Com. v. Westbrooks, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHRISTOPHER WESTBROOKS, JR.,
Appellant No. 1533 WDA 2018
Appeal from the Judgment of Sentence Entered January 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008986-2013
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2019
Appellant, Christopher Westbrooks, Jr., appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 130 to 260 months’
incarceration, imposed after he was convicted, following a non-jury trial, of
aggravated assault (18 Pa.C.S. § 2702(a)(1)), persons not to possess a
firearm (18 Pa.C.S. § 6105), carrying a firearm without a license (18 Pa.C.S.
§ 6106), and recklessly endangering another person (18 Pa.C.S. § 2705). On
appeal, Appellant challenges the discretionary aspects of his sentence. After
careful review, we affirm.
Briefly, Appellant was convicted of the above-stated offenses based on
evidence that he shot Allen Parker Newton on June 14, 2013. The trial court
explained:
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* Retired Senior Judge assigned to the Superior Court.
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[O]n the night of the incident[, Newton] was walking on North
Third Avenue in Duquesne when he was approached by
[Appellant,] who shot him five times. [Newton] was shot three
times in the back and then twice in the chest. [Newton] testified
that he had approximately 14 surgeries as a result of his injuries
and will require additional surgeries. He also suffered from
multiple infections, including a kidney infection, and testified that
there was a bullet lodged near his heart that still poses a threat
to his life.
Trial Court Opinion (TCO), 12/20/18, at 2.
After the preparation of a presentence report, Appellant proceeded to a
sentencing hearing on January 21, 2015. There, Appellant
argued that a mitigated range sentence of 5½ years [should] be
imposed for the [a]ggravated [a]ssault. [Appellant also] argued
that the guidelines were “bumped up” because of the [sentencing]
enhancements and that[,] given “the entirety of his life history
that was contained in the presentence report[,]” … a mitigated
range sentence should be imposed.
The Commonwealth noted [Appellant’s] prior record[,]
which included … adjudication[s] as a juvenile for recklessly
endangering another person and possession of a firearm…[,] as
well as a consent decree for theft of a vehicle, criminal mischief,
receiving stolen property and possession of a controlled
substance. As an adult[, Appellant] also had convictions for
possession of a firearm, possession with intent to deliver a
controlled substance and resisting arrest. The Commonwealth
requested a standard range sentence of 8 years[’ incarceration]
for the aggravated assault and, “because the defendant has
obviously not gotten the message about not carrying a firearm,”
5 years[’ incarceration] for carrying a firearm [without a license,]
for an aggregate recommended sentence of 13 to 26 years[’
incarceration].
[Appellant] spoke at length at the sentencing hearing [and]
… acknowledged that he knew the [victim] and “loved him like a
brother.” He indicated that “[they] had a fight many months
before this happened over some money,” and contended that he
was fearful of the victim and at the time of the incident he thought
the victim, although unarmed, was carrying a gun. [Appellant]
stated:
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“I’m not saying that I am not guilty for what I did. What I
did was completely wrong. I could have found a better way
and made a way better decision and avoided it.”
[Appellant] was then sentenced to a standard range sentence
on the aggravated assault charge to 80 to 160 months[’
incarceration,] and a consecutive sentence of 50 to 100 months[’
incarceration] for persons not to possess a firearm. He was also
sentenced to concurrent sentences of 36 to 72 months[’
incarceration] for carrying a firearm without a license[,] and 6 to
12 months[’ incarceration] for recklessly endangering another
person.
Id. at 2-3 (citations to the record omitted).
Appellant did not file post-sentence motions or a direct appeal.
However, on September 8, 2017, he filed a pro se letter to the court, which
the court treated as a petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, and appointed counsel. In counsel’s amended PCRA
petition, he argued that Appellant had asked his trial counsel to file an appeal
on his behalf, but trial counsel failed to do so. Appellant alleged that he did
not discover this failure until August of 2017, after he inquired about the status
of his appeal with the Allegheny County Clerk of Courts. Thus, Appellant
contended that his facially untimely petition met the ‘newly-discovered fact’
exception of 42 Pa.C.S. § 9545(b)(1)(ii), and his post-sentence motion and
appellate rights should be restored.
On August 16, 2018, the PCRA court issued an order granting
Appellant’s petition and reinstating his right to file post-sentence motions and
a direct appeal nunc pro tunc. The Commonwealth did not file an appeal from
that order.
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Appellant thereafter filed a post-sentence motion to modify his
sentence, which the court denied on September 19, 2018. On October 19,
2018, Appellant filed a timely notice of appeal. He also timely complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court filed a responsive Rule 1925(a)
opinion. Herein, Appellant presents the following issue for our review:
I. Did the trial court err in imposing a sentence that was manifestly
excessive, unreasonable, and an abuse of discretion when the trial
court overlooked and/or failed to carefully consider relevant
factors when sentencing [Appellant], including his background and
rehabilitative needs; and the court relied on impermissible
duplicative factors, that is, the seriousness of the offense and
[Appellant’s] prior record, and failed to impose an individualized
sentence?
Appellant’s Brief at 6 (unnecessary capitalization and emphasis omitted).
Appellant’s issue implicates the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
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they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). 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.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal and he preserved his
sentencing claims in his post-sentence motion. He has also included a Rule
2119(f) statement in his brief. Therein, he argues that his sentence is
manifestly excessive and unreasonable because the court failed to consider
the factors set forth in 42 Pa.C.S. § 9721(b). He also insists that the court
focused solely on the seriousness of the crime and his prior record, thereby
‘double-counting’ factors that were already considered in calculating the
sentencing guideline range applicable to Appellant. We conclude that
Appellant has raised substantial questions for our review. See
Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (“An
averment that the trial court failed to consider relevant sentencing criteria,
including the protection of the public, the gravity of the underlying offense
and the rehabilitative needs of [the a]ppellant, as 42 Pa.C.S. § 9721(b)
requires[,] presents a substantial question for our review in typical cases.”)
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(internal quotation marks and citation omitted); Commonwealth v.
Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (considering, as a substantial
question, a claim “that the sentencing court relied on impermissible factors,
by considering factors already included in the sentencing guidelines”).
However, Appellant’s arguments do not demonstrate that he is entitled
to sentencing relief. To begin, we recognize that:
“Sentencing is a matter vested within the discretion of the trial
court and will not be disturbed absent a manifest abuse of
discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282
(Pa. Super. 2010). “An abuse of discretion requires the trial court
to have acted with manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id. “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.” Id. at 1283.
Commonwealth v. Rush, 162 A.3d 530, 544 (Pa. Super. 2017), appeal
denied, 170 A.3d 1049 (Pa. 2017).
In this case, Appellant contends that the trial court abused its discretion
in fashioning his sentence because it “ignored [his] remorse, the fact that he
was working, had a family, and was making an effort to do the right things
and stay out of trouble despite peer pressure, living in a high-crime area, and
his fear of the victim.” Appellant’s Brief at 21. He further insists that the
court disregarded his rehabilitative needs, noting that “[n]o evidence was
presented that [he] had had an opportunity to be involved in a comprehensive
treatment plan in the past.” Id. According to Appellant, “[t]he possibility of
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[his] rehabilitation existed, yet the sentencing court did not specifically
address his rehabilitative needs or any factors regarding his ability to be
rehabilitated.” Id. Instead, Appellant claims that the court focused only on
the seriousness of the offense and his prior record, which constituted a
‘double-counting’ of factors that were “already included when determining the
guideline range, [and] the offense gravity score.” Id. at 23. For all of these
reasons, Appellant maintains that his sentence is manifestly excessive and
unreasonable.
In rejecting Appellant’s arguments, the trial court reasoned as follows:
In this case[,] the factors set forth in the sentencing code
were properly considered. [Appellant] engaged in an attack on
the victim shooting him multiple times[,] which resulted in life
threatening and permanent injuries. The shooting took place on
a public street with others nearby. [Appellant’s] history, as shown
in the presentence report, reflects that [Appellant] has a history
of multiple offenses related to carrying a firearm. As [the court]
noted at the sentencing [hearing]:
“[Appellant], I agree with you a hundred percent. You have
to find a better way to deal with disputes than shooting each
other. It’s a dangerous way. The other thing is there are
other people in that neighborhood that somebody else could
have been killed. It’s a tragic event. And the victim, I don’t
know how much longer he’s going to live given all of this -
[h]e still has a bullet in him.” ([N.T. Sentencing, 1/21/15,
at] 12)[.][1]
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1 To the extent Appellant challenges the adequacy of the court’s on-the-record
statement of its reasons for imposing his sentence, see Appellant’s Brief at
21, this claim was not preserved in his post-sentence motion, nor in his Rule
1925(b) statement. Appellant also failed to assert in either of those
documents that the court did not consider mitigating circumstances, such as
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As noted above, [Appellant’s] conduct is not an isolated event but
represents a pattern of repeated criminal conduct that has
continued and escalated. Clearly[,] the sentence in the standard
range [accounted for] the gravity of the offenses as it relates to
the lifelong impact on the victim. The sentence also [accounted
for] the impact of [Appellant’s] continued illegal carrying of a
firearm on the community as a whole.
The rehabilitative needs of [Appellant] were also specifically
considered. Despite the fact that [Appellant] has had previous
adjudications and convictions related to firearms, he has failed to
recognize and appreciate the dangers involved to himself and
others by his conduct. As the Commonwealth appropriately
indicated, [Appellant] has “not gotten the message about not
carrying a firearm.” The record clearly demonstrates that the
sentence of incarceration was appropriate not only for the
protection of the community as a whole[,] but also to facilitate
[Appellant’s] long term rehabilitation.
[Appellant] also contends that[,] by focusing exclusively on
the seriousness of the offense and [his] prior record[,]… the
[c]ourt engaged in “double counting” the factors already included
in the Offense Gravity Score, the Deadly Weapon Enhancement
and the Prior Record Score of each offense. In this case, in
imposing [a] sentence less than [that] requested by the
Commonwealth[,] and [one] that was [in] “a little bit of a low end”
of the standard range, the sentence did not double count any
factors to enhance or impose a harsher sentence. ([N.T.
Sentencing Hearing at] 12)[.] As a general rule, a sentencing
court may not ‘double count’ factors already taken into account in
the sentencing guidelines[;] however, a sentencing court is
permitted to use prior conviction history and other factors included
in the guidelines if[] they are used to supplement other
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his work history, family support, and fear of the victim. Therefore, these
arguments are waived. See Commonwealth v. Bromley, 862 A.2d 598,
603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the
discretionary aspects of his sentence is waived if the [a]ppellant has not filed
a post-sentence motion challenging the discretionary aspects with the
sentencing court.”) (citation omitted); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).
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extraneous sentencing information. Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). In this case[,]
there was no abuse of discretion and an appropriate sentence was
imposed.
TCO at 4-6.
Given the reasons stated by the trial court, and after reviewing the
record of the sentencing hearing, we conclude that the court did not abuse its
discretion in imposing Appellant’s sentence. Contrary to Appellant’s
arguments, the court considered the required factors, including his
rehabilitative needs, and balanced those factors against the seriousness of his
offense, his prior record, and the danger he poses to the public. The court
also had the benefit of a presentence report, and it imposed standard range
sentences. Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2019
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