Com. v. Davis, L. ( 2018 )

J-S76032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOVELL A. DAVIS, III :
:
Appellant : No. 687 WDA 2018
Appeal from the Judgment of Sentence June 6, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000792-2015
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 24, 2018
Lovell A. Davis, III (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to numerous charges of access device fraud,
criminal use of a communication facility, criminal conspiracy to commit access
device fraud, corrupt organizations, possession of unlawful device making
equipment, possessing instruments of crime, and dealing in proceeds of
unlawful activities.1 After careful review, we affirm.
The charges in this case arise from Appellant’s supervisory role in a
criminal enterprise designed to defraud financial institutions throughout
Pennsylvania. Appellant was arrested on October 22, 2014. On June 6, 2016,
Appellant appeared before the trial court and pled guilty to the above crimes.
____________________________________________
1 18 Pa.C.S.A. §§ 4106(a); § 7512(a); §§ 903, 4106(a); § 911(b)(1); §
4106.1(a)(2); § 907(a); and § 5111.
J-S76032-18
That same day, the trial court sentenced Appellant to 3 to 6 years of
incarceration. Appellant did not file a post-sentence motion or direct appeal.
On October 26, 2016, Appellant submitted a pro se filing which the trial
court construed as a petition for post-conviction relief. See 42 Pa.C.S.A. §
9542 (providing that “[t]he action established in this subchapter shall be the
sole means of obtaining collateral relief and encompasses all other common
law and statutory remedies for the same purpose that exist when this
subchapter takes effect . . .”); see also Commonwealth v. Johnson, 803
A.2d 1291, 1293 (Pa. Super. 2002) (“any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.”). The court
appointed counsel, and Appellant subsequently filed an amended petition for
post-conviction relief on July 10, 2017. As a result, the court reinstated
Appellant’s post-sentence and direct appeal rights.
Appellant filed a post-sentence motion nunc pro tunc on September 25,
2017. On April 12, 2018, the trial court granted Appellant additional credit
for time served prior to trial, but denied his claim regarding the discretionary
aspects of his sentence. Appellant filed this timely appeal. Both Appellant
and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents a single issue for our review:
I. When the sentencing court failed to articulate its reasons for
why the sentence it fashioned fell into the aggravated range of the
sentencing guidelines, did it violate an important sentencing norm
and abuse its discretion by imposing the sentence it did?
-2-
J-S76032-18
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013).
Appellant has complied with the first three prongs of the discretionary
aspect test to invoke our jurisdiction by raising his issue in a timely post-
sentence motion, filing a timely notice of appeal, and including in his appellate
brief a Rule 2119(f) concise statement. See Appellant’s Brief at 22-24.
Additionally, by asserting that the trial court erred in failing to provide
adequate reasons on the record for imposing an aggravated-range sentence,
-3-
J-S76032-18
Appellant has raised a substantial question. See Commonwealth v. Booze,
953 A.2d 1263, 1278 (Pa. Super. 2008) (“[A]n allegation that the court failed
to state adequate reasons on the record for imposing an aggravated-range
sentence . . . raises a substantial question for our review.”) (citations
omitted). We thus review Appellant’s sentencing claim mindful of the
following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
The Pennsylvania Sentencing Code directs that when a trial court
imposes an aggravated range sentence, “it shall state the reasons on the
record.” 204 Pa. Code § 303.13. Section 9721 also provides: “[I]n every
case the court imposes a sentence for a felony or misdemeanor . . . the court
shall make as a part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence imposed.”
42 Pa.C.S.A. § 9721. We have explained:
-4-
J-S76032-18
The [trial] court is not required to parrot the words of the
Sentencing Code, stating every factor that must be considered
under Section 9721(b). However, the record as a whole must
reflect due consideration by the court of the statutory
considerations enunciated in that section.
Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)
(citations omitted). Further, “[w]hen a sentencing court has reviewed a
presentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
sentence.” Baker, 72 A.3d at 663, (citing Commonwealth v. Fowler, 893
A.2d 758, 767 (Pa. Super. 2006)). We stated:
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed
on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly
considering and weighing all relevant factors.
Fowler, 893 A.2d at 767-68, (citing Commonwealth v. Boyer, 856 A.2d
149, 154 (Pa. Super. 2004)) (citations omitted) (emphasis added).
At the sentencing hearing in this case, the trial court stated that it had
read Appellant’s pre-sentence investigation report. N.T., 6/6/16, at 20. The
trial court also commented at length:
-5-
J-S76032-18
What do you think these people’s lives have been that you’ve
stolen their identities and caused them consternation? They can’t
go places because you screwed up who they are. You don’t think
that’s a harm to the community?
* * *
I think [Appellant is] a bright guy. I don’t think that he’s lazy. I
just think that he has no regard for where his freedom ends and
other people’s begins. I think he’ll use people. He uses people
the way I use an ink pen. It’s just, he dismisses it. He has no
regard for what the things that he’s done -- how it affects other
people . . . He casts them away. I mean, he doesn’t care about
these people whose lives he screwed up. He doesn’t care. He just
wants to keep living his fantasy life. He does stuff he doesn’t need
to do just to burn up the [credit] card. He’s going to Hershey Park
spending stupid money on things. I could see if he was paying his
bills. He’s just living the lush life. That’s what he does.
* * *
You keep saying flimflam stuff, going as long as you can, because
even when you get caught you didn’t quit, you got [more] cards
and fled. You were caught in Lehigh, you were caught in Hershey
Park . . . You were caught. I mean, you don’t change. . . . You
didn’t change. You just thought that you could keep ahead of the
police. But they grabbed you and all this caught up with you. It’s
like an accordion. You’re getting smashed right now. You’re flying
girls in. You got prostitutes flying in. You got filthy rich, and this
crew. I mean, you’re just -- this is unconventional crime. . . . This
isn’t something that just happened overnight. What I see from
reading about you is this is your life. You know that network. You
know who to get cards from. . . . See, you got the cards and you
wanted to burn them. You wanted to burn and max them out.
You went to Hershey Park. You went to goofy places. If you were
using these in a way where, I’m trying to pay my kids’ tuition or
I’m trying to pay some bills -- you’re just going out and spending
money on goofy things. It’s different to me when someone’s
stealing for food and someone’s stealing just to be a show-off. I
mean, you’re a show-off. You like to -- I mean, you inflict this
type of financial injury just being a show-off. I don’t know who
was around you, but guys like you like for other people to see that
you’re smarter than everyone else. So you are. You’re the
smartest guy. You’re the smartest guy on your pod now. I’m
-6-
J-S76032-18
sentencing you to 3 to 6 years in a state correctional institution.
I’ll sentence you to a year at each one of the cases, to run
concurrent to the other sentence. You’re going to be on probation
for 7 years.
Id. at 23, 24-25, 28-30.
Based on our review of the record, particularly the notes of testimony
from the sentencing hearing, we conclude that the trial court provided
adequate reasoning when imposing Appellant’s sentence. In addition to
reviewing Appellant’s pre-sentence investigation report – which Appellant
concedes2 – the trial court discussed Appellant’s character, the nature of his
crimes, and their impact on the victims. Accordingly, we are satisfied that the
trial court provided adequate reasons for Appellant’s sentence, and thus
discern no abuse of discretion by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
____________________________________________
2 “Yes, the lower court had the benefit of a pre-sentence report. And
[Appellant] acknowledges that an on-the-record statement for the reasons for
a sentence can be satisfied by the court’s acknowledgement that it’s been
informed by a pre-sentence report.” Appellant’s Brief at 27 (footnotes
omitted).
-7-