Com. v. Williams, C. ( 2016 )

J-A22014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COREY L. WILLIAMS
Appellant No. 1989 MDA 2015
Appeal from the Judgment of Sentence September 10, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000511-2002
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 24, 2016
Corey L. Williams appeals from the judgment of sentence entered in
the Franklin County Court of Common Pleas following his jury trial
convictions for robbery, simple assault, recklessly endangering another
person (“REAP”), terroristic threats, and carrying a firearm without a
license.1 We affirm.
The trial court set forth the relevant facts and procedural history of
this appeal as follows:
On October 23, 2003, [Appellant] was convicted by a jury
on eleven separate counts stemming from a robbery of a
Getty-Mart. On December 3, 2003, [Appellant] was
sentenced to an aggregate sentence of 81 to 168
months[’] incarceration. Included in this aggregate
____________________________________________
1
18 Pa.C.S. §§ 3701(a)(1), 2701(a)(3), 2705, 2706(a)(1), and 6106(a),
respectively.
J-A22014-16
sentence was a specific sentence for 73 to 132 months[’]
incarceration on Count 1 – Robbery. After exhausting
direct appeal rights, [Appellant] filed a timely pro se PCRA
petition on December 20, 2010. Throughout the PCRA
process, [Appellant] had no less than 10 different
attorneys represent him at some point, and filed numerous
pro se hybrid motions. On December 18, 2013, this court
denied all of [Appellant’s] claims in his PCRA petition.
[Appellant] appealed this court’s denial, and on October
14, 2014, the Superior Court issued an opinion ruling that
[Appellant’s] sentence was illegal because the 72 to 132
month sentence violated 42 Pa.C.S. § 9756(b)(1) by
imposing a minimum sentence that was more than one-
half of the maximum. As such, the Superior Court vacated
and remanded the entire judgment of sentence for
resentencing.
On September 10, 2015, this court held a resentencing
hearing. The court heard argument from Assistant District
Attorney Zachary Mills, as well as testimony from
[Appellant]. Upon [Appellant] appearing contrite, taking
responsibility for his actions, and showing the attempts he
has made to better himself while incarcerated, the court
resentenced [Appellant] to 60 to 120 months[’]
incarceration on Count 1, which reduced the entire
sentencing scheme by one year.
On September 18, 2015, [Appellant] filed a motion to
modify sentence. On October 12, 2015, the court denied
the motion, reasoning that everything [Appellant] asked
the court to consider in modifying the sentence had
already been considered by the court in determining the
sentence. At this point, [Appellant] sought to appeal the
order, while Attorney Clark saw no merit in that course of
action. On November 12, 2015, Attorney Clark filed a
motion to withdraw as counsel, which was accompanied by
a memorandum outlining the irretrievable breakdown of
the attorney-client relationship. To protect [Appellant’s]
rights, on that same date, Attorney Clark also filed a notice
of appeal on his behalf. On December 9, 2015, [Appellant]
filed a concise statement of matters complained of on
appeal. On December 17, 2015, the court entered an
order granting Attorney Clark leave to withdraw as
counsel, and appointed Drew Deyo, Esq., as counsel.
-2-
J-A22014-16
Trial Court Pa.R.A.P. 1925(a) Opinion, filed December 18, 2015, at 1-2.
Appellant raises the following issue for our review:
IN CONSIDERATION OF THE EVIDENCE PRESENTED AT
APPELLANT’S RESENTENCING HEARING, DID THE TRIAL
COURT COMMIT AN ABUSE OF DISCRETION BY
SENTENCING APPELLANT WITHOUT PROPER
CONSIDERATION OF THE PENNSYLVANIA SENTENCING
FACTORS, AND BY RUNNING HIS SENTENCE
CONSECUTIVE WITH THE SENTENCE ALREADY IMPOSED
IN FRANKLIN COUNTY COURT OF COMMON PLEAS CASE
NUMBER 432 OF 2002?
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence. He
argues the court failed to properly consider his rehabilitative needs and
potential when sentencing him. Although he admits the court sentenced him
within the standard range, Appellant claims the court abused its discretion
by imposing his sentence consecutively to the sentence he is serving on a
separate docket for a separate crime. Appellant’s issue merits no relief.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must invoke this Court’s jurisdiction by satisfying the
following four-part test:
(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
-3-
J-A22014-16
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.Instantly, Appellant preserved his issue in a post-sentence motion,
filed a timely notice of appeal and included in his brief a concise statement
of reasons relied upon for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See
Appellant’s Brief at 14-15. Thus, we must determine whether Appellant has
raised a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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.
Id. (internal citations omitted).
We observe:
a defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in
an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence
will not raise a substantial question. See Commonwealth
v. Moury, 992 A.2d 162, 171–172 (Pa.Super.2010) (“The
imposition of consecutive, rather than concurrent,
-4-
J-A22014-16
sentences may raise a substantial question in only the
most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.”)
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(internal citations omitted) (emphasis in original).
“[O]rdinarily, a claim that the sentencing court failed to consider or
accord proper weight to a specific sentencing factor does not raise a
substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97
(Pa.Super. 2001) (internal citation omitted) (emphasis in original).
However, “reliance on impermissible sentencing factors can raise a
substantial question.” Dodge, 77 A.3d at 1273 (citing Commonwealth v.
Roden, 730 A.2d 995 (Pa.Super.1999)). Further, a challenge to the
imposition of consecutive sentences as unduly excessive, together with a
claim that the court failed to consider rehabilitative needs upon fashioning
its sentence, presents a substantial question. Commonwealth v.
Caldwell, 2015 PA Super 128, 117 A.3d 763, 770 (Pa.Super.2015) (en
banc), appeal denied, 126 A.3d 1282 (Pa.2015).
Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
-5-
J-A22014-16
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Id.Here, the consecutive imposition of Appellant’s sentences did not
result in a clearly unreasonable or excessive sentence, and Appellant’s bald
claim of excessiveness due to the consecutive nature of his sentence does
not raise a substantial question. See Dodge, supra. He further fails to
forward a plausible argument that his sentence is clearly unreasonable
because the court failed to adequately consider his rehabilitative needs. See
id.; see also Berry, supra.2 Thus, Appellant failed to raise a substantial
question for our review.3
Judgment of sentence affirmed.
____________________________________________
2
Further, Appellant fails to raise a substantial question through the
combination of his challenges to the discretionary aspects of his sentence,
because he does not articulate a plausible argument that the court’s
complete failure to consider his rehabilitative needs, combined with the
consecutive imposition of his sentences resulted in an unduly harsh or
unreasonable sentence. C.f. Caldwell, supra. He argues, rather, that the
court did not properly consider his rehabilitative needs and potential, and
that the consecutive imposition of his present sentence with the sentence
already imposed on a separate crime “contradicted the norms that underlie
the sentencing process.” See Appellant’s Brief at 14-15.
3
Moreover, even if Appellant had raised a substantial question, his issue is
devoid of merit. After Appellant’s judgment of sentence of 72-132 months’
incarceration was vacated, the court conducted a sentencing hearing,
considered all factors Appellant raised, and resentenced Appellant to 60-120
months’ incarceration, thus reducing his sentence by a year.
-6-
J-A22014-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
-7-