Com. v. Coaxum, S.

J-A32025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN COAXUM,
Appellant No. 602 EDA 2014
Appeal from the Judgment of Sentence of August 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013596-2007
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 06, 2015
Appellant, Shawn Coaxum, appeals from her judgment of sentence
entered on August 29, 2013, following resentencing on her jury trial
convictions for aggravated assault and conspiracy. We affirm.
The trial court set forth the facts of this case as follows:
[T]he victim’s drink accidentally spilled on [Appellant].
[Appellant] went to her house to get her nephew,
codefendant Tyree Coaxum [(“Tyree”)], who came out of
the house and asked the victim why he hit [Appellant].
While [Appellant], Tyree [] and the victim were arguing,
codefendant Ahmad Williams [(“Williams”)] exited a house,
went to the trunk of a car, took out a black revolver, and
shot the victim in the foot from a distance of about five feet
away or closer, before saying “What’s up now, old head?”
As the victim was slowly walking away (due to his injury)
and looking behind him, Tyree [] grabbed the gun and
[Appellant] instructed codefendant to “Shoot that M.F.er” or
“Kill that M.F.er.” Tyree then shot the victim in the head.
Trial Court Opinion, 6/11/2009, at 3 (record citations).
*Retired Justice specially assigned to the Superior Court.
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On October 21, 2008, a jury convicted Appellant of aggravated
assault, conspiracy, carrying a firearm without a license, and carrying a
firearm in the streets of Philadelphia.1 Appellant filed a timely appeal to this
Court. On May 27, 2011, in an unpublished memorandum, we vacated
Appellant’s firearm convictions and affirmed her aggravated assault and
conspiracy convictions. See Commonwealth v. Coaxum, 30 A.3d 550 (Pa.
Super. 2011) (unpublished memorandum). Accordingly, we remanded the
case for resentencing.
Thereafter, the trial court
resentenced [Appellant] on August 28, 2013 as follows: 85
to 204 months [of imprisonment] for [a]ggravated [a]ssualt
followed by 57 to 197 months [of imprisonment] for
[c]onspiracy to [c]ommit [a]ggravated [a]ssault. [On
September 3, 2013, Appellant filed a post-sentence motion
asking for reconsideration of her sentence. The trial court
denied Appellant’s request on September 20, 2013. No
appeal was taken.]
On November 22, 2013, [Appellant] filed a [petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§ 9541-9546]. On February 18, 2014, [the trial court
reinstated Appellant’s] appellate rights []. On February 20,
2014, [Appellant] filed a [n]otice of [a]ppeal. On February
28, 2014, [Appellant] filed a [s]tatement of [e]rrors
[c]omplained of on [a]ppeal [pursuant to Pa.R.A.P.
1925(b)], listing four appellate issues. [The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on May 5,
2014.]
Trial Court Opinion, 5/5/2014, at 2.
____________________________________________
1
18 Pa.C.S.A. §§ 2702, 903, 6106, and 6108, respectively.
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On appeal, Appellant presents the following issue2 for our review:
Is [A]ppellant entitled to [a] new sentenc[ing] hearing?
Appellant’s Brief at 2.
Appellant argues that “[t]he sentence imposed by the trial court was
unjust, improper, manifestly unreasonable, irrational, and an abuse of
discretion because the court imposed [a] sentence of 11 years [and] 10
months to 33 years in prison, on a 44 year old individual, which was above
the average range of the sentencing guidelines and outside the guidelines,
when [Appellant’s] prior record score was two, and [Appellant] had no
history of violent criminal behavior.” Id. at 7. Further, she avers that “the
fact that she was on probation at the time of the alleged offenses is not a
reason to impose such a harsh sentence[.]” Id. Appellant also challenges
the trial court’s decision to impose consecutive sentences. Id. at 8. Finally,
Appellant claims the trial court “did not consider any of the factors required
by 42 Pa.C.S.A. [§] 9721(b) that is 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 [Appellant].” Id.
____________________________________________
2
We note that Appellant set forth four individual sentencing challenges in
her Rule 1925(b) statement. While Appellant did not follow Pa.R.A.P. 2116,
the sole issue presented on appeal fairly encompasses all four original
claims.
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Appellant challenges the trial court’s discretionary authority to impose
a sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. 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 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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)(citations
and brackets omitted).
Appellant has complied with the first requirement above, by timely
filing a notice of appeal. Next, we observe that Appellant’s post-sentence
motion preserved the issue presented. Appellant has also complied with the
third requirement of the above-mentioned four-part test, by including a
statement in her brief in conformity with Pa.R.A.P. 2119(f). Finally,
Appellant presents two substantial questions for our review.
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en
banc) (substantial question is raised where appellant alleges sentencing
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court imposed sentence in aggravated range without adequately
considering mitigating circumstances). Likewise, Appellant’s argument that
the sentencing court failed to consider the factors proffered in 42 Pa.C.S.A.
§ 9721 presents a substantial question. See Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (citation omitted).
However, “the imposition of consecutive rather than concurrent sentences
lies within the sound discretion of the sentencing court, and a challenge to
the imposition of consecutive sentences simply does not raise a substantial
question.” Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005)
(citation omitted). Hence, we will examine whether the trial court
considered Appellant’s individual circumstances, as well as, “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 [Appellant’s] rehabilitative needs”
in fashioning Appellant’s sentence. 42 Pa.C.S.A. § 9721(b). However, we
will not examine the consecutive nature of Appellant’s sentences.
Our standard of review 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.
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Commonwealth v. Raven, 97 A.3d 1244, 1253-1254 (Pa. Super. 2014)
(citation omitted).
Additionally, our review of the discretionary aspects of a sentence is
confined by the statutory mandates of 42 Pa.C.S.A. §§ 9781(c). Subsection
9781(c) provides:
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.A. § 9781(c).
In reviewing the record, we consider:
(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.
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(4) The guidelines promulgated by the
commission.
42 Pa.C.S.A. § 9781(d).
Moreover, “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.” 42 Pa.C.S.A. § 9721(b).
Here, the trial court determined:
[Appellant’s] criminal history, [the trial court’s] duty to
protect the public, and the scant rehabilitative potential of
[Appellant] called for the sentences imposed. [Appellant]
committed the crimes of aggravated assault and conspiracy
to commit aggravated assault while on probation.
[Appellant] was offered rehabilitative options [and] she
refused to continue treatment. [Appellant] showed no
remorse about her crimes, nor did she ever admit
responsibility.
Trial Court Opinion, 5/5/2014, at 4-5.
Further, the trial court noted:
In addition, [Appellant’s] work history was reviewed and it
was noted that [Appellant] was also illegally collecting
welfare. Though having two sources of income, [Appellant]
only paid back $70[.00] of the $38,000[.00] stolen.
[Appellant] was offered [but,] refused[,] treatment.
[Appellant] [expressed] no remorse for the crimes
committed and merely stated that she was sorry for being
found guilty and being charged, not for the actual
commission of the acts.
Id. at 5.
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Upon review of the record, we agree. Initially, the trial court
recognized its duty to “balance the protection of the public[,] against
[Appellant’s] possibility of being rehabilitated, as well as the gravity of the
offenses that were committed back on July 13, 2007.” N.T., 8/29/2013, at
22. The trial judge also stated:
My duty is not just to take the time that I imposed on
November 25, 2008, and just robot-like add it to the
sentences where I was not reversed. And, by the same
token, I’m not a robot-like machine[…] that should just let it
go and not do the same evaluation that was done back in
November of 2008.
Id. at 23.
The trial court looked at the facts of the case and recalled that
“Appellant was on house arrest with electronic monitoring supervision when
she asked people to shoot [the victim].” Id. at 16. Appellant’s age was
discussed at length and Appellant argued that consecutive, aggravated
range sentences had the effect of placing Appellant “under supervision either
in prison or on parole [until] she’s 75 years old.” Id. at 15-16. Both parties
presented argument and the trial court gave Appellant the right of
allocution, which she declined. Id. at 27. The trial court ultimately imposed
the following sentences, accompanied with the following rationale:
I’m going to not disturb the 57- to 192-month
sentence on the conspiracy; on the aggravated assault
sentence I am imposing a sentence of 85 to 204 months.
That is an above guideline sentence, and that is amply
justified by the [following] factors. […] [Appellant’s
expression of remorse was hollow, [Appellant] took no
sincere responsibility for her crime, she committed these
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crimes while on probation, her rehabilitation potential was
shown to be almost nonexistent, and her propensity to
provoke violence for a minor slight represents a danger to
society.
The individuals who shot [the victim] did this at
[Appellant’s] urging. She was the instigator. She was the
ring leader, all because she grabbed at someone’s glass of
vodka and some of the vodka spilled on her.
Id. at 28.
Based upon our standard of review and a review of the certified
record, we discern no abuse of discretion in imposing Appellant’s sentences.
The trial court was aware of the sentencing guidelines and clearly weighed
the statutory factors in fashioning Appellant’s sentence. As the result of an
otherwise minor altercation, Appellant engaged in a conspiratorial
relationship that resulted in two gunshot wounds to the victim. These were
grave offenses. Because Appellant engaged in those crimes while on house
arrest, the trial court could reasonably conclude that her potential for
rehabilitation was slim. Accordingly, the trial court acted within the scope of
its discretion when it imposed aggravated sentences to protect the public.
Moreover, the trial court adequately took into consideration Appellant’s
proffered mitigating circumstances, including her age, when imposing her
sentences. We discern no abuse of discretion and Appellant’s appellate
claims fail.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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