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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CARNELL THOMAS,
Appellant No. 3552 EDA 2013
Appeal from the Judgment of Sentence June 26, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000259-2012
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015
Carnell Thomas appeals from the judgment of sentence of nine to
twenty-three years imprisonment that the court imposed after he was
convicted at a bench trial of one count each of burglary and possession of an
instrument of crime and six counts each of simple assault and unlawful
restraint. We reject his challenges to the discretionary aspects of his
sentence and affirm.
The trial court set forth the facts adduced by the Commonwealth in
support of the outlined convictions:
Ms. Elaine Wilson, the first complainant in this case, testified
that on September 10, 2011, she was at her house on the 200
block of South 50th Street when her son Anthony Wilson walked
inside and told her that there was a fight going on outside on the
street. She walked outside and observed her son's friend Steve
fighting with Defendant. After the fight ended, Ms. Wilson went
back into the house and Anthony and Steve then went up to the
third floor of the house.
*
Retired Senior Judge assigned to the Superior Court.
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A few moments later, Defendant and his brother entered the
house and pointed a gun at Malik Wilson, Ms. Wilson's grandson,
backing him into the living room. Defendant then pointed the
gun at Ms. Wilson and her children Denae Wilson, Sherri Scott,
Joyce Wilson, and Tyreek Wilson, who were all seated on the
couch. Ms. Wilson testified that the gun was a small black
revolver. Defendant and his brother ordered Ms. Wilson and her
children to remain seated, and demanded that somebody go find
Steve. Joyce Wilson went upstairs to find Steve, but instead
sought help from her brother Sean Wilson. Ms. Wilson testified
that she felt like she could not leave at this point and that she
felt that her life was threatened.
As Sean Wilson entered the living room, Defendant pointed
the gun at him. Mr. Wilson proceeded to grab Defendant and
attempted to wrestle the gun from his hands. During the
struggle the gun went off and the shot fired hit the ceiling fan
and broke the attached glass light fixture, at which point
everybody ran out of the house. Ms. Wilson, Anthony Wilson
and Sean Wilson remained behind and were able to subdue
Defendant until the police arrived.
Mr. Sean Wilson, Ms. Wilson's oldest son, corroborated the
testimony of Ms. Wilson. Mr. Wilson testified that on September
10, 2011, he was at his house on 209 South 50th Street at
approximately 10:00 pm when his sister Joyce Wilson came
upstairs seeking help [with respect to] a gunman in the living
room. Sean testified that as he entered the living room he saw
Defendant pointing a black revolver at him. Mr. Wilson
immediately proceeded towards Defendant and attempted to
wrestle the gun out of his hand. During the struggle he heard
and felt the gun-go off. [Sean] Wilson and Anthony Wilson were
able to obtain the gun and hold Defendant down until the police
arrived.
Philadelphia Police Officer Tamika Reid testified that while she
was on duty on September 10, 2011, between 10:00 pm and
11:00 pm, she responded to a radio call indicating a person
screaming for help at 209 South 50th Street. Upon entering the
house, Officer Reid observed several occupants of that property
holding a male inside the property. Officer Reid also testified
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that she observed broken glass on the floor from a shattered
ceiling fan light fixture. Officer Reid identified Defendant as the
man being held.
....
Mr. Malik Wilson, Ms. Wilson's grandson, corroborated the
testimony of Mr. and Ms. Wilson. He testified that Defendant
entered his house on 209 South 50th Street at approximately 10
pm, and pointed a black revolver at his head and chest. Mr.
Wilson testified that he felt like he was unable to leave the
situation at this time.
Trial Court Opinion, 8/1/14, at 3-5 (citations to record and quotation marks
omitted).
The matter proceeded to sentencing on June 26, 2013, where the trial
court had the benefit of a presentence report. Additionally, Appellant’s
counsel spoke in mitigation of sentence, noting that Appellant had a prior
record score of only one, had children, was working full time prior to this
incident, was intoxicated when the crimes occurred, and obtained his GED
while in jail. The trial court imposed an aggregate sentence of nine to
twenty-three years. On the burglary conviction, Appellant was sentenced to
two to six years, which was within the applicable guidelines1 using the
deadly weapon enhancement, weapon possessed matrix. The court imposed
____________________________________________
1
The applicable guidelines were the 6th edition, effective June 3, 2005 to
December 28, 2012.
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sentences of one to two years, which exceeded the guidelines, 2 on the
unlawful restraint and the simple assault convictions. The unlawful restraint
and simple assault sentences were made concurrent to each other insofar as
they pertained to a single victim, but the one to two year term was imposed
consecutively as to all six victims. The sentence on PIC was one to five
years, an aggravated range sentence, and that sentence was made
consecutive to the other ones. No objection was raised to this sentence at
the hearing.
Appellant filed a timely post-sentence motion for reconsideration of the
sentence claiming that: 1) “the Court did not consider all of the factors” and
the sentence imposed was excessive; and 2) “the cumulative sentence of 9
to 23 years is excessive considering Petitioner’s limited prior record and
excellent chance of being rehabilitated.” Defendant’s Post-Sentence Motion,
7/8/13, at ¶¶ 4, 5. This appeal followed denial of the post-sentence motion.
Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
statement, and now raises this contention on appeal:
I. Did the trial court abuse its discretion and violate general
sentencing principles when the court sentenced [Appellant] to an
aggregate sentence of nine (9) to twenty three (23) years of
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2
The Commonwealth did not invoke the deadly weapon enhancement
guidelines when it outlined the applicable guideline ranges for the simple
assault and unlawful restraint convictions. N.T. Sentencing, 6/26/12, at 4.
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state imprisonment?
Appellant’s brief at 4.
A defendant does not have an absolute right to pursue a challenge to
the discretionary aspects of his sentence. Commonwealth v. Raven, 97
A.3d 1244, 1252 (Pa.Super. 2014). First, to preserve a discretionary
sentencing claim, the defendant must raise it either during the sentencing
proceedings or in a post-sentence motion. Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Second, to obtain merits
review of such a claim, an appellant must include a Pa.R.A.P. 2119(f)
statement in his brief. Raven, supra; Pa.R.A.P. 2119(b) (“An appellant who
challenges the discretionary aspects of a sentence in a criminal matter shall
set forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence.”). Finally, the Pa.R.A.P. 2119(f) statement must demonstrate
“that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b).” Raven,
supra at 1252 (citation and quotation marks omitted). A substantial
question warranting appellate review of a sentence is raised if the defendant
avers that “the sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular fundamental norm
underlying the sentencing process.” Id.
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Appellant’s brief does contain the requisite statement. Appellant’s
brief at 8. In that statement, as well as in the argument portion of his brief,
Appellant dissects his challenge to the sentence into two discrete aspects.
First, Appellant complains that the court “failed to consider all relevant
factors” in rendering its decision. Id. Second, he argues that the sentence
is manifestly excessive as grossly disproportionate to his crime and that the
trial court “failed to provide adequate reasons for the sentence on the
record” especially with respect to the sentences that exceeded the applicable
guidelines. Id. These positions raise a substantial question warranting
appellate review. Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super. 2014) (“It is well-established that a sentencing court's failure to
consider mitigating factors raises a substantial question.”); Commonwealth
v. Bowen, 55 A.3d 1254, 1263-64 (Pa.Super. 2012) (“In every case where
a sentencing court imposes a sentence outside of the sentencing guidelines,
the court must provide in open court a contemporaneous statement of
reasons in support of its sentence. 42 Pa.C.S.A. § 9721.”).
Appellant’s first claim is that the sentencing court focused solely on the
seriousness of the offense and did not consider the mitigating factors at
play. Concomitantly, Appellant suggests, his sentence was manifestly
excessive and the period of confinement was not consistent with the gravity
of the offenses, which he committed while intoxicated, or with his
rehabilitative needs. See 42 Pa.C.S. § 9721(b) (when imposing a sentence,
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the court must abide by the principle that the sentence of incarceration be
consistent with the public’s protection, the gravity of the offense, and the
defendant’s rehabilitative needs). This averment was preserved since it was
contained in the post-sentence motion.
Our standard of review is established: “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.” Bowen, supra
at 1263. An abuse of discretion occurs only if “the record discloses that the
judgment exercised was manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.” Id. (citation omitted).
Appellant takes umbrage with the sentencing court’s failure to
specifically articulate that it weighed Appellant’s low prior record score, his
personal background, his intoxication, and his rehabilitative needs. The fatal
flaw in this position is that the sentencing court herein had the benefit of a
presentence report, which the record establishes that it reviewed prior to
sentencing, and heard Appellant’s mitigation argument, which it also
expressly considered. N.T. Sentencing, 6/26/13, at 11. (“THE COURT: Well,
I reviewed the presentence report. I listened to the arguments of both
sides.”).
The law is settled. When the sentencing court possesses and
considers a presentence report, we are required by our Supreme Court’s
decision in Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988), to
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presume that the sentencing court “was aware of relevant information
regarding the defendant's character and weighed those considerations along
with mitigating statutory factors.” See also Commonwealth v. Griffin, 65
A.3d 932 (Pa.Super. 2013). The case upon which Appellant relies,
Commonwealth v. Richey, 779 A.2d 1183 (Pa.Super. 2001), is inapposite
because therein, the matter proceeded to sentencing immediately after the
defendant’s guilty plea was entered, and the court did not have a
presentence report. Hence, we must reject Appellant’s first position.
Appellant’s second averment is that the sentencing court failed to
articulate sufficient reasons for the sentence imposed. This contention is
waived. At sentencing, Appellant did not object to the court’s failure to
verbally justify its sentence. Additionally, the allegation was not preserved
in the post-sentence motion. However, since this allegation was raised in
the Pa.R.A.P. 1925(b) statement, it was addressed by the sentencing court.
That court maintained that it had proffered a sufficient basis for its decision.
We agree.
Initially, we note that “the sentencing guidelines are advisory in
nature.” Bowen, supra at 1264. A sentencing court may deviate from
them if “it offers reasons for this determination.” Id. We must affirm a
sentencing court’s departure if the rationale outlined by the sentencing court
indicates that its decision is not unreasonable. Id. “In order to find that a
trial court imposed an ‘unreasonable’ sentence, we must determine that the
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sentencing court imposed the sentence irrationally and that the court was
‘not guided by sound judgment.’” Commonwealth v. Riggs, 63 A.3d 780,
786 (Pa.Super. 2012) (partially quoting Commonwealth v. Walls, 926
A.2d 957, 961 (Pa. 2007)). In this case, the sentencing court supported its
sentence as follows:
For each sentence outside the recommended sentencing
guidelines, the Court acknowledged its deviations and put
reasons for these deviations on the record. The court noted that
although the imposed sentences for simple assault and [unlawful
restraint] were above the guideline sentences, "The aggregate
sentence was certainly within the guidelines." (N.T. 6/26/13 pg
16). The court reasoned further that the aggregate sentence of
nine to twenty three years was an appropriate sentence when it
comes down to a home invasion," despite minor deviations from
the guidelines on the individual crimes. (N.T. 6/26/13 pg 14).
This home invasion specifically involved holding six individuals at
gunpoint, including two minors, and a shot being fired.
Trial Court Opinion, 8/1/14, at 9.
This statement establishes that the trial court’s decision was neither
irrational nor unguided by sound judgment. Appellant entered a home and
brandished a weapon at six people, including adolescents aged fourteen and
fifteen and a sixty-year-old woman. He demanded that they produce the
man with whom he just had been fighting, presumably so Appellant could
shoot his target. The family came to the man’s defense, and Sean Wilson
attempted to disarm Appellant. In the process, a shot, which could have
struck someone, was fired in an occupied room. A sentence exceeding the
guideline ranges as to simple assault and unlawful restraint was not
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unreasonable in light of these circumstances especially since the sentences
were concurrent with each other to the extent the same victim was involved.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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