Com. v. Lockett, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ARMOND LOCKETT
Appellant No. 3174 EDA 2013
Appeal from the Judgment of Sentence August 7, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005482-2012
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 23, 2015
Appellant, Armond Lockett, appeals nunc pro tunc from the August 7,
2013 aggregate judgment of sentence of five to 14 years’ imprisonment,
imposed after being found guilty at a bench trial of aggravated assault,
criminal conspiracy to commit aggravated assault, and two violations of the
Uniform Firearms Act (VUFA).1 After careful review, we affirm.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. On March 30, 2012, Isaiah Thompson was driving in
his car with his three minor relatives, when he recognized Kiyree Dunbar
driving in front of him. N.T., 5/6/13, at 14-16. Thompson honked at
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1
18 Pa.C.S.A. §§ 2702(a)(4), 903, 6105, and 6108, respectively.
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Dunbar to get his attention because Dunbar owed him $200.00. Id. at 17.
Dunbar was driving in his car with Appellant and Wort Whipple. Dunbar
eventually got out of his car and started yelling at Thompson. Id. at 19.
Dunbar and Whipple then got into an altercation with Thompson and one of
the minors who had exited the vehicle. Id. at 20. Appellant headed into a
nearby house. Id. at 21. At some point, Thompson saw Appellant coming
down the block with a gun. Id. Thompson testified that Appellant pointed
the gun at him, fired, and shot Thompson in the arm. Id.
On April 3, 2012, as a result of the incident, Appellant was charged
with criminal attempt to commit murder in the first degree2, aggravated
assault, conspiracy to commit aggravated assault, possession of an
instrument of a crime3, terroristic threats4, simple assault5, recklessly
endangering another person6, and two VUFAs. Thereafter, a two-day bench
trial was held on May 6-7, 2013. At the conclusion of said trial, the trial
court found Appellant guilty of aggravated assault, conspiracy, and the two
VUFAs. On all remaining counts he was found not guilty.
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2
18 Pa.C.S.A. § 901(a).
3
18 Pa.C.S.A. § 907(a).
4
18 Pa.C.S.A. § 2706(a)(1).
5
18 Pa.C.S.A. § 2701(a).
6
18 Pa.C.S.A. § 2705.
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On August 7, 2013, Appellant was sentenced to an aggregate
judgment of sentence of five to 14 years’ imprisonment.7 See Sentencing
Order, 8/7/13.8 On August 9, 2013, Appellant filed a timely post-sentence
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7
Specifically, Appellant was sentenced to four to 12 years’ imprisonment on
the aggravated assault charge, four to 12 years’ imprisonment on the
conspiracy to commit aggravated assault charge, each to run concurrently to
the other. Additionally, he was sentenced to one to two years’ imprisonment
on each VUFA, to run concurrently to each other. The two sets of sentences,
however, were to run consecutively.
8
We note that on the record at sentencing the trial court stated its intent to
sentence Appellant to three to ten years’ imprisonment on the aggravated
assault and criminal conspiracy convictions, to run concurrent to each other,
with a one to two year sentence for each VUFA, to run concurrent to each
other, but consecutive to the sentences for the aggravated assault and
conspiracy charges. N.T., 8/7/13, at 33-34. The trial court further noted
that it intended Appellant’s sentence to be an aggregate sentence of four to
12 years’ imprisonment. Id. Nevertheless, the order prepared and signed
by the trial court sentenced Appellant to an aggregate judgment of sentence
of 5 to 14 years’ imprisonment.
It is well settled that, where there is a discrepancy
between the sentence as written and orally
pronounced, the written sentence generally controls.
Commonwealth v. Gordon, 897 A.2d 504 (Pa.
Super. 2006). See also Commonwealth v.
Isabell, 467 A.2d 1287 ([Pa.] 1983) (indicating
sentencing order controls over oral statements of
sentencing judge not incorporated into signed
judgment of sentence). Oral statements made by
the sentencing court, but not incorporated into the
written sentence signed by the court, are not part of
the judgment of sentence. Commonwealth v.
Quinlan, 639 A.2d 1235 ([Pa.] 1994).
Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa. Super. 2013) (parallel
citations omitted).
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motion asserting the trial court abused its discretion in sentencing Appellant
to four to 12 years’ incarceration. The trial court denied Appellant’s motion
the same day. On August 14, 2013, Appellant’s trial counsel was permitted
to withdraw, and on August 15, 2013 David Barrish, Esquire, entered his
appearance.
On September 27, 2013, Appellant filed a petition for nunc pro tunc
reinstatement of appellate rights, as Attorney Barrish had not received
notice that Appellant’s post-sentence motion had been denied on August 9,
2013. On October 1, 2013, Appellant’s petition was granted. Thereafter, on
October 28, 2013, Appellant filed a timely notice of appeal nunc pro tunc.9
On appeal, Appellant raises the following issue for our review.
Did the trial court err when it sentenced [Appellant]
to an aggregate sentence of not less than four (4)
years to not more than twelve (12) years[’]
incarceration, which was a departure from the
Pennsylvania sentencing guidelines and was
unreasonable or manifestly excessive?
Appellant’s Brief at 2.
We begin by noting our well-settled standard of review.
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
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9
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
It is well settled that, with regard to the
discretionary aspects of sentencing, there is no
automatic right to appeal. [Therefore, b]efore we
reach the merits of this issue, we must engage in a
four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the
sentence is appropriate under the sentencing code.
The third and fourth of these requirements arise
because Appellant’s attack on his sentence is not an
appeal as of right. Rather, he must petition this
Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there
is a substantial question. [] [I]f the appeal satisfies
each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Instantly, Appellant has met the first three requirements by filing a
timely notice of appeal once his appellate rights were reinstated nunc pro
tunc, by raising his sentencing claim in his post-sentence motion, and by
including a Rule 2119(f) statement of reasons relied upon for allowance of
appeal in his brief. Accordingly, we must determine whether Appellant has
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presented a substantial question that his sentence is inappropriate under the
sentencing code. See Edwards, supra.
Appellant asserts that the trial court erred when it departed from the
Pennsylvania Sentencing Guidelines and sentenced him above the
aggravated range. Appellant’s Brief at 8. Specifically, he asserts the
standard guideline sentences for aggravated assault and criminal conspiracy
were “12 to 18 months plus or minus 9 months.” Id. Therefore, Appellant
argues his sentence of “three to ten years’ incarceration” on each of these
counts was an abuse of discretion because the trial court failed to consider
mitigating factors such as growing up in a home with two parents addicted
to crack cocaine, Appellant obtaining his GED in prison, and that Appellant
had only turned 18-years-old weeks prior to the incident in this matter.10
Id. at 10-11. This Court has held that “a claim that the [trial] court erred by
imposing an aggravated range sentence without consideration of mitigating
circumstances raises a substantial question.” Commonwealth v. Felmlee,
828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (citation omitted). We
therefore proceed to review the merits of Appellant’s claim.
Upon review of the sentencing transcript, we conclude that the trial
court considered all the mitigating factors in sentencing Appellant. At the
outset the trial court noted “I’ve read the presentence report, the mental
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10
As noted above, the trial court actually sentenced Appellant to four to 12
years’ of imprisonment on each of these counts.
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health. It doesn’t sound like he had much guidance. … He lived in a house
where his Mother and Father were crack addicts.” N.T., 8/7/13, at 4. It is
axiomatic that where “the sentencing court had the benefit of a [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. Rhoades, 8 A.3d
912, 919 (Pa. Super. 2010) (internal quotation marks and citation omitted),
appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, Rhoades v.
Pennsylvania, 132 S. Ct. 1746 (2012).
Further, Appellant’s counsel argued that the incident occurred a few
weeks after Appellant’s 18th birthday and asked for leniency, specifically
time-served followed by a long probation sentence. N.T., 8/7/13, at 13.
The trial court acknowledged her request saying it would be taken into
consideration but noted that Appellant “shot somebody. He went and got a
gun and came back and shot a person.” Id. at 14, 17. The Commonwealth
argued based on Appellant’s prior record of juvenile delinquencies that he be
sentenced to six to 12 years’ incarceration. Id. at 24.
Prior to sentencing Appellant, the trial court stated the following
concerns.
What I am concerned about his propensity for
violence, and this is irresponsibleness without any
regard for human life. First off [sic] all, it’s a fight
that’s none of his business. He goes and leaves
there, and gets a loaded gun, and comes back and
shoots somebody. That’s frightening.
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He has escalated his criminal conduct. Prior to
that, it was intimidation of a witness. And then
before that, it was - - was it robbery? It just gets
worse and worse and worse. We can’t just put him
on the street. That would be most irresponsible.
…
All right. He has got to have enough time that
he understands when he comes out that this is really
serious. You know, we can’t be slapping him on the
wrist when he goes and gets a gun and comes back
and shoots somebody. And he had nothing to do
with the fight. It didn’t involve him.
Id. at 25.
The foregoing clearly demonstrates that the trial court was fully aware
of and considered all of the mitigating circumstances. The trial court
acknowledged it was going beyond the standard sentencing guideline
recommendations by imposing a sentence in the aggravated range and
noted its reasons for doing so on the record. Id. at 32. Specifically, the
trial court noted Appellant’s extensive criminal history, Appellant’s
dangerous propensities, and the seriousness of the offense. Id. at 32-33.
Accordingly, we conclude that the trial court considered the mitigating
factors but determined they were outweighed by the aforementioned
aggravating factors. Therefore, the trial court did not abuse its discretion in
sentencing Appellant in this case. See Raven, supra.
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Based on the foregoing, we conclude Appellant’s claim is meritless.
Accordingly, we affirm the trial court’s August 7, 2013 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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