Com. v. Lomax, Y. ( 2023 )

J-S01045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YVONNE LOMAX :
:
Appellant : No. 926 WDA 2022
Appeal from the Judgment of Sentence Entered March 11, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002037-2021
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 6, 2023
Appellant, Yvonne Lomax, appeals judgments of sentence imposed by
the Erie County Court of Common Pleas after she entered a guilty plea to
corruption of minors and simple assault. On direct review nunc pro tunc,
Appellant challenges the discretionary aspects of her sentence. Upon review,
we affirm.
On January 7, 2022, Appellant pleaded guilty to the above charges in
exchange for the Commonwealth’s agreement to nolle prosse additional
charges for criminal trespass, recklessly endangering another person,
harassment, burglary, and a second count of corruption of minors. N.T.
1/7/22, 4-6; Statement of Understanding of Rights, 1/7/22, ¶ 5;
Disposition/Commitment Form, 1/6/22, 1-2; Bills of Information 9/23/21, 1-
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01045-23
3. Appellant agreed that the factual basis for her plea involved her breaking
into a home of a woman named Carolyn Williams, in the 1200 block of East
28th Street, in the City of Erie, on July 12, 2021, while in the presence of two
of her minor children, and striking Ms. Williams in her face with a closed fist
while Ms. Williams was in the presence of her six-month-old child. N.T.
1/7/22, 6-7.
On March 11, 2022, the plea court imposed concurrent terms, at the
bottom of the standard range recommended by the Sentencing Guidelines,
including nine to twenty-three months’ imprisonment, to be followed by two
years’ probation, for corruption of minors, and six to twelve months’
imprisonment for simple assault.1 Sentencing Order, 3/11/22, 1; N.T.
3/11/22, 8. Prior to imposing the sentence, the court noted that it considered
the statements of the parties, in addition to Appellant’s “age, background,
criminal record, character, rehabilitative needs, nature, circumstances, and
seriousness of the offense, the protection of the community, sentencing
guidelines, impact of the crime on the victim, and the pre-sentence report.”
N.T. 3/11/22, 8.
____________________________________________
1 The Sentencing Guidelines assigned offense gravity scores of four for
corruption of minors and three for simple assault. 204 Pa. Code § 303.15(Offense List, 7th ed., amend. 6). Appellant’s guideline sentencing forms
indicated that she had a prior record score of five. Guideline Sentencing
Forms, 3/14/22, 1. Accordingly, the Sentencing Guidelines recommended
minimum imprisonment terms of nine to sixteen months, plus or minus three
months for aggravating or mitigating circumstances, for corruption of minors,
and six to sixteen months, plus or minus three months for aggravating or
mitigating circumstances, for simple assault. 204 Pa. Code § 303.16(a) (Basic
Sentencing Matrix, 7th ed., amend. 6).
-2-
J-S01045-23
Appellant did not file a timely post-sentence motion or an appeal. After
she filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
46, in which she requested the reinstatement of her post-sentence motion and
direct appeal rights nunc pro tunc, the plea court granted that relief and
appointed new counsel. Order, 6/8/22, 1. Appellant thereafter filed a timely
post-sentence motion in which she requested a reconsideration of her
sentence because it was supposedly “manifestly excessive” and “clearly
unreasonable.”2 Post-Sentence Motion, 7/8/22, ¶ 3. She asserted that a
“sentence with less jail time would have been appropriate to protect the
community and to punish and rehabilitate” her and attached correspondence
allegedly from her victim to show that the victim wanted to “drop the charges”
against her. Id. After the plea court subsequently denied the post-sentence
motion, Appellant timely filed a notice of appeal and an untimely court-ordered
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
____________________________________________
2 The plea court, sitting as the PCRA court, explicitly permitted Appellant thirty
days to file a post-sentence motion nunc pro tunc upon granting her PCRA
petition. Order, 6/8/22, 1 (“Counsel shall file a post-sentence motion within
30 days.”). Cf. Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.
Super. 2015) (explaining that a post-sentence motion nunc pro tunc will toll
the appeal period if the defendant both requests that the court consider his
motion nunc pro tunc, and the court expressly permits the filing of a post-
sentence motion nunc pro tunc, within 30 days of his judgment of sentence);
see also Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super.
2003) (en banc) (“when the trial court grants a request to file a post-sentence
motion nunc pro tunc, the post-sentence motion filed as a result must be
treated as though it were filed within the 10-day period following the
imposition of sentence”).
-3-
J-S01045-23
1925(b).3 Order Denying Post-Sentence Motion, 7/12/22, 1; Notice of Appeal,
8/10/22, 1; Rule 1925 Order, 8/10/22, 1; Rule 1925(b) Statement, 9/9/22,
1-2.
Appellant presents the following question for our review: “Were the
sentences manifestly excessive and clearly unreasonable, unaccompanied by
a sufficient statement of reasons, and not individualized as required by law?”
Appellant’s Brief at 1 (unnecessary capitalization omitted).
Appellant’s sole claim on appeal challenges the discretionary aspects of
her sentence. As such, this Court’s jurisdiction is limited because challenges
to the discretionary aspects of a sentence are not appealable as of right.
Commonwealth v. Moser, 283 A.3d 850, 858 (Pa. Super. 2022). Instead,
to invoke our jurisdiction, with respect to this claim, Appellant needed to: (1)
file a timely notice of appeal; (2) properly preserve the issue at sentencing or
____________________________________________
3 In her notice of appeal, Appellant asserted that she is appealing the order,
dated July 12, 2022, that denied her post-sentence motion nunc pro tunc.
Notice of Appeal, 8/10/22, 1. This appeal, however, properly lies from the
judgments of sentence made final by the denial of post-sentence motions.
See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001) (en banc). We have corrected the caption accordingly.
Even though Appellant filed her Rule 1925(b) statement nine days late, we
may proceed with substantive review because the plea court addressed the
merits of her sentencing claim included in her Rule 1925(b) statement in its
opinion. Plea Court Opinion, 9/14/22, 1; see Commonwealth v. Presley,
193 A.3d 436, 441 (Pa. Super. 2018) (“[I]n criminal cases, remand, not
waiver, results from the late filing of a [Rule 1925(b)] statement, unless the
trial court addressed the issues raised in a late-filed statement. In those
circumstances, no remand is necessary, and this Court may address the merits
of issues.”) (footnote and citation omitted).
-4-
J-S01045-23
in a motion to reconsider and modify the sentence; (3) comply with Pa.R.A.P.
2119(f), which requires Appellant to include a separate section in her 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)
present a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing
norms. Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022).
As acknowledged above, Appellant satisfied the requirement of filing a
timely notice of appeal following the reinstatement of her direct appeal rights.
She also filed a post-sentence motion. In the motion, she preserved her
argument that her sentence was excessive and unreasonable as follows:
[Appellant] argues that the sentence in her case was manifestly
excessive and clearly unreasonable in its overall [sic] and that a
sentence with less jail time would have been appropriate to
protect the community and to punish and rehabilitate the
petitioner, especially since she has five children and has been
incarcerated since July 19, 2022. She further indicates that the
victim wanted to drop the charges and had called the [Appellant’s]
attorney prior to the court proceedings in this case to state that.
A letter from the victim is attached hereto.
Post-Sentence Motion, 7/8/22, ¶ 3.
To the extent that Appellant alludes to a claim that the plea court abused
its discretion by not offering an adequate statement of reasons for the
sentence in her Statement of the Question Presented section of her brief, we
note that she fails to offer any arguments to that effect in her brief and has
waived any claim to that effect. See Commonwealth v. Jackson, 431 A.2d
-5-
J-S01045-23
944, 945 n.1 (Pa. 1981) (claim addressed in a “Statement of Questions
Involved” but not addressed in the “Argument” section of an appellant’s brief
is waived). Even if that claim were included in the argument section of
Appellant’s brief, it would be waived because it was not preserved either at
sentencing or in the claim included in Appellant’s post-sentence motion nunc
pro tunc. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003) (discretionary sentencing claim waived where, although appellant filed
a post-sentence motion for reconsideration of sentence, the motion did not
include the specific claim raised on appeal); Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal”).
We next appreciate that Appellant included a separate section in her
brief pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at 2-3. The last
threshold question prior to engaging in review of the merits of Appellant’s
claim is whether her Rule 2119(f) statement raises a substantial question.
A substantial question exists where the appellant advances a colorable
argument that the sentencing judge’s actions were inconsistent with a specific
provision of the Sentencing Code or were contrary to the fundamental norms
which underlie the sentencing process. Commonwealth v. Caldwell, 117
A.3d 763, 768 (Pa. Super. 2015) (en banc); Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014). “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).
-6-
J-S01045-23
In her Rule 2119(f) statement, Appellant asserts:
The fundamental norm violated was that the sentence was
manifestly excessive in that it was not individualized. The specific
portion of the Code violated was 42 Pa.C.S. § 9781(b), which
requires that a sentence not be clearly unreasonable.
…
Here, the court did not individualize the sentence for [Appellant].
She argues that the jail portion of the sentence was unnecessary
and that the trial court failed to consider the fact that she has five
children to care for and that the victim did not wish for [Appellant]
to be incarcerated and wanted to drop the charges.
Appellant’s Brief at 3.
Section 9781(b) is the only specific provision of the Sentencing Code
addressed by Appellant’s Rule 2119(f) statement. To the extent that Appellant
asserts that the sentencing court violated Section 9781(b), we are unable to
discern the existence of a substantial question. Section 9781(b) merely
codifies the procedure by which a party may seek review of the discretionary
aspects of a sentence with this Court as follows:
The defendant or the Commonwealth may file a petition for
allowance of appeal of the discretionary aspects of a sentence for
a felony or a misdemeanor to the appellate court that has initial
jurisdiction for such appeals. Allowance of appeal may be granted
at the discretion of the appellate court where it appears that there
is a substantial question that the sentence imposed is not
appropriate under this chapter.
42 Pa.C.S. § 9781(b); see Commonwealth v. McFarlin, 587 A.2d 732, 735
(Pa. Super. 1991) (en banc) (“In effect, § 9781(b) merely requires an accused
to indicate how the trial court possibly abused its discretion before the
-7-
J-S01045-23
appellate court will consider the merits of his contentions as to the
discretionary aspect of sentence.”). Where Section 9781(b) does not address
the reasonableness of a sentence or the exercise of a sentencing court’s
discretion, it cannot be violated by the imposition of a sentence. Accordingly,
an alleged violation of Section 9781(b) cannot support a substantial question.
In the alternative, Appellant argues that the sentencing court violated
the fundamental norm that her sentence should have been individualized. A
contention of that nature has been held to raise a substantial question
necessitating our review. See Commonwealth v. Ahmad, 961 A.2d 884,
887 (Pa. Super. 2008) (claim that sentencing court did not consider Ahmad’s
“individualized circumstances” raised a substantial question); accord
Commonwealth v. Goodco Mechanical, Inc., 291 A.3d 378, 405 (Pa.
Super. 2023) (“the claim that the sentence was the result of bias and
prejudice, and not individualized, also constitutes a substantial question”);
Commonwealth v. Luketic, 162 A.3d 1149, 1162 (Pa. Super. 2017) (holding
that an argument that that a court predetermined a sentence raised a
substantial question based on the fundamental norm that an appellant’s
sentence be individualized); Commonwealth v. Serrano, 150 A.3d 470, 473
(Pa. Super. 2016) (citing Ahmad for the holding that the failure to consider a
defendant’s individualized needs raises a substantial question). Accordingly,
we will review the merits of Appellant’s discretionary sentencing claim.
We apply the following standard of review when considering challenges
to the discretionary aspects of a sentence:
-8-
J-S01045-23
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 of 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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation
omitted). “[W]hen imposing a 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.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020).
This deferential standard is based on the recognition that “the nuances of
sentencing decisions are difficult to gauge from the cold transcript used upon
appellate review.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011),
quoting Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007).
At the start of her argument, Appellant leads with a section header
asserting that “the sentences were manifestly excessive and clearly
unreasonable, particularly in their consecutiveness.” Appellant’s Brief at 4
(omitting capitalization). The judgments of sentence, however, do not feature
any consecutive prison terms and instead include concurrent prison terms at
the bottom of the standard ranges that the Sentencing Guidelines recommend
for the convictions along with a probationary tail. See Sentencing Order,
3/11/22, 1; see also supra n. 1.
-9-
J-S01045-23
Appellant argues that the plea court imposed a manifestly excessive
sentence and abused its discretion by not reconsidering the judgments of
sentence where: (1) she had served eight months of imprisonment prior to
sentencing; (2) she was the caretaker of five children; (3) she apologized to
the court and her family; and (4) she appended a letter to her post-sentence
motion in which the victim stated a position that the charges against Appellant
should have been ”dropped.” Appellant’s Brief at 3, 5-6. For multiple reasons,
we are unable to conclude that this claim demonstrates an abuse of discretion.
At the outset, we must start with a presumption that the imposed terms
were reasonable given that they were within the standard range
recommended by the Sentencing Guidelines. See Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (“where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code”); see also Commonwealth v. Hill,
210 A.3d 1104, 1117 (Pa. Super. 2019) (citing Moury for that point);
Commonwealth v. Antidormi, 84 A.3d 736, 760 n.20 (Pa. Super. 2014)
(same); Commonwealth v. Griffin, 65 A.3d 932, 937-38 (Pa. Super. 2013)
(same). We must also presume, based on the sentencing court’s
consideration of a pre-sentence investigation report, that the court was aware
of the relevant information regarding Appellant’s character and weighed those
considerations along with mitigating statutory factors. Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-sentence reports exist, we
shall continue to presume that the sentencing judge was aware of relevant
- 10 -
J-S01045-23
information 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.”); see Plea Court Opinion,
9/14/22, 1 (addressing that the sentencing court “had the benefit of a
presentence report”); N.T. 3/11/22, 8 (noting the court’s consideration of a
pre-sentence report).
The stated circumstances addressed in Appellant’s claim do not lead us
to conclude that the imposed sentence was unreasonable. The facts that
Appellant remained in custody from the time of her detainment until the time
of sentencing and that she had five children were both addressed in the pre-
sentence investigation report. See Pre-sentence Investigation Report,
11/4/22, 1, 6. Pursuant to Devers, we can presume that the court considered
and properly weighed those considerations in the process of determining the
sentence at issue. Appellant’s role as a mother to five children is also not an
overwhelming consideration for mitigation where the pre-sentence report and
the notes of testimony reflect that two of Appellant’s minor children were with
her when she broke into the victim’s home and that those children were
adjudicated delinquent because of their involvement with Appellant’s crimes.
See N.T. 1/7/22, 6; N.T. 3/11/22, 6-7; Pre-Sentence Investigation Report,
11/4/22, 1-2. To the extent that Appellant cites her apology to the court and
her family, the court confirmed its consideration of that apology when it noted
the statement of Appellant among the factors it considered upon imposing its
sentence. See N.T. 3/11/22, 8.
- 11 -
J-S01045-23
The record supports that all of the stated factors, with the exception of
the letter appended to the post-sentence motion, that Appellant suggests
should have supported a lower sentence, were already considered by the plea
court. To the extent that the victim supposedly advocated for the withdrawal
of the charges against Appellant, in a letter dated months after the sentencing
hearing, we do find that the plea court abused its discretion by not
reconsidering the sentence after its review of that correspondence. First,
Appellant had already accepted the guilt for her crimes and the facts
supporting her convictions by entering her plea. Second, the victim’s letter
did not call into question Appellant’s guilt. See Victim Letter, 5/5/22, 1,
attached to Post-Sentence Motion, 7/8/22 (“Now I’m willing to help anyway I
can. But it has to make sense I can’t go down there and say I lied they hav[e]
a whole flash drive full of evidence down to you going live before and after the
whole incident”). That the victim had remorse for Appellant facing
consequences for her undisputed actions did not render the imposed sentence
unreasonable after the fact.
Appellant’s claim fails to demonstrate that the sentencing court abused
its discretion by imposing concurrent terms of imprisonment at the bottom of
the standard range recommended by the Sentencing Guidelines. The cited
factors for mitigation addressed in Appellant’s claim appeared to have been
properly considered by the sentencing court. We find no basis to vacate the
court’s determination as to the penalty where, as the court noted at
sentencing, “the facts of this case are disturbing in that it did involve violence
- 12 -
J-S01045-23
and it did involve children.” N.T. 3/11/22, 8. The imposed sentence was not
unreasonable and, given the application of the Sentencing Guidelines, it
appears to have been the product of a high prior record score.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
- 13 -