Com. v. Cook, L.

J-S34026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE JIM COOK :
:
Appellant : No. 1712 WDA 2018
Appeal from the Judgment of Sentence Entered April 27, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007257-2016
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 11, 2019
Lawrence Jim Cook (“Cook”) appeals from the judgment of sentence
entered on April 27, 2017 in the Court of Common Pleas of Allegheny County.
Cook contends that the trial court abused its discretion and imposed an
excessive sentence. We affirm.
On January 18, 2017, Cook, in exchange for the withdrawal of certain
counts, pled guilty to Rape, Involuntary Deviate Sexual Intercourse (“IDSI”),
and Robbery.1 These charges arose from an incident that occurred on July 11,
2015, where the victim was asking for driving directions in the early morning
hours when she encountered Cook. Cook then pulled a gun on the victim and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. § 3121(a)(1), 18 Pa.C.S.A. § 3123(a)(1), and 18 Pa.C.S.A. §
3701(a)(1)(ii), respectively.
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led her down an alleyway where he violently threatened, assaulted, and raped
her. On April 27, 2017, following a sentencing hearing, the trial court
sentenced Cook to seven to 14 years of imprisonment for Rape, seven to 14
years of imprisonment for IDSI, and five to 10 years of imprisonment for
Robbery. The court ordered the sentences to run consecutively, for an
aggregate sentence of 19 to 38 years’ imprisonment.
On May 5, 2017, Cook filed a Motion to Withdraw Guilty Plea and a
Motion to Reconsider Sentence, both of which the trial court denied on May 9,
2017. Cook did not file a direct appeal. However, Cook filed a timely Petition
for Post-Conviction Relief in which he sought the reinstatement of post-
sentence motion and direct appeal rights. By order dated July 31, 2018, the
trial court granted Cook the relief he requested, and on August 13, 2018, Cook
filed a post-sentence motion to modify his sentence. This timely appeal
followed.2
Cook raises one issue on appeal:
Was the sentence imposed on Mr. Cook unreasonable,
manifestly excessive, contrary to the dictates of the
Sentencing Code, and an abuse of discretion in that: 1) the
court failed to consider prior to imposing sentence, as it
must under 42 Pa.C.S. § 9721(b), Mr. Cook’s history of
enduring physical and emotional abuse as a child, mental
illness (he was diagnosed with 6 different illnesses), his drug
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2 Cook’s Notice of Appeal originally included three lower court docket
numbers: CP-02-CR-0003696-2016, CP-02-CR-0007256-2016, and CP-02-
CR-0007257-2016. Cook filed an Application to Amend the Notice of Appeal
to include only the Judgment of Sentence at CP- 02-CR-0007257-2016. We
granted the application, and we therefore in this appeal only address the
judgment at CP-02-CR-0007257-2016.
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addiction, and his need for treatment and rehabilitation, and
2) the court focused exclusively on the seriousness of the
crimes, which factor was already accounted for in the
offense gravity score of the guidelines?
Cook’s Br. at 6.
Cook contends that his sentence was unreasonable and manifestly
excessive because the trial court improperly focused only on the nature of the
offenses and failed to consider all relevant sentencing factors, as required by
42 Pa. C.S.A. § 9721(b).3 Id. at 14. Cook concedes that his sentence was
within the statutory limits and the periods of incarceration fell within the
standard range of the Sentencing Guidelines. Id. However, Cook contends
that the trial court failed to impose an individualized sentence. Id. Cook
maintains that the court overlooked his history of physical and emotional
abuse as a child, his mental illnesses, his drug addiction, and his need for
treatment and rehabilitation. Id. at 11. Cook argues that the court wrongly
focused only on the impact on the victim to the exclusion of any other factor.
Id. at 24. In addition, Cook asserts that the trial court effectively “double
counted” a sentencing factor by putting intense focus on the seriousness of
the crimes, which was already included in the offense gravity score. Id. at 26.
____________________________________________
3 Section 9721(b) states, in relevant part, that in determining the sentence to
be imposed, “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. The court shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania Commission on Sentencing . . . .”
42 Pa. C.S.A. § 9721(b).
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Cook’s issue challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), pet. for
allowance of appeal denied, 206 A.3d 1029 (Pa. 2019). Before reviewing the
merits of Cook’s claim, we must determine whether: “(1) the appeal is timely;
(2) the appellant has preserved his issue; (3) his brief includes a concise
statement of the reasons relied upon for allowance of an appeal with respect
to the discretionary aspects of his sentence; and (4) the concise statement
raises a substantial question whether the sentence is inappropriate under the
Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super.
2019).
Here, Cook has complied with the first three requirements: his appeal is
timely, he preserved the issue in a post-sentence motion, and his brief
includes a statement of the reasons for allowance of appeal. We now turn to
whether Cook has raised a substantial question pursuant to the fourth
requirement of the test.
A substantial question exists when the appellant makes a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms that underlie the sentencing process. Commonwealth v. Moury, 992
A.2d 162, 170 (Pa.Super. 2010). In his statement of the reasons for allowance
of appeal, Cook contends that the trial court failed to impose an individualized
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sentence tailored to him and that the court failed to consider all of the relevant
sentencing factors as required by 42 Pa.C.S.A. § 9721(b). We have held that
the court’s alleged failure to consider all relevant sentencing factors raises a
substantial question. See Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa.Super. 2012) (finding that appellant raised a substantial question when
he argued 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 [a]ppellant, as 42 Pa.C.S.A § 9721(b) requires,
and instead focused on the injuries suffered by the complaining victims”);
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa.Super. 2019) (concluding
that appellant “raised a substantial question, namely whether his sentence
was excessive in conjunction with an assertion that the trial court failed to
consider mitigating factors such as his non-violent history and difficult
childhood”). Moreover, the Commonwealth concedes that Cook has raised a
substantial question. Commonwealth Br. at 11-12. Thus, we will review the
merits of Cook’s claim.
Our standard of review concerning the discretionary aspects of
sentencing is well-settled. “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.” Commonwealth v. Edwards,
194 A.3d 625, 637 (Pa.Super. 2018), pet. for allowance of appeal denied, 202
A.3d 41 (Pa. 2019) (citation omitted). An abuse of discretion occurs where
“the sentencing court ignored or misapplied the law, exercised its judgment
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for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Id. A sentencing court has broad discretion, as it is
“in the best position to determine the proper penalty for a particular offense
based upon an evaluation of the individual circumstances before it.”
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal quotation
marks and citation omitted). Furthermore, 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. Crump, 995 A.2d 1280, 1283
(Pa.Super. 2010).
Here, the record reveals that in imposing Cook’s sentence, the trial court
considered the testimony of five members of Cook’s family, including Cook’s
mother, as well as a letter from Cook’s sister and testimony from Cook himself.
Cook and his mother both testified about Cook’s difficult childhood in foster
care due to Cook’s mother’s drug addiction. Cook also testified about his
various mental health diagnoses and his own drug use. Further, the court
heard argument from Cook’s counsel regarding Cook’s childhood and mental
health illnesses.
Significantly, the trial court also had the benefit of a presentence
investigative report (“PSI”) at the time of Cook’s sentencing hearing. The trial
court stated that it had reviewed the PSI at length and explained that it was
imposing its sentence, in part, based on the information contained in the PSI.
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N.T., 4/27/17, at 29-30. The PSI contained victim impact statements, as well
as Cook’s criminal, social, and mental health history. It is well-settled that
“[w]here the sentencing judge had the benefit of a pre-sentence report, it will
be presumed that he was aware of relevant information regarding appellant’s
character and weighed those considerations along with the mitigating
statutory factors.” Conte, 198 A.3d at 1177 (quoting Commonwealth v.
Fullin, 892 A.2d 843, 849-50 (Pa.Super. 2006)). Accordingly, having been
“fully informed by a pre-sentence report, a sentencing court’s discretion
should not be disturbed.” Id. (quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988)).
Before announcing Cook’s sentence, the trial court stated:
Mr. Cook, I’ve listened to the statements of your family
members who come into this courtroom to ask me to be fair
and to be lenient and to have mercy on you. I’ve reviewed
the presentence report at length and have taken everything
that was said in that report into consideration with respect
to your sentencing . . . . I’ve listened to [the Assistant
District Attorney] summarize the impact that your conduct
has had on individuals and families in this community, and
quite frankly, I’m not sure why I should show any leniency
to you.
I’m looking at the presentence report, and I notice that you,
as [the] Assistant District Attorney [] has indicated, have
been involved in the criminal justice system since you were
13 years old and that your crimes have ranged from
shoplifting, Vehicle Code violations, car theft, drug law
violations, resisting arrest, obstruction, battery, firearms
violations, DUI, fleeing from police, reckless endangerment.
Probably the most telling thing in this report is that nobody
believes that imprisonment or community supervision have
deterred or rehabilitated you to date. And while I take no
joy in sending anybody to prison or jail, clearly, I would not
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be doing my duty to society in general but, more important,
to these individuals whose lives you ruined forever. And I
am appreciative that you took responsibility and came to
this court and pled guilty to the charges and admitted the
acts for which you have been charged with, but at the end
of the day, while I feel badly for your family members and
have taken into consideration their requests for leniency and
fairness, I owe it to the victims and to the community to
make sure that these crimes and conduct never happen
again.
N.T., 4/27/17, at 29-30.
Based on the foregoing, it is evident that the trial court considered all of
the relevant sentencing factors, including testimony from Cook and his family,
the victim impact statements, the information contained within the PSI, the
seriousness of the crime, the need to protect the public, and Cook’s need for
rehabilitation. Therefore, Cook’s claim that the court failed to consider his
difficult childhood, his mental illnesses, his drug addiction, and his need for
rehabilitation is without merit. Further, the record is devoid of any evidence
that the trial court “double-counted” the seriousness of the crime as a
sentencing factor, and Cook does not provide any citation to the record where
the court counted any sentencing factor twice. Accordingly, we discern no
abuse of discretion by the trial court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2019
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