Com. v. Mixon-Love, A.

J. S27022/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
ANTHONY DWAYNE MIXON-LOVE, :
:
Appellant : No. 1639 MDA 2015
Appeal from the Judgment of Sentence June 25, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division No.: CP-41-CR-0001871-2014
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 07, 2016
Appellant, Anthony Dwayne Mixon-Love, appeals from the Judgment of
Sentence entered in the Lycoming County Court of Common Pleas after he
entered an open guilty plea to Robbery and several related offenses.
Appellant contends that the trial court, by sentencing him to an aggregate
term of 12 to 35 years’ imprisonment, imposed a manifestly excessive
sentence and abused its discretion by failing to consider several mitigating
factors. We affirm.
The trial court recited the following underlying facts to which Appellant
pleaded guilty:
*
Former Justice specially assigned to the Superior Court.
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[O]n May 17th of 2014, close to 2:00 in the morning the
[Williamsport] city police responded to the UniMart at 1944 West
Fourth Street for a reported armed robbery. The clerk indicated
that she had been threatened [by a man] with a gun saying I
want 20’s, that she would have then responded to that threat by
giving the suspect the money from the drawer and observing
that the suspect came behind the counter in an attempt to enter
the safe, but then fled.
Items were processed at the scene that indicated
[Appellant] had touched them and that [Appellant was] arrested
while [he was] housed in the county prison for another offense.
N.T. Sentencing, 6/25/15, at 5.
The Commonwealth charged Appellant with Robbery, Possession of
Firearm Prohibited, Carrying a Firearm Without a License, Possession of a
Weapon (“POW”), Terroristic Threats, Simple Assault, Theft by Unlawful
Taking, and Receiving Stolen Property (“RSP”).1 On March 27, 2015,
Appellant entered an open guilty plea to all charges. On June 25, 2015, the
trial court imposed an aggregate term of 12 to 35 years’ imprisonment.2
Appellant filed a Motion to Reconsider the Sentence, which the trial court
denied on September 21, 2015.
1
18 Pa.C.S. § 3701; 18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; 18 Pa.C.S. §
907(b); 18 Pa.C.S. § 2706; 18 Pa.C.S. § 2701; 18 Pa.C.S. § 3921; and 18
Pa.C.S. § 3925, respectively.
2
The trial court imposed a term of 7 to 20 years’ imprisonment for the
Robbery conviction, a consecutive term of 4 to 10 years’ imprisonment for
the Possession of Firearm Prohibited conviction, and a consecutive term of 1
to 5 years’ imprisonment for the POW conviction. The trial court imposed all
other sentences concurrently, and the simple assault conviction merged.
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Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. Appellant presents one issue on
appeal:
Did the trial court abuse its discretion when it imposed
consecutive periods of incarceration for a manifestly excessive
aggregate sentence of twelve (12) years to thirty-five (35) years
when the Court failed to consider mitigating factors such as Mr.
Mixon-Love’s acceptance of responsibility, his mental health
needs, and rehabilitative needs?
Appellant’s Brief at 11.3
Appellant challenges the discretionary aspect of his sentence. As we
have previously stated:
Initially, we must determine whether [Appellant] has the right to
seek permission to appeal the sentencing court’s exercise of its
discretion. Where a defendant pleads guilty without any
agreement as to sentence, the defendant retains the right to
petition this Court for allowance of appeal with respect to the
discretionary aspects of sentencing.
Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)
(citation omitted). Instantly, there was no agreement as to sentencing, thus
Appellant has the right to seek permission to appeal. See id.
“An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence,” by (1)
preserving the issue in the court below, (2) filing a timely Notice of Appeal,
(3) including a Rule 2119(f) statement, and (4) raising a substantial
question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797-98
3
The Commonwealth did not file a brief in this matter.
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(Pa. Super. 2015) (citation omitted); Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super. 2013).
Applying the four-part analysis to the instant case, we find that:
Appellant preserved his issue in his Post-Sentence Motion, Appellant timely
appealed, and Appellant substantially complied with Pa.R.A.P. 2119(f).4
Accordingly, we ascertain whether Appellant has presented a substantial
question.
Appellant argues in his Pa.R.A.P. 2119(f) Statement “that the
aggregated consecutive sentence was grossly disproportionate to the crime
committed and that the court failed to properly consider his background and
need for mental health and rehabilitative treatment.” Appellant’s Brief at 16.
In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), the
appellant contended the imposition of consecutive sentences was
disproportionate to his crimes. Id. at 1271. This Court has “determined
that such an assertion, in combination with allegations that a sentencing
court did not consider the nature of the offenses or provide adequate
reasons for its sentence, presents a plausible argument that the length of
the sentence violates fundamental sentencing norms.” Id. at 1271-72.
4
Pa.R.A.P. 2119(f) Statement “must specify where the sentence falls in
relation to the sentencing guidelines and what particular provision of the
Code is violated […] and what fundamental norm the sentence violates and
the manner in which it violates that norm[…]. Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc).
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We find that Appellant’s Rule 2119(f) statement presents a substantial
question. See id. Therefore, we will review the merits of Appellant’s
challenge to the discretionary aspects of his sentence.
On appeal, Appellant briefly argues that the trial court’s consecutive
sentences constituted a manifestly excessive aggregate sentence.
Appellant’s Brief at 18. Further, Appellant contends that the trial court
“failed to consider mitigating factors[,] such as [Appellant’s] acceptance of
responsibility, his mental health needs, and rehabilitative needs.” Id.
Appellant also mentions several collateral consequences that he believes
demonstrate the excessiveness of his sentence, including that he will be
removed “from the community resources that aided in his rehabilitation” as
well as “a ten-year-gap on his resume[, which] will greatly reduce his ability
to obtain employment and become a more productive member of society.”
Id. at 19. Appellant concludes by averring “that a ninety (90) month
sentence, with the rest of the charges run concurrent, would be the most
appropriate given the facts and circumstances.” Id.
The “proper standard of review when considering whether to affirm the
sentencing court’s determination is an abuse of discretion.”
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). An “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,
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prejudice, bias or ill-will.’” Id. (quoting Commonwealth v. Smith, 673
A.2d 893, 895 (Pa. 1996)). A trial court has the sound discretion to
determine a sentence since it is in the best position to consider the
defendant’s character, display of remorse, defiance, or indifference, and the
overall effect and nature of the crimes. Commonwealth v. Begley, 780
A.2d 605, 643 (Pa. 2001).
In sentencing a defendant, the sentencing 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.” 42 Pa.C.S. § 9721. The sentencing
court shall also consider any guidelines for sentencing adopted by the
Pennsylvania Commission on Sentencing. Id. To determine the standard
guideline sentence, the sentencing court calculates the Offense Gravity
Score and Defendant’s Prior Record Score; it then considers any aggravating
or mitigating factors. 204 Pa.Code § 303.2(a).
The trial court imposed a standard guideline range sentence on each of
Appellant’s convictions, which Appellant concedes. Trial Court Opinion, filed
9/21/15, at 3; Appellant’s Brief at 13. A review of the sentencing hearing
transcript reveals the trial court adequately stated on the record the reasons
for the sentences, and described in detail that it considered the sentencing
guidelines and the pre-sentence investigation report; Appellant’s age,
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background, work history, criminal history, and his particular rehabilitative
needs; the nature, circumstances, and seriousness of the offenses; and the
protection of the community. N.T. Sentencing, 6/25/15, at 2-15, 29-31;
Trial Court Opinion, filed 9/21/15, at 3.
Specifically, the trial court took into consideration, inter alia, that
Appellant pled guilty to all charges without a negotiated sentence, and that
Appellant accepted responsibility for his actions. N.T. Sentencing, 6/25/15,
at 2, 31. The trial court extensively reviewed Appellant’s mental health
history and rehabilitative needs. Id. at 7, 10-15. The trial court also noted,
inter alia, Appellant’s “poor response to supervision, [Appellant]’s poor
adjustment to incarceration, and the Court’s belief that [Appellant]
minimized accountability.” Trial Court Opinion, filed 9/21/15, at 3. Of
particular note, the trial court reviewed copies of inmate incident reports
indicating that Appellant threw “urine and feces on another inmate in the
county prison” just two weeks prior to his sentencing hearing. N.T.
Sentencing, 6/25/15, at 4, 21-22.
Regarding Appellant’s argument that the sentence was excessive due
to the consecutive sentences imposed, the trial court stated, “each crime
that has a consecutive sentence protects an interest different from the crime
to which it is consecutive.” Trial Court Opinion, filed 9/21/15, at 3.
In light of the foregoing, we conclude the trial court did not abuse its
discretion in imposing several consecutive sentences that resulted in an
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aggregate term of 12 to 35 years’ incarceration. See Austin, supra at 809-
10 (holding that trial court did not abuse its discretion in imposing
consecutive sentences, resulting in lengthy aggregate sentence, given the
trial court reviewed and considered, inter alia, the pre-sentence investigation
report, sentencing guidelines, and fully and adequately set forth reasons for
its sentence).
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judge Shogan joins this Memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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