J-S09043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JIMMIE C. WILLIAMS

                            Appellant                 No. 900 MDA 2015


            Appeal from the Judgment of Sentence March 20, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000183-2015


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED FEBRUARY 02, 2016

        Appellant Jimmie C. Williams appeals from the judgment of sentence

entered on March 20, 2015 following his guilty plea to terroristic threats,

simple assault, and criminal attempt – escape.1 We affirm.

        The convictions stem from events that occurred on the night of

October 7, 2014.         Appellant was at the home of Tamika Sinkler (“the

victim”), where he was watching his and the victim’s two children.       N.T.,

3/20/2015, at 3. The victim called Appellant before she arrived home and

asked that he leave.        Id.   When she arrived home, Appellant was in the

kitchen, holding a large knife, and poking holes into a food container. Id.

The victim felt intimidated and scared. Id. She repeatedly told Appellant to

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1
    18 Pa.C.S. §§ 2706(a)(1), 2701(a)(3), 901(a).
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leave.   Id. at 3-4.     Appellant, however, massaged the victim’s shoulders,

kissed her neck, and told her to keep talking to him and kissing him or he

would get the knife.       Id. at 4.     The victim relented and they had sexual

intercourse. Id.

       When the victim did not call her brother when she returned home from

work, as she usually did, her brother called the police. N.T., 3/20/2015, at

4. The police arrived and arrested Appellant. Id. The police officers took

Appellant to the booking center, where he was placed in a cell.              Id.

Appellant maneuvered out of his transport belt, used the belt to attempt to

unlock his handcuffs, and yanked on his shackles. Id. A video camera then

shows Appellant opening the door and waiting for an opportunity to escape.

Id.

       At the time of the incident, Appellant was on probation from simple

assault and unlawful restraint convictions following a prior assault of the

same victim. N.T., 3/20/2015, at 5-6.2

       On March 20, 2015, Appellant pled guilty to terroristic threats, simple

assault, and criminal attempt – escape.           That same day the trial court

sentenced Appellant to the following concurrent sentences: 12 to 24 months’

incarceration for the terroristic threats conviction; 12 to 24 months’

incarceration for simple assault; and 16 to 60 months incarceration for

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2
  These charges and convictions are docketed at No. CP-22-CR-0001256-
2014.



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attempted escape.        This was an aggregate sentence of 16 to 60 months’

incarceration.3

       On March 30, 2015, Appellant filed a post-sentence motion, which the

trial court denied on May 1, 2015.4            On May 27, 2015, Appellant filed a

timely notice of appeal.       Both Appellant and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

       Appellant raises the following issue on appeal:

          Whether the trial court erred in denying Appellant’s [p]ost-
          [s]entence [m]otion where his sentence is excessive and
          unreasonable and constitutes too severe a punishment in
          light of Appellant’s rehabilitative and treatment needs and
          the wishes of the complaining witness?

Appellant’s Brief at 5. Appellant’s issue challenges the discretionary aspects

of his sentence.

       “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).          Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to determine:
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3
  At the March 20, 2015 hearing, the trial court also revoked the probation
for his prior assault and unlawful restraint convictions and re-sentenced
Appellant. N.T., 3/20/2015, at 14-15.
4
  On April 13, 2015, the trial court issued an order modifying the March 20,
2015 order to reflect that Appellant’s aggregate sentence imposed for the
convictions at issue in this case and for the sentence imposed following the
revocation of his probation was 36 to 120 months’ incarceration.



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         (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; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      Appellant raised his discretionary aspect of sentence issue in a timely

post-sentence motion, filed a timely notice of appeal, and included a

statement of reasons relied upon for allowance of appeal pursuant to

Pennsylvania Rule of Appellate Procedure 2119(f) in his brief.     We must,

therefore, determine whether his issue presents a substantial question and,

if so, review the merits.

      “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

where a defendant raises 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) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72

(Pa.Super.2012)).




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       Appellant maintains his sentence was excessive and unreasonable.

Appellant’s Brief at 9-10. He claims the Commonwealth represented to the

trial court that the victim did not want Appellant to receive a lengthy

sentence, and argues the sentence is unreasonable because the victim visits

Appellant in prison, goes to Appellant’s weekly meetings, puts money in

Appellant’s account and because the victim and Appellant share custody of

their children. Id. Appellant notes that he apologized for his actions, and

that he was going to school for HVAC and working prior to the incident. Id.

       Appellant’s bald claim of excessiveness fails to raise a substantial

question.   See, e.g., Commonwealth v. Giordano, 121 A.3d 998, 1008

(Pa.Super.2015) (“a bald assertion that a sentence is excessive does not by

itself raise a substantial question justifying this Court's review of the merits

of the underlying claim”). Appellant does not maintain the trial court failed

to consider, or did not adequately consider, any mitigating factors.                 He

merely reiterates the information presented at the sentencing hearing.

Further, even if Appellant raised a substantial question, his claim lacks

merit.

       “Sentencing is a matter vested within the discretion of the trial court

and will not      be   disturbed absent       a manifest abuse         of   discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse

of   discretion   requires   the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

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support so as to be clearly erroneous.”             Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)). “A sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question, but the record as a whole must reflect the

sentencing court’s consideration of the facts of the crime and character of

the offender.” Id. at 1283 (citing Commonwealth v. Malovich, 903 A.2d

1247 (Pa.Super.2006)).

       At the sentencing hearing, the Commonwealth informed the trial court

that the victim was “torn.” The victim “[did not] want to see [Appellant] go

away forever, but she [] indicated that he needs help. She is very afraid of

him.”5 N.T., 3/20/2015, at 7. In addition to the two assault incidents that

resulted in convictions, there had been another incident where Appellant

choked the victim.        Id.   The victim dropped the charges related to this

incident   because     of   pressure     from    Appellant’s   mother.   Id.   The

Commonwealth informed the trial court that the victim “was very scared of

[Appellant] and she wanted [the Commonwealth] to relay that he does need

help.” Id.

       The trial court also received information regarding the circumstances

of the prior guilty plea for simple assault and unlawful restraint.            The

Commonwealth noted that when he committed the current assault, Appellant

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5
 The victim could not attend the sentencing hearing because she was
working. N.T., 3/20/2015, at 6.



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was on probation following the assault conviction involving the same victim.

N.T., 3/20/2015, at 5. The Commonwealth further noted that, following the

previous conviction, the victim did not want Appellant to have to register

pursuant to SORNA, as they had two children together. Therefore, Appellant

pled guilty to simple assault, rather than to indecent assault, with which he

was originally charged. Id.

      Defense counsel informed the trial court that the victim and Appellant

had two children together and that the victim visited with Appellant while he

was incarcerated, attended his weekly meetings, and put money in his

account.     N.T., 3/20/2015, at 8-9.      Further, Appellant apologized to the

victim and explained that they had been together for 14 years, but the

relationship was over. Id. at 10.      He stated they “should have left it alone

a long time ago.” Id. He noted he had been attending school for an HVAC

certification and working with houses. He stated:

           I should have never let it get to this point. I should have
           never let any of this get out of hand. I was in a bad place
           trying to keep relationship [sic] that had been over. And I
           apologize. I am so sorry for that. And I just – I’m just – I
           would like to do whatever I can to get back my 7-year-old
           and 8-year-old so I can continue taking care of them.

Id. at 10-11.

      The trial court imposed the above sentence. It then stated:

           This is scary stuff, sir, all right, and I’m concerned for [the
           victim]. Something is amiss here. All right. You say a lot
           of nice things and that’s good[,] but I’m a little worried.

Id. at 13.


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        In its 1925(a) opinion, the trial court noted that the charges included

assaultive behavior in relation to the same victim as the victim in the case in

which     Appellant’s   probation   was   revoked.    Memorandum      Opinion,

7/30/2015, at 3. Further, the court reviewed Appellant’s remarks, the

argument of defense counsel and the Commonwealth, and Appellant’s

gravity score, prior record score and sentencing guideline recommendations.

Id. It then noted: “[o]f great importance to this [c]ourt was the disturbing

fact that [Appellant] has repeatedly inflicted serious and frightening assaults

upon the same victim with whom he shares children, despite being

previously incarcerated for similar offenses.” Id.

        The trial court did not abuse its discretion in imposing sentence. The

trial court considered that the victim was visiting Appellant and placing

money in his account, but also considered, and was deeply concerned by,

the fact that Appellant committed at least two assaults upon the same

victim, who is the mother of his children.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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