Com. v. Sibilly, J. ( 2018 )


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  • J-S73004-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JAHRELL R. SIBILLY                         :
    :
    Appellant                :   No. 663 MDA 2017
    Appeal from the Judgment of Sentence March 21, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
    No(s): CP-21-CR-0001860-2016
    BEFORE:       OLSON, J., DUBOW, J., and STRASSBURGER*, J.
    MEMORANDUM BY OLSON, J.:                              FILED JANUARY 04, 2018
    Appellant, Jahrell R. Sibilly, appeals from the judgment of sentence
    entered on March 21, 2017, following his open guilty plea to terroristic
    threats with the intent to terrorize another.1 We affirm.
    The trial court set forth the facts of this case as follows:
    On or about August 27, 2015, [Appellant], while an inmate at
    the State Correctional Institution at Camp Hill, authored a letter
    to [J.B.],[2] the Institution’s Unit Manager. Within the letter,
    [Appellant] threatened [J.B.] with extreme acts of torture which
    included blowtorching her sexual organs, pouring boiling hot
    “Drano” and bleach over her body, taking a hammer to her
    extremities, and raping her. He affixed his signature and inmate
    number to the letter.
    ____________________________________________
    1    18 Pa.C.S.A. § 2706(a)(1).
    
    2    We use the victim’s initials to protect her identity.
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-S73004-17
    Sometime in November of 2015, [J.B.] received another letter
    from [Appellant]. The letter, like the previous one, contained
    threats against [the victim]. This time, [Appellant] reassured
    her that he was going to follow through with the threats in the
    previous letter, and that it was meant to show her how obsessed
    he is with keeping his word on his threats. The letter ended
    with, “See you soon.” Again, [Appellant] affixed his signature
    and inmate number, as well as his address, to the letter.
    When confronted, [Appellant] admitted to authoring and sending
    the letters to [J.B.]. He explained that it was his intent to make
    [the victim] take him seriously, and that he wrote the letters out
    of anger and desire to scare her. He was charged with two
    counts of terroristic threats for the letters. He entered an open
    guilty plea to one count which resulted in the sentence which is
    the subject of this appeal. [The trial court sentenced Appellant
    to 9 months to five years of imprisonment on March 21, 2017].
    Trial Court Opinion, 7/10/2017, at 1-2. This timely appeal resulted.3
    On appeal, Appellant presents the following issue for our review:
    Whether the trial court abused its discretion and committed
    reversible error when it sentenced Appellant to undergo
    imprisonment in a state correctional institution for not less than
    nine (9) months nor more than five (5) years?
    Appellant’s Brief at 4 (complete capitalization omitted).
    In sum, Appellant contends:
    ____________________________________________
    3    Appellant did not file a timely post-sentence motion to modify his
    sentence. Instead, on April 13, 2017, Appellant filed a counseled motion to
    modify sentence nunc pro tunc. Appellant did not offer a reason for the late
    filing. The trial court took no express action on Appellant’s request to
    proceed nunc pro tunc and, on April 20, 2017, the trial court entered an
    order simply denying Appellant post-sentence relief. Appellant filed a timely
    notice of appeal on April 20, 2017. The trial court entered an order on April
    25, 2017, directing Appellant to file a concise statement of errors
    complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
    timely on May 12, 2017. The trial court issued an opinion pursuant to
    Pa.R.A.P. 1925(a) on July 10, 2017.
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    J-S73004-17
    In the present case, Appellant submits that the trial court
    abused its discretion when it sentenced Appellant to a sentence
    of nine (9) months to five (5) years. Specifically, Appellant
    asserts that he has never been made eligible for parole and has
    only recently maxed out his original sentence of three to eight
    years. In addition, Appellant is currently maxing out a one to two
    year sentence imposed for a felony offense. Finally, because the
    present offense occurred while Appellant was incarcerated, the
    likelihood that he will be considered for parole at the expiration
    of his minimum term is extremely low. Accordingly, given
    Appellant’s sentencing history, it is likely that Appellant will
    serve the entire five[-]year sentence imposed in this case,
    despite a guideline range of [restorative sanctions] to nine (9)
    months for a misdemeanor offense. As such, Appellant contends
    that the maximum sentence of five years imposed in this case
    was excessive and unreasonable.
    In support of his argument that the five year maximum sentence
    was excessive, Appellant relies upon the dissenting opinion in
    Commonwealth v. Lee, 
    876 A.2d 408
    (Pa. Super 2005).
    
    Id. at 9.
    Appellant’s      claim        presents       a          challenge        to
    the discretionary aspects of sentencing.   “When   an      appellant   challenges
    the discretionary aspects of his sentence, we must consider his brief on this
    issue as a petition for permission to appeal.” Commonwealth v. Heaster,
    
    171 A.3d 268
    , (Pa. Super. 2017) (internal citation omitted). Prior to
    reaching the merits of a discretionary sentencing issue,
    this Court conducts 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
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    J-S73004-17
    the sentence appealed    from    is   not appropriate        under
    the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
    
    Id. at 271–272
    (internal citations and brackets omitted).
    Initially, we note that Appellant did not file a timely post-sentence
    motion within 10 days as required under Pa.R.Crim.P. 720.       It is well-settled
    that:
    To be entitled to file a post-sentence motion nunc pro tunc, a
    defendant must, within 30 days after the imposition of sentence,
    demonstrate sufficient cause, i.e., reasons that excuse the late
    filing....When the defendant has met this burden and has shown
    sufficient cause, the trial court must then exercise its discretion
    in deciding whether to permit the defendant to file the
    post-sentence motion nunc pro tunc. If the trial court chooses
    to permit a defendant to file a post-sentence motion nunc pro
    tunc, the court must do so expressly [within thirty days after the
    imposition of the sentence].
    Commonwealth v. Batty, 
    169 A.3d 70
    , 72 n.4 (Pa. Super. 2017).                 “The
    trial court's resolution of the merits of the late post-sentence motion is no
    substitute    for   an   order   expressly   granting   nunc   pro   tunc relief.”
    Commonwealth v. Capaldi, 
    112 A.3d 1242
    , 1244 (Pa. Super. 2015).
    Here, upon review of Appellant’s untimely post-sentence motion,
    Appellant acknowledged that it was filed outside of the 10-day provision of
    Rule 720, but did not offer a reason for the late filing.      Moreover, despite
    Appellant’s request for nunc pro tunc relief, the trial court did not expressly
    grant nunc pro tunc relief. Instead, it merely denied Appellant’s requested
    relief, i.e., the modification of his sentence. Thus, Appellant’s discretionary
    sentencing challenge is subject to dismissal because he failed to properly
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    J-S73004-17
    preserve his sentencing claim before the trial court in a timely post-sentence
    motion or a post-sentence motion filed nunc pro tunc with express leave of
    the trial court.
    In addition, we note that Appellant did not set forth separate sections
    in his appellate brief pursuant to Pa.R.A.P. 2119(a) and (f). Appellant was
    required to set forth a concise statement of the reasons relied upon for
    allowance of appeal with regard to the discretionary aspects of sentencing as
    required under Pa.R.A.P. 2119(f), as well as a separate argument section as
    required pursuant to Pa.R.A.P. 2119(a). Upon review, Appellant combined
    both briefing requirements into a single section in his appellate brief. See
    Appellant’s Brief at 8-10.    However, the Commonwealth has not objected,
    we are able to discern Appellant’s claim, and we decline to find waiver based
    upon non-compliance with Pa.R.A.P. 2119(f).          See Commonwealth v.
    Brougher, 
    978 A.2d 373
    , 375 (Pa. Super. 2009) (claims relating to the
    discretionary aspects of a sentence are waived if an appellant does not
    include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party
    objects to the statement's absence; where the appellant has failed to comply
    with the requirement of 2119(f) but the Commonwealth did not object to the
    statement's absence, we will not find appellant's claims waived).
    Nevertheless, Appellant has failed to raise a substantial question to
    implicate our review. The determination of whether a particular issue raises
    a   substantial    question   is   to   be    evaluated   on   a   case-by-case
    basis. Commonwealth v. Bishop, 
    831 A.2d 656
    , 660 (Pa. Super. 2003).
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    J-S73004-17
    “In order to establish a substantial question, the appellant must show
    actions by the sentencing court inconsistent with the Sentencing Code or
    contrary to the fundamental norms underlying the sentencing process.” 
    Id. “Bald allegations
    of excessiveness, unaccompanied by a plausible argument
    that the sentence imposed violated a provision of the Sentencing Code or is
    contrary to the fundamental norms underlying the sentencing scheme, are
    insufficient to raise a substantial question.”    Commonwealth v. Lee, 
    876 A.2d 408
    , 412 (Pa. Super. 2005).
    In Lee, the appellant advanced a similar claim as in the case sub
    judice.4    Lee argued “that his sentence [was] excessive because of his
    expectation that he [would] not be paroled by the Pennsylvania Board of
    Probation and Parole (“PBPP”) at expiration of his minimum sentence.”
    Commonwealth v. Lee, 
    876 A.2d 408
    , 412 (Pa. Super. 2005) (record
    citation omitted). Lee did not dispute the minimum sentence imposed and
    conceded that his sentence fell within the sentencing guidelines.            
    Id. Ultimately, in
    Lee, we determined that minimum sentences, over an
    aggregated term of two years, are subject to the exclusive authority of the
    PBPP in granting parole.        
    Id., citing 61
    P.S. § 311.17.   “Inasmuch as the
    ____________________________________________
    4   Appellant currently relies upon the dissenting opinion in Lee. See
    Appellant’s Brief at 9-10.      However, we are not bound by dissenting
    opinions. See Commonwealth v. Thompson, 
    985 A.2d 928
    , 942 (Pa.
    2009)(“Of course, persuasive as they are, neither the dissent of the Chief
    Justice nor the dissent by Mr. Justice Eakin is binding precedent....”).
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    decision to grant parole rests exclusively with the PBPP, the issue of parole is
    not a fundamental norm underlying the sentencing process.” 
    Id. Thus, we
    determined that Lee failed to raise a substantial question for our review.
    Here, there is no dispute that Appellant’s sentence fell within the
    sentencing guidelines. Moreover, Appellant does not challenge the minimum
    sentence imposed and, instead, argues only that it is unlikely that he will be
    paroled upon the expiration of his minimum sentence.            As such, Appellant
    does not contend that his sentence violated the sentencing code. Moreover,
    the decision to grant parole does not implicate a fundamental norm
    underlying the sentencing scheme.          Accordingly, we conclude that, in this
    case, Appellant has failed to raise a substantial question and we decline to
    address the merits of Appellant’s sentencing claim.
    Even if he were to find that Appellant’s claim raised a substantial
    question, we would affirm the trial court’s decision. “Sentencing is a matter
    vested in the sound discretion of the sentencing judge, whose judgment will
    not be disturbed absent an abuse of discretion.” 
    Lee, 876 A.2d at 413
    (internal citation omitted). “Discretion is abused when the course pursued
    [by the trial court] represents not merely an error of judgment, but where
    the judgment is manifestly unreasonable or where the law is not applied or
    where the record shows that the action is a result of partiality, prejudice,
    bias, or ill will.”   
    Id. (citation omitted;
    brackets in original).
    A standard range sentence for terroristic threats, with Appellant’s prior
    record score of two, is restorative sanctions to nine months’ imprisonment.
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    42 Pa.C.S.A. §     9721.     The offense was graded as a first-degree
    misdemeanor, carrying a statutory maximum of five years of imprisonment.
    18 Pa.C.S.A. § 1104.     The trial court considered these guidelines prior to
    imposing Appellant’s sentence. Additionally, the trial court had the benefit
    of a pre-sentence investigation report and victim impact statements prior to
    imposing Appellant’s sentence. See Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1135 (Pa. Super. 2009) (stating that where a sentencing court is
    informed by a pre-sentence investigation report, it is “presumed that the
    court is aware of all appropriate sentencing factors,” which includes the
    applicable sentencing guidelines).    Thus, we presume the trial court was
    aware of all of the relevant factors prior to imposing Appellant’s sentence.
    A trial court is also required to state, on the record, its reasons for the
    imposition of a sentence that considers “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.”              42
    Pa.C.S.A. § 9721(b).
    When imposing Appellant’s sentence, the trial court stated that it
    “appreciate[d] the changes [Appellant] made in [his] life since [the incidents
    at issue] occurred, but the offense is a very serious offense, and it caused
    great hardship on the victim in this case.” N.T. Sentencing, 3/21/2017, at 5.
    Likewise, in its Rule 1925(a) opinion, the trial court opined that Appellant’s
    sentence was “based upon the serious nature of the offense as well as the
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    devastating impact it had upon his victim, as described in her own words.”
    Trial Court Opinion, 7/10/2017, at 2.
    In reviewing the record on appeal, we are obligated to examine:
    (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(d). An “appellate court shall vacate [a] sentence and
    remand the case to the sentencing court with instructions if it finds […] the
    sentencing court sentenced within the sentencing guidelines but the case
    involves circumstances where the application of the guidelines would be
    clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
    Upon review, we discern no abuse of discretion in sentencing
    Appellant.   Appellant, on the verge of being released from prison, sent
    intimidating letters to a prison staff member, threatening her with extreme
    violence upon his release. The trial court recognized the seriousness of the
    offense and the effect on the victim.      It also implicitly determined that
    rehabilitation efforts had been fruitless, because Appellant committed an
    additional, serious crime from prison. Thus, the trial court stated its reasons
    for Appellant’s sentence and we discern no abuse of discretion. Hence, we
    conclude that Appellant’s sentence falls within the sentencing guidelines and
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    the   statutory   maximum   and   is    not     manifestly   excessive   or   clearly
    unreasonable. Accordingly, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/4/2018
    - 10 -
    

Document Info

Docket Number: 663 MDA 2017

Filed Date: 1/4/2018

Precedential Status: Precedential

Modified Date: 1/4/2018