Com. v. Brooks, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RANDALL D. BROOKS :
:
Appellant : No. 1499 MDA 2017
Appeal from the Judgment of Sentence December 6, 2016
in the Court of Common Pleas of Centre County,
Criminal Division at No(s): CP-14-CR-0000141-2012,
CP-14-CR-0000568-2011, CP-14-CR-0001515-2011,
CP-14-CR-0001927-2010, CP-14-CR-0002130-2010
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2018
Randall D. Brooks (“Brooks”) appeals from the judgment of sentence
imposed following his conviction of five counts of witness intimidation; two
counts each of aggravated assault, stalking, harassment, and solicitation to
commit evidence tampering; and one count each of solicitation to commit
perjury, attempted murder, possessing an instrument of crime (“PIC”),
recklessly endangering another person, aggravated jury tampering, and
conspiracy to commit aggravated jury tampering.1 We dismiss the appeal.
In November 2009, Brooks and Jessica Rooney (“Rooney”) ended their
romantic relationship. Rooney subsequently began dating Matthew Ross
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1 18 Pa.C.S.A. §§ 4952, 2702, 2709.1, 2709, 902 (4910), 902 (4902), 901
(2501), 907, 2705, 4583.1, 903.
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(“Ross”), who worked next door to the auto repair business where Brooks was
employed. From December 2009 through early 2010, Brooks harassed and
stalked Rooney and Ross. Ultimately, while following Ross’s vehicle, Brooks
fired several shots into Ross’s vehicle, with one bullet striking Ross in the arm.
As a result of his gunshot wound, Ross continues to have medical issues,
including the limited use of his left arm. Brooks later confessed to Rooney
that he had shot Ross. After the shooting, Brooks continued to harass Rooney,
approaching her in public, leaving notes, and subsequently writing letters to
Rooney from prison.
The matter proceeded to trial. Following jury selection, Brooks returned
to jail and spoke with fellow inmate Joshua Dunlap (“Dunlap”). Aware that
Dunlap personally knew juror Brent Kephart (“Kephart”), Brooks asked Dunlap
to contact Kephart to discuss Brooks’s case, upon Dunlap’s release on bail.
On the morning of Dunlap’s release, Brooks told Dunlap that he and Kephart
would receive financial compensation if they complied with Brooks’s wishes.
Brooks additionally requested that his father alter evidence in the case.
Following a jury trial, Brooks was convicted of the above-described
charges. The Commonwealth filed a Motion to modify Brooks’s sentence, and
Brooks filed a post-sentence Motion. On August 14, 2012, the trial court
granted modification of the sentence, ultimately sentencing Brooks to an
aggregate prison term of 35 to 73 years in prison, which included a sentence
of 20-40 years for Brooks’s conviction of attempted murder causing serious
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bodily injury.2 Thereafter, the trial court denied Brooks’s post-sentence
Motion.
Brooks filed a timely direct appeal, which was dismissed for failure to
file an appellate brief. Brooks timely filed a pro se Post Conviction Relief Act3
Petition, seeking to reinstate his direct appeal rights. Brooks retained private
counsel, who filed an amended PCRA Petition. On May 8, 2014, the PCRA
court granted the Petition, and reinstated Brooks’s direct appeal rights, nunc
pro tunc.
On direct appeal, this Court vacated Brooks’s judgment of sentence for
attempted murder causing serious bodily injury,4 holding that the sentence is
illegal under Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super.
2014), and Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). See
Commonwealth v. Brooks, 122 A.3d 1120 (Pa. Super. 2015) (unpublished
memorandum at 22-23). Specifically, this Court held that the maximum
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2See 18 Pa.C.S.A. § 1102(c) (providing for a maximum sentence of 20 years
where attempted murder does not result in serious bodily injury, and a
maximum sentence of 40 years where attempted murder results in serious
bodily injury).
3 42 Pa.C.S.A. §§ 9541-9546.
4 Pursuant to the Crimes Code, a person convicted of attempted murder,
where serious bodily injury results, may be sentenced to a prison term of not
more than 40 years. 18 Pa.C.S.A. § 1102(c). A person convicted of attempted
murder where serious bodily injury does not result, may be sentenced to a
prison term of not more than 20 years. Id.
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sentence of 40 years is illegal, “because the record fail[ed] to establish that
the jury made the requisite serious bodily injury finding.” Id. (unpublished
memorandum at 25 (internal quotation marks omitted)). Further, “[a]s
vacating [Brooks’s] sentence for attempted murder may upset the overall
sentencing scheme vis-à-vis [Brooks’s] other convictions,” the Court vacated
Brooks’s judgment of sentence in its entirety, and remanded for resentencing.
Id. (unpublished memorandum at 26).
On remand, the trial court sentenced Brooks to an aggregate prison
term of 28 to 56 years. Brooks filed post-sentence Motions challenging, inter
alia, the improper grading of one count of stalking. The trial court granted
the Motion, and, at a second sentencing hearing, the trial court imposed an
aggregate prison term of 27 years and 3 months to 54 years and 6 months,
followed by seven years of probation. Brooks filed a post-sentence Motion,
which the trial court denied. Thereafter, Brooks filed the instant timely appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Brooks presents the following claims for our review:
1) Did the [trial] court incorrectly apply an offense gravity score
of 14[,] when the appropriate [offense] gravity score is 13 for
the charge of attempted murder, which resulted in an improper
recommendation and compromised the fundamental norms
that underlie the sentencing process?
2) Did the [trial] court commit an error of law and abuse of
discretion by sentencing [Brooks] to an excessive term of
imprisonment by increasing the sentences on counts at the
second and third resentencing hearings[,] following a remand
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due to the imposition of an illegal sentence that contravened
the fundamental norms of sentencing set forth in 42 Pa.C.S.A.
§ 9721(b)?
Brief for Appellant at 4.
Brooks’s claims implicate the discretionary aspects of sentencing. See
Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc)
(recognizing that a challenge regarding the applicable offense gravity score
implicates the discretionary aspects of a sentence); See Commonwealth v.
Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017) (recognizing that a claim
that a sentence is manifestly excessive challenges discretionary aspects of
sentencing). “A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017). 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).
Grays, 167 A.3d at 815-16 (citation omitted).
Here, Brooks timely filed a Notice of Appeal, and preserved his claims in
a post-sentence Motion. Brooks’s appellate brief, however, does not include
a concise statement of reasons relied upon for allowance of appeal, as is
required by Pa.R.A.P. 2119(f).
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Rule 2119(f) provides, in relevant part, that
[a]n appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence. The statement
shall immediately precede the argument on the merits with
respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f). An appellant cannot invoke this Court’s jurisdiction unless
he properly submits a Rule 2119(f) statement. See Commonwealth v.
Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (holding that an appellant
must include a Rule 2119(f) statement in his brief to invoke the appellate
court’s jurisdiction).
Here, Brooks’s appellate brief does not include the separate statement
of reasons relied upon for allowance of appeal, as required by Rule 2119(f).
The Commonwealth has objected to the omission, asserting that the claims
are waived. See Brief for the Commonwealth at 9. “Where an appellant fails
to comply with Pa. R.A.P. 2119(f) and the Commonwealth objects, the issue
is waived for purposes of review.” Commonwealth v. Montgomery, 861
A.2d 304, 308 (Pa. Super. 2004).
Because Brooks has not invoked this Court’s jurisdiction over his
challenges to the discretionary aspects of his sentence, his claims are waived.
Consequently, we must dismiss his appeal.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/31/2018
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