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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS LOMAX :
:
Appellant : No. 1886 EDA 2017
Appeal from the Judgment of Sentence March 16, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008210-2009
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J.: FILED APRIL 11, 2019
Thomas Lomax appeals, nunc pro tunc, from the judgment of sentence
imposed on March 16, 2010, in the Court of Common Pleas of Philadelphia
County. On appeal, Lomax challenges the discretionary aspects of his
sentence. We affirm.
Lomax entered non-negotiated pleas of guilty to the crimes of robbery
and possessing an instrument of crime (“PIC”) and was sentenced to
concurrent terms of eight to sixteen years’ incarceration on the robbery charge
and two and a half to five years’ incarceration on the PIC charge. At the same
time, he pled guilty to aggravated assault and PIC arising from an unrelated
incident1. The sentencing was consolidated pursuant to Pa.R.Crim.P. 701. He
was sentenced to five to ten years on the aggravated assault charge and two
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1 CP-5-CR-0008921-2009
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and a half to five years on the PIC charge, both to run concurrent to the
sentences stemming from the robbery.
On April 6, 2010, the court denied his post sentence motion for
reconsideration of sentence. He did not file an appeal.
On October 8, 2010, Lomax filed a timely pro se petition for relief
pursuant to the Post Conviction Relief Act2 (“PCRA”) in which he claimed his
trial counsel was ineffective in communicating with him regarding his guilty
plea.
New counsel was appointed who filed an amended petition on August
16, 2012 seeking reinstatement of Lomax’s appellate rights nunc pro tunc. On
July 8, 2013, the court granted Lomax leave to file an appeal nunc pro tunc,
which was filed on July 31, 2013. However, on January 14, 2015, this Court
dismissed Lomax’s appeal due to counsel’s failure to file a brief.
On April 1, 2015, Lomax filed a second pro se PCRA petition requesting
new counsel be appointed. New counsel was appointed, who filed an amended
petition on March 13, 2017 seeking reinstatement of Lomax’s appellate rights
nunc pro tunc. On May 15, 2017, the PCRA court again reinstated his appellate
rights. This timely appeal followed.
In his sole issue on appeal, Lomax argues that the trial court abused its
discretion by imposing a manifestly excessive sentence. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
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2 42 Pa.C.S.A. §§ 9541-9546.
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permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (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, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Lomax preserved his issue through a timely motion for
reconsideration of the sentence imposed, and filed a timely appeal. Counsel
has included the required Rule 2119(f) statement. We therefore review the
Rule 2119(f) statement to determine if Lomax has raised a substantial
question.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
omitted); see also Pa.R.A.P. 2119(f).
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Lomax “must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at
274 (citation omitted). That is, “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.” Tirado, 870
A.2d at 365.
Lomax’s Rule 2119(f) statement claims that the trial court imposed a
manifestly excessive sentence. A generic claim that a sentence is excessive
does not raise a substantial question for our review. See, e.g.,
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). However,
Lomax asserts that the Court focused solely on the seriousness of the offense
and did not consider his individual characteristics. See Appellant’s Brief, at 7.
An averment that the court sentenced based solely on the seriousness of the
offense and failed to consider all relevant factors has been found to raise a
substantial question. See Commonwealth v. Macias, 968 A.2d 773 (Pa.
Super. 2009). We therefore turn to Lomax’s claim.
Our standard of review of a sentencing challenge is well settled:
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.
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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
Here, the trial court reviewed a pre-sentence report. Where the trial
court had the benefit of reviewing a pre-sentence report, we must
presume that the sentencing judge was aware of relevant
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.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, 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 a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at
hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992). As the
trial court in this case had the benefit of a pre-sentence report as well as a
mental health report, combined with the trial court’s consideration of the
seriousness of the offenses we conclude that it considered all relevant
sentencing factors.
We acknowledge the court sentenced Lomax outside the guidelines for
robbery and note that it does not appear the trial judge explicitly stated his
reasons for sentencing Lomax when he imposed sentence. See Pa.R.Crim.P.
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§ 704(C)(2). However, Lomax has not challenged this omission on appeal.
Since it is not an illegal sentence claim, it is waived.
This issue was brought up during the hearing on Lomax’s motion for
reconsideration of sentence during which the Judge explained his reasons for
sentence on the record.
No one would argue that if he got a five to ten-year sentence on
the robbery bill and a different Judge on the aggravated assault
gave him three to something, or five to something on the
aggravated assault bill and made them run consecutive, they
would both be perfectly acceptable guideline sentences. They
would be within the normal range, and there would be no grounds
for any attack on the sentence, or reasons for the Court to
reconsider.
It’s a situation where there was two separate events committed
at two separate times; one where the defendant’s out on bail for
one felony when he committed another felony and the fact that
they were disposed of together under a 701 plea consolidated
allowed him to retain a prior record score of zero for both and
allowed a consolidated sentence.
In effect my sentence takes that into consideration, and I could
have made it look easier administratively if I gave the five to ten
on one and three to something on the other and made them run
consecutively. I didn’t do that, and I just made everything on the
robbery bill, which a rose by any other name would smell as sweet
except no different.
N.T., 4/6/2010, at 7-8.
Thus, the Judge recognized that he imposed the greater sentence on
the robbery charge even though the guidelines were higher on the aggravated
assault charge. He reasoned that he essentially sentenced Lomax to eight to
sixteen years total on both cases in front of him. Rule of Criminal Procedure
701 provides that, before the imposition of a sentence, a defendant may plead
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guilty to other offenses committed by him within the jurisdiction of the
sentencing court. When such pleas are accepted, the court must sentence the
defendant for all of the offenses. It is clear the judge took into account the
consolidated nature of the sentencing and fashioned an aggregate sentence
which considered both cases, and all four offenses, that were before him.
As the court balanced the individual sentence for robbery with a below
guidelines sentence on the aggravated assault charge, we find the aggregate
sentence as a whole was not unreasonable considering the consolidated
nature of the plea hearing. See Pa.R.Crim.P. 701.
We conclude that Lomax’s claim is without merit. As this is the only issue
presented by Lomax on appeal, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/19
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