J-S07036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC W. LOMAX :
:
Appellant : No. 908 WDA 2021
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001531-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC W. LOMAX :
:
Appellant : No. 909 WDA 2021
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001596-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC WAYNE LOMAX JR. :
:
Appellant : No. 910 WDA 2021
Appeal from the Judgment of Sentence Entered June 30, 2020
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000683-2015
J-S07036-22
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 21, 2022
Eric Wayne Lomax, Jr. (Lomax) appeals the judgments of sentence and
the revocation of probation sentence entered on June 30, 2020, by the Court
of Common Pleas of Erie County (trial court) in the three above-captioned
cases. These sentences were all made consecutive and within the standard
statutory ranges. In this appeal, Lomax contends that the trial court cut short
his right to allocution, resulting in manifestly excessive and unreasonable
sentences. We affirm.
I.
The trial court has summarized the relevant case facts and procedural
history as follows:
At Erie County Docket No. 683 of 2015, [Lomax] entered a
guilty plea to Unlawful Delivery (Heroin) in May, 2015, and he was
originally sentenced on June 15, 2015 to a period of incarceration
followed by probation. As relevant to this appeal, on June 30,
2020, [Lomax’s] probation at this docket was revoked for
the second time and he was re-sentenced to 15 months to
30 months of incarceration.
At Erie County Docket No. 1531 of 2019, on January 6, 2020,
[Lomax] entered a negotiated guilty plea to Count Two, Firearms
Not To Be Carried Without a License (loaded firearm). The
conviction arose from [Lomax’s] actions in carrying a loaded
firearm at a Country Fair convenience store in Erie, Pennsylvania
on or about May 1, 2019. The remaining charges were nolle
prossed. As relevant to this appeal, on June 30, 2020, [Lomax]
was sentenced to 42 months to 84 months of incarceration,
consecutive to the revocation sentence imposed at No. 683
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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of 2015. The sentence was in the standard range of the
guidelines.
At Erie County Docket No. 1596 of 2019, on January 6, 2020,
[Lomax] entered a negotiated guilty plea to Count Three, Firearms
Not To Be Carried Without a License; Count Eight, which was
amended to Conspiracy to commit Burglary; and Count Eleven,
Intimidation of Witnesses or Victims, which was amended to a
first-degree misdemeanor. The convictions arose from [Lomax’s]
actions in brandishing a handgun and forcibly entering a residence
in Erie, Pennsylvania, removing, inter alia, a debit card and/or
jewelry and/or cellular phones and threatening to kill the victims
and/or their families. The remaining charges were nolle prossed.
As relevant to this appeal, on June 30, 2020, [Lomax] was
sentenced at Count Three, Firearms Not To Be Carried
Without a License, to 24 months to 48 months of
incarceration, consecutive to the sentence imposed at
Count Two of No. 1591 of 2019. [Lomax] was sentenced at
Count Eight, Conspiracy to Commit Burglary, to 27 months
to 54 months of incarceration, followed by 6 years of
probation, concurrent with Count Three at No. 1596 of
2019. At Count Eleven, the intimidation charge, [Lomax]
was sentenced to 12 months to 24 months of incarceration,
concurrent with Count Three at No. 1596 of 2019. These
sentences imposed at No. 1596 of 2019 were standard-range
sentences.
Trial Court Opinion, 10/6/2021, at 2-3 (headings and footnotes omitted,
emphases added).
After he was sentenced in the above three matters, Lomax sought to file
post-sentence motions and a motion for reconsideration. However, Lomax’s
counsel immediately filed notices of appeal before the post-sentence motions
were filed. The appeals were later dismissed on January 27, 2021, because
counsel had not filed any appellate briefing. The trial court then granted
Lomax post-conviction relief, allowing him to file direct appeals as to his three
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sentences, nunc pro tunc. Lomax was then appointed appellate counsel, and
after timely filing his appeals, he raised a single claim in his brief:
Did the trial court err in handing down sentences for this case that
were manifestly excessive and clearly unreasonable, when the
court did not allow [Lomax] to fully speak on his own behalf at
sentencing?
Appellant’s Brief, at 2. The Commonwealth has not filed a brief in response.
II.
Lomax’s central contention is that the trial court imposed a manifestly
excessive and unreasonable sentence in his three cases, and that the merit of
this claim is evidenced by the fact that the trial court denied Lomax the right
of allocution at the sentencing, precluding consideration of relevant sentencing
factors. Because Lomax raises an issue concerning a discretionary aspect of
his sentence, he must invoke this Court’s jurisdiction to consider the merits of
his claim by satisfying the following requirements:
(1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth “a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence[;]” and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code[.]
Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019)
(quoting Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.
2018) (internal citations omitted)). If all four of these elements are met, then
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this Court may review the merit of the claim under an abuse of discretion
standard. See Akhmedov., 216 A.3d at 328-29.1
In order to demonstrate that a substantial question has been raised, an
appellant must state (1) where his or her sentence falls in conjunction with
the Sentencing Guidelines; (2) the Sentencing Code provision that has been
violated; (3) the fundamental norm that the sentence ran afoul of; and (4)
how the sentence violated that norm. See Commonwealth v. Naranjo, 53
A.3d 66, 72 (Pa. Super. 2012); Commonwealth v. Maneval, 688 A.2d 1198,
1200 (Pa. Super. 1997) (same); see also 42 Pa.C.S. § 9781(c) (permitting
appellate review of sentences imposed unreasonably or in violation of
statutory guidelines).
In the present case, Lomax has substantially complied with the above
elements for raising a substantial question as to the discretionary aspects of
his sentences. He has filed a timely notice of appeal and a post-sentence
motion seeking a modification of his sentences. See Appellant's Brief, at 10-
11. His brief contains a separate section in compliance with Pa.R.A.P. 2219(f)
____________________________________________
1 “[A] sentence will not be disturbed on appeal absent a manifest abuse of
discretion.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (citation omitted). In the context of sentencing, “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.
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detailing the fundamental sentencing norm he claims was violated. He has
also identified a substantial question.2
Turning now to the merits, we consider Lomax’s claim that the trial court
imposed a manifestly excessive and unreasonable sentence, as evidenced by
his right to allocution being improperly curtailed.3 Contrary to what Lomax
asserts, the record establishes that he received an opportunity to address the
trial court in writing and verbally in open court4 prior to sentencing:
[Trial Court]: I understand. We will be fair amongst all the
codefendants here. All right, sir, taking into account what has
been said by you and both counsel and our state parole agent —
[Defense Counsel]: Your Honor, he hasn’t had a chance —
[Trial Court]: I’m sorry. Oh, I read the letter. Anything you would
like to add in furtherance of that, sir?
____________________________________________
2 Lomax appears to assert that by cutting short the right to allocution, the trial
court was unable to consider potentially relevant or mandatory considerations
that he would have raised at the sentencing hearing. Such a claim involves a
substantial question concerning discretionary aspects of the sentence. See
e.g., Commonwealth v. Roden, 730 A.2d 995, 996-97 (Pa. Super. 1999)
(substantial question raised where defendant asserted that the trial court
failed to consider mandatory sentencing factors).
3 The right to allocution is guaranteed by Pa.R.Crim. P. 704(C)(1), which
provides that, “at the time of sentencing, the judge shall afford the defendant
the opportunity to present information and argument relative to sentencing.”
Moreover, under 42 Pa.C.S. § 9752(a)(2), a defendant has the “right to make
a statement” before sentencing, and “as soon as practicable after the
determination of guilt[.]”
4The proceedings were conducted remotely by video due to health and safety
measures related to the COVID-19 outbreak.
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[Lomax]: My apologies. You got my letter. I just want to
apologize additionally.
[Trial Court]: You know, I did read your letter, and you
sound very sincere, but I don’t know why you don’t think
of these things before you commit these dastardly crimes.
I mean, your record is atrocious.
[Lomax]: I understand, Your Honor.
[Trial Court]: I mean, your record tells me who you are.
[Lomax]: It’s not who I am though. The circumstances,
everything — I don’t want to make excuses, but I know I made
those errors and faults and decisions. I just want to apologize.
Like [defense counsel] said, I don’t want to go away and not have
a chance to be able to come back and do good. I’m better than
this.
[Trial Court]: I have no doubt you could do good if you wanted to,
but that’s not what we have in front of us. So once again, I am
taking into account the statements of both counsel, the
statement of the state parole agent, the statement of the
defendant as well as the well-written letter that he did
send to me that I did get this morning and did have a
chance to read.
I’m also taking into account the pre-sentence investigation report,
... and it’s almost hard for me to believe that after the time you
served in the state pen and being on probation as you were that
you would get yourself mixed up with this kind of thing. It just
baffles me that the state prison time you did wasn’t miserable
enough for you to decide you were going to come out and be a
decent citizen. I’m also taking into account — what's that?
[Lomax]: It was. I just - I want to go home. I wasn’t myself after
losing my mom.
[Trial Court]: I’m having a hard time hearing him.
[Prosecutor]: He said he wasn’t himself anymore after losing his
mom.
[Trial Court]: Well, Yeah.
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[Lomax]: I became somebody that I wasn’t.
The Court: I--.
[Defense Counsel]: He said he became somebody that he wasn’t.
Again, the death of his mother — losing his mother set him on
another tailspin.
[Trial Court]: Tell you what, Lomax, we all lose our mothers
sometime. You have to be able to deal with it, all right? And one
way is not to go out and get guns and threaten others in our
community.
Sentencing Transcript, 6/20/2020, at pp. 13-16 (emphasis added).
In sum, Lomax sent a letter to the trial court which the trial court read.
At the sentencing hearing, the trial court allowed Lomax to elaborate on what
he had conveyed in the letter. Lomax then apologized for his crimes and
explained that the loss of his mother had contributed to his criminal behavior.
As reflected by the transcript, the exchange between Lomax and the trial court
appeared to come to a natural conclusion.
There is nothing in the record to suggest that Lomax had something
further to add or that he was otherwise dissatisfied with the length of
allocution. No objection appears on the record, nor any other indication that
Lomax had not yet finished addressing the trial court. Moreover, we find no
evidence in the record to support the contention that the trial court otherwise
failed to consider any statutorily mandated factors outlined in the Sentencing
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Code.5 Thus, Lomax’s appeal has no merit, and the judgments of sentence
must be upheld.
Judgments of sentence affirmed.
Judge Olson joins the memorandum.
Judge Sullivan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2022
____________________________________________
5 When imposing sentence, the trial court must consider, inter alia, “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b).
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