Com. v. Lawless, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
BRIGHAM LAWLESS :
: No. 1264 EDA 2017
Appellant :
Appeal from the Judgment of Sentence February 28, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000117-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 26, 2018
Brigham Lawless appeals from the judgment of sentence entered in the
Court of Common Pleas of Monroe County. Lawless only challenges the
discretionary aspects of his sentence, arguing his sentence is too severe.
Finding his standard range sentence presumptively reasonable, we affirm.
Lawless pleaded guilty to involuntary deviate sexual intercourse, where
the victim, his stepdaughter, was just five years old. See 18 Pa.C.S.A. §
3123(b). According to Lawless, his stepdaughter “begged” him to permit her
to perform oral sex on him. The victim’s twin brother was in the room and
observed the sexual abuse. After the sexual assault, Lawless asked the
brother to keep what he saw a secret.
At sentencing, the court noted it had reviewed an extensive pre-
sentence investigation report, considered Lawless’s allocution, considered a
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* Retired Senior Judge assigned to the Superior Court.
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number of aggravating and mitigating factors, and imposed a sentence of
imprisonment of 15 to 30 years. Lawless filed a post-sentence motion and the
court held a hearing. The focus of the hearing was the severity of the sentence,
with Lawless again advancing numerous reasons to mitigate his punishment.
The court, once more, methodically explained its reasoning for imposing the
standard range sentence and denied the motion. This timely appeal followed.
On appeal, Lawless challenges the discretionary aspects of his sentence.
Essentially, he argues the sentencing court imposed an excessive sentence.
In his Rule 2119(f) statement he references case law about departing from
the guidelines, see Appellant’s Brief, at 14, and that the court imposed “an
aggravated range sentence without giving any consideration to mitigating
circumstances[,]” id., at 15, but later in the same statement clarifies the court
did not give “substantial consideration,” id., at 16, to such factors, and still
later asserts the court “failed to properly deliberate,” id., at 17, on the
mitigating factors of record. So, the assertions in the statement conflict. The
court departed from the guidelines, but imposed a sentence in the aggravated
range. The court did not consider mitigating factors at all, but also failed to
properly consider mitigating factors of record. It is all confused. In any event,
the court neither departed from the guidelines, nor imposed a sentence in the
aggravated range.
Lawless had a prior record score of zero. See N.T., Sentencing, 2/28/17,
at 2. The offense gravity score for § 3123(b) is 14. See 204 Pa. Code § 303.15.
Offense Listing (7th ed. 9/25/15). The standard range of the guidelines is
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72 months to the statutory limit, see 204 Pa. Code. § 303.16. Basic
Sentencing Matrix (7th ed. 9/25/15), which is 40 years, see 18 Pa.C.S.A. §
3123(d)(1). Thus, Lawless’s sentence of 15 years1 is squarely within the
standard range of the guidelines.2
The standard range of the guidelines “is presumptively where a
defendant should be sentenced.” Commonwealth v. Fowler, 893 A.2d 758,
767 (Pa. Super. 2006) (citation omitted). As the sentence was within the
standard range, to succeed on this claim Lawless has to show that “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply not the
case here. Lawless had his five-year-old stepdaughter perform oral sex on him
while her twin brother watched. And he claimed she “begged” him to do that.
Even putting aside the presumptive reasonableness of the standard
range sentence Lawless received, Lawless does not raise a substantial
question for our review. As detailed above, the claims in his Rule 2119(f)
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1“Pennsylvania utilizes an indeterminate sentencing scheme with presumptive
guidelines which limit the judge’s discretion only concerning the minimum
sentence.” Commonwealth v. Smith, 863 A.2d 1172, 1178 (Pa. Super.
2004) (emphasis added; citations omitted).
2 Despite statements to the contrary, Lawless implicitly recognizes the fact
that the court imposed a standard range sentence in his brief. See Appellant’s
Brief, at 27 n.2 (“As the court further pointed out, the guideline range was …
a standard ranhe [sic] of 72 to 240 months.”) Indeed, in his Rule 1925(b)
statement Appellant concedes this point: “Although the sentence was
admittedly within the ‘standard Guideline Range’ for the offense, it exceeded
the norm and was at the very top of the guideline range and thus excessive.”
Rule 1925(b) Statement, filed 5/5/17, at ¶ 10.
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statement conflict. The crux of Lawless’s argument is his assertion that the
court failed to properly consider various mitigating factors of record. See
Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013)
(“Careful litigants should note that arguments that the sentencing court failed
to consider the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question whereas a statement that the court failed to consider
facts of record, though necessarily encompassing the factors of § 9721, has
been rejected.”)
Despite the issues with his Rule 2119(f) statement, we will very briefly
explain why the sentence passes muster. “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.” Commonwealth
v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citation omitted).
At sentencing, the court noted it had reviewed an extensive presentence
investigation report, considered Lawless’s allocution, as well as aggravating
and mitigating factors. See N.T., Sentencing, 2/28/17, at 20-22. See also
N.T., Post-Sentence Motion Hearing, 3/17/17, at 23-27. As for Lawless’s
concern about the consideration of mitigating factors, those factors were of
record. Important in this regard, the sentencing court had the benefit of a pre-
sentence investigation report. Thus, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself....
Having been fully informed by the pre-sentence report, the
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sentencing court’s discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can
be demonstrated that the judge had any degree of awareness of
the sentencing considerations, and there we will presume also that
the weighing process took place in a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at
hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.
Super. 2005).
The sentencing court in this case carefully considered the appropriate
factors, see 42 Pa.C.S.A. § 9721(b), and imposed a sentence firmly in the
standard range of the sentencing guidelines. In doing so, the court committed
no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/18
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