Com. v. Lewis, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JULMAL LEWIS,
Appellant No. 710 EDA 2013
Appeal from the Judgment of Sentence Entered October 26, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010116-2007
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 13, 2015
Appellant, Julmal Lewis, appeals from the October 26, 2012 judgment
of sentence imposed after he was granted partial relief under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546, and was resentenced
to a term of 19½ to 39 years’ incarceration. On appeal, Appellant presents
a challenge to the discretionary aspects of his sentence, as well as two
claims of ineffective assistance of counsel. After careful review, we affirm.
The trial court set forth the procedural history of this case, as follows:
From January 13, 2009 through January 21, 2009, Appellant was
tried before … a jury. The charges involved the April 28, 2007
shootings of Rasheen Johnson and Omar Ingram. Rasheen
Johnson died of his injuries. Omar Ingram survived. On January
21, 2009, the jury found Appellant guilty of Voluntary
Manslaughter, Aggravated Assault, Recklessly Endangering
Another Person (REAP), Possession of an Instrument of Crime
(PIC) and Firearms Not to Be Carried Without a License. On
March 9, 2009, this Court sentenced Appellant to an aggregate
sentence of … []19½[] to [39] years[’ imprisonment].
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A direct appeal was taken to the Superior Court but
discontinued. Appellant timely filed a [pro se] PCRA Petition.
Subsequently[,] current counsel filed an Amended Petition. The
Petition alleged two claims of ineffective assistance of counsel
concerning trial issues and one claim of ineffective assistance of
counsel concerning a sentencing issue.
PCRA Court Opinion (PCO), 4/23/14, at 1-2 (footnote omitted).
On April 5, 2012, the PCRA court issued an order denying Appellant’s
ineffectiveness claims regarding counsel’s performance at trial, but granting
his petition to the extent he challenged counsel’s representation during his
sentencing proceeding.1 On October 26, 2012, the court resentenced
Appellant to the same term of incarceration initially imposed. On October
31, 2012, Appellant filed a motion for reconsideration of his sentence, which
the court denied on February 13, 2013. On March 5, 2013, Appellant filed a
timely notice of appeal, stating that he was appealing “from the denial of
Post Sentence Motions dated February 13, 2013.” Notice of Appeal, 3/5/13.
Appellant subsequently complied with the court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Herein, he
presents three issues for our review:
I. Is [] [A]ppellant entitled to post-conviction relief in the
form of a new trial as a result of trial counsel’s ineffective
assistance of counsel for failing to request the trial court to
instruct the jury that self-defense applied to both homicide
and aggravated assault and/or object to the omission of
such instructions in violation of [] [A]ppellant’s rights
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1
Specifically, the PCRA court determined that counsel was ineffective for
failing to object to the court’s using an improper prior record score at
Appellant’s initial sentencing proceeding.
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under the Constitutions of the United States and
Pennsylvania?
II. Is [] [A]ppellant entitled to post-conviction relief in the
form of a new trial as a result of trial counsel’s ineffective
assistance of counsel for failing to request the trial court to
instruct the jury concerning involuntary manslaughter
and/or object to the omission of such an instruction in
violation of [] [A]ppellant’s rights under the Constitutions
of the United States and Pennsylvania?
III. Is [] [A]ppellant entitled to a remand for resentencing
since the sentence imposed is excessive, unreasonable and
not reflective of [] [A]ppellant’s character, history and
condition in violation of [] [A]ppellant’s rights under the
Constitutions of the United States and Pennsylvania?
Appellant’s Brief at 4.
Initially, we are unable to review Appellant’s ineffective assistance of
counsel claims, as this is a direct appeal from the judgment of sentence
imposed at his resentencing proceeding. Consequently, the only issues
reviewable in this appeal are “challenges to the sentence imposed following
remand.”2 Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa.
Super. 2002). Accordingly, we will only review Appellant’s claim that the
sentence imposed by the trial court upon resentencing is “excessive,
unreasonable and not reflective of [] A]ppellant’s character, history and
condition….” Appellant’s Brief at 44. This claim constitutes a challenge to
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2
We acknowledge that the question of the finality of a PCRA court’s order
granting resentencing and denying other collateral claims is pending before
an upcoming en banc panel of this Court. See Commonwealth v. Gaines,
No. 1497 EDA 2013 (petition for reargument en banc granted September 22,
2014).
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the discretionary aspects of Appellant’s sentence. Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A challenge to an alleged
excessive sentence is a challenge to the discretionary aspects of a
sentence.”).
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. When challenging the
discretionary aspects of the sentence imposed, an appellant
must present a substantial question as to the inappropriateness
of the sentence. Two requirements must be met before we will
review this challenge on its merits. First, an appellant must 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. Second, the appellant must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. That is, [that] the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process. We
examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
determine whether a substantial question exists. Our inquiry
must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.
Id. at 886-87 (citations, quotation marks and footnote omitted; emphasis in
original).
Here, Appellant has included a Rule 2119(f) statement in his brief to
this Court. Therein, he first asserts that his sentence is manifestly excessive
because the court imposed his sentences to run consecutively, without
properly considering “the history, character and condition of [] [A]ppellant.”
Appellant’s Brief at 20. Appellant does not elaborate on what aspects of his
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history, character, and ‘condition’ the court failed to weigh. Accordingly, this
claim does not raise a substantial question for our review. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (stating
“a bald claim of excessiveness due to the consecutive nature of a sentence
will not raise a substantial question”) (citing Commonwealth v. Moury,
992 A.2d 162, 171-172 (Pa. Super. 2010) (“The imposition of consecutive,
rather than concurrent, 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.”)). Likewise, Appellant’s assertion in his Rule 2119(f)
statement that the court “failed to consider or give adequate weight to the
fact that [] [A]ppellant was married and had an infant daughter” is
essentially a claim that the court did not properly weigh mitigating factors,
and does not present a substantial question for our review.
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) (“A claim
that a sentencing court failed to consider certain mitigating factors does not
raise a substantial question that the sentence is inappropriate.”) (citations
omitted).
Appellant also contends in his Rule 2119(f) statement that the court
based his sentence solely on “the nature and circumstances of the crime and
[his] prior record score[,]” and that the “court failed to state sufficient
reasons for imposing the maximum sentence allowed by law.” Appellant’s
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Brief at 20. We conclude that these assertions present substantial questions
for our review. See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.
Super. 2012) (stating that a claim that the sentencing court focused solely
on the gravity of the offense presents a substantial question for our review);
Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003)
(declaring that a claim that the sentencing court failed to state sufficient
reasons for the sentence imposed raises a substantial question). However,
for the following reasons, they are meritless.
“In imposing a defendant’s sentence, the trial court must state the
reasons for the sentence on the record. As long as the trial court’s reasons
demonstrate that it weighed the Sentencing Guidelines with the facts of the
crime and the defendant’s character in a meaningful fashion, the court’s
sentence should not be disturbed.” Commonwealth v. Begley, 780 A.2d
605, 643 (Pa. 2001). Here, at Appellant’s initial sentencing proceeding on
March 9, 2009, the court began by stating that it “reviewed both the
presentence and the psych report, [and] the letters from the family….” N.T.,
3/9/09, at 29. The court then emphasized that Appellant did not take “any
responsibility for [his] actions and [his] participation that day in having a
gun out there.” Id. at 30. The court also declared that it considered “the
length of [Appellant’s] record of violence, his disregard for the danger to the
community, his total lack of remorse, the fact of his multiple arrests while on
probation, his federal parole, and the fact that he was in an area where
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there were children, families and individuals and his actions … disregarded
all of those things.” Id. at 31. While the court acknowledged that Appellant
has a wife and child, it emphasized that he chose “to resolve an issue [he]
had with another individual by using a gun, by shooting innocent people and
by causing this kind of devastation.” Id. at 33.3
Based on this record, we reject Appellant’s assertion that the court
relied solely on the nature of his offenses and his prior record. We also
disagree with Appellant’s claim that the court failed to state adequate
reasons on the record for the sentence it imposed. Therefore, Appellant’s
argument on appeal does not convince us that the court abused its
discretion in fashioning his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2015
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3
At Appellant’s resentencing proceeding on October 26, 2012, the court
“incorporate[d] … the things [it] said” at Appellant’s initial sentencing
proceeding and imposed an identical sentence upon Appellant. N.T.,
10/26/12, at 24.
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