Com. v. Webb, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JASON WEBB :
:
Appellant : No. 900 WDA 2022
Appeal from the PCRA Order Entered October 5, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004482-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 17, 2023
Jason Webb appeals from the order dismissing his Post Conviction Relief
Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Webb argues his trial
counsel was ineffective for failing to raise issues related to the discretionary
aspects of his sentence. We affirm.
In 2014, the police recovered from Webb’s person a firearm which
belonged to another person, 17 bags of heroin, and an oxycodone pill. See
N.T., Sentencing, 9/14/15, at 9-11. Webb pleaded guilty to receiving stolen
property, possession of firearm with altered manufacturer’s number, firearms
not to be carried without a license, three counts of possession of a controlled
substance, and possession of drug paraphernalia.1
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1See 18 Pa.C.S.A. §§ 3925(a), 6110.2(a), and 6106(a)(1), and 35 P.S. §
780-113(a)(16) and (a)(32), respectively.
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The court sentenced Webb in this case at the same time it sentenced
him on two other dockets. Those cases arose after Webb shot Tezjuan Taylor
outside of the Beer Barrel bar in McKeesport, causing his death. On one
docket, Webb had been convicted of third-degree murder, and on the other,
of persons not to possess firearms.
At the sentencing hearing, the court referenced a presentencing
investigation report (“PSI”). Id. at 13. The court summarized details from
Webb’s life, including his upbringing, his father’s death, and his previous
criminal record. Id. at 16-17. The court discussed Webb’s lack of male role
models and subsequent engagement in gang culture. Id. 17-20. It talked
about the impact of drugs and gangs on the community and recounted that
the murder Webb committed was the result of a feud between two groups
wanting to sell drugs in the same area. Id. at 20-23. The court also discussed
the seriousness of murder as opposed to other crimes. Id. at 26-27. In his
allocution, Webb apologized, explained that he had shot Taylor out of panic
that his own life was in danger, and emphasized that he had turned himself in
after the shooting. Id. at 32-33.2
For third-degree murder, the court sentenced Webb to 15 to 30 years’
incarceration and a consecutive 10 years of probation. It sentenced Webb to
a concurrent term of two and one-half to five years’ incarceration for persons
not to possess firearms. Finally, the court sentenced Webb on the instant
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2In addition, Webb’s mother testified and asked for leniency. Webb’s counsel
presented letters written on Webb’s behalf.
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docket, for possession of firearm with altered manufacturer’s number, to a
consecutive term of five to 10 years’ incarceration. The court did not impose
any penalty on the other offenses to which Webb had pleaded guilty. Webb’s
aggregate sentence was 20 to 40 years’ incarceration followed by 10 years of
probation.
Following the sentence, the court stated,
I believe that what gets me most about your story is the
narcissism of your story. When people come in and they can tell
me a story and they can show me, you know, real remorse, I
believe that to be genuine remorse is a credit for forgiveness.
You’re still seeing yourself as a victim. You’re still almost in a
primitive [phase] of the resolution. You still haven’t moved past
the point of the dispute resolution. You still think that people are
going to get you and, you know, maybe that’s partially true, but
there is a distinction between fear and paranoia. Fear has a reality
base. Maybe this fear, maybe it is paranoia. Maybe it is just a
manifestation of brainwashing which you and the generation that
you have grown up in has been a product of.
I believe that you believe that the drugs you were selling w[ere]
the product. I believe that you and guys that look like you who kill
guys that look just like you are the product.
I believe you’re [preying] on the community. And it is unfortunate,
because I don’t think that that was the way your grandma or your
mom or people intended it. But you’re just sort of abandoned. And
I believe that the gangster rap, the gangster videos, the whole
indoctrination that you grew up with without a dad made you
predisposed to be where you are right now.
Id. at 34-36.
Webb did not file any post-sentence motion at the instant docket. He
filed a direct appeal in each case but discontinued the appeals effective August
18, 2017.
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Webb filed a timely pro se PCRA petition on September 19, 2017,
referencing all three dockets. The PCRA court appointed counsel and directed
counsel to file a separate petition at each docket. At the instant docket,
counsel filed an amended PCRA petition alleging that trial counsel was
ineffective for failing to file a post-sentence motion challenging Webb’s
aggregate sentence on the grounds that it was manifestly excessive, not
consistent with general sentencing principles, and not based on reasons stated
on the record.
The PCRA court issued notice of its intent to dismiss the petition without
a hearing.3 The court explained it had reviewed the PSI prior to sentencing.
The court recalled it had stated adequate reasons for the sentence at the
hearing, including “Webb’s lack of remorse, his obstinance, his failures at
community[-]based rehabilitation and his menacing behavior in the localized
venue [where] these crimes took place.” Order, 5/3/22, at 2. The court
pointed out that the facts of the instant case “took place [three] days before
the homicide.” Id. It found that “[t]he coalescence of these case
circumstances provides a solid foundation upon which to rest a statutory
maximum sentence that is just 12 months above the [standard] guideline base
sentence.” Id.
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3 Although the docket entry for this order is labeled, “Order dismissing PCRA,”
the order states that the court’s intention was to dismiss the petition without
a hearing, and it gave Webb approximately one month, until June 1, 2022, to
respond. See Order, 5/3/22, at 1-2; Docket No. 35; see also Pa.R.Crim.P.
907.
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The court dismissed the petition. Webb timely filed a notice of appeal.4
He raises the following issues:
I. Is the petitioner eligible for relief under the Post Conviction
Relief Act?
II. Did the lower court abuse its discretion in finding no merit
to the claim raised in the PCRA petition, and denying the
petition without a hearing, where trial counsel was
ineffective for failing to file a post-sentence motion
challenging the discretionary aspects of Mr. Webb's
sentence insofar as (1) the sentence imposed at [all three
dockets] was manifestly excessive in the aggregate, (2) the
court failed to state any reasons for imposing a sentence
above the aggravated range of the guidelines [for persons
not to possess firearms], and (3) the court failed to 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?
Webb’s Br. at 4.5
Webb argues his trial counsel was ineffective for failing to file a post-
sentence motion raising that his aggregate sentence was manifestly
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4 The court issued the final order on July 8, 2022, but did not enter it on the
docket. We ordered the trial court to enter the order on the docket; it did so
on October 5, 2022. We therefore deem Webb’s notice of appeal timely and
filed on this date. See Pa.R.A.P. 905(a)(5). We have amended the caption
accordingly.
5 Webb also appealed from denial of PCRA relief on his sentence for persons
not to possess firearms, raising the same two issues. We address that appeal
in a separate memorandum opinion. See Commonwealth v. Webb, No. 899
WDA 2022. Webb also appealed the denial of PCRA relief on the docket for the
murder conviction, and we affirmed the denial of PCRA relief. See
Commonwealth v. Webb, 236 A.3d 1170, 1183 (Pa.Super. 2020). In that
appeal, Webb did not raise the issue of trial counsel ineffectiveness based on
counsel’s failure to pursue discretionary sentencing claims.
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excessive. He argues that his sentence on the instant docket, of five to 10
years’ incarceration to be served consecutively, is an aggravated-range
sentence and the statutory maximum. He claims the court did not state
adequate reasons to support a consecutive, aggravated sentence in this case.
He asserts that his sentences at the other two dockets were also maximum
sentences, and that his sentence for persons not to possess firearms fell above
the aggravated range.
Webb further argues the court failed to adequately consider the proper
sentencing factors – those being the protection of the public, the gravity of
the offense, and Webb’s rehabilitative needs.6 He argues that the court did
not make any reference to his need for rehabilitation. According to Webb, the
court focused only on “(1) [Webb]’s narcissism; (2) lack of remorse; (3)
[Webb]’s paranoia; (4) the impact of drugs on the community; and (5)
[Webb’s] lack of a father (who was murdered) during his childhood caused
him to be abandoned.” Id. at 19. Webb argues that his narcissism and
paranoia are irrelevant for sentencing, “as they are personality characteristics
which may not be malleable in a sentencing context.” Id. at 25. He asserts
that a lack of remorse should not be grounds to aggravate his sentence, as he
believes he is innocent.7 Webb argues that the court should have considered
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6 See 42 Pa.C.S.A. § 9721(b).
7 At trial, Webb argued he acted in self-defense.
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his father’s death as a mitigating factor, as well as the fact that he turned
himself in to the police.
Webb contends that his trial counsel could have no reasonable basis for
failing to raise these issues, and that Webb suffered prejudice because he was
unable to obtain appellate review of his sentence.
We review an order denying PCRA relief to determine whether the PCRA
court’s conclusions are supported by the record evidence and free of legal
error. Commonwealth v. Midgley, 2023 PA Super 18 at *5 (Feb. 7, 2023).
We will not disturb the court’s decision “unless there is no support for the
findings in the certified record.” Id. (quoting Commonwealth v. Larkin, 235
A.3d 350, 355 (Pa.Super. 2020) (en banc)).
A PCRA petitioner bears the burden of rebutting the presumption that
trial counsel was effective. Id. at *6. To carry this burden, a petitioner must
both plead and prove that “(1) the underlying claim is of arguable merit; (2)
. . . counsel had no reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.”
Id. (quoting Commonwealth v. Patterson, 143 A.3d 394, 397-98
(Pa.Super. 2016)).
A challenge to the discretionary aspects of the sentence will only warrant
appellate consideration when it presents a substantial question that the
sentence violated a provision of the Sentencing Code or the norms underlying
the sentencing process. Commonwealth v. Caldwell, 117 A.3d 763, 768
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(Pa.Super. 2015). We may find a substantial question when the aggregate
sentence is facially excessive considering the criminal conduct at issue. See
Commonwealth v. Sarvey, 199 A.3d 436, 455-56 (Pa.Super. 2018). We
may also find a substantial question in allegations that the court failed to
consider the factors stated in the Sentencing Code or to state the reasons for
its sentence, or that it relied on impermissible factors. See Commonwealth
v. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011); Commonwealth v.
Shugars, 895 A.2d 1270, 1274 (Pa.Super. 2006); see also 42 Pa.C.S.A. §
9721(b) (stating court must “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”).
However, we will only vacate a sentence falling within the guidelines
when the application of the guidelines would be clearly unreasonable. 42
Pa.C.S.A. § 9781(c)(2). An “unreasonable” decision is “one that is irrational
or not guided by sound judgment.” Sarvey, 199 A.3d at 456 (internal
quotation marks and citation omitted). A court has broad discretion in
fashioning a sentence, including in deciding whether to run sentences
consecutively or concurrently. We will not disturb a sentence absent a
manifest abuse of discretion. Commonwealth v. Moury, 992 A.2d 162, 169-
70, 171 (Pa.Super. 2010).
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Moreover, a court need not undertake a lengthy discourse to satisfy the
requirement that it state its reasons for imposing sentence. Commonwealth
v. Rush, 162 A.3d 530, 544 (Pa.Super. 2017). Rather, “the record as a whole
must reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Id. (citation omitted). We presume a court that
has the benefit of a PSI has been adequately apprised of all relevant
sentencing criteria. Commonwealth v. Jones, 942 A.2d 903, 908 (Pa.Super.
2008).
Webb has failed to prove that his discretionary sentencing issue has
merit. Even assuming Webb’s allegations raise a substantial question, Webb
has not proven that the court’s aggregate sentence or the sentence on the
instant docket were excessive or clearly unreasonable given the facts of these
cases. Webb has also failed to prove that the court failed to consider all
relevant factors, especially given the court’s utilization of a PSI. The court
stated its reasoning when it imposed sentence, and we find its recitation to be
more than adequate. We are further unconvinced by Webb’s arguments that
a defendant’s character traits such as paranoia and narcissism, or a
defendant’s lack of remorse, are not relevant to a defendant’s capacity for
rehabilitation and are not proper considerations for a sentencing court.
As Webb has failed to prove his sentencing claim has merit, he has failed
to prove his trial counsel was ineffective for declining to file a post-sentence
motion. We therefore find the PCRA court did not err in denying relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2023
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