Com. v. Artis, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRELL ARTIS :
:
Appellant : No. 1896 EDA 2017
Appeal from the Judgment of Sentence September 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005218-2013,
CP-51-CR-0006575-2013, CP-51-CR-0011178-2014
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED MAY 30, 2019
Tyrell Artis appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas following his convictions for
aggravated assault, robbery, criminal conspiracy, and numerous firearms
offenses. Artis challenges the discretionary aspects of his sentence. We affirm.
On November 15, 20121, Artis and a co-defendant went to 1417 South
53rd Street to rob the owners whom Artis knew. The owners let him in and his
co-defendant followed. While Artis robbed the owners, his co-defendant shot
the male home owner in the foot.
On March 17, 2013, police stopped Artis in a vehicle and recovered a
black, operable firearm2. He was then arrested on a warrant for the robbery.
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1 This crime relates to docket number CP-51-CR-0006575-2013.
2 This crime relates to docket number CP-51-CR-0005218-2013.
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He was subsequently released on pretrial house arrest. Sometime around
March of 2014, Artis cut his ankle monitor and a bench warrant was issued.
On September 16, 2014, Artis was apprehended by police on the 5400
block of Greenway Avenue. He was found to be in possession of a loaded
operable firearm3.
Artis pled guilty in all three cases and on September 17, 2015 the court
sentenced him on all three cases. On docket number CP-51-CR-0006575-
2013, he was sentenced to ten to twenty years’ imprisonment each for
aggravated assault, robbery, and conspiracy, and two and half to five years’
imprisonment for possession of an instrument of crime (“PIC”). On docket
numbers CP-51-CR-0005218-2013 and CP-51-CR-0011178-2014, the court
imposed identical sentences of two and a half to five years for illegal
possession of a firearm, three and one half to seven years for carrying firearms
without a license, and two and a half to five years for carrying firearms on a
public street. The court ordered all sentences to run consecutively except the
sentences for robbery and aggravated assault, which were to run concurrently
to each other. Artis’s aggregate sentence was thirty-nine and one half to
seventy-nine years’ imprisonment.
On September 29, 2015, Artis filed a post-sentence motion. The court
denied Artis’s motion. This timely appeal follows.
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3 This crime relates to docket number CP-51-CR-0011178-2014.
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On appeal, Artis challenges the trial court’s exercise of discretion in
imposing sentence. “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. McAfee, 849 A.2d 270,
274 (Pa. Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e 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) (citation
omitted; brackets in original).
Here, Artis preserved his issues through a timely post-sentence motion4
and filed a timely appeal. Counsel has included the required Rule 2119(f)
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4 We note the filing of this post-sentence motion appears facially untimely.
See Pa.R.Crim.P. 720(A)(1) (“[A] written post sentence motion shall be filed
no later than 10 days after imposition of sentence.”) Typically, an untimely
post-sentence motion does not preserve issues for appeal. See
Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007). Artis
would normally have had until Monday, September 28, 2015 to file his motion.
See Pa.R.A.P. 107; 1 Pa.C.S.A. § 1908. However, pursuant to an order dated
August 7, 2015, the First Judicial District of Pennsylvania courts were closed
from September 23, 2015 through September 28, 2015 due to the World
Meeting of Families and the Papal visit. The order specifically stated that any
pleadings which were required to be filed between those dates would be
deemed to have been timely filed if they were filed on September 29, 2015.
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statement. Thus, we must determine if Artis has raised a substantial question
for our review.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “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.” Id. (citation
omitted); see also Pa.R.A.P. 2119(f).
Artis “must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at
274 (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado, 870
A.2d at 365 (citation omitted).
First, Artis argues that the trial court imposed an excessive and
unjustified sentence without addressing his unique circumstances or
rehabilitative needs as required by 42 Pa.C.S.A. § 9721(b). He further
contends the court abused its discretion by drastically deviating from the
guidelines without addressing the guidelines or explaining its reasons for
sentencing outside the guidelines. As these claims raise a substantial question,
we proceed to examine the merits of Artis’s sentencing challenge. See
Commonwealth v. Johnson, 666 A.2d 690 (Pa. Super. 1995) (finding an
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assertion that the sentencing judge sentenced outside the guidelines without
reflecting consideration of the guidelines and failing to state adequate reasons
on the record for sentencing outside the guidelines raises a substantial
question).
Our standard of review for a challenge to the discretionary aspects of
sentencing 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. 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
In imposing a sentence, the court must consider relevant statutory
factors, including “the protection of the public, the gravity of an 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). A court has
broad discretion in fashioning its sentence. See Commonwealth v. Walls,
926 A.2d 957, 962-63 (Pa. 2007). While the court is required to consider the
sentence ranges set forth in the sentencing guidelines, it is not bound by them.
See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
The court may depart from the “guidelines, if necessary, to fashion a
sentence which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the particular offense
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as it related to the impact on the life of the victim and the community[.]”
Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (citation
omitted). If the court imposes a sentence outside the guideline ranges, it must
place adequate reasons for the deviation in the record. See Commonwealth
v. P.L.S., 894 A.2d 120, 129-130 (Pa. Super. 2006).
“A sentencing 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. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012).
The court justified its sentence in the instant case as follows:
That’s with the home invasion setup, the victim shot in the foot,
the foot is broken. The defendant is released on pretrial release,
gets out, and goes back to the same things that led him there,
possession of guns and firearms. And it’s been demonstrated that
he used guns in a violent manner because the victim in a home
invasion was shot during the course of the invasion …
N.T., Sentencing Hearing, 9/17/2015, at 24-25.
Further, the trial court made its sentencing decision after hearing
argument from both sides including statements from family members and
Artis, as well as after consideration of a pre-sentence report5. Where the trial
court had the benefit of reviewing a pre-sentence report, we must
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5“I do accept everything that’s in the presentence report …” N.T., Sentencing
Hearing, 9/17/2015, at 23.
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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.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence report, the
sentencing court’s discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can
be demonstrated that the judge had any degree of awareness of
the sentencing considerations, and there we will presume also that
the weighing process took place in a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at
hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
As the trial court here had the benefit of a presentence report, combined
with the trial court’s explicit consideration of the sentencing guidelines, see
N.T., Sentencing Hearing, 9/17/2015, at 22-23 (“And by law I’m obligated to
review the guideline … And to reflect upon them. So I’ve done that”), we
conclude that it considered all relevant sentencing factors and offered
adequate reasons on the record for deviating from the sentencing guidelines.
Artis also contends the trial court did not attempt to rectify the
discrepancies with the prior record score or the guidelines. This raises a
substantial question. See Commonwealth v. Johnson, 758 A.2d 1214 (Pa.
Super. 2000) (holding claim that sentencing court miscalculated prior record
score and misapplied sentencing guidelines presents substantial question).
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We find this claim waived6 as Artis does not present any argument why
his prior record score should be a three rather than a five. See
Commonwealth v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (noting that
relief is unavailable based upon undeveloped claims for which insufficient
arguments are presented on appeal). Further, defense counsel specifically
acquiesced to the court’s determination that the prior record score was a five.
N.T., Sentencing Hearing, 9/17/2015, at 22 (“… but for sentencing today
consider it the 5”).
Because the record in this case establishes that the court was cognizant
of the applicable sentencing range, and includes a statement of reasons for
sentencing as it did, we affirm the judgement of sentence.
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
Judge Nichols concurs in the result.
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6 Although we find this claim waived, we would nevertheless find it without
merit as Artis did not satisfy his burden of alleging invalid prior convictions.
“If the defendant fails to prove to the satisfaction of the court that the
inference of constitutional adjudications is wrong, the court may infer that a
presentence report showing convictions is accurate, and proceed on that
basis.” Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017).
Here, Artis’s counsel did not present any evidence at all in support of his
allegation and further acquiesced to the use of a prior record score of five.
See N.T., Sentencing Hearing, 9/17/2015, at 22.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/19
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