Com. v. Tucker, W.

J-S60017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY A. TUCKER :
:
Appellant : No. 1941 WDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000449-2012
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 29, 2017
Appellant, Wesley A. Tucker, appeals from the Judgment of Sentence
entered by the Westmoreland County Court of Common Pleas after remand
by this Court. Appellant challenges the resentencing court’s refusal to allow
him to present evidence at his resentencing hearing, and the discretionary
aspects of his sentence. We affirm.
Our previous disposition provided a thorough review of the facts and
procedural history underlying Appellant’s convictions and original sentences,
and we need not repeat them here. See Commonwealth v. Tucker, 882
WDA 2015 (Pa. Super. filed June 1, 2016) (unpublished memorandum)
(affirming Appellant’s convictions; remanding for resentencing) (“Tucker
I”). In Tucker I, we concluded that Appellant’s rape and indecent assault
convictions merged for sentencing purposes, and Appellant should not have
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* Former Justice specially assigned to the Superior Court.
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been sentenced to consecutive sentences at each count.1 We, thus, vacated
the aggregate sentence and remanded to the trial court for resentencing
“consistent with this Memorandum.” See id. at 12, citing Commonwealth
v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (remanding where vacatur
“upset the trial court’s overall sentencing scheme”). We declined to address
Appellant’s claim that his sentence was manifestly excessive after concluding
that, in light of the vacatur, the challenge was moot. Tucker I, supra at
12.
On remand, the trial court held a sentencing hearing, at which
Appellant’s attorney attempted to raise “potential errors that were made at
the first sentencing by prior counsel” so as to “preserve Mr.Tucker’s
rights[.]” N.T. Resentencing, 7/6/16, at 6. The court denied the request,
noting that this Court’s remand was limited to resentencing to account for
the merger of the indecent assault conviction with the rape conviction, as
indicated by this court’s direction of “resentencing consistent with this
memorandum.” Id. at 7. The trial judge emphasized that the “Superior
Court did not criticize my sentence in any other manner whatsoever.” Id.
The court then resentenced Appellant to an aggregate term of 11 to 32
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1
The court originally sentenced Appellant to an aggregate term of 11½ to
34 years’ incarceration, which included a term of 10 to 20 years’
incarceration for the rape conviction.
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years’ incarceration. After the denial of post-sentence motions, Appellant
timely appealed.
Appellant raises the following issues for our review:
1. Did the trial court err by concluding that the evidentiary
scope of the resentencing hearing was limited in
remand?
2. Did the trial court deprive Mr. Tucker of his due process
and Sixth Amendment (U.S. Constitution/Article I § 9
PA constitution) rights?
3. Did the trial court err by not permitting Mr. Tucker to
present proof of his ability to be rehabilitated or risk of
reoffending at the July 6, 2016 proceeding?
4. Is Mr. Tucker’s sentence unconstitutional under Article
I, Section 13 of the Pennsylvania constitution and under
the Eighth Amendment of the United States
Constitution?
5. Is Mr. Tucker’s sentence unreasonable and excessive
since there was an insufficient factual basis to support
the proposition that his rehabilitative prospects and
individual risk to the community were such that the
length of the sentence is necessary or proper?
6. Did the trial court err by failing to recuse since it was
exposed to prejudicial information regarding separate
and unrelated charges of criminal activity that were
filed against Mr. Tucker?
Appellant’s Brief at 7.
Scope of Resentencing Hearing
In challenging the trial court’s denial of his request to expand the
scope of the resentencing hearing to present mitigation evidence, Appellant’s
first three issues present a question of law. Thus, our standard of review is
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de novo and our scope of review is plenary. Commonwealth v. Wilson,
934 A.2d 1191, 1195 (Pa. 2007) (“Wilson III”).
Appellant relies on Wilson to support his assertion that he was
entitled to present additional evidence at his resentencing proceeding. In
Wilson, this Court vacated and remanded for resentencing where the
sentencing court had applied the school zone enhancement after the
defendant pled guilty to one count of delivery of a controlled substance, but
no evidence had been presented to support the enhancement. Id. at 1193,
citing Commonwealth v. Wilson, 829 A.2d 1194, 1202 (Pa. Super. 2003)
(“Wilson I”). At resentencing, the trial court imposed the same sentence
after holding an evidentiary hearing, and the defendant appealed. This
Court reversed and again remanded, holding that if the Commonwealth fails
to present evidence of the statutory sentencing enhancement at the initial
sentencing hearing, “the defendant must be resentenced without the school
zone enhancement.” Commonwealth v. Wilson, 866 A.2d 1131, 1132
(Pa. Super. 2004) (“Wilson II”).
The Pennsylvania Supreme Court granted allocatur to review whether
sentence enhancement evidence may be presented for the first time at a
resentencing hearing. The Court concluded that “[o]nce [the a]ppellee’s
sentence was vacated, the admissibility of evidence at the second
sentencing hearing became a matter committed to the sound discretion of
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the trial court as no restraints were placed upon the trial court’s exercise of
its discretion in this regard.” Wilson III, 934 A.2d at 1196.
Wilson is distinguishable from the instant case. Here, we remanded
not because there was insufficient evidence to support the sentence
imposed. Rather, we remanded to correct a legal technicality for which no
further evidence was needed, i.e., to merge Appellant’s indecent assault
conviction with the rape conviction for sentencing purposes only. Our
direction was that the court resentence “consistent with this memorandum.”
Tucker I at 13. Such a concise instruction from this Court is arguably a
“restraint placed upon the trial court’s exercise of discretion in this regard.”
Wilson III, supra, at 1196.
However, even if such a limitation cannot be interpreted as a restraint
put on the trial court’s exercise of discretion with respect to the nature of
the resentencing hearing, as the Wilson III court noted, once we vacated
Appellant’s sentence, “the admissibility of evidence at the second sentencing
hearing became a matter committed to the sound discretion of the trial
court.” Id. We will not find an abuse of discretion unless the court
misapplies the law or the “judgment exercised is manifestly unreasonable as
shown by the evidence or the record.” Com. ex rel. Kistler v. Kistler, 435
A.2d 214, 216 (Pa. Super. 1981), order clarified sub nom. Com. ex rel
Kistler v. Kistler, 449 A.2d 69 (Pa. Super. 1982).
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Our review of the record indicates that the trial court did not err or
abuse its discretion in confining the resentencing hearing to the merger
issue. The judge acknowledged the parameters provided by this Court on
remand, and acted in accordance therewith. While the trial court was
arguably not foreclosed from taking more evidence, it acted within its
discretion in reconsidering the sentence only with respect to the merger and
declining to address, as Appellant’s counsel requested, “potential errors that
were made at the first sentencing by prior counsel.” N.T. Resentencing at 6.
Discretionary Aspects of Sentence
In his next two issues, Appellant avers that the trial court abused its
discretion by imposing a sentence “that is manifestly unreasonable and
excessive” because he “had a prior record score of zero but was given the
highest allowable minimum sentence for the count of Rape and the statutory
maximum on every count for which he was convicted.” Appellant’s Brief at
27. He further avers that the court did not sentence him in accordance
with the standards set forth in 42 Pa.C.S. § 9721 because it failed to
consider his rehabilitative needs and mitigating circumstances.2
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
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2
Appellant does not indicate what those needs or circumstances are that he
wanted the court to consider.
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768 A.2d 1136, 1144 (Pa. Super. 2001). 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 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
Appellant has fulfilled the first three prongs. With respect to the fourth
prong, Appellant states in his Pa.R.A.P. 2119(f) statement that the trial court
failed to consider his background and character and that his sentence is
manifestly unreasonable or excessive. See Appellant’s Brief at 21. He
further avers that the trial court did not sentence him in accordance with the
Sentencing Code because the court “did not have adequate information
regarding Mr. Tucker’s rehabilitative prospects, personal background, and
risk of reoffending.” Id. at 28.
Whether a substantial question exists is determined on a case-by-case
basis. Here, we conclude that Appellant has raised a substantial question.
See Commonwealth v. Raven, 97 A.3d 1244 (Pa. Super. 2014)
(explaining excessive sentence claim, raised in conjunction with an assertion
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that the court failed to consider mitigating factors, raises a substantial
question).
An appellate court will not disturb the sentencing court’s judgment
absent a manifest abuse of discretion. In order to constitute an abuse of
discretion, “a sentence must either exceed the statutory limits or be so
manifestly excessive as to constitute an abuse of discretion.”
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008). To
demonstrate that the sentencing court abused its discretion, “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. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).
“As long as the trial court's reasons demonstrate that it weighed the
Sentencing Guidelines with the facts of the crime and the defendant's
character in a meaningful fashion, the court's sentence should not be
disturbed.” Id. at 1018-19.
Our Supreme Court has repeatedly held that the Sentencing Guidelines
are purely advisory in nature. Commonwealth v. Yuhasz, 923 A.2d 1111,
1118 (Pa. 2007). “The guidelines are merely one factor among many that
the court must consider in imposing a sentence.” Id. (citation omitted).
Trial courts retain broad discretion in sentencing matters, and “the only line
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that a sentence may not cross is the statutory maximum sentence.” Id. at
1119 (citation omitted).
While a court has discretion to deviate from the guidelines, when the
court does deviate “it is important that the court reflect a consideration of
the sentencing guidelines, the background and character of the defendant,
the circumstances of the crime, and impose a sentence that is consistent
with the protection of the public and the rehabilitative needs of the
defendant.” Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super.
2007); see 42 Pa.C.S.A. § 9721 (setting forth the general standards
applicable to sentencing).
Where the trial court deviates above the guidelines, this Court may
only vacate and remand a case for resentencing if we first conclude that “the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the
Sentencing Code does not define the term “unreasonable,” our Supreme
Court has made clear that “rejection of a sentencing court’s imposition of
sentence on unreasonableness grounds [should] occur infrequently, whether
the sentence is above or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard of review.”
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007). When reviewing
the record, this Court should have regard for: (1) the nature and
circumstances of the offense and the history and characteristics of the
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Appellant; (2) the opportunity of the sentencing court to observe the
Appellant, including any presentence investigation; (3) the findings upon
which the sentence was based; and (4) the guidelines promulgated by the
commission. 42 Pa.C.S. §9781(d).
Importantly, our Supreme Court “has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted).
Here, the court acknowledged that it had sentenced Appellant outside
the guidelines. See N.T. Sentencing, 10/10/14, at 20, 21, 27. Without
informing us of what the guidelines provided or even for which of his
convictions the court imposed a sentence outside of the guidelines, Appellant
asserts his sentence is excessive because the court did not have enough
information of his character and rehabilitative needs from which to impose
such a lengthy sentence.3 We disagree.
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3
The Sentencing Guideline Form in the certified record indicates that the
standard range sentence for the rape would have been 48 to 66 months’
incarceration, with statutory limits of 120 to 240 months’ incarceration.
Appellant was sentenced to the statutory limits on the rape conviction, and
to aggravated ranges for his other offenses. See Sentencing Guideline
Form, CCP docket item #61.
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At Appellant’s original sentencing hearing, Appellant presented
testimony from his pastor, Robert Ross of the Heritage Baptist Church in
Jeannette. Pastor Ross stated, inter alia, that he did not believe Appellant
would benefit from a lengthy period of incarceration because Appellant
“never backed away from anything he ever did . . . so he took ownership of
his actions.” N.T. Sentencing, 10/10/14, at 13.4 He also answered “yes” to
defense counsel’s question “Do you think he’s a good candidate for
rehabilitation?” Id.
After counsel presented argument, the sentencing court stated the
following:
I have read the presentence report, Mr. Tucker. You are 29
years of age[.] . . . And I understand that you have no prior
record, however, this was a very brutal crime. You’re a big man.
You are 6’3”, you weight approximately 390 pounds. Certainly
no match for this young woman, although a person can be raped
and the person doesn’t have to fight anyway, but there is no
chance of this woman fighting with a person of your size.
I have thought about this and after reading the presentence
report and looking at what the range is, the range of sentence is,
I don’t think the range is appropriate. I’m sentencing you
outside the guidelines.
[The court then imposed sentence on each of the six counts]
Count 1 is outside the guidelines. I will state my reasons in a
moment. Counts 3, 4, 5, and 6, each of, each of those are in
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4
On cross-examination, Pastor Ross clarified that he was not referring to the
crime at issue in this case; rather, he was speaking to Appellant’s having
accepted responsibility for having been unfaithful to his wife.
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the aggravated range[,] the highest amount in the aggravated
range.
As I said, Mr. Tucker, I thought about this and I have many
reasons for sentencing outside the guidelines.
This rape was especially brutal. You physically as well as
sexually assaulted the victim. You choked her to the point that
she suffered broken blood vessels in her face and eyes, you
threatened to kill her child. It was obvious to me that this
woman, as probably as any mother, would lay down her life for
her child and that’s why you were able to probably get away with
this because her young child was there. This five[-]year[-] old
child who, as [defense counsel] stated accurately, you were a
part of this child’s life. This child trusted you and you raped his
mother. You choked this woman in front of her child and then
you made him leave the room and stay in the living room crying
while you raped his mother.
You were considered a friend by the victim who was a single
parent. Your wife was her best friend. How can the victim trust
anyone when you betrayed the friendship in the most horrific
manner imaginable[?]
I believe the sentence is appropriate. I just do not feel confident
that you are amendable to rehabilitation and my goal is to have
you incarcerated to protect other victims for as long as I possibly
can and I feel this is the longest sentence that I can give.
***
In addition [to] the reasons that I gave for imposing the
sentence which was outside the guidelines and also the sentence
in the aggravated range, I’m adopting what is provided in
the presentence report that was so adequately prepared by
Mr. Hamm, and specifically the [e]ffects on the victim and her
child after this assault.
N.T. Sentencing at 19-23, 27-28 (emphasis added; some paragraph breaks
omitted).
In asserting that the court did not have enough information to impose
the sentence it did, Appellant utterly fails to acknowledge the existence of
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the presentence report. Further, he completely omits any discussion of the
sentencing court’s acknowledgement of, and reliance on, the presentence
report. As noted supra, “where the trial court is informed by a pre-sentence
report, it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.” Ventura, 975 A.2d at 1135.
Upon review of the record, in particular the findings upon which the
sentencing court based the sentence and the circumstances of the offense,
we conclude the sentence is not clearly unreasonable. The sentencing court
demonstrated on the record that it considered the sentencing guidelines with
the facts of the crime and Appellant’s character in a meaningful fashion.
Moreover, the court properly resentenced in accordance with our instructions
on remand. Thus, we will not disturb Appellant’s aggregate sentence of 11
to 32 years’ incarceration.
Recusal
In his last issue, Appellant avers that the trial court should have
recused itself because it had recognized at sentencing that a second accuser
had come forward after the victim had reported the rape at issue here.
Although Appellant acknowledges that the trial court specifically stated that
it did not take that accusation into account in fashioning Appellant’s
sentence, Appellant nonetheless asserts that the court’s acknowledgment of
a second possible victim “in the context of explaining its reason for Mr.
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Tucker’s lengthy sentence [ ] is proof of bias, prejudice, and is justification
for recusal.” Appellant’s Brief at 30.
Appellant does not cite to where in the record he preserved this claim,
as required by our rules of appellate procedure. See Pa.R.A.P. 2117(c). He
has made no attempt to indicate the method of raising the claim, or the way
in which the sentencing court passed upon the request, or to provide
“specific reference to the places in the record where the matter appears … as
will show that the question was timely and properly raised below so as to
preserve the question on appeal.” Pa.R.A.P. 2117(c)(1-4). See also
Pa.R.A.P. 2119(c), (e). Moreover, Appellant has failed to cite to any case
law relevant to recusal or to develop his argument beyond a summary
conclusion of bias. “This Court will not act as counsel and will not develop
arguments on behalf of an appellant.” Coulter v. Ramsden, 94 A.3d 1080,
1088 (Pa. Super. 2014); accord Commonwealth v. Blakeney, 108 A.3d
739, 767 (Pa. 2014).
Accordingly, we conclude Appellant has waived his recusal issue.5
Judgment affirmed.
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5
The panel of this Court considering Appellant’s first Appeal likewise found
the issue had been waived for failing to raise it below, stating “as to the
issue of recusal, or the request for a new recusal rule for trial court judges
who are ostensibly tainted by their knowledge of unrelated pending cases,
we deem Appellant has waived any such claim by failing to preserve it
below.” Tucker I at 13.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2017
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