J-S59021-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER ALLEN TEVIS, :
:
Appellant : No. 185 WDA 2015
Appeal from the Judgment of Sentence December 16, 2014,
Court of Common Pleas, Blair County,
Criminal Division at No. CP-07-CR-0000703-2012
BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 06, 2015
Appellant, Christopher Allen Tevis (“Tevis”), appeals from the
judgment of sentence entered on December 16, 2014 by the Court of
Common Pleas of Blair County, Criminal Division, following remand from this
Court for resentencing. For the reasons that follow, we affirm.
A prior panel of this Court summarized the facts and procedural history
of this case as follows:
On August 23, 2011, D.S. and Tevis, her
boyfriend at the time, argued about their relationship
throughout the day. When D.S. attempted to leave
Tevis’ apartment, Tevis stood in front of the
doorway, blocking her from exiting. Around
midnight, Tevis demanded to have sexual
intercourse with D.S., a request that she refused.
According to D.S., Tevis then grabbed her by the
arms, punched her in the head, used a utility knife to
cut her shirt below her breast, and held a large
kitchen knife to her throat. Eventually[,] D.S. was
able to escape Tevis’ residence. D.S. later called the
*Former Justice specially assigned to the Superior Court.
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police and was taken to the Altoona Hospital by an
ambulance. At the hospital, D.S. accused Tevis of
raping and assaulting her. On August 29, 2011, the
Altoona Police arrested Tevis and charged him with
aggravated assault, simple assault, rape—forcible
compulsion, and unlawful restraint.1 At the time of
his arrest, Tevis made several unsolicited statements
to the police. Specifically, Tevis stated that D.S. had
physically attacked him without provocation by
punching him in the face multiple times. Tevis
further alleged that any injuries that D.S. suffered
were the result of Tevis defending himself against
D.S.
Tevis was unable to post bail and remained
lodged in the Blair County Prison. While
incarcerated, Tevis mailed a series of letters to D.S.
[Based on these letters as well as phone calls he
made to D.S., Tevis was charged with intimidation of
witnesses or victims and harassment2 on February
27, 2012. Those charges were filed and docketed at
CP-07-CR-0000703-2012.]
* * *
The trial court consolidated Tevis’ two cases for a
jury trial, which commenced on July 30, 2012, and
ended on August 1, 2012.
* * *
On August 1, 2012, the jury acquitted Tevis of
rape—forcible compulsion, aggravated assault, and
unlawful restraint. The jury found Tevis guilty of
simple assault and intimidation of witnesses or
victims. On November 1, 2012, Tevis was sentenced
at both docket numbers. The trial court sentenced
Tevis to six to twelve months’ imprisonment for
1
18 Pa.C.S.A. §§ 2702(a)(4), 2701(a)(1),
3121(a)(2), 2902(a)(1).
2
18 Pa.C.S.A. §§ 4952(a)(2), 2709(a)(7).
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simple assault, and sixty to one hundred twenty
months’ imprisonment for intimidation of a witness.
Imposed consecutively, Tevis’ sentences resulted in
an aggregate term of five and one half to eleven
years’ incarceration.
On November 1, 2012, Tevis timely filed a post-
sentence motion seeking a new trial in both cases.
On November 13, 2012, Tevis filed a supplemental
post-sentence motion. Therein, Tevis argued, inter
alia, that the sentence imposed for intimidation of a
witness was “too harsh under the circumstances,”
given that the jury acquitted Tevis of rape.
Supplemental Post-Trial Motions, 11/13/2012, at 1
(unnumbered). On February 15, 2013, the trial
court denied Tevis’ post-sentence motions without a
hearing. On that same day, Tevis timely filed a
notice of appeal.
Commonwealth v. Tevis, 403 WDA 2013 at 1-5 (Pa. Super. October 3,
2014) (unpublished memorandum).
On October 3, 2014, a panel of this Court vacated Tevis’ simple assault
conviction and remanded the case for a new trial on that charge. See id. at
19-27, 29. “Because the trial court imposed Tevis’ sentences for simple
assault and intimidation of witnesses or victims consecutively,” the panel
further determined that its “disposition has disturbed the court’s overall
sentencing scheme.” Id. at 29. Therefore, the panel vacated Tevis’
judgment of sentence in its entirety and remanded for resentencing on the
intimidation of witnesses or victims count after retrial on the simple assault
count. Id.
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On remand, the Commonwealth chose not to retry Tevis on the simple
assault charge resulting in the dismissal of that charge. See Trial Court
Order, 12/16/14, at 1. On December 16, 2014, following a sentencing
hearing, the trial court resentenced Tevis to a term of five to ten years of
incarceration on the intimidation of witnesses or victims charge. On
December 24, 2014, Tevis filed a motion to modify sentence in which he
averred his sentence was inconsistent with “his lack of adult record and good
conduct while in jail.” Post-Sentence Motion to Modify Sentence, 12/24/14.
The trial court denied Tevis’ post-sentence motion on January 9, 2014.
This timely appeal followed.3 On appeal, Tevis raises the following
issue for our review: “Whether the trial court’s excessive sentencing of
Tevis to sixty (60) months to one hundred twenty (120) months [of
incarceration] in file 703-2012 raises a substantial question as to the
reasonableness of the sentence[?]” Tevis’ Brief at 6.
The sole issue Tevis raises on appeal challenges the discretionary
aspects of his sentence. “The right to appellate review of the discretionary
aspects of a sentence is not absolute, and must be considered a petition for
permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An
appellant must satisfy a four-part test to invoke this Court’s jurisdiction
3
The trial court did not order Tevis to file a concise statement of the errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure.
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when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether,
(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Tevis preserved his discretionary aspects of sentencing claim by
raising it in a post-sentence motion. See Post-Sentence Motion to Modify
Sentence, 12/24/14. Tevis also filed a timely notice of appeal and included
in his appellate brief a concise statement of the reasons relied upon for the
allowance of his appeal pursuant to Rule 2119(f) of the Pennsylvania Rules
of Appellate Procedure. See Tevis’ Brief at 10. Thus, we must determine
whether Tevis’ discretionary aspects of sentencing claim raises a substantial
question for our review. Tevis argues that his sentence is excessive and that
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the trial court failed to consider mitigating factors such as his “young age,
low prior record score, and statement of self-accountability.” Id. This Court
recently has held “that an excessive sentence claim – in conjunction with an
assertion that the court failed to consider mitigating factors – raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602
(Pa. Super. 2005)). Accordingly, we turn our attention to the merits of
Tevis’ sentencing claim.
Our standard of review for discretionary aspects of sentencing claims
is as follows:
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.
Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa. Super. 2006)).
Our review of the discretionary aspects of a sentence is confined by
the statutory mandates of 42 Pa.C.S.A. §§ 9781(c) and (d). Subsection
9781(c) provides:
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The appellate court shall vacate the sentence and
remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied
the guidelines erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the
guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c). In reviewing the record, we must consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
We conclude that the trial court did not abuse its discretion in
sentencing Tevis. The certified record reflects that Tevis received a sentence
in the standard guideline range. See N.T., 12/16/14, at 24. Additionally,
the trial court had a presentence investigation report and acknowledged
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reviewing it. Id. at 19. “[W]here the sentencing court imposed a standard-
range sentence with the benefit of a pre-sentence report, we will not
consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293,
298 (Pa. Super. 2011). Additionally, “[i]n those circumstances, we can
assume the sentencing court was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Id. (quotations and citations omitted).
Furthermore, contrary to Tevis’ assertions, the certified record reflects
that it took into consideration several mitigating factors in sentencing Tevis,
including his low prior record score and statement of accountability. See
N.T., 12/16/14, at 19-25. The trial court, however, indicated that it did not
accept Tevis’ statement of accountability, because Tevis merely claimed that
his crimes were the result of anger issues. Id. at 19. Rather, the trial court
found, based on the nature of his crimes, that his actions were the product
of someone who was sociopathic, calculating, and manipulative. See id. at
20. The trial court determined that the act of threatening and intimidating
someone into changing her story against him was not the result of a “flash”
of anger, but rather was a calculated and manipulative effort to get out of
trouble. See id. at 21. The trial court also took into consideration Tevis’
psychiatric history, which included diagnoses of bipolar disorder, obsessive-
compulsive disorder, and attention deficit hyperactivity disorder, noting that
in the past, Tevis had not been receptive to treatment for these mental
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health issues. See id. at 20, 23. Based on these findings, the trial court
determined that Tevis was a danger to others, was not a reformed
individual, and belonged in prison. See id. at 20-21.
Therefore, there is no support for Tevis’ claim that his sentence was
excessive and that the trial court did not take into consideration certain
mitigating factors in sentencing him. Accordingly, Tevis’ discretionary
aspects of sentencing claim does not entitle him to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2015
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