13. While we are sympathetic to Gary’s plight in
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reviewing the record of his cases, we conclude that his failure to allege the
proper sentencing guideline precludes analysis of where his statutory
maximum sentence for aggravated assault falls relative to the guidelines. We
thus deny review. Sauers, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2023
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