Com. v. Lofton, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEVIN LOFTON
Appellant No. 2524 EDA 2014
Appeal from the Judgment of Sentence July 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010925-2009
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 21, 2015
Kevin Lofton appeals from the judgment of sentence imposed on July
10, 2014, in the Court of Common Pleas of Philadelphia County following a
remand for resentencing. Lofton’s original judgment of sentence was
imposed on August 15, 2011 following his conviction by jury on charges of
second-degree murder, robbery, conspiracy to commit robbery, possession
of an instrument of a crime, and carrying firearm without a license.1
Because Lofton was a juvenile at the time of the commission of the crime,
the mandatory life sentence was vacated pursuant to the dictates of Miller
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1
18 Pa.C.S. §§ 2502(b), 3701(a)(1), 903(a)(1), 907(a), and 6106(a)(1),
respectively.
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v. Alabama, 132 S.Ct. 2455 (2012).2 A new sentencing hearing was held
before the Honorable Benjamin Lerner,3 who imposed an aggregate term of
45 years to life imprisonment. In this timely appeal, Lofton claims the trial
court abused its discretion when, under the totality of the circumstances, it
imposed a manifestly excessive sentence. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
The facts regarding the underlying crime are not at issue and are well
known to the parties. Therefore, we note only that on the evening of
December 25, 2007, Lofton and two cohorts robbed and murdered Andrew
Jackson, who had been attending a family holiday party and had gone to his
car to retrieve a case of beer. The evidence presented at trial demonstrated
that Lofton shot Jackson seven times with a .25 caliber handgun. At the
time of the commission of the crime, Lofton was approximately 16.75 years
old.
As noted above, Lofton’s mandatory sentence of life imprisonment was
vacated and, following a sentencing hearing held on July 10, 2014, before
Judge Lerner, Lofton received an aggregate term of 45 years to life
imprisonment. Lofton now argues that sentence represents an abuse of
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2
See Commonwealth v. Lofton, 57 A.3d 1270 (Pa. Super. 2012).
Lofton’s convictions were upheld, only the sentence was vacated.
3
The trial judge, the Honorable Caroline Engel Temin, retired prior to the
remand.
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discretion in that it is manifestly excessive and based upon the sentencing
court’s improper consideration of only the nature of the crime without
properly considering the many mitigating factors presented at the hearing.
Before we address Lofton’s claim, because this is a challenge to the
discretionary aspects of his sentence, we are first required to review the
claim to determine if Lofton has raised a substantial question.
Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right. Commonwealth v.
Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Before this Court
can address such a discretionary challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying
a 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.Commonwealth v. Caldwell, ___ A.3d ___, [2015 PA Super 128, at *2]
(Pa. Super. 5/26/2015).
Lofton’s appeal is timely and he filed a timely motion for
reconsideration of sentence with the court below. He has also included the
required Pa.R.A.P. 2119(f) statement in his brief. We must now consider
whether his argument that the sentencing court focused only on the nature
of the crime, thereby failing to properly consider mitigating factors, which
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led to the imposition of a manifestly excessive sentence, raises a substantial
question. Pursuant to Commonwealth v. Samuel, 103 A.3d 1001 (Pa.
Super. 2014) (a claim of an excessive sentence due to failure to consider
mitigating factors raises a substantial question) and Commonwealth v.
Boyer, 856 A.2d 149 (Pa. Super. 2004) (a claim of an excessive sentence
due to focusing solely on the nature of the crime raises a substantial
question), we find Lofton has raised a substantial question.
Although Lofton has raised a substantial question, our review of the
certified record demonstrates his claims are not supported by the facts. The
notes of testimony from the July 10, 2014, sentencing hearing demonstrate
the hearing was anything but pro forma. The sentencing court heard a
victim impact statement detailing the hardships visited upon the victim’s
family as a result of the murder. Lofton’s mother testified, detailing the
psychological problems her son faced, the difficulties of growing up without a
father or strong father-figure, and the trauma Lofton endured having two
brothers die at an early age. The sentencing court considered the
Commonwealth’s sentencing memo, as well as details of Lofton’s time spent
in both Glen Mills and Vision Quest. The sentencing court reviewed
psychological profiles and the pre-sentence report, including the details of
Lofton’s several prior arrests and adjudications. Finally, the sentencing court
heard and considered Lofton’s allocution on his own behalf. The trial court
explained its reasoning at pages 46 to 54 in the notes of testimony of the
sentencing hearing. We refer the parties to those pages to reject Lofton’s
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allegation that Judge Lerner focused solely on the nature of the crime and
ignored mitigating circumstances.
Further, the reality of Judge Lerner’s thoughtful consideration of the
facts and circumstances surrounding Lofton’s crime is set forth in the
Pa.R.A.P. 1925(a) opinion, dated November 6, 2014. In that opinion, the
sentencing court reiterated the factors considered prior to sentencing Lofton,
including:
[T]he “juvenile’s age at the time of the offense, his diminished
culpability and capacity for change, the circumstances of the
crime, the extent of his participation in the crime, his family,
home and neighborhood environment, his emotional maturity
and development, the extent that familial and/or peer pressure
may have affected him, his past exposure to violence, his drug
and alcohol history, his ability to deal with police, his capacity to
assist his attorney, his mental health history and his potential for
rehabilitation.” [Commonwealth v. Batts, 66 A.3d 286, 297
(Pa. 2013).]
Here, in order to comply with the requirements of Miller, and 18
Pa.C.S. § 1102.1, the Superior Court ordered that appellant be
given an individualized sentencing hearing. Defense counsel was
instructed to prepare a sentencing presentation for this court’s
consideration. Defense counsel presented the court with a
comprehensive background report that examined appellant’s
family history, educational and institutional records, medical and
mental health history, vocational pursuits, substance abuse
history, perceptual experiences, and prison records. Counsel
also presented a psychological and mental health evaluation.
The Commonwealth also presented its own sentencing
memorandum and report.
Pa.R.A.P. 1925(a) opinion, 11/6/2014, at 3-4 (record citations omitted).
The sentencing court further stated:
The court considered the facts and circumstances of [Lofton’s]
crime. [Lofton], armed with a .25 caliber semi-automatic pistol,
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and two cohorts set out to rob someone. They spotted the
decedent, who was getting something from his car, pulled up
their hoodies and attempted to rob the decedent. The decedent
resisted. After a brief struggle, [Lofton] took out his gun and
shot the decedent seven times. The decedent suffered gunshot
wounds to the right shin, left thigh (2), lower abdomen, left
flank, left side of the back and right side of the back. (See
Medical Examiner’s Report). The decedent was transported to
Temple Hospital, where he was pronounced dead.
The court also considered the testimony and evidence presented
at [Lofton’s] sentencing hearing, which included victim impact
testimony, [Lofton’s] disciplinary infractions during his
incarceration (as a juvenile and as an adult) and mitigation
testimony.
Finally, the court also received and considered mitigation
evidence regarding all the age-related factors discussed in Miller
and Batts.
[Lofton] has demonstrated a sustained and serious disregard for
the safety and well being of others. He is a violent individual,
and his criminal acts of aggression have progressively gotten
worse. Despite extensive juvenile supervision and counseling,
[Lofton] continued and escalated his criminal activity. He
presents an extreme danger to society and does not, in this
court’s opinion, appear ready or willing to accept responsibility
for his actions. Indeed, even during his incarceration in a state
correctional facility for this offense, he continued to act violently
and inappropriately. These factors clearly outweigh [Lofton’s]
difficult childhood and his immaturity.
Id. at 5-6.
Our review of the certified record demonstrates the sentencing court
fulfilled its duty in considering all the proper factors in sentencing Lofton and
the 45-year minimum sentence is not an abuse of discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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