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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM JOHN DAVIS, JR. :
:
Appellant : No. 227 MDA 2020
Appeal from the Judgment of Sentence Entered January 17, 2019,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0004394-2016.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 14, 2020
William John Davis appeals from the judgment of sentence imposed
after the trial court revoked his probation. We affirm.
The pertinent facts and procedural history may be summarized as
follows: On November 16, 2016, Davis entered a negotiated guilty plea to
one count of drug delivery resulting in death and one count of criminal use of
a communication facility.1 That same day, the trial court sentenced Davis in
accordance with the plea agreement to eleven and one-half months to two
years less one day, and a consecutive fourteen-year probationary term.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2506(a) & 7512(a), respectively.
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On August 26, 2019, the Berks County Adult Probation and Parole Office
applied for a warrant for Davis’ arrest based upon his failure to comply with
the conditions of his probation, including a new criminal conviction and the
use of drugs. Ultimately, on January 17, 2020, Davis entered an open guilty
plea to the new criminal charge, and the trial court sentenced him to a term
of one to five years of incarceration.
The trial court then immediately proceeded to a Gagnon II2 hearing
regarding the revocation of probation for his 2016 convictions, at which time
Davis admitted the violations. The trial court then revoked Davis’ probation
and sentenced him to an aggregate term of five and one-half to fifteen years
of imprisonment, and a seven-year probationary term. This sentence was to
run concurrent to the sentence imposed for his 2019 conviction. Davis filed a
timely post-sentence motion, which the trial court denied. This appeal
followed. Both Davis and the trial court have complied with Pa.R.A.P. 1925(a).
Davis raises the following issue:
1. Whether the trial court abused its discretion when it
imposed a sentence of not less than sixty-six (66)
months nor more than fifteen (15) years [of
incarceration] that was inconsistent with the Title 42 §
9721(b) factors of the protection of the public, the
gravity of the offense and the rehabilitative needs of
[Davis] while failing to take into consideration [Davis’]
mitigating factors, which included [his] expressed
remorse, progress in drug treatment, and success in
maintaining full-time employment.
____________________________________________
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Davis’ Brief at 14.
Davis challenges the discretionary aspects of his sentence. This Court
has explained that, to reach the merits of a discretionary sentencing issue, we
must conduct a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of
sentence [in accordance with 2119(f)]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. . . . [I]f
the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Davis satisfied the first three requirements under Colon.
Accordingly, we must determine whether he has raised a substantial question
for our review. An appellant raises a “substantial question” when he “sets
forth a plausible argument that the sentence violates a provision of the
[S]entencing [C]ode or is contrary to the fundamental norms of the sentencing
process.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010) (citation omitted).
The Commonwealth contends that Davis’ Rule 2119(f) statement is
wholly deficient. See Commonwealth’s Brief at 12. A reading of Davis’ two-
page statement reveals that it consists of no more than boilerplate statements
of law that fails to provide any facts or arguments applying this case law to
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the circumstances surrounding the sentence imposed. In this situation, this
court has found waiver of a sentencing challenge. See e.g., Commonwealth
v. Williams, 562 A.2d 1385, 1389 (concluding that when an “appellant’s Rule
2119(f) statement contains no factual averments which suggest that the
sentencing scheme as a whole has been compromised, but instead merely
paraphrases appellant’s argument as to why the sentencing court abused its
discretion in imposing the allegedly excessive sentence, the petition for
permission to appeal must be denied”).
As this Court more recently has explained, however, “we cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017).
Although he provides no facts regarding his sentence in his 2119(f) statement,
in his statement of the question presented on appeal, Davis asserts that his
sentence is inconsistent with the protection of the public, the gravity of the
offense, and his rehabilitative needs. In addition, Davis avers that the trial
court failed to take into consideration mitigating factors, such as his remorse
and previous progress in drug treatment. Davis’ Brief at 14. Although Davis
should have reiterated such statements in his Rule 2119(f) statement, we find
that he has raised a substantial question. See Johnson-Daniels, 167 A.3d
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at 27; Commonwealth v. Swope, 123 A.3d 333, ___ (Pa. Super. 2015)
(concluding that and an excessive sentence claim).3
Our standard of review when deciding a sentencing claim 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, is not shown merely to be 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.
Commonwealth v. Shull, 148 A.3d 820, 831 (Pa. Super. 2016) (citation
omitted).
Here at sentencing, before imposing sentence, the following exchange
with defense counsel occurred:
THE COURT: All right. Then Commonwealth[‘s] Exhibit
1-B [the transcript of Davis’ 2016 guilty plea and
sentencing] is admitted into the record for purposes of the
[Gagnon].
Taking into consideration the recommendation of the
Adult Probation Office, my review of Commonwealth’s
Exhibit 1-B, the information placed on the record by adult
probation in terms of [Davis’] cooperation with the
Lancaster County Probation Office as well as the
circumstances surrounding his apprehension from a
warrant, [defense counsel] . . . I am assuming you want me
____________________________________________
3 We are not persuaded by the Commonwealth’s additional claim of waiver
based on Davis’ failure to preserve his current claims in his post-sentence
motion. See Commonwealth’s Brief at 13 n.5. Although the language in
Davis’ post-sentence motion is not identical, we conclude that Davis has
sufficiently preserved his sentencing challenge.
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to use all the information that you previously submitted with
regard to [Davis’] medical records and the letters from
Camp Joy in consideration of this resentence[?]
[DEFENSE COUNSEL]: I should have put that on the
record, that I’m asking you to incorporate the exhibits and
information presented [regarding the theft charge] also as
a basis for you decision here on resentencing.
N.T., 1/17/20, at 10. The trial court acknowledged this request and then
imposed the sentence at issue.
Davis claims the trial court “failed to take into consideration the factors
enumerated in § 9721 in addition to the case-by-case analysis of § 9781”; 2)
failed to consider the mitigating factors he presented; and 3) failed to properly
consider his rehabilitative needs. Davis’ Brief at 22-23. In addition, Davis
argues that the “lengthy sentence would interfere with his ability to attend
treatment at a place where he clearly flourished in the past,” and that “the
sentence imposed disproportional to the [theft] charge that triggered the
[probation] violation.” Davis’ Brief at 23.
The trial court found that Davis’ challenge to the discretionary aspects
of his sentence did not entitle him to relief. Amplifying its statement at
sentencing with regard to the information it considered the trial court stated:
In the instant case, this court thoroughly considered the
recommendation of the Adult Probation Office, the
arguments of counsel, [Davis’] statement, and a transcript
of [Davis’] November 16, 2016 guilty plea and sentence to
the underlying charge before imposing a [minimum]
sentence that was below the Commonwealth’s request for a
seven to fourteen years of incarceration. While we were
aware that the sentencing guidelines did not apply [to
sentencing following probation revocation,] this court
imposed a sentence that was in fact within the sentencing
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guidelines and that we determined was consistent with the
protection of the public, the gravity of the offenses, as they
related to the impact on the community, and the
rehabilitative needs of [Davis]. See 42 Pa.C.S.A. § 9721(b).
[Davis’] sentence is appropriate, and there was no abuse of
discretion.
Trial Court Opinion, 4/13/20, at 4 (citation to record omitted).
Our review of the record supports this conclusion. Davis faced a
maximum sentence of forty years for his drug delivery resulting in death
conviction alone. The court imposed five and a half to fifteen years, followed
by seven years of probation. A sentencing court has broad discretion to
consider evidence in determining a sentence. The court should consider the
fullest information possible concerning a defendant’s life and characteristics,
which can be highly relevant—if not essential—to his selection of an
appropriate sentence. See Commonwealth v. Kleinicke, 895 A.2d 562, 567
(Pa. Super. 2006). Here, the trial court reviewed all the information received,
Davis’ statement, and the arguments of counsel before arriving at its sentence
choice. In essence, Davis is asking this Court to substitute our judgment for
that of the trial court. This we will not do. Williams, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2020
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