Com. v. Davis, A. ( 2023 )

J-S26027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY STEPHEN DAVIS :
:
Appellant : No. 1570 MDA 2021
Appeal from the Judgment of Sentence Entered November 3, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001460-2019
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 6, 2023
Ashley Stephen Davis (Appellant) appeals from the judgment of
sentence entered in the Franklin County Court of Common Pleas following his
no contest plea to attempted homicide (causing serious bodily injury).1
Contemporaneous with this appeal, Appellant’s counsel, Kevin M. Taccino,
Esquire (Counsel), has filed a petition to withdraw from representation and an
Anders brief.2 The Anders brief presents a claim that challenges the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 2501(a). See also 18 Pa.C.S. § 1102(c) (permitting
maximum 40-year sentence for conviction of attempted homicide when
serious bodily injury results).
2See Anders v. California, 386 U.S. 738, (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S26027-22
discretionary aspects of Appellant’s sentence. For the reasons below, we
affirm the judgment of sentence and grant Counsel’s petition to withdraw.
The facts underlying Appellant’s guilty plea were summarized at the plea
hearing as follows:
On August 3, 2019[,] in the Borough of Chambersburg,
[Appellant] did stab Shawna [Day (Victim)] with a knife multiple
times, slicing her neck, stabbing her in the torso, creating multiple
puncture wounds which did do serious bodily injury to her and
[Appellant] did all of that with the intent to kill [Victim].
N.T., 7/29/21, at 14. The trial court also stated, and the Commonwealth
agreed, that “one can infer intent to kill through the use of a deadly weapon
on a vital part of the body.” Id.Appellant was charged with attempted homicide, aggravated assault,
and possession of a weapon.3 On July 29, 2021, Appellant entered an open
no contest plea to one count of attempted homicide. In exchange for his plea,
the Commonwealth dismissed the remaining charges and agreed to stay silent
during sentencing. See N.T., 7/29/21, at 2.
On November 3, 2021, the trial court held a sentencing hearing where
it acknowledged the standard sentencing guideline range for Appellant’s
conviction was 168 to 240 months’ (14 to 20 years’) incarceration. During
the hearing, Counsel requested a 14 to 28 year sentence, which was on the
low end of the standard range. N.T., 11/3/21, at 9-10. Counsel based this
request on a prior plea offer from the Commonwealth, which was rescinded
____________________________________________
3 18 Pa.C.S. §§ 2702(a)(4) and 907(b), respectively.
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before sentencing “through no fault” of Appellant. Id. at 9. After hearing
statements from Victim and Appellant, and having reviewed a pre-sentence
investigation (PSI) report, the court sentenced Appellant to a term of 18 to 36
years’ incarceration, a sentence within the standard guideline range and below
the statutory maximum sentence. Appellant did not object to the sentence
imposed during the hearing, nor did he file a post-sentence motion. Appellant
then filed this timely appeal and complied with the trial court’s directive to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
When, as here, counsel files a petition to withdraw and accompanying
Anders brief, we must first examine the request to withdraw before
addressing any of the substantive issues raised on appeal. Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to
withdraw from representation on appeal must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, supra, counsel must also:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
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J-S26027-22
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id., quoting Santiago, 978 A.2d at 361.
In the present case, the brief and petition to withdraw submitted by
Counsel substantially comply with the requirements of Anders and Santiago.
See Cartrette, 83 A.3d at 1032. Moreover, Counsel has provided this Court
with a copy of the letter he sent to Appellant, advising him of his right to
proceed pro se or retain private counsel, and to raise any additional claims.
See Attorney Taccino’s letter to Appellant, 5/31/22. Appellant did not file a
response. Thus, we may proceed to address the substantive claim presented
on appeal.
The Anders4 brief identifies one potential claim for our review:
Did the trial court abuse its discretion by sentencing [Appellant]
to 18 to 36 years, which was within the standard range of
sentences available, after acceptance of an open plea[?]
Anders Brief at 8.5
Appellant challenges the discretionary aspects of his sentence following
his open no contest plea to attempted homicide. Specifically, he argues his
____________________________________________
4 We note Counsel refers to his brief as an Anders/McClendon brief. See
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). However,
Santiago overruled McClendon in part, dictating that counsel must include
an explanation of why an appellant’s appeal is wholly frivolous in an Anders
brief. See Santiago, 978 A.2d at 360. Thus, we refer to the brief simply as
an Anders brief.
5 The Commonwealth did not file a responsive brief before this Court.
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sentence of 18 to 36 years’ incarceration was “manifestly excessive in light of
the sentencing factors within the Sentencing Code.” Anders Brief at 12.
Preliminarily, we note:
Generally, a plea of guilty [or no contest] amounts to a waiver of
all defects and defenses except those concerning the jurisdiction
of the court, the legality of the sentence, and the validity of the
guilty plea.
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation
omitted). Nevertheless, an appellant who enters an open plea may challenge
the discretionary aspects of their sentence on appeal. Commonwealth v.
Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017). However, they are not
entitled to review of their claim as of right. See Commonwealth v. Mulkin,
228 A.3d 913, 916 (Pa. Super. 2020). To determine whether this Court will
reach the merits of a discretionary aspects claim, we consider whether the
appellant complied with 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
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id. (citation omitted).
Here, as noted above, Appellant did not preserve his sentencing claim
in a post-sentence motion. However, Counsel indicates, in his Anders brief,
that he preserved this claim at sentencing when he argued for the imposition
of a sentence of 14 to 28 years’ incarceration. See Anders Brief at 11.
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J-S26027-22
Specifically, at sentencing, Counsel stated: (1) during the incident Appellant
injured himself causing blood loss so severe he was “catatonic and
unresponsive” in the hospital for a period of time after the attack; (2) due to
this blood loss, Appellant “blacked out” during “part” of the attack; (3)
Appellant did not want to “prolong [Victim’s] trauma” by going to trial; (4) the
Commonwealth previously offered Appellant a plea deal including a 14 to 28
year sentence, which was rescinded “through no fault of his own[;]” and (5)
Appellant accepted responsibility for his actions. See N.T., 11/3/21, at 8-10.
On appeal, however, Appellant only argues his sentence is manifestly
excessive. Anders Brief at 12. Counsel’s request for a specific sentence of
14 to 28 years is not the equivalent of a claim that the 18 to 36 year sentence
imposed was manifestly excessive. Thus, Appellant failed to preserve his
sentencing challenge with the trial court, and it is waived for our review.6
In any event, had Appellant preserved this claim, we would still conclude
he is not entitled to relief. Appellant’s claim rests simply on his assertion that
his sentence is manifestly excessive. Anders Brief at 12.
We consider the relevant standard of review:
____________________________________________
6 We also point out that Counsel did not include a Pa.R.A.P. 2119(f) statement
in his brief. Despite his assertion that the Rule 2119(f) requirement was
satisfied “with the filing of [his] brief[,]” Counsel provided no support for this
contention. See Anders Brief at 11. Nevertheless, because the
Commonwealth did not object to the lack of a Rule 2119(f) statement, we may
overlook this omission. See Commonwealth v. Stewart, 867 A.2d 589, 592
(Pa. Super. 2005) (this Court may ignore the omission of a Rule 2119(f)
statement where the Commonwealth has not objected to its absence) (citation
omitted).
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J-S26027-22
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. 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.
Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019) (citation
omitted). Further, “when imposing sentence, the trial court is granted broad
discretion, as it is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.” Mulkin, 228 A.3d at 917. We also note, this Court will vacate a
sentence imposed within the sentencing guidelines only where “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Here, the trial court extensively reviewed the record and provided a
detailed and well-reasoned explanation supporting the sentence it imposed. .
Thus, if we were to address Appellant’s claim, we would rest on the basis of
the trial court’s opinion. See Trial Ct. Op., 1/11/22, at 9-15. (concluding the
court did not abuse its discretion in fashioning Appellant’s sentence where the
court: (1) “carefully considered the relevant factors” before imposing sentence
within the standard guideline range; (2) noted the standard range and
maximum sentences were “explicitly” set forth in Appellant’s signed plea
agreement; (3) considered arguments from Counsel, as well as Appellant’s
statement; (4) considered Victim’s statement about the lasting impact the
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J-S26027-22
attack has had on her daily life; (5) imposed a sentence which addressed
Appellant’s rehabilitative needs; (6) weighed any mitigating factors against
the seriousness of the offense and impact on Victim and others; and (7)
imposed a sentence that reflected all the information provided at the
sentencing hearing).
For the foregoing reasons, we conclude Appellant waived his
discretionary aspects of sentencing claim on appeal. Furthermore, even if the
claim were not waived, we would rest upon the well-reasoned opinion of the
trial court.
We direct a copy of the trial court’s January 11, 2022, opinion be filed
along with this memorandum, and attached to any future filings of this
memorandum.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judge Kunselman joins the Memorandum.
President Judge Emeritus Stevens Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2023
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Circulated 12/29/2022 11:35 AM
IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL
DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action — Law
V.
No. 1460-2019
Ashley Davis,
Defendant Honorable Angela R. Krom, J.
Opinion sur Pa.R.A.P. 1925(a)
This Court submits an Opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) in response to the Notice of Appeal and Concise Statement of
Matters Complained of on Appeal filed by Ashley Davis ("Defendant") on
December 3, 2021, and December 27, 2021, respectively. For the reasons that
follow, this Court respectfully requests that the Superior Court affirm the judgment
of sentence.
STATEMENT OF THE CASE
Defendant was charged by separate criminal informations on September 12,
2019, with one count of Criminal Attempt—Homicide, Ione count of Aggravated
Assault 2 and one count of Possession of aWeapon, 3 based upon allegations by the
Commonwealth that on August 3, 2019, Defendant stabbed Shawna Day multiple
times in the torso and neck during adomestic dispute.
1 18 Pa.C.S. § 901(a) to 18 Pa.C.S. §2501(a).
2 18 Pa.C.S. §2702(a)(4).
3 18 Pa.C.S. § 907(b).
1
On May 19, 2021, Defendant filed aMotion for Modification of Bail and
Motion for Nominal Bail; these Motions were denied after ahearing on June 15,
2021, based upon our finding that no condition or set of conditions short of
incarceration would be sufficient to ensure the safety of the victim and the
community.
On July 29, 2021, Defendant entered aplea of nolo contendere to one count
of Criminal Attempt-Homicide, pursuant to an agreement with the
Commonwealth; the plea was an open plea, and the Commonwealth agreed to
remain silent at sentencing Sentencing was deferred until September 23, 2021 ,
and the Franklin County Probation Department was directed to prepare aPre-
Sentence Investigation Report (PSI) to aid the Court in sentencing. After two
continuances at Defendant's request, Defendant was ultimately sentenced on
November 3, 2021, to aterm of 18 to 36years' incarceration in astate correctional
institution, with credit for time served from August 4, 2019, to November 3, 2021.
On December 3, 2021, Defendant filed the instant Notice of Appeal. By
Order of Court dated December 6, 2021, we directed Defendant to file aconcise
statement of matters complained of on appeal within twenty-one days; Defendant
complied on December 27, 2021.
4 Also as part of the agreement, the Commonwealth agreed to dismiss the remaining charges.
2
DISCUSSION
In the Concise Statement, counsel infouns the Court that he intends to file an
Anders/McClendon brief in this matter.
In that regard, Pa.R.A.P. 1925(c)(4) provides:
In acriminal case, counsel may file of record and serve on the judge a
statement of intent to file an Anders/McClendon brief in lieu of filing
a Statement. If, upon review of the Anders/McClendon brief, the
appellate court believes that there are arguably meritorious issues for
review, those issues will not be waived; instead, the appellate court
may remand for the filing of a Statement, a supplemental opinion
pursuant to 1925(a), or both. Upon remand, the trial court may, but is
not required to replace appellant's counsel.
Pa.R.A.P. 1925(c)(4).
Though counsel indicated his intent to file an Anders brief, he nevertheless
set forth the claim Defendant wishes to raise on appeal in the Concise Statement,
as follows:
The Defendant believes and therefore avers that the Court abused its
discretion by sentencing him to 18 to 36 years in prison, as the
sentence is manifestly excessive in light of the sentencing factors
pursuant to the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et
seq, specifically, 42 Pa.C.S. § 9721.
Concise Statement of Matters Complained of on Appeal, at ¶5a.
As counsel raised the issue in the Concise Statement, we will address it here.
3
I. Right to Appellate Review
Initially, we note that Defendant's claim involves the discretionary aspects
of sentencing. See Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).
Significantly, adefendant challenging the discretionary aspects of sentencing is not
entitled to appellate review as of right. Id. Rather, the defendant must satisfy the
following four-part test to invoke the Superior Court's jurisdiction:
(1) whether appellant has filed atimely notice of appeal; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant's brief has a
fatal defect; and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). We find that
Defendant arguably failed to satisfy two prongs of this test.
First, under the second prong, "` issues challenging the discretionary aspects
of asentence must be raised in apost-sentence motion or by presenting the claim
to the trial court during the sentencing proceedings."' Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013)(quoting Commonwealth v. Kittrell, 19 A.3d
532, 538 (Pa. Super. 2011)). "` Absent such efforts, an objection to adiscretionary
aspect of asentence is waived."' Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003).
In the instant case, no post-sentence motions were filed following
Defendant's November 3, 2021, sentencing proceeding. Further, we have reviewed
4
the sentencing transcript and record in this case and find nothing to indicate that
any objections were made during or immediately following sentencing. As such,
Defendant failed to preserve this sentencing claim, and it is thus waived.
Second, it is this Court's opinion that, at least at this stage, Defendant has
not established that asubstantial question exists. "` A substantial question will be
found where the defendant advances acolorable argument that the sentence
imposed is either inconsistent with aspecific provision of the code or is contrary to
the fundamental norms which underlie the sentencing process."' Commonwealth v.
Zurburg, 937 A.2d 1131, 1135 (Pa. Super. 2007)(quoting Commonwealth v. Eby,
784 A.2d 204, 205-06 (Pa. Super. 2001)). 5
The analysis by the Superior Court of whether aparticular issue forms a
substantial question is made on acase-by-case basis upon aconsideration of the
particular appeal. Feucht, 955 A.2d at 384. As such, the Superior Court has made
clear that it does not "include or exclude any entire class of issues as being or not
being substantial[,]" but instead evaluates each claim based on the particulars of
the defendant's statement. Id.
Therefore, our Supreme Court has held that claims of excessive sentence
may, in appropriate cases, present asubstantial question. Commonwealth v.
5"More specifically, the [defendant] must explain where the sentence falls in relation to the
sentencing guidelines, identify what specific provision of the Code and/or what fundamental
norm was violated, and explain how and why the sentencing court violated that particular
provision and/or norm." Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008).
5
Mouzon, 812 A.2d 617, 627 (Pa. 2002). However, for that to occur, the defendant
must "compl[y] with all statutory and procedural requirements regarding a
challenge to the discretionary aspects of sentencing," which notably includes
sufficiently "articulat[ing] in his Rule 2119(f) statement asubstantial question so
as to warrant appellate review[.]" Id. In that regard, our appellate courts have
repeatedly held that bald allegations of excessiveness or non-specific claims of
error in aconcise statement do not raise asubstantial question to warrant appellate
review. Mouzon, 812 A.2d at 627; see also Feucht, 955 A.2d at 384. 6 Instead, a
defendant "` must, at aminimum, explain specifically why he thinks his sentences
were improper."' Mouzon, 812 A.2d at 627 (quoting Commonwealth v. Saranchak,
675 A.2d 268, 277 n. 18 (Pa. 1996)).
As discussed, though we do not have Defendant's Rule 2119(f) available to
us, Defendant's Concise Statement has provided little more than abald assertion.
Simply referencing the § 9721(b) factors in his claim, without any effort to prove
the manner in which, on the facts of the individual case, the sentence was in fact
6 For instance, aflat assertion that asentence "` flies in the face of fairness' because `[he] was
given asentence of three (3) months [incarceration] for the theft by deception of a $20.00 bottle
of perfume[,]"' fails to raise asubstantial question, relying on the proposition that "an argument
concerning the weight that asentencing court gives to legitimate sentencing factors ... does not
raise asubstantial question..." See Commonwealth v. Rose, 641 A.2d 617, 618 (Pa. Super.
1994); see also Commonwealth v. Smith, 575 A.2d 150, 167 (Pa. 1990)(finding the claim that
the sentence "` was so manifestly excessive as to constitute an abuse of discretion where the
defendant received asentence at the top of the aggravated range of the sentencing guidelines [j"'
did not raise asubstantial question).
6
excessive, does little to substantiate this claim. 7,
g Claims of excessive sentence are
not self-proving, especially where, like here, the sentence is not so obviously
excessive on its face. Thus, at this point, Defendant has failed to demonstrate a
substantial question exists.
Nevertheless, we will continue our analysis of Defendant's sentencing claim,
in the event the claim is ultimately heard by the Superior Court on its merits.
II. Merits of Defendant's Claim
Once adefendant has proven entitlement to appellate review, the following
standard of review shall apply:
Sentencing is amatter vested in the sound discretion of the sentencing
judge, and 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.
'Relevantly, in Commonwealth v. Ousley, the Superior Court held that the defendant's statement
that "the sentence exceeds the guidelines and the conclusion... that the sentence ` is not
specifically tailored to the nature of the offense, the ends of justice and society and the
rehabilitative needs of the [defendant],"' does not raise asubstantial question, as the defendant
failed to advise the court of what the applicable guideline range is and has not articulated any
facts to support his claim that the sentence was not appropriately tailored to the relevant
considerations. 573 A.2d 599, 601 (Pa. Super. 1990).
8 We also note that from Defendant's Concise Statement, it does not appear he is claiming the
Court failed to consider the Section 9721(b) factors in imposing sentence. We acknowledge that
such aclaim would typically be deemed to present asubstantial question. See Commonwealth v.
Derry, 150 A.3d 987, 992 (Pa. Super. 2016).
7
Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016). Moreover, "when
atrial court imposes asentence that is within the statutory limits, there is no abuse
of discretion unless the sentence is manifestly excessive so as to inflict too severe a
punishment." Mouzon, 812 A.2d at 624-25 (internal quotations omitted). 9Here,
Defendant does not argue that his sentence is outside the statutory maximum;
instead, he contends that the sentence is manifestly excessive given the relevant
sentencing factors that must be considered.
We acknowledge that appellate courts have found an abuse of discretion
"when the sentencing court fails to give ` careful consideration to all relevant
factors in sentencing [adefendant]."' Parlante, 823 A.2d at 930 (
quoting Sierra,
752 A.2d at 913). In determining the appropriate sentence, the sentencing court "is
required to consider the particular circumstances of the offense and the character of
the defendant." Id. (internal quotations omitted)(quoting Commonwealth v.
McClendon, 589 A.2d 706 (Pa. Super. 1991)(en Banc)). The law is clear, "the
sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is,
the protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant. [A]nd, of course, the court
9"In determining whether asentence is manifestly excessive, ` the appellate court must give great
weight to the sentencing judge's discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant's character, and the defendant's display of
remorse, defiance, or indifference."' Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
1998)(quoting Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997)(internal citations
omitted)).
8
must consider the sentencing guidelines." Commonwealth v. Fullin, 892 A.2d 843,
847--48 (Pa. Super. 2006)(inteinal quotations and citation omitted).
Similarly, acourt imposing sentence "shall make part of the record, and
disclose in open court during sentencing, astatement of the reasons for the
sentence." Feucht, 955 A.2d at 383. However, the law does not require that the
Court "parrot the words of the Sentencing Code, stating every factor that must be
considered under Section 9721(b)." Id.; see also Commonwealth v. Hallock, 603
A.2d 612, 616 (Pa. Super. 1992)("[T]he fact that the sentencing court did not state
expressly that it considered each of these factors does not warrant reversal. ").
Here, we carefully considered the relevant factors and sentenced Defendant
within the standard range of the sentencing guidelines. Prior to sentencing, we
presided over Defendant's nolo contendere plea hearing, where Defendant
expressly agreed to an open plea pursuant to an agreement with the
Commonwealth; the standard range and maximum penalty for the pled-to charge
were explicitly set forth on the plea agreement form, which Defendant initialed at
the time of entry of the plea, indicating his acknowledgment. We also previously
presided over Defendant's pre-trial hearings, where we had the opportunity to view
anumber of relevant photographs depicting the injuries caused by Defendant; as
we stated at sentencing, the pictures made alasting impression on the Court. At the
9
sentencing hearing itself, we heard argument from counsel for Defendant, as well
as astatement by Defendant himself.
We also heard from Shawna Day, the victim of Defendant's crime. She told
the Court that the incident with Defendant has completely impacted her life,
explaining that her anxiety has reached an all-time high to the point where she has
trouble going out in public and has lost jobs because of it, that her two children
have been significantly affected by the incident, that she has moved afew times
because she is too afraid to stay in that area, and that she is still dealing with
resulting health issues and has needed to continue receiving medical treatment.
Finally, prior to sentencing, we reviewed the Probation Department's full
Pre- Sentence Investigation (PSI) report for this case.
Significantly, the Superior Court has stated:
where apre-sentence report exists, we must presume that
the sentencing judge was aware of relevant infoiniation
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 .. we state clearly that sentencers are under no
compulsion to employ checklists or any 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 ameaningful fashion. It
would be foolish, indeed, to take the position that if a
10
court is in possession of the facts, it will fail to apply
them to the case at hand.
Hallock, 603 A.2d at 616 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988)). "Since the sentencing court in this case did have apre-sentence report, we
must presume that it did consider the factors outlined by appellant..." Hallock, 603
A.2d at 616. Here, not only did we have aPSI available, but we also provided a
meaningful explanation of our considerations at the time of sentencing.
At Defendant's sentencing proceeding, we were made aware of and
considered the relevant behavior and character of Defendant. During Defendant's
statement to the Court, he expressed that he was sorry for what happened to Ms.
Day, that he never wanted to hurt her, and that he took the plea to save her more
suffering through the court system. Further, counsel for Defendant explained that
at Defendant's previous court appearances, Defendant had such adifficult time
describing what happened because he blacked out during part of the incident and
does not remember those parts. Counsel claimed this resulted from Defendant
breaking out awindow during the incident and suffering asevere laceration to his
hand and wrist which caused asignificant loss of blood and led Defendant to be
catatonic and unresponsive for asignificant period of time.
We then inquired of Defendant as follows:
[THE COURT]: All right. When Ilook at your version of events on
it's listed on page two of the Pre- Sentence Investigation Report you
indicate—well, after discussing your rocky relationship and the acts of
11
violence committed against you by Ms. Day, you then suggest that
you don't know where this knife came from. The only thing you
remember is being in handcuffs and going in and out of consciousness
due to blood loss. You cut your left hand and received three stitches.
So, this severe laceration that resulted in significant blood loss and
your blacking out required only three stitches to repair.
[DEFENDANT] : That's what Iwas told, yes, ma'am.
[THE COURT]: And you were in York Hospital for aday?
[DEFENDANT] : To my knowledge, yes, ma'am.
[THE COURT] : What Ihaven't heard from you, and probably the
reason why your plea was no contest and not guilty, is I'm hearing
remorse at the suffering for Ms. Day, but I'm not hearing an
acceptance of responsibility that it is your fault.
[DEFENDANT] : Your Honor, with all due respect, with this court
system...
[THE COURT]: You keep saying that.
[DEFENDANT] : Itake full responsibility of what Idid, and Iwas
wrong for that, and I'm sorry for what Idid. There is nothing Ican say
or do to take that back.
[THE COURT]: So what you did was what?
[DEFENDANT] : It was wrong.
[THE COURT] : What you did was what? What did you do?
[DEFENDANT] : Itried to kill Ms. Day. It was wrong.
[THE COURT]: How did you try to kill her?
12
[DEFENDANT]: That Icouldn't tell you. What Iwas told was Iused
a knife. That's the only thing Iknow because Iblacked out, Your
Honor.
[THE COURT]: Okay. Thank you. Well, [] I have had the
opportunity, of course, to hear everything that you heard here today.
Transcript of Proceedings of Sentencing, November 3, 2021 ("T.P., 11/3/2021"),
atl 1-13. Based upon the foregoing, it is clear that we made an effort to be fully
infomied regarding Defendant's character and attitude, keeping in mind that as the
sentencing court, we are "in the best position to view the defendant's character,
displays of remorse, defiance or indifference, and the overall effect and nature of
the crime." Hallock, 603 A.2d at 617 (citing Commonwealth v. Fries, 523 A.2d
1134 (Pa. Super. 1987)).
We also addressed Defendant's rehabilitative needs. Counsel informed the
Court that he discussed obtaining amental health evaluation with Defendant, but
Defendant did not want to do so prior to sentencing, as it would most likely
prolong his case. In imposing sentence, we stated that we agree with counsel that
Defendant's mental health is something that needs to be reviewed, and,
accordingly, imposed mental health evaluation and treatment as acondition of
Defendant's sentence. We further ordered adrug and alcohol assessment and any
recommended treatment and periodic testing, in addition to adomestic violence
treatment requirement.
13
Moreover, we weighed any mitigating factors against the nature and
seriousness of Defendant's conduct and its impact on the victim and others. We
explained:
Iknow that Ms. Day was not responsive to the Probation
Department, but she did appear here today, and Iheard
her comments and Iunderstand that this event had a
profound, and has continued to have, aprofound impact
on her life, her mental health, her physical health, her
feeling of safety, her feeling of well-being at her home, at
her work, and this incident has affected the lives of her
children who feel now the need, understandably so, to be
her protectors or her guardians, perhaps. So this event
had a profound impact on many lives, not just Ms.
Day[`s] physical health.
Iunderstand that you are now accepting responsibility in
demonstrating some level of remorse, and Ido appreciate
that, and that's probably the reason why Iam not going
to impose a sentence of 20 years to 40 years, which is
arguably what Ithink you deserve. So what Iam going to
do is imprison you in the State Correctional Institution
for aperiod of 18 years to 36 years because that is what I
believe is appropriate... This sentence recognizes that Ms.
Day nearly died and at your hands.
T.P., 11/3/2021, at 14-15. These comments demonstrate that we did not merely
pay lip service to the relevant considerations. Instead, we carefully considered all
of the information before us and imposed asentence that reflected that information.
14
Lastly, we imposed asentence within the guideline range- 10 We explained
that Defendant's conviction is afelony of the first degree, with an offense gravity
score of 14. We further noted that based upon aprior conviction for rape in
Kentucky, Defendant has aprior record score of 4. We accurately recited the
standard range ( 168 to 240 months) and mitigated range ( 156 months) of the
offense, and ultimately sentenced Defendant to 18 to 36 years' incarceration, or
216 to 432 months. This was consistent with the plea agreement, which set forth
the standard range. Further, the Court "did not impose [an] impermissibly
excessive maximum sentence[], as [it is] within the maximum temi[] provided by
the statutes of our Commonwealth." Boyer, 856 A.2d at 154. Additionally, there is
no indication of any bias, partiality, prejudice, or ill-will on the part of the Court.
In the present case, we carefully considered the appropriate factors and
imposed asentence in the standard guideline range. Accordingly, we find that
Defendant's sentencing claim does not entitle him to relief on appeal. See Mouzon,
812 A.2d at 620 ("Traditionally, the trial court is afforded broad discretion in
sentencing criminal defendants because of the perception that the trial court is in
the best position to detenniine the proper penalty for aparticular offense based
10 "This is true because the sentencing guidelines provide for minimum and not maximum sentences." See
Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004).
15
upon an evaluation of the individual circumstances before it.")(internal citations
omitted).
CONCLUSION
Ultimately, this Court finds Defendant's appeal to be without merit and
respectfully requests that the Superior Court affina the judgment of sentence
imposed on November 3, 2021.
16
IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL
DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Action — Law
V. No. 1460-2019
Ashley Davis,
Defendant Honorable Angela R. Krom, J.
ORDER OF COURT
AND NOW, this ( day of January, 2022, pursuant to Pa.R.A.P.
1931(c),
IT IS HEREBY ORDERED that the Clerk of Courts shall promptly
transmit to the Prothonotary of the Superior Court the record in this matter along
with the attached Opinion sur Pa.R.A.P. 1925(a).
Pursuant to the requirements of Pa.R.Crim.P. Rule 114, the Clerk of Courts
shall immediately docket this Order and record in the docket the date it was made.
The Clerk shall forthwith furnish acopy of the Order, by mail or personal delivery,
to each party and attorney, and shall record in the docket the time and manner
thereof.
By the Court,
Distribution:
Franklin County District Attorney
Kevin Taccino, Esq., Counsel for Defendant