Com. v. Sellers, S.

J-A11039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN PATRICK SELLERS :
:
Appellant : No. 1122 MDA 2016
Appeal from the Judgment of Sentence March 3, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000339-2014
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 31, 2017
Appellant, Sean Patrick Sellers, appeals from the judgment of sentence
entered by the Court of Common Pleas of Franklin County after a jury
convicted him of Criminal Attempt, First Degree Murder, and other offenses
occurring on the day the 16 year-old stole a firearm, a vehicle, and later
fired multiple gunshots at a Pennsylvania State Trooper during a routine
traffic stop. Appellant challenges the court’s order denying his pretrial
motion to decertify the case to the juvenile system and its exercise of
discretion in imposing standard range sentences, run consecutively, to form
a 14-year aggregate sentence. We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A11039-17
The trial court aptly summarizes the procedural history of the present
matter as follows:
The instant matter stems from a routine traffic stop that
occurred on January 26, 2014. On that date, Trooper Donn Reid
of the Pennsylvania State Police filed a Police Criminal Complaint
alleging the Defendant [hereinafter “Appellant”] committed a
number of offenses, including Attempt Murder of the First
Degree.
On March 24, 2014, the Commonwealth filed an Information
charging Appellant with nine counts. These counts included
Criminal Attempt Murder of the First Degree, Criminal Attempt—
Murder of a Law Enforcement Officer, Aggravated Assault—
Attempted Serious Bodily Injury, Aggravated Assault—Attempt
to Put Enumerated Officials in Fear, Simple Assault—Bodily
Injury Attempted, Recklessly Endangering Another Person,
Firearms Not to Be Carried Without a License, and two counts of
Theft.[fn]
[fn] 18 Pa.C.S. §§ 901(a) to 2502(a), 901(a) to 2507(a),
2702(a)(1), 2702(a)(6), 2701(a), 2705, 6106(a)(1), and
3921(a), respectively.
On October 6, 2014, Appellant, through counsel, filed a Motion
to Transfer Case to Juvenile Division. On October 8, 2014, the
court[] entered an Order directing the Commonwealth to respond
within 14 days. On October 20, 2014, the Commonwealth filed a
Motion for Extension of Time to File Answer, which the court
granted on October 24, 2014. On November 5, 2014, the
Commonwealth filed its Answer to Defendant’s Motion to
Transfer Case to Juvenile Division. . . . On December 10, 2014,
the court entered an Order setting a hearing on Appellant’s
Motion to Transfer Case to Juvenile Division for January 29,
2015.
On January 21, 2015, Appellant filed a Motion for Pre-Hearing
Conference on Transfer Motion, which the court granted on
January 22, 2015; a Pre-Hearing Conference was held on
January 29, 2015. The court held the Pre-Hearing Conference as
scheduled and rescheduled the transfer hearing for Friday, March
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13, 2015. On March 11, 2015, Appellant filed a Joint Motion for
Pre-Hearing Review of Exhibits which the court granted on March
12, 2015. The court held the hearing on the Transfer Motion as
scheduled on March 13, 2015. On March 16, 2015, the court
entered an Order denying Appellant’s Motion to Transfer Case to
Juvenile Division.
After a number of continuances and other collateral motions, this
matter was scheduled for trial by jury. The trial was held as
scheduled on Wednesday, January 20, 2016. On January 21,
2016, during the second day of the trial, Appellant ple[d] guilty
to [Firearms Not to be Carried Without a License and two counts
of Theft]. At the conclusion of the evidence on January 21,
2016, the jury returned verdicts of guilty on the remaining six
counts.
On March 3, 2016, Appellant was sentenced to an aggregate
period of incarceration of 168 to 344 months in a state
correctional institute. On the same date, the court granted
Steve Rice, Esq., leave to withdraw from the matter and
appointed the Franklin County Public Defender’s Office to
represent Appellant. On March 8, 2016, Appellant, through
counsel, filed a Motion for Extension of Deadline to File Post-
Sentence Motions, which the court granted on March 9, 2016.
On April 4, 2016, Appellant filed a Post-Sentence Motion for
Modification of Sentence[, which the court denied on June 15,
2016.]
On July 11, 2016, Appellant filed a Notice of Appeal. On July 12,
2016, the court entered an Order directing Appellant to file a
concise statement of matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
…
On July 26, 2016, Appellant filed a timely Concise Statement of
Matters Complained of on Appeal[, and, on August 22, 2016,
filed a court-approved amended concise statement raising the
two issues presented here on appeal.]
Trial Court Opinion, filed 8/25/15, at 2-6.
Appellant presents the following questions for our review:
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I. DID THE TRIAL COURT ABUSE ITS DISCRETION
WHEN IT SENTENCED APPELLANT TO AN AGGREGATE
SENTENCE OF 168 TO 344 MONTHS IN A STATE
CORRECTIONAL INSTITUTION, WHICH IS AT THE
TOP OF THE STANDARD RANGE OF SENTENCES FOR
EACH CRIME AND FAILS TO CONSIDER THE
MITIGATING FACTORS PRESENT IN THIS CASE SUCH
AS APPELLANT’S AGE AT THE TIME OF THE OFFENSE
AND APPELLANT’S LACK OF A PRIOR CRIMINAL
RECORD?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION
WHEN IT DENIED APPELLANT’S MOTION TO
TRANSFER CASE TO JUVENILE DIVISION BECAUSE
APPELLANT PROVIDED THE COURT WITH
SUFFICIENT EVIDENCE TO MEET HIS BURDEN OF
PROOF BY A PREPONDERANCE OF THE EVIDENCE
THAT TRANSFER IS APPROPRIATE BECAUSE HE
WOULD BE AMENABLE TO TREATMENT,
SUPERVISION OR REHABILITATION AS A JUVENILE?
Appellant’s brief at 18.
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court's jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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
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the sentencing process.” Commonwealth v. Sierra, 752 A.2d 910, 912–13
(quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999)
(en banc). A bald allegation of excessiveness does not present a substantial
question. Mouzon, supra. Additionally, a court's refusal to weigh proposed
mitigating factors as the defendant wishes, absent more, does not raise a
substantial question. Commonwealth v. Moury, 992 A.2d 162 (Pa.Super.
2010).
Moreover:
Long standing precedent of this Court recognizes that 42
Pa.C.S.A. section 9721 affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Commonwealth v. Graham, 541 Pa. 173,
184, 661 A.2d 1367, 1373 (1995).... Any challenge to the
exercise of this discretion ordinarily does not raise a substantial
question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2
(Pa.Super. 2005); see also Commonwealth v. Hoag, 665
A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a defendant
is not entitled to a ‘volume discount’ for his or her crimes).
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa.Super.
2010).
Appellant received top-end standard range sentences, which the court
ran consecutively, resulting in an aggregate sentence of 168 to 344 months’
incarceration. He was 18 years, 4 months old at the time of sentencing. He
will be 32 when he is first eligible for release from prison.
In Appellant’s Pa.R.A.P. 2119(f) statement, he challenges the court’s
exercise of discretion where he had no prior history of violent offenses, his
victim escaped serious injury, a medical expert opined that he was amenable
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to rehabilitation, and the pre-sentence investigation report recommended an
aggregate sentence of 105 to 210 months. He maintains, further, that the
court’s significant departure from the PSI recommendation, which
considered various mitigating factors, reflected the court’s failure to consider
the nature and circumstances of the offense and the history and
characteristics of the defendant, such that the sentence runs contrary to
fundamental sentencing norms.
We hold that, under the circumstances, Appellant has presented a
substantial question for review. See, e.g., Commonwealth v. Parlante,
823 A.2d 927, 929–930 (Pa.Super. 2003) (holding allegations that court
imposed disproportionate sentence and did not consider proper sentencing
factors raised substantial question). Therefore, we consider the merits of
Appellant's appeal of the discretionary aspects of his sentence.
Though adequate to raise a threshold-level substantial question for our
review, Appellant fails to show that the trial court’s standard range
sentences were inconsistent with the gravity of the offense, the protection of
the public, or Appellant’s rehabilitative needs. With respect to the last
sentencing consideration, Appellant argues that the court altogether
disregarded Appellant’s rehabilitative needs.
The record, however, belies Appellant’s claim. At sentencing, the
court’s observations, stated on the record, reflected a consideration of
Appellant’s individual circumstances, both aggravating and mitigating, before
it imposed sentence. See N.T., Sentencing Hearing, pp. 31-36. The court
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acknowledged having the benefit of the PSI report and listened to
Appellant’s statement to the victim and to the court. It noted his difficult
childhood and his commendable efforts to improve himself during his lengthy
pre-trial incarceration.
On balance of all considerations, the court determined that a fourteen-
year sentence comprising consecutively run sentences was fair and
reasonable, and we discern no abuse of discretion in that conclusion. We
note, further, that the imposition of consecutive, standard range sentences
do not amount to a virtual life sentence, as Appellant will be eligible for
parole at age 32.1
Next, Appellant assails the court’s order denying his motion for
decertification to juvenile court. We observe that trial courts have broad
discretion in determining whether to grant decertification, and this Court will
not reverse that determination absent a “gross abuse of discretion.”
Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa.Super. 2010).
____________________________________________
1
To the extent Appellant’s discretionary aspects argument focuses
exclusively on the imposition of consecutive sentences, we refer to our well-
settled jurisprudence, cited supra, that a sentencing court has discretion to
impose consecutive sentences, 42 Pa.C.S.A. § 9721, and that “the
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa.Super. 2012). Moreover, the imposition of an aggregate
minimum sentence of 14 years is not manifestly excessive given the totality
of circumstances present in the instant case.
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Although the Juvenile Act requires that a decertification court
consider all of the amenability factors, it is silent as to the
weight that should be assessed to each factor. The ultimate
decision of whether to certify a minor to stand trial as an adult is
within the sole discretion of a decertification court. A
decertification court must consider all the facts set forth in §
6355 of the Juvenile Act, but it need not address, seriatim, the
applicability and importance of each factor and fact in reaching
its final determination.
Id.
[A] juvenile seeking decertification has the burden of proving by
the preponderance of the evidence that the transfer to juvenile
court is warranted. 42 Pa.C.S.A. § 6322; Commonwealth v.
Cotto, 562 Pa. 32, 753 A.2d 217 (2000) (the Juvenile Act
provides a mechanism for a minor to prove to the court that he
does not belong in criminal court via § 6322). “The propriety of
whether charges should be prosecuted in the juvenile court or
adult court system implicates jurisdictional concerns.” Hughes,
supra, 865 A.2d at 776. Nonetheless, when the crime involved
is one excluded from the Juvenile Act's definition of a delinquent
crime, the charge is automatically within the jurisdiction of the
criminal court and jurisdiction is presumptively proper. Id. at
777, citing Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d
1308, 1310 (1992) and Commonwealth v. Pyle, 462 Pa. 613,
342 A.2d 101, 106–107 (1975), superseded by statute.
Commonwealth v. Shull, 148 A.3d 820, 842 (Pa.Super. 2016),
reargument denied (Nov. 23, 2016).
Section 6302 of the Juvenile Act excludes attempted murder and
aggravated assault from the definition of delinquent act where, as in this
case, a deadly weapon was used. 42 Pa.C.S.A. § 6302, “Delinquent Act”
(2)(ii)(C) and (2)(iii)(I). Pursuant to § 6322 of the Juvenile Act, therefore, it
was presumptively proper to commence prosecution of Appellant’s offenses
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in the court of common pleas criminal division rather than in juvenile court.
42 Pa.C.S.A. 6322(a).
Section 6322(a) provides, however, that such a prosecution can be
transferred from criminal court to juvenile court in some circumstances:
In determining whether to transfer a case charging murder or
any of the offenses excluded from the definition of ‘delinquent
act’ in section 6302, the child shall be required to establish by a
preponderance of the evidence that the transfer will serve the
public interest. In determining whether the child has so
established that the transfer will serve the public interest, the
court shall consider the factors contained in section
6355(a)(4)(iii) (relating to transfer to criminal proceedings).
42 Pa.C.S.A. § 6322(a).
In turn, § 6355(a)(4)(iii) provides numerous factors a court must
consider in deciding a decertification motion. These factors are:
(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual
posed by the child;
(D) the nature and circumstances of the offense allegedly
committed by the child;
(E) the degree of the child's culpability;
(F) the adequacy and duration of dispositional alternatives
available under this chapter and in the adult criminal
justice system; and
(G) whether the child is amenable to treatment, supervision or
rehabilitation as a juvenile by considering the following
factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited
by the child;
(V) previous records, if any;
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(VI) the nature and extent of any prior delinquent
history, including the success or failure of any
previous attempts by the juvenile court to
rehabilitate the child;
(VII) whether the child can be rehabilitated prior to
the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors; and
42 Pa.C.S.A. § 6355(a)(4)(iii)(A-G).
Simply citing some factors which, standing alone, could support
decertification does not establish the gross abuse of discretion required to
reverse a court's order refusing to decertify a case. Cf Commonwealth v.
Potts, 449 Pa.Super. 306, 673 A.2d 956, 958 (1996) (recognizing a gross
abuse of discretion is not demonstrated by merely reciting facts of record
that would support a result contrary to the court's actual decision.”) (citation
omitted). “When evaluating the propriety of a certification decision, absent
evidence to the contrary, a reviewing court must presume that the juvenile
court carefully considered the entire record.” Commonwealth v. Jackson,
722 A.2d 1030, 1034 (Pa. 1999).
The trial court’s Pa.R.A.P. 1925(a) opinion contains a thoughtful and
cogent discussion of the Section 6355(a)(4)(iii) considerations it made in
reaching its decision to deny decertification. As we discern no gross abuse
of discretion in the court’s determination, which finds support in the record,2
we reject Appellant’s claim.
____________________________________________
2
The decertification hearing took place 14 months after the attempted
shooting. Regarding Factor A, concerning the impact on the victim, Trooper
(Footnote Continued Next Page)
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Judgment of sentence is AFFIRMED.
_______________________
(Footnote Continued)
Quinn described being in a state of shock for a few days after the attempted
shooting. After that, he testified, he was in “a continued state of shock [for
some time]. Kind of not scared mentality to work but just a fear, a different
fear that I’d never felt before….just fearing that happening again on a traffic
stop.” N.T., Decertification Hearing, at p.8. He also felt isolated from
others, a condition he says contributed to his break-up with his fiancee’ and
caused difficulties with more veteran co-workers. N.T. at 10. He had
frequent nightmares, which still occur, but less frequently, 14 months later
at the time of his testimony. It affected how he approached vehicles, but he
claimed he was getting progressively better to the point now that he no
longer experienced fear on the job. N.T. at 20-22.
Regarding Factor E, the Degree of the Child’s Culpability, the patrol car video
shows that Appellant conduct of firing multiple shots at the uniformed
Trooper was unprovoked.
Regarding Factor F, Adequacy and Duration of Dispositional Alternatives in
Juvenile and in the Adult Criminal System, the court found “little evidence”
that treatment options afforded in the juvenile justice system were
unavailable in criminal justice system.
Regarding Factor G, Amenability to Treatment Efforts, the court noted that
Appellant’s remaining eligibility for juvenile system treatment amounted to
only 3 years before he aged out at 21 years old. Dr. Taylor said treatment
for that short span of time may be effective. She said he would benefit from
a lengthy period of time in a “caring, consistent program.”
The trial court concedes that Factor G weighed slightly in favor of granting
Appellant’s petition for decertification. However, given the short time
available for juvenile system treatment and the severity of Appellant’s
offenses—“some of the most severe in the law”—the court found Appellant
could not meet his burden of proving that decertification was appropriate
when all factors were considered. Trial Court Opinion at 16.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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Circulated 07/07/2017 01:47 PM