Com. v. Lehman, R. ( 2023 )

J-A25043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD A. LEHMAN :
:
Appellant : No. 379 WDA 2021
Appeal from the Judgment of Sentence Entered February 2, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003613-2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JANUARY 5, 2023
Appellant, Richard A. Lehman, appeals from the judgment of sentence
of two to five years’ incarceration imposed after he pleaded guilty to robbery.1
We affirm.
On October 28, 2020, Appellant entered a guilty plea to the first count
of an eight-count indictment, which was amended from a first-degree felony
count of robbery to a second-degree felony. The Commonwealth withdrew
the remaining counts of the indictment.
A sentencing hearing took place on February 2, 2021. At the hearing,
defense counsel stated that Appellant’s criminal record consisted mostly of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3701(a)(1)(iv).
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traffic and drug crimes, he had a history of substance abuse issues, and she
presented a letter from a friend describing Appellant as someone who would
give his shirt off his back to friends and family. N.T., 2/2/21, at 4-5.2 Defense
counsel also explained that Appellant was not the main perpetrator of the
robbery and recommended a sentence of time served. Id. Appellant then
apologized for his behavior, stated that he had no excuse, and he attributed
his crime to his “active addiction at the time.” Id. at 5-6. The prosecutor did
not make a specific recommendation to the trial court but discussed the
seriousness of the crime, the extent of the victim’s injuries, and the fact that
Appellant had not fully cooperated by naming his co-conspirator. Id. at 7-9.
In imposing the sentence of two to five years’ imprisonment, the trial
court indicated that it was taking into consideration the statements of both
attorneys and Appellant, the letter submitted on Appellant’s behalf, and the
pre-sentence investigative report (“PSI”). Id. at 9-10. The trial court then
discussed the seriousness of the crime, which was detailed in the PSI, noting
that Appellant and another individual entered the victim’s motel room, beat
him with a metal pipe causing various injuries including a patella fracture, and
took his clothes, money, and personal effects. Id. at 10. The court also noted
that Appellant had not fully accepted responsibility as he “has to know” the
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2 The certified record contains a transcript for a sentencing hearing that took
place on February 21, 2022. However, based upon other filings of record,
including the sentencing order, the date listed on the transcript appears to be
in error and the transcript in fact reflects the notes of testimony of the
scheduled February 2, 2022 hearing.
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identity of the other individual but never disclosed this information to police.
Id. at 7. The court further noted Appellant’s “significant” prior record in
finding that an aggravated range sentence was the appropriate punishment.
Id. at 10.
Appellant filed a timely post-sentence motion, which the trial court
denied on February 17, 2021. In his appeal,3 Appellant raises the following
issue before this Court:
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3 This appeal has returned for our review following two remands by this Court.
Initially, on February 8, 2022, we issued a memorandum decision finding that,
while Appellant’s notice of appeal from the February 17, 2021 order denying
his post-sentence motion was not timely filed, a breakdown in the trial court’s
operations occurred when the court did not advise Appellant of his appeal
rights in the order denying his post-sentence motion. Commonwealth v.
Lehman, No. 379 WDA 2021 (Pa. Super. filed February 8, 2022), unpublished
memorandum at 3-5. However, we also concluded that Appellant’s Pa.R.A.P.
1925(b) statement was untimely filed resulting in the waiver of his appellate
issue and that his appellate counsel was per se ineffective based upon the
untimely filing. Id. at 5-6. We therefore remanded for the appointment of
new appellate counsel and to allow for the preparation of a new Rule 1925(b)
statement and Rule 1925(a) opinion. Id. at 6-7.
On remand, the trial court appointed the Erie County Office of Public Defender
(“Public Defender”) to represent Appellant and directed the Public Defender to
file a new Rule 1925(b) statement. When the Public Defender failed to timely
file its concise statement, the trial court entered a Rule 1925(a) opinion finding
waiver of any appellate issues by Appellant and returned the certified record
to this Court. The Public Defender filed an application in this Court requesting
that the case be again remanded to allow for the appointment of new counsel.
In a June 13, 2022 judgment order, we found the Public Defender to be per
se ineffective for failing to file a Rule 1925(b) statement on Appellant’s behalf.
Commonwealth v. Lehman, No. 379 WDA 2021 (Pa. Super. filed June 13,
2022), unpublished judgment order at 3. We thus remanded for the
appointment of new Appellate counsel and directed that new counsel file a
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Was the aggravated range sentence in this case manifestly
excessive and clearly unreasonable, unaccompanied by a
sufficient statement of reasons, and not individualized as required
by law when mitigating factors were not taken into account by the
sentencing judge?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Appellant’s issue relates to the trial court’s exercise of its discretion in
sentencing Appellant. A challenge to the discretionary aspect of a sentence is
not appealable as of right. Commonwealth v. Miller, 275 A.3d 530, 534
(Pa. Super. 2022).
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence; and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S. § 9781(b), or sentencing norms.
Id.
Here, Appellant filed a timely notice of appeal and post-sentence motion
and included a Rule 2119(f) statement in his brief. In his Rule 2119(f)
statement, he argues that the trial court failed to consider mitigating factors,
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Rule 1925(b) statement and the trial court file a supplemental Rule 1925(a)
opinion or a statement that no further opinion was necessary. Id. at 3-4.
On the second remand, new appellate counsel was appointed on Appellant’s
behalf and counsel filed a Rule 1925(b) statement on July 12, 2022. The trial
court then filed a supplemental Rule 1925(a) opinion on July 18, 2022. The
certified record was returned to this Court, and the matter is now ready for
our disposition.
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including his substance abuse issues, a letter submitted at sentencing
attesting to his good character, the fact that he was not under supervision at
the time of his offense, his acceptance of responsibility, and the fact that he
was not the main actor in the robbery. Appellant also argues that the trial
court failed to set forth adequate reasons for his sentence and that the court
double-counted factors already considered in the sentencing guidelines. We
conclude that Appellant has raised substantial questions meriting our review.
See Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020) (claim
that court imposed aggravated-range sentence without considering mitigating
factors is a substantial question); Commonwealth v. Proctor, 156 A.3d 261,
273 (Pa. Super. 2017) (substantial question raised where appellant argues
that sentencing court failed to set forth adequate reasons for sentence
imposed); Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa. Super.
2000) (en banc) (claim that trial court double-counted factors already taken
into account in sentencing guidelines constitutes a substantial question).
Our standard of review for challenges to the discretionary aspects of
sentencing is as follows:
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
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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. Rosario, 248 A.3d 599, 613 (Pa. Super. 2021) (citation
omitted).
We first address Appellant’s argument that the lower court failed to
consider mitigating factors when fashioning the sentence. Pursuant to Section
9721(b) of the Sentencing Code, a court imposing a sentence for a felony or
misdemeanor must make a part of the record a statement of the reasons for
the sentence imposed. 42 Pa.C.S. § 9721(b); Miller, 275 A.3d at 535. In
addition, Section 9721(b) requires that the court consider the following
factors: “the protection of the public, the gravity of the offense as it relates
to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). The balancing
of the Section 9721(b) factors is the sole province of the sentencing court.
Miller, 275 A.3d at 535.
Where the sentencing court has the benefit of a PSI, however, we
presume that the court was aware of relevant information regarding the
defendant’s character and weighed those considerations in light of the
statutory factors. Id.; Commonwealth v. Knox, 165 A.3d 925, 930 (Pa.
Super. 2017). This Court has explained:
A pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
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extended or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence report, the
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.
Knox, 165 A.3d at 930-31 (citation omitted).
Here, a PSI was prepared, and the trial court indicated its review of that
document. N.T., 2/2/21, at 10. Furthermore, the mitigating factors that
Appellant identifies in his brief as not being fully considered by the trial court
were raised by Appellant and defense counsel at the sentencing hearing. Id.
at 4-7. The trial court also noted its consideration of the statements of
Appellant and his attorney when determining the sentence. Id. at 9. Because
the trial court was fully informed of Appellant’s mitigating factors through the
PSI and the comments at the sentencing hearing, the trial court’s discretion
in evaluating those mitigating factors and weighing them against the statutory
sentencing factors shall not be disturbed on appeal. Miller, 275 A.3d at 535;
Knox, 165 A.3d at 930.
We additionally find no merit to Appellant’s claims that the trial court
failed to state adequate reasons for his aggravated range sentence and
improperly double counted factors considered in his post-sentencing motion.
“A sentencing court may consider any legal factor in determining that a
sentence in the aggravated range should be imposed,” and “the sentencing
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judge’s decision regarding the aggravation of a sentence will not be disturbed
absent a manifest abuse of discretion.” Commonwealth v. Bowen, 975 A.2d
1120, 1122 (Pa. Super. 2009) (citation omitted). Appellant’s argument that
the trial court failed to state sufficient rationale for its imposition of the
aggravated range sentence is belied by the record. The trial court indicated
at the hearing that it considered the PSI, Appellant’s remarks at the
sentencing hearing, his counsel’s discussion of mitigating factors, and the
letter submitted on Appellant’s behalf in determining his sentence. N.T.,
2/2/21, at 9-10. In particular, the court noted three factors as particularly
relevant to the sentence it imposed: Appellant’s lack of full acceptance of
responsibility for his crimes as evidenced by his failure to identify the other
individual involved in the robbery, the severity of the injuries sustained by the
victim, and Appellant’s significant criminal history. Id. at 7, 10.
Furthermore, the trial court did not double count any factor already
incorporated into the sentencing guidelines in arriving at Appellant’s sentence.
See Goggins, 748 A.2d at 732 (“[A] sentencing court may not ‘double count’
factors already taken into account in the sentencing guidelines.”). Appellant
asserts two purportedly double-counted factors: the severity of the victim’s
injuries, a factor calculated into the offense gravity score for his robbery
conviction, which required the infliction or threat of bodily injury, and the
court’s statement that Appellant’s sentence was appropriate in light of his
“significant” prior record. N.T., 2/2/21, at 9-10; see also 18 Pa.C.S. §
3701(a)(1)(iv).
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We ascertain no error in the trial court’s consideration of these factors.
The victim’s injuries were a proper concern for the court as Section 9721(b)
requires the evaluation of “the gravity of the offense as it relates to the impact
on the life of the victim.” 42 Pa.C.S. § 9721(b); see also Goggins, 748 A.2d
at 732 (sentencing court may consider facts of crime as they relate to the
impact of the offense on the public, a required consideration under Section
9721(b)). Moreover, the context of the trial court’s statements at the
sentencing hearing make clear that the court was not simply using Appellant’s
prior record as a basis for increasing his sentence but that the court was
assessing Appellant’s potential for rehabilitation after two decades of drug use
and criminality, which is a proper sentencing consideration. See
Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004)
(sentencing court may consider defendant’s prior record in order to assess the
scope of a defendant’s history of problematic behavior as well as the potential
for rehabilitation).
Based on our review of the record and relevant case law, we conclude
that the trial court did not abuse its discretion in rendering its sentence.4
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4 Appellant also argues before this Court that the trial court improperly relied
upon facts that are not of record as he described details of the robbery and
the victim’s injuries that went far beyond the factual basis upon which he
entered his plea. See N.T., 10/28/20, at 9-10; N.T., 2/2/21, at 9-10. This
argument is waived as it was not preserved at sentencing or in a post-
sentencing motion nor does it appear in Appellant’s Pa.R.A.P. 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii); Miller, 275 A.3d at 534.
Moreover, even if preserved, the issue lacks merit. The trial court stated on
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2023
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the record that it relied on the PSI for information concerning the crime, N.T.,
2/2/21, at 10, and, as provided by law, a PSI must include “information
regarding the circumstances of the offense” and a victim impact statement, if
available. Pa.R.Crim.P. 702(A)(3)-(4); see also 18 P.S. § 11.201(5).
Therefore, the sentencing record contained information related to Appellant’s
crime and the harm that he caused beyond the facts that he admitted to during
the plea hearing.
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