Com. v. Hawkins, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EARL HAWKINS,
Appellant No. 1668 WDA 2014
Appeal from the Judgment of Sentence September 30, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0011151-2009
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 19, 2015
Appellant, Earl Hawkins, appeals from the judgment of sentence
entered following his resentencing pursuant to the United States Supreme
Court’s decision in Miller v. Alabama 132 S. Ct. 2455, 2460 (2012) and the
Pennsylvania Supreme Court’s decision in Commonwealth v. Batts, 66
A.3d 286, 297 (Pa. 2013). On appeal, Appellant challenges the discretionary
aspects of sentence. For the reasons discussed below, we affirm the
judgment of sentence.
We take the underlying facts and procedural history in this matter
from the sentencing court’s opinion and from our opinion on Appellant’s first
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*
Retired Senior Judge assigned to the Superior Court.
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direct appeal. (See Sentencing Court Opinion, 1/15/15, at 1-16; see also
Commonwealth v. Hawkins, No. 1448 EDA 2012, unpublished
memorandum at *2-11 (Pa. Super. filed August 20, 2013) (quoting Trial
Court Opinion, 2/01/13, at 2-16)).
We briefly note that, on March 1, 2009, Appellant, then a juvenile,
persuaded James Owens and Jamie Glozzer to assist him in robbing Brandon
Sheetz. Glozzer was reluctant to participate but agreed when Appellant
pulled a gun on him. The three men dressed in dark clothing, and Appellant
and Owens had white masks over their faces. Both Appellant and Owens
were armed. The men knocked on Sheetz’s door and, when he answered,
Appellant pointed a gun at his head. Appellant and Sheetz struggled over
possession of the gun, and, during the struggle, the gun went off, killing
Owens and injuring Sheetz. As Sheetz lay on the ground, Appellant fired the
gun at Sheetz’s head but missed. Appellant and Glozzer both fled the scene.
The police apprehended Appellant shortly thereafter.
Subsequently, the police became aware of Glozzer’s involvement.
Glozzer gave two complete statements to the police and then entered into
an agreement with the Commonwealth to plead guilty to murder in the third
degree in exchange for his testimony against Appellant. Appellant knew
about Glozzer’s agreement and, while both were incarcerated, Appellant
engaged in a persistent campaign to induce Glozzer to retract his statement
and tell the police that Appellant was not involved in the shooting. After
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being harassed and threatened by other inmates, Glozzer signed his name to
a statement saying that he was threatened by police and that Owens forced
Appellant to participate in the robbery. However, Glozzer ultimately gave
the threatening notes from Appellant to his lawyer, told counsel he was
forced to sign a statement recanting his prior statement, and testified
against Appellant at trial.
Following trial, the jury found Appellant guilty of murder in the second
degree, aggravated assault, robbery, firearms not to be carried without a
license, and conspiracy. The trial court found Appellant guilty of person not
to possess a firearm. On June 28, 2011, the court sentenced Appellant to an
aggregate term of incarceration of not less than life without parole plus a
consecutive term of incarceration of not less than thirteen and one-half nor
more than twenty-seven years.
Appellant appealed. On August 20, 2013, we rejected Appellant’s
suppression and weight of the evidence claims but vacated the judgment of
sentence and remanded for resentencing in light of Miller and Batts. (See
Hawkins, supra at 21); see also Miller, supra at 2460; Batts, supra at
297. We specifically “direct[ed] the [sentencing] court’s attention to the
recently enacted sentencing scheme set forth by our legislature in 18
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Pa.C.S.[A.] § 1102.1 for guidance.”1 (Hawkins, supra at 21 (emphasis
added)).
Following receipt of a new pre-sentence investigation report (PSI), on
September 30, 2014, the court resentenced Appellant to an aggregate term
of incarceration of not less than thirty-four years nor more than life. (See
N.T. Sentencing, 9/30/14, at 155-57; see also Sentencing Ct. Op., at 2-3).
On October 6, 2014, Appellant filed a post-sentence motion, which the
sentencing court denied on October 8, 2014. The instant, timely appeal
followed. Although not ordered to do so by the sentencing court, Appellant
filed a concise statement of errors complained of on appeal on October 9,
2014. See Pa.R.A.P. 1925(b). On January 15, 2015, the sentencing court
filed an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
1. Did the [sentencing] court err in denying Appellant’s post
sentencing motion[] since Appellant’s murder 2 sentence of 30
years to life imprisonment, and aggregate sentence of 34 years
to life imprisonment (which included 5 consecutive sentences),
were manifestly excessive since he showed genuine remorse for
his crimes, he was taking steps to rehabilitate himself and
demonstrated that he was a changed person, and it is
unreasonable to believe that it will take another 28.65 years for
Appellant to reach the point at which he can return to and
become a productive and positive member of society?
(Appellant’s Brief, at 3).
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1
The new sentencing scheme set forth in 18 Pa.C.S.A. § 1102.1 applies
“only to minors convicted of murder on and after the date Miller was issued
(June 25, 2012).” Batts, supra at 293 (citations omitted).
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In the appeal, the Appellant challenges the discretionary aspects of his
sentence.2 (See id. at 15-24). The right to appeal the discretionary aspects
of a sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d
270, 274 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When
an appellant challenges the discretionary aspects of the sentence imposed,
he must present “a substantial question as to the appropriateness of the
sentence[. . . .]” Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.
Super. 2003) (citations omitted). An appellant must, pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f), articulate “a colorable
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
scheme.” Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.
Super. 2005) (en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation
omitted). If an appellant’s Rule 2119(f) statement meets these
prerequisites, we determine whether a substantial question exists. See
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), appeal
denied, 759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons
for which the appeal is sought, in contrast to the facts underlying the
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2
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. (See Post Sentencing Motions, 10/06/14, at 6); see also
McAfee, infra at 275.
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appeal, which are necessary only to decide the appeal on the merits.” Id.
(emphases in original).
Here, Appellant has included a Rule 2119(f) statement in his brief.
(See Appellant’s Brief, at 12-14). He argues that the sentence was
manifestly excessive and unreasonable because the sentencing court failed
to consider certain mitigating factors, imposed four consecutive sentences in
addition to the sentence for murder in the second degree, did not provide
sufficient reasons to justify the sentence, and based its sentence solely on
the seriousness of the crime. (See id. at 12-13).
Our standard of review is 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. 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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(citation omitted).
Initially, we hold that Appellant waived his claims that the sentencing
court unreasonably imposed consecutive sentences, did not provide
sufficient reasons to justify the sentence, and based it solely on the
seriousness of the crime. Appellant did not raise these claims in his post-
sentence motion, in which he only raised the issue that the sentence was
manifestly excessive because the sentencing court did not consider
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mitigating factors such as Appellant’s remorse and rehabilitation while
incarcerated. (See Post Sentencing Motions, 10/06/14, at 6). An appellant
waives any discretionary aspects of sentence issue not raised in a post-
sentence motion; further, an appellant cannot raise an issue for the first
time on appeal.3 See Commonwealth v. Mann, 820 A.2d 788, 793-94
(Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003) (finding claim
sentencing court did not put sufficient reasons to justify sentence on record
waived where issue was not raised in post-sentence motion); see also
Pa.R.A.P. 302(a); Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3
(Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new legal
theories cannot be raised for first time on appeal). Thus, Appellant did not
preserve these claims for our review and we deem them waived.
Appellant claims that his sentence was unreasonable and excessive4
because the sentencing court did not consider mitigating factors. (See
Appellant’s Brief, at 20-24).
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3
We note that Appellant did raise the issue regarding the imposition of
consecutive sentences in his Rule 1925(b) statement. (See Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b), 10/09/14, at 6). However, an appellant cannot raise issues for the
first time in a Rule 1925(b) statement. See Commonwealth v. Coleman,
19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time in Rule
1925(b) statement are waived).
4
We note that, at sentencing, the parties and the sentencing court agreed
that the sentencing guidelines did not apply because Appellant’s conviction
occurred prior to the decision in Miller, and the changes to 18 Pa.C.S.A. §
(Footnote Continued Next Page)
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We note that a bald claim of an excessive sentence does not generally
raise a substantial question. See Commonwealth v. Dodge, 77 A.3d
1263, 1269 (Pa. Super. 2013) (en banc), appeal denied, 91 A.3d 161 (Pa.
2014). However, this Court has held that a claim of excessiveness in
conjunction with a claim that the sentencing court did not consider
mitigating factors presents a substantial question. See Gonzalez, supra at
731 (citing Dodge, supra at 1272); see also Commonwealth v. Zeigler,
--- A.3d ---, 2015 WL 1268158, at *5 (Pa. Super. filed March 20, 2015). We
will therefore address the merits of Appellant’s claim.
In the instant matter, the sentencing court had the benefit of a PSI.
We have stated that:
[w]hen imposing a sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. . . . Where the sentencing court had
the benefit of a presentence investigation report [PSI], we can
assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some
internal quotation marks and citations omitted). Here, the sentencing court
stated that it had reviewed the PSI. (See N.T. Sentencing, 9/30/14, at 6).
Additionally, Appellant has not demonstrated that his sentence was
manifestly excessive because the sentencing court failed to consider
_______________________
(Footnote Continued)
1102.1 only apply to those convicted after Miller. (See N.T. Sentencing,
9/30/14, at 4, 113).
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mitigating factors. Appellant presented four witnesses at the sentencing
hearing. Randolph A. Matuscak, a forensic social worker who prepared the
new PSI, testified as an expert. (See id. at 7-43). Appellant’s mother,
father, and a cousin also testified. (See id. at 44-64). Further, Appellant
testified on his own behalf. (See id. at 64-107). This testimony detailed
Appellant’s neglected and violent childhood and the positive changes
Appellant made in his life since entering prison. (See id. at 7-107). The
Commonwealth read into the record a letter written by the victim’s mother,
who also testified regarding the impact of Appellant’s crime on her family.
(See id. at 108-12).
Based upon all of this evidence, the sentencing court handed down a
sentence of not less than thirty years nor more than life imprisonment for
murder in the second degree. (See id. at 155). In so doing the sentencing
court followed this Court’s mandate to consider the sentencing scheme at 18
Pa.C.S.A. § 1102.1, and sentenced Appellant in accordance with that
scheme. (See Hawkins, supra at 21); see also 18 Pa. C.S.A. §
1102.1(c)(1). Further, the court cut the consecutive sentences from the
not less than thirteen and one-half nor more than twenty-seven years of
incarceration imposed originally to not less than four nor more than eight
years of incarceration. (See id. at 156). This was much closer to the
twenty-five years to life requested by Appellant and much lower than the
fifty years to life requested by the Commonwealth. (See id. at 144, 150).
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The sentencing court engaged in a detailed discussion of the purposes of
sentencing, the evidence presented, and its attempt to balance the
heinousness of the crimes against the positive changes Appellant made while
incarcerated, thus explaining its reasons for the sentence. (See id. at 123-
55).
Clearly, the gist of Appellant’s argument is not that the sentencing
court did not consider the relevant sentencing factors, but rather that the
court did not weigh them as much in his favor as he wished. (See
Appellant’s Brief, at 21-24). Our review of the record does not show that
the sentencing court abused its discretion or that it entered a manifestly
unreasonable sentence. See Zeigler, supra at *5 (holding sentence not
manifestly unreasonable where sentencing court considered PSI, details of
crime, and explained reasons for sentence); Commonwealth v. Raven, 97
A.3d 1244, 1253-55 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.
2014) (holding sentence not manifestly unreasonable where sentencing
court reviewed PSI, heard testimony on behalf of defendant, and reviewed
letters and victim impact statements, thus showing court had considered all
mitigating information). Appellant’s claim lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2015
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