Com. v. Daughtry, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMILLAH DAUGHTRY :
:
Appellant : No. 2359 EDA 2019
Appeal from the Judgment of Sentence Entered March 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000087-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMILLAH DAUGHTRY :
:
Appellant : No. 2360 EDA 2019
Appeal from the Judgment of Sentence Entered March 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000088-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMILLAH DAUGHTRY :
:
Appellant : No. 2361 EDA 2019
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Appeal from the Judgement of Sentence Entered March 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000109-2016
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JUNE 30, 2020
In these consolidated appeals, Jamillah Daughtry appeals from the
judgment of sentence of ten to twenty years of incarceration followed by seven
years of probation, imposed concurrently following her guilty plea to robbery
and related charges at three separate criminal docket numbers.1 We affirm.
The trial court summarized the factual history as follows:
Appellant, Jamillah Daughtry, participated in a string of
robberies between October 23, 2015, and October 27, 2015. On
October 23, 2015, she ordered a cab using the name “Jasmine.”
When the driver arrived, Appellant approached the vehicle and
asked for help. The driver exited the vehicle at which point
Appellant pointed a gun at him and demanded money. The driver
gave Appellant his wallet, which contained his debit and credit
cards.
On October 24, 2015, Appellant ordered a cab from a
different cab company, again using the name Jasmine. When the
driver arrived, he called the number provided, and a male voice
answered the phone. An unidentified black male entered the cab
and robbed the driver at gunpoint. The driver gave the man $133.
On October 26, 2015, Appellant ordered a cab from yet
another cab company, still under the name Jasmine. When the
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1 In a separate appeal, Appellant also challenged a fourth robbery case that’s
sentence was imposed concurrently with the three robberies we consider here.
See Commonwealth v. Daughtry, 2358 EDA 2019, 2020 WL 2736985(Pa.Super. May 26, 2020) (unpublished memorandum). However, since we
already affirmed the judgment of sentence in that case, we do not address it
here.
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driver arrived, Appellant entered the vehicle, pointed a gun at the
driver, and demanded money. The driver gave Appellant $65.
On October 27, 2015, Appellant entered the E&G Mini Mart
located at 6300 Buist Avenue. She handed the cashier a note
demanding that the clerk “[g]ive me everything in the register.
Do not freak out or I will have my men kill you in here. You have
[sixty] seconds.” The cashier gave the Appellant somewhere
between $200 and $300. Appellant was identified through video
surveillance, and arrested, at which point she provided a
statement implicating herself in all four robberies. Appellant
initially identified her coconspirator in the October 24, 2015
robbery and claimed that the coconspirator had also committed
two homicides. When the police investigated, they discovered
that the man Appellant claimed was her coconspirator was on a
tracking monitor and could not have perpetrated any of the
offenses in question.
Trial Court Opinion, 10/10/19, at 1-2.
Appellant was arrested and charged with robbery and related offenses
for each of the incidents at four separate docket numbers. On May 11, 2016,
Appellant entered into an open plea at all four cases. On March 30, 2017,
Appellant appeared for sentencing on all four dockets. The court imposed
concurrent sentences of ten to twenty years of incarceration as noted above.
On April 2, 2017, Appellant filed a post-sentence motion for
reconsideration of sentence, which was denied by operation of law on August
1, 2017. No direct appeal followed. Instead, on August 28, 2017, Appellant
filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), seeking
reinstatement of her appellate rights. On August 12, 2019, the PCRA court
granted Appellant’s petition and reinstated her direct appeal rights. The same
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day, Appellant filed the instant appeals separately in conformance with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
Both Appellant and the trial court complied with the mandates of
Pa.R.A.P. 1925. Appellant raises the following issues for our review:
Whether the sentencing court erred as a matter of law, abused its
discretion, violated the fundamental norms of sentencing and
specific provisions of the sentencing code, to wit, 42 Pa.C.S.A.
Section 9721(b), which requires that any sentence imposed be
“consistent with the protection of the public, the gravity of the
offense and the rehabilitative needs of the defendant where the
sentence imposed of [t]en years to [t]wenty years, followed by
[s]even years probation, was manifestly excessive and
unreasonable, far surpasses what was required to protect the
public, the complainant and the community, went well beyond
what was required to foster Appellant’s rehabilitation, and was
grossly disproportionate to the offense?
Appellant’s brief at 4.2
Appellant challenges the discretionary aspects of her sentences. The
following principles apply to our consideration of whether review of the merits
of her claims are warranted.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
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2 Since Appellant raised the identical issue in each of the three appeals,
challenging the same charge and sentence imposed on the same grounds, we
have only reproduced it one time here. Further, because the briefs are almost
identical, we refer to Appellant’s three appellate briefs collectively as
“Appellant’s brief.”
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(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(citations omitted).
Appellant filed both a timely motion for reconsideration of her sentence
and separate notices of appeal. In her motion, Appellant challenged the
above-guidelines sentences as excessive, due to the court’s failure to consider
mitigation evidence, namely: her age of nineteen at the time of the crimes,
troubled upbringing, traumatic life experiences, plans upon release from
custody, acceptance of responsibility, and remorse for her actions. Therefore,
Appellant properly preserved this issue, and we now proceed to determine
whether she has raised substantial questions.
Appellant’s briefs each contain a statement of reasons relied upon for
her challenge to the discretionary aspect of her sentence as required by
Pa.R.A.P. 2119(f). See Appellant’s brief at 11. Therein Appellant claims that
a substantial question is presented by the fact that, at each case, the trial
court imposed a sentence that was substantially above the aggravated
guideline range, without considering Appellant’s rehabilitative needs. Id. We
find that this claim raises a substantial question, as it challenges Appellant’s
alleged excessive sentences in conjunction with an assertion that the court
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failed to consider mitigating factors. See Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super. 2014).
The following principles apply to our substantive review of Appellant’s
claims. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,
we review the trial court’s determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
A trial court’s sentence “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(b). “When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
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refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, supra at 761 (citations and
quotation marks omitted). Finally, when the trial court has been informed by
a pre-sentence investigation, as here, it is presumed that the trial court is
aware of and has been informed by all appropriate sentencing factors and
considerations. Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa.Super. 2017).
Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we
find (1) that the court intended to sentence within the guidelines, but “applied
the guidelines erroneously;” (2) a sentence was imposed within the 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.” 42
Pa.C.S. § 9781(c). The instant sentences exceeded the guidelines. Therefore,
they must be affirmed unless they are unreasonable. While reasonableness
is not defined in the statute, it “commonly connotes a decision that is
‘irrational’ or ‘not guided by sound judgment.’” Commonwealth v. Walls,
926 A.2d 957, 963 (Pa. 2007).
Appellant argues that her sentences were unreasonable because the
court did not consider her young age, zero prior record score, abusive
upbringing, acceptance of responsibility, expressed remorse, and “the
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significant strides” she had already made toward rehabilitation. Appellant’s
brief at 17-18. Appellant’s claims are belied by the record.
The certified record demonstrates that the trial court properly relied on
several factors in electing to impose the maximum sentence allowed by law,
all of which demonstrated that the court followed the general principles
outlined in § 9721(b), i.e., that the sentence be consistent with the protection
of the public, gravity of the offense as it relates to the victim and community,
and the rehabilitative needs of the offender. In fashioning the judgment of
sentence, the trial court noted that it had reviewed the PSI and mental health
reports; listened to argument made by the prosecutor regarding Appellant’s
misleading conduct with the police regarding the identity of her co-defendants,
heard from the defense attorney, who detailed Appellant’s age, tragic
upbringing, drug use and mental health issues, her lack of a prior record, the
steps she had already taken to rehabilitate herself in prison, the presence of
her supportive grandmother supporting her, and Appellant’s allocution. N.T.
Sentencing, 3/30/17, at 3-11. “[H]aving taken all this into consideration,” the
court then issued the aforementioned sentence. Id. at 11-15.
Appellant has failed to persuade us that she received unreasonable
sentences. Our review confirms that the trial court was aware of, considered,
and weighed Appellant’s mitigating factors, along with the seriousness of the
crimes, and the other relevant sentencing factors. The court found especially
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compelling the fact that all four robberies were committed at gunpoint. 3 Id.
at 11. We have no license to reweigh the mitigating circumstances against
the aforementioned factors. Macias, supra at 778. Accordingly, we find that
the trial court exercised sound judgment and acted well within its discretion
when it issued sentences above the sentencing guidelines and concurrently
with each other. We affirm Appellant’s judgments of sentence.4
Judgments of sentence affirmed.
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3 Since the trial court was sentencing Appellant on all four cases at the same
proceeding, it necessarily considered the underlying facts of the series of
robberies that Appellant committed within a span of five days while fashioning
its global sentencing scheme.
4 The Commonwealth concedes in all three briefs that it mistakenly
miscalculated and advised the sentencing court of an improperly-inflated
guideline sentence for first-degree robbery, and that the trial court relied on
these improper guidelines when it fashioned Appellant’s sentence at each
case. See Commonwealth’s brief at 3 (explaining that, while the court was
aware of the correct top end of the standard range at fifty-four months, it was
under the incorrect impression that the low end of the range was forty-eight,
rather than forty, months). Our review of the record confirms that the
sentencing court relied on an erroneous sentencing guideline range when
fashioning Appellant’s sentences. Thus, if that discretionary sentencing issue
had been preserved by Appellant, we would have vacated the judgment of
sentence and remanded for resentencing. See Commonwealth v.
Diamond, 945 A.2d 252, 259 (Pa.Super. 2008) (granting relief on properly-
preserved discretionary aspect claim that the sentence was based upon
incorrect application of the guidelines). However, as the sentences do not
exceed the statutory maximums and Appellant has neither preserved nor
argued this discretionary sentencing issue, it is waived.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2020
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