Com. v. Barksdale, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID JAMARR BARKSDALE
Appellant No. 1603 WDA 2014
Appeal from the Judgment of Sentence entered August 28, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0002804-2013
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015
Appellant, David Jamarr Barksdale, appeals from the judgment of
sentence the Court of Common Pleas of Erie County entered August 28,
2014. On appeal, Appellant challenges the discretionary aspects of his
sentence. Upon review, we affirm.
The trial court summarized the background of this matter as follows:
On May 7, 2014, the Appellant appeared before [the trial court]
and entered a negotiated no contest plea [to statutory sexual
assault, and corruption of minors]. The charge[s] involved the
Appellant’s commission of sexual intercourse with the fourteen[-
]year[-]old victim. The events took place between June[] 2013
through July[] 2013 in the City of Erie.
On August 28, 2014, the Appellant was sentenced . . . to 30 to
60 months[’] incarceration [on the statutory sexual assault
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*
Retired Senior Judge assigned to the Superior Court.
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conviction] and . . . 9 to 24 months[’] incarceration [on the
corruption of minors conviction] to run consecutively to [the
statutory sexual conviction]. The aggregate sentence was 39 to
84 months. . . . [On August 29, 2014, Appellant filed a motion
for reconsideration of sentence, which the trial court denied on
September 2, 2014.1]
Appellant filed a [n]otice of [a]ppeal and a [c]oncise [s]tatement
of [m]atters [sic] [c]omplained of on [a]ppeal on September 30,
2014 pursuant to Pa.R.A.P. 1925.
Trial Court Opinion, 11/17/14, at 1 (citations to record omitted) (footnote
omitted).
On appeal, Appellant argues that the imposition of consecutive
sentences and the trial court’s alleged failure to consider mitigating factors
make his aggregate sentence excessive.2 Appellant is entitled to no relief on
his challenge to the discretionary aspects of his sentence.
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1
In both his motion for reconsideration and his Rule 1925(b) statement,
Appellant challenged the discretionary aspects of the sentence to the extent
the trial court imposed consecutive sentences.
2
In his statement of questions involved, Appellant challenges only the trial
court’s failure to consider mitigating factors. See Appellant’s Brief at 4. In
the argument section of the brief, however, Appellant adds another reason
for challenging the sentence, i.e., the trial court abused its discretion in
sentencing Appellant to consecutive sentences. Id. at 10-11. Failure to
include the latter issue in the statement of questions involved is generally
fatal. See Pa.R.A.P. 2116(a) (“[N]o question will be considered unless
stated in statement of questions involved or fairly suggested thereby”);
Commonwealth v. Fremd, 860 A.2d 515, 523-24 (Pa. Super. 2004) (“In
his brief, appellant also argues that the police conduct was so outrageous as
to bar conviction even if entrapment is not found. Appellant failed to raise
this issue in the ‘Statement of Questions Involved’ portion of his appellate
brief and it is, therefore, waived.”). Despite the waiver, we will address the
merits of the contention.
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We begin by addressing [the] standard of review in sentencing
matters:
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. Hoch, 936 A.2d 515, 517–18 (Pa. Super.
2007) (citation omitted).
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. See Hoch, 936 A.2d at 518 (citation
omitted). An appellant must satisfy a four-part test to invoke
this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (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. Moury, 992 A.2d 162, 170 (Pa. Super.
2010) (citations omitted).
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc).
Here, it is undisputed that Appellant timely filed a notice of appeal,
timely filed a post-sentence motion raising a discretionary issue, and
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included a Pa.R.A.P. 2119(f) statement in his brief. The only issue is
whether he raised a substantial question for our review.
Whether a particular challenge to a sentence amounts to a
substantial question is determined on a case-by-case
basis. See Commonwealth v. Coulverson, 34 A.3d 135,
142 (Pa. Super. 2011) (citation omitted). “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 the sentencing process.”
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.
2012) (citations and internal quotation marks omitted).
Buterbaugh, 91 A.3d at 1266.
Appellant argues the trial court abused its discretion in sentencing
Appellant to consecutive as opposed to concurrent sentences. Generally, a
challenge to the imposition of consecutive rather than concurrent sentences
does not present a substantial question regarding the discretionary aspects
of sentence. See, e.g., Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
Super. 2014); Commonwealth v. Austin, 66 A3d 798, 808 (Pa. Super.
2013). However,
we have recognized that a sentence can be so manifestly
excessive in extreme circumstances that it may create a
substantial question. When determining whether a substantial
question has been raised, we have focused upon “whether the
decision to sentence consecutively raises the aggregate sentence
to, what appears upon its face to be, an excessive level in light
of the criminal conduct in this case.”
Zirkle, 107 A.3d at 133-34 (quoting Commonwealth v. Mastromarino, 2
A.3d 581, 588 (Pa. Super. 2010)).
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Here, the trial court sentenced Appellant to an aggregate sentence of
39 to 84 months’ imprisonment in connection with his no contest plea to
statutory sexual assault and corruptions of minors. Appellant had sexual
intercourse with a fourteen-year-old victim. At the time of the crimes,
Appellant was thirty-five years old. We do not find this sentence to be
extreme under the circumstances. Appellant, therefore, failed to raise a
substantial question for our review.
Similarly, Appellant fails to raise a substantial question for our review
regarding the alleged trial court’s failure to consider mitigating factors.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.
2007). Moreover, the record belies the argument. A review of the record
reveals that the trial court reviewed, inter alia, the presentence investigation
report. N.T. Sentencing, 8/28/14, at 22. “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, 1145 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d
12, 18–19 (Pa. 1988)).
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Even if we were to assume Appellant raised a substantial question for
our review, we would conclude no relief is due.
In relevant part, Section 9781 of the Sentencing Code provides:
(c) Determination on appeal.--The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
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.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c), (d).
Here, Appellant acknowledges the sentence was within the guidelines.
Appellant’s Brief at 10. Thus, the question is whether the sentence, under
the circumstance, was clearly unreasonable.
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In determining whether a particular sentence is ‘clearly
unreasonable’ or ‘unreasonable,’ the appellate court must
consider the defendant’s background and characteristics as well
as the particular circumstances of the offense involved, the trial
court’s opportunity to observe the defendant, the presentence
investigation report, if any, the Sentencing Guidelines as
promulgated by the Sentencing Commission, and the ‘findings'
upon which the trial court based its sentence.
Coulverson, 34 A.3d at 147.
Here, upon review of the record before us, and in particular the
applicable sentencing guidelines, the findings upon which the trial court
based the sentence, see N.T. Sentencing, 8/28/14, at 22-27, and the
circumstances of the offense, id.; see also N.T. Plea, 5/7/14, at 9-11, we
would conclude the sentence is not clearly unreasonable. Thus, even if we
had reached the merits of the issue, we would have found the trial court did
not abuse its discretion in fashioning Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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