Com. v. Jones, K.

J-S73012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KELAYDA B. JONES :
:
Appellant : No. 310 WDA 2018
Appeal from the Judgment of Sentence January 17, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001866-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 03, 2019
Appellant, Kelayda B. Jones, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas, following his guilty plea to
one count of aggravated assault.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
May 18, 2017, Appellant entered his estranged wife’s home through a first-
floor window, despite her active Protection From Abuse (“PFA”) order against
Appellant. Once in the home, Appellant discovered his wife in bed with
another man. Appellant grabbed a pair of scissors and attacked the man,
stabbing him in the hand, back, and arm. Appellant also bit the man on the
back and arm. The victim wrestled Appellant to the ground and held him down
____________________________________________
1 18 Pa.C.S.A. § 2702(a)(4).
J-S73012-18
until police arrived.
On November 15, 2017, Appellant pled guilty to one count of aggravated
assault. On January 17, 2018, the court sentenced Appellant to fourteen (14)
to one hundred twenty (120) months in SCI, with credit for time served.
Appellant filed a motion for sentence reconsideration on January 22, 2018,
which the court denied on January 31, 2018. Appellant timely filed a notice
of appeal on March 1, 2018. On March 2, 2018, the court ordered Appellant
to file a concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b); Appellant timely complied on March 20, 2018.
Appellant raises one issue for our review:
WAS THE SENTENCE IN THIS CASE MANIFESTLY
EXCESSIVE AND CLEARLY UNREASONABLE, AS IT WAS NOT
INDIVIDUALIZED AS REQUIRED BY LAW, ESPECIALLY IN
THAT THE SENTENCE DID NOT PROPERLY TAKE INTO
ACCOUNT THE SEVERAL MITIGATING FACTORS PRESENT,
AND THE MAXIMUM PERIOD WAS UNREASONABLE AS
WELL?
(Appellant’s Brief at 1).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[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
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J-S73012-18
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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Our standard of review concerning 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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005). Pursuant to Section 9721(b),
“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). The record as a whole must reflect the sentencing
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J-S73012-18
court’s consideration of the facts of the case and the defendant’s character.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). “In particular, the court should
refer to the defendant’s prior criminal record, his age, personal characteristics
and his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1,
10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert
denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L. Ed. 2d 902 (2005).
Instantly, Appellant preserved his claim in his post-sentence motion and
in his Rule 2119(f) statement. Nevertheless, after a thorough review of the
record, the briefs of the parties, the applicable law, and the well-reasoned
opinion of the Honorable John Garhart, we conclude Appellant’s issue merits
no relief. The trial court opinion comprehensively discusses and properly
disposes of the question presented. (See Trial Court Opinion, filed April 3,
2018, at 2-5) (finding: court considered all relevant sentencing factors when
imposing sentence and tailored sentence to meet Appellant’s individual needs;
court set forth its reasons for sentence on record; any lesser sentence would
have depreciated nature of offense; sentence was in standard guidelines
range, did not exceed statutory limits, and was not manifestly excessive).
Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
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J-S73012-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2019
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Circulated 12/17/2018 02:00 PM
COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS
Appellee, : OF ERIE COUNTY, PENNSYLVANIA
: CRIMINAL DIVISION
v.
KELA YDA JONES,
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Garhart, J ., April 2018
Appellant, Kelayda Jones, appeals from the judgment of sentence entered o'ri' January�, rf.'
2018, after entry of a plea of guilty to one count of aggravated assault. 1 Based on the following,
this Court respectfully requests his sentence be affirmed.
I. . BACKGROUND OF THE CASE
On May 18, 2017, Appellant entered his estranged wife's home, through a first floor window.
Appellant's wife had an active Protection from Abuse Order against him at the time. Appellant
apparently found his wife, "in flagrante delicto" with another man, Joe Weislak (Weislak).
Appellant grabbed a pair of scissors and stabbed Weislak in his hand, back and arm. AppeUant
also bit Weislak on the arm and back. Weislak had to wrestle Appellant to the ground and held
him down until police arrived.
Appellant was charged with one count of Aggravated Assault to which he pied guilty on
November 15, 2017. He was sentenced on January 17, 2018 to a term of state incarceration of 14
.months to 120 months. Appellant received credit for 192 days of time served.
On March 1, 2018, Appellant filed a timely Notice of Appeal. This Court issued a 1925(b)
Order on March 2, 2018. On March 20, 2018, Appellant filed a Statement of Matters
Complained of on Appeal and raises the following issues on appeal:
1
18 Pa.C.S.A. §2702 (a)(4).
1
1. Though the sentence imposed was in the standard range of the sentencing guidelines, it
still constituted a sentence of state imprisonment when the Court had the option under the
guidelines of a county level sentence. Furthermore it is averred that the Court did not
sufficiently consider several mitigating factors that were presented to the Court at the
time of sentencing prior to said imposition of sentence, as follows:
a. The [Appellant] ... had for nearly all of his adult life been a law abiding citizen
with no prior history of violent behavior;
b. The fact that [Appellant] took responsibility for his actions and entered a plea in
this matter ... ;
c. The [Appellant] had apparently during the course of the incident, become upset
when he found his wife in flagrante delicto with the victim when he had gone to
his home (though he was prohibited from doing so by a PFA) to speak with his
wife, who had been conversing with him previously;
d. The Court also failed to seriously consider the [Appellant's] heartfelt remorse ...
e. The Court failed to adequately consider the victim impact statement ... which
showed the incident had virtually no impact on the victim;
f. The Court failed to consider the fact that [Appellant] did not go to the residence
with the intent to harm anyone, but in this moment of extreme emotion rashly
grabbed scissors that were available in the room and cut the individual;
g. Further, though the charge was aggravated assault as it involved a weapon, the
injuries to the victim ... constituted bodily injury, not serious bodily injury ...
h. . .. [ Appellant] had already been incarcerated for a substantial period of time
[between time of arrest and time of sentencing] and had completed anger
management ...
i. . .. the maximum ... of 120 months ... was unduly harsh.
2. Under the circumstances, it would have been appropriate for the sentence imposed to
have been ... 11.5 to 23 months, followed by 3 years' probation.
Appellant's Rule 1925(b) Statement, 3/20/18, at 1fil -3.
II. DISCUSSION
Essentially, Appellant makes three basic claims on appeal: (1) the trial court imposed a state
versus a county sentence, (2) the trial court failed to sufficiently consider Appellant's mitigating
factors, and (3) the trial court should have imposed a particular sentence. We begin by noting
that sentencing is vested in the sound discretion of the judge. A sentence will not be disturbed on
appeal unless there is a "manifest abuse of discretion." Commonwealth v. Rodda, 723 A.2d 212,
214 (Pa.Super. 1999) (en bane).
2
[A]n 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.
Id (internal quotations and citations omitted). Where the sentencing court has the benefit of a
pre-sentence report, the law presumes that the court was aware of the relevant information
regarding the appellant's character and weighed those considerations along with the mitigating
statutory factors delineated in the Sentencing Code. Commonwealth v. Cruz-Centeno, 668 A.2d
536, 545 (Pa.Super. 1995)(quotation and citations omitted). Having been fully informed by the
pre-sentence report, the sentencing court's discretion should not be disturbed. Id.
Furthermore, there is no absolute right to appeal the discretionary aspects of a
sentence. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). Rather, allowance of appeal
will be permitted only when the appellate court determines that there is a substantial question
that the sentence is not appropriate under the Sentencing Code. Id The determination of what
constitutes a substantial question is made on a case-by-case basis. Commonwealth v.
McNabb, 819 A.2d 54 (Pa.Super.2003). A substantial question exists where an appellant sets
forth a plausible argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing process. Id. at 56.
The Pennsylvania Superior court has repeatedly held that "a claim of
inadequate consideration of mitigating factors does not raise a substantial question for our
review." Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). Given that Appellant
was given a standard range sentence, we can discern no reason why Appellant's claim of an
excessive sentence due to inadequate consideration of mitigating factors raises a substantial
question.
3
Here, this Court considered the following at time of sentencing: (1) Pennsylvania
Sentencing Code and accompanying factors; (2) the pre-sentence investigative report; (3)
Petitioner's medical issues, age, and background, rehabilitative needs; (4) factual background of
the case; (5) the statement of the defendant, and (6) argument by counsel. N.T. Sentencing,
02/25/16, at 5-21. Appellant was sentenced within the standard range of the sentencing
guidelines. The Court detailed it's consideration as follows:
THE COURT: All right. The record will reflect I've considered the Pennsylvania
Sentencing Code. I've looked at the presentence report, looked at the guidelines,
listened to the statement of defense counsel, the defendant, the attorney for the
Commonwealth. I looked at the defendant's age, background, character,
rehabilitative needs, about which there's some substantial uncertainty.
I've looked at the nature and circumstances, and the seriousness of the
offense, about which there is little uncertainty, and the protection fo the
community, and here, respectfully, the protection of this woman and her life. So
I'm going to do the following:
The major count of conviction is at 1866 of 2017. I have a defendant who
is 32?
THE DEFENDANT: Thirty-three.
THE COURT: Thirty-three now?
THE DEFENDANT: Yes.
THE COURT: A young man, but certainly not a youth anymore, He committed
an act of violence here on May 18. 2017, and pled to aggravated assault with a
deadly weapon, when he went to a home he was forbidden to go to, and stabbed
another human being with a pair of scissors. There are two victims in this case
aside from the community, first, the person he stabbed, and secondly, the woman
that he had previously been involved with ...
. . . [S]tabbing her boyfriend was an act of aggression and violence on her, a
woman you had previously beat back in April. So although the flesh wounds
were inflicted on the boyfriend, the terror that's demonstrated, the non-verbal
statement that's made is a statement to her, leave me and I'll kill you, perhaps
something similar ...
The question is whether I'm going to leave you in the county jail or not..
It's a close case, but I'm going to do it. The stabbing of another human being the
wav it was done in violation of a PF A order, breaks the boundary of a county
sentence, and it comes on the heels of him having beat the victim that prior April,
and. that then forms my feelings about this case. So I'm going to impose a
4
sentence at the top end of the standard range at Count 1 of 2017, near the top end,
of 14 months to 120 months in the state institution.
N.T., Sentencing, 1/17/2018, pp.18-20.
Despite Appellant's argument to the contrary, the Court considered all relevant factors
when imposing sentence. The sentence was tailored to Appellant's individual needs and the
reasons for the sentence imposed were clearly set forth on the record. Any lesser sentence would
have depreciated the nature of the offense. Because Appellant's sentence was within the
statutory limits and not manifestly excessive, there was no sentencing error.
III. CONCLUSION
Based on the above, this Court respectfully requests that Appellant's judgment of
sentence be affirmed. The Clerk of Court is hereby directed to submit the record to the
Pennsylvania Superior Court for its review.
J,
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cc: District Attorney's Office
James Pitonyak, Esq.
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