J-S39026-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                  v.



DOMENIQUE JAMES LEWIS,

                  Appellant
                                                  No. 1673 WDA 2016


               Appeal from Judgment of Sentence July 26, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008184-2010

BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 10, 2017

     Dominique James Lewis appeals from the judgment of sentence of

thirty-three and one-half to sixty-seven years incarceration, imposed upon

remand following our prior holding that Appellant received a constitutionally

infirm sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013).

We affirm.

     We described the facts underlying Appellant’s criminal conviction in our

memorandum opinion on direct appeal as follows:

     At trial, Megan [Wilsher] testified that on February 26, 2010,
     while Lewis was sitting in her living room, he stood up, pulled
     out a gun, smiled at her, and fired at her. [Wilsher] testified
     Lewis shot her in the face, and after she fell, he shot her again.
     Wilsher lost her right eye as a result of the shooting. In


* Retired Senior Judge assigned to the Superior Court.
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     corroboration of this testimony, the Commonwealth presented
     evidence that Lewis's fingerprints were found on a Coke can
     recovered from the scene.
     Furthermore, the Commonwealth, through the testimony of
     Detective Scott Evans, introduced a recorded statement made by
     Lewis to police, in which he admitted that on February 26, 2010,
     he had engaged in a struggle with Brett Quinn over a gun that
     discharged in the living room; he took the gun and fired at Quinn
     multiple times, chased him and took his chain and watch;
     returned to the house where he took $400 to $500 dollars from
     Wilsher's purse, as well as her cellular phone; and then disposed
     of the gun.

Commonwealth v. Lewis, 358 WDA 2012, at 6-7 (Pa.Super. 2013)

(unpublished memorandum, citations omitted, brackets in original).

     Following a jury trial, Appellant was convicted of one count of carrying

a firearm without a license, and two counts each of the following crimes:

criminal attempt – murder, aggravated assault, and robbery. The trial court

imposed an aggregate sentence of thirty-three and one-half to sixty-seven

years incarceration, and we affirmed his judgment of sentence.       Id.   Our

Supreme Court denied further review. Commonwealth v. Lewis, 74 A.3d

1030 (Pa. 2013).

     Appellant filed a timely PCRA petition, which was denied. On appeal,

we sua sponte vacated and remanded for resentencing consistent with

Alleyne, supra, due to the fact that Appellant’s sentence included the

imposition of a mandatory minimum sentence. Upon remand, the trial court

imposed the same aggregate sentence, albeit structured in a different

manner.   Appellant filed a post-sentence motion, which was denied.        This



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timely appeal ensued, and Appellant complied with the order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

trial court authored its responsive opinion and the matter is now ready for

this Court's consideration. Appellant raises the following questions for our

review:

      I. Is the imposition of the aggregate sentence of 33½ to 67
      years of incarceration manifestly excessive, unreasonable, and
      an abuse of the sentencing court’s discretion?
          a.   Specifically, does the aggregate sentence result in a
          manifestly excessive sentence that is wholly unreasonable and
          not in conformity to the goal of individualized sentencing, or to
          the Sentencing Code (42 Pa.C.S. § 971(b)), instead evincing
          an undue emphasis on retribution, not rehabilitation, and
          resulting in a de facto life sentence?
          b. Also, was the aggregate sentence imposed an abuse of
          discretion in that the trial court refused to consider that Mr.
          Lewis’s crimes were committed when he was a juvenile of 17
          years, which requires that a distinct set of sentencing
          considerations be applied because of the diminished culpability
          of juveniles due to the biological immaturity of their brains as
          well as the greater capacity for rehabilitation of a juvenile?

Appellant’s brief at 6.

      Appellant’s overarching claim challenges the length of the sentence

imposed and therefore pertains to the discretionary aspects of his sentence.

We apply the following standard of review:

      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. Shull, 148 A.3d 820, 831 (Pa.Super. 2016) (citing

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super 2014)). The

right to appeal the discretionary aspects of a sentence is not absolute. To

determine if Appellant has invoked our jurisdiction, we examine the following

four criteria:

      (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. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)).

Appellant filed a timely notice of appeal, preserved his issue in a post-

sentencing motion, and his brief complies with Pa.R.A.P. 2119(f).         The

remaining consideration is whether Appellant has presented a substantial

question.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists "only when the appellant advances a colorable
      argument that the sentencing judge's actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 2013) (citing

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (internal

citations omitted)).


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         Appellant advances two separate substantial questions. First, he avers

that the trial court imposed the sentence based solely on the seriousness of

the crime and failed to consider other factors. Additionally, citing Miller v.

Alabama, 567 U.S. 460 (2012), which barred mandatory life imprisonment

without the possibility of parole for persons under the age of eighteen at the

time of their crimes, Appellant maintains that juveniles are “constitutionally

different from adults for the purpose of sentencing.” Appellant’s brief at 11.

We find that Appellant has presented a substantial question only with

respect to the first question.

         We first dispose of Appellant’s Miller claim.    Appellant avers that

Miller requires the sentencing court to treat Appellant differently. However,

Miller’s holding is limited to the mandatory nature of life without parole

sentences applied to juveniles.      The flaw in those schemes is that they

“prevent the sentencer from taking account of these central considerations

. . . these laws prohibit a sentencing authority from assessing whether the

law's harshest term of imprisonment proportionately punishes a juvenile

offender.” Miller, supra at 474. Appellant recognizes that Miller narrowly

addressed only the constitutionality of imposing a mandatory life without

parole sentence, but maintains that the “principles set forth . . . have

implications any time that a juvenile is being sentenced.” Appellant’s brief

at 33.




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      Appellant’s argument is a policy argument dressed up as a legal one;

Appellant does not explain exactly what these implications are or how the

trial court erred as a result.      Apparently, Appellant interprets Miller to

require some type of undefined juvenile discount.            However, Appellant

concedes that the trial court utilized the proper guidelines and could consider

Appellant’s age as a factor in fashioning an individualized sentence.

      Additionally, this Court recently rejected a constitutional challenge to

the sentencing guidelines as applied to juveniles, in which the appellant

similarly contended that “the guidelines' primary focus on retribution does

not adequately take into account the evolution of recent United States

Supreme       Court   precedent   recognizing   the   diminished   culpability   for

juveniles.”    Commonwealth v. Fortson, 2017 PA Super 162 (Pa.Super.

2017) (published opinion, at 8). We disagreed, noting that the trial judge

has broad discretion in sentencing matters and, therefore, is permitted to

evaluate the individual circumstances before it, including the types of

considerations discussed in Miller. We held that this was sufficient.

      The advisory nature of the guidelines ensures, as constitutionally
      required, that the diminished culpability of juvenile defendants is
      properly considered. In exercising its discretion, “[t]he
      sentencing court must impose a sentence that is appropriate in
      light of the individualized facts of the underlying incident.”
      Commonwealth v. Johnson, 873 A.2d 704, 709 (Pa.Super.
      2005). The court must consider aggravating and mitigating
      circumstances. “In particular, the court should refer to the
      defendant's     prior   criminal  record,    his   age,    personal
      characteristics     and    his   potential    for    rehabilitation.”



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      Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013)
      (quoting Griffin 804 A.2d at 10) (emphasis added)).

Id. at 12-13 (some citations omitted). Therefore, we find that Appellant has

failed to raise a substantial question with respect to this claim, and any

argument respecting Appellant’s age must go to weighing of the various

sentencing factors.

      However, we find that Appellant has presented a substantial question

with respect to his allegation that the imposition of consecutive sentences

resulted in an excessive sentence, in that the trial court failed to consider

the other required statutory considerations.   Generally, a challenge to the

trial court’s imposition of concurrent or consecutive sentences does not raise

a substantial question.    Commonwealth v. Raven, 98 A.3d 1244, 1253

(Pa.Super. 2014).     When paired with another assertion, such as the claim

advanced herein, we have found a substantial question.        “[A]n excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.”    Id.   See also

Commonwealth v. Clarke, 70              A.3d 1281, 1287 (Pa.Super. 2013)

(allegation that trial court focused solely on the nature of the offense

presented a substantial question). We therefore examine the merits of his

claim.

      Our review of the discretionary aspects of sentencing is statutorily

limited by 42 Pa.C.S. § 9781, to wit:



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      (c) Determination on appeal. — 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. § 9781(c).     Section 9781(d) provides that in reviewing the

record, we must take into account the following:

      (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. § 9781(d).

      The parties do not dispute the calculation of the applicable guidelines.

Appellant’s prior record score was five, and the offense gravity score for the

attempted homicide charges was fourteen.       Thus, the standard range at

those counts called for a minimum sentence between 210 and 240 months,

with the latter number representing the applicable statutory maximum. The

mitigated range called for a sentence of 198 months.       Appellant received

consecutive sentences of 180 to 360 months at each of these charges, which

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is below the mitigated range. Additionally, Appellant received a consecutive

statutory   maximum      sentence   of   forty-two   to   eighty-four   months

incarceration at the firearms charge, which was within the standard range.

Therefore, Appellant must show that application of the guidelines would be

clearly unreasonable.1

      In Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007), our

Supreme Court noted that reasonableness is not defined in the statute and

“commonly connotes a decision that is ‘irrational’ or ‘not guided by sound

judgment.’” Id. at 963. Walls identified the two situations in which we can

deem a sentence unreasonable. The first is if the sentencing court did not

weigh the “general standards applicable to sentencing found in Section

9721[.]” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to

impose a sentence of imprisonment, “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with 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.”). The other situation is where the




1
  Technically, Appellant’s aggregate sentence was outside of the guideline
ranges, since his sentence fell below the total mitigated range at the three
charges. However, the downward departure was obviously to Appellant’s
benefit and we therefore apply the 42 Pa.C.S. § 9781(c)(2) standard which
applies to challenges to sentences within the sentencing guidelines.


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sentence is deemed unreasonable after review of the four elements provided

by 42 Pa.C.S. § 9781(d).

      Presently, Appellant complains that the sentencing court failed to

impose an individualized sentence as required under § 9721(b), in that the

judge’s stated reasons discussed only the heinous nature of the crime,

Appellant’s inability to apologize, and Ms. Wilsher’s injuries.       According to

Appellant, the record demonstrates that the court focused solely on

retribution and punishment.

      While we agree that the sentencing transcript indicates that the court

largely directed its remarks at those points, we disagree that the trial court

failed to balance those considerations against the other § 9721(b) factors.

Significantly, Appellant submitted a sentencing memorandum, in which

Appellant’s position was fully outlined.        It is presumed that jurists do not

willfully ignore pertinent information. “Where pre-sentence reports exist, we

shall continue to 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.” Commonwealth v. Devers,

546 A.2d 12, 18 (Pa. 1988).

      In   support   of    reversal,   Appellant      cites   Commonwealth       v.

Coulverson, 34 A.3d 135 (Pa.Super. 2011), in which we vacated a sentence

as clearly unreasonable despite the fact that the court had access to and


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referenced a pre-sentence investigation report, and where the sentence was

technically within the standard range.        He argues that this case is like

Coulverson in two ways: (1) the maximum sentence approaches a life

sentence and (2) the trial court had “[a]n intense focus on the crime’s

impact on the victim to the exclusion of all other factors.” Appellant’s brief

at 29-30.

       We find that Appellant’s reliance upon Coulverson is misplaced.

Therein, the trial court’s maximum sentence was the maximum allowed by

law.    Our review of the trial court’s stated reasons for the sentence

“reveal[ed] scant consideration of anything other than victim impact and the

court’s impulse for retribution on the victims’ behalf.”     Id. at 148.   We

observed that “the term of the maximum sentence . . . also bear[s] on the

extent to which sentencing norms are observed and an appropriate sentence

imposed.”    Id.   Thus, the trial court’s sentencing comments, when paired

with the maximum sentence, demonstrated that the sentence was not

individualized, and, as a result, clearly unreasonable.

       Appellant maintains that his sentence was similarly flawed, as he will

likely spend the remainder of his life in prison if he serves the maximum

sentence. We find that Coulverson is readily distinguishable on this score.

We emphasized that the appellant therein “did not mount a challenge to the

minimum aggregate sentence.” Id. at 144. Hence, the challenge was to the

maximum period of incarceration, which was the statutory maximum. Here,


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the trial court imposed a maximum sentence that was twice the length of the

minimum, which was the lowest period permitted by statute. 42 Pa.C.S. §

9756(b)(1) (minimum sentence of confinement shall not exceed one-half of

the maximum). Therefore, unlike the appellant in Coulverson, Appellant is

in fact attempting to mount a challenge to the minimum sentence.2

      Additionally, we do not find that the trial judge’s comments regarding

the gravity of the crime and Appellant’s inability to apologize to the court’s

satisfaction demonstrate an excessive focus on punitive measures.       When

imposing the original sentence, Appellant’s counsel referenced mitigating

circumstances and the trial judge asked for any corrections or additions to

the pre-sentence report. N.T. Sentencing I, 9/8/11, at 2. Thus, the original

sentence already reflected a weighing of those factors. In context, the trial

court’s remarks at resentencing were effectively an invitation for Appellant

to demonstrate why the trial court should revisit its original sentence, which

was vacated on technical grounds. In other words, the trial court sought an

explanation for why it should deviate from its original sentence.        See

Moury, supra at 173 (trial court did not improperly rely upon appellant’s

decision to stand trial when imposing sentence, in context “the court sought




2
 We emphasize that the sentencing court imposed a sentence below the
mitigated range on each attempted murder charge.              Were the court
motivated by purely punitive desires, it was within its discretion to impose a
harsher sentence.

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to understand why it should accept [a]ppellant’s apology and acceptance of

responsibility as a reason to deviate from the court’s regular sentencing

procedures.”).

      The trial court framed its discussion of repentance in terms of

assessing Appellant’s rehabilitative prospects as follows:

      They ought to start rehabilitation the day they get [to prison].
      They assess people sort of the way I am, where is this person on
      a continuum of narcissism? Where is this person on a continuum
      of repentance? . . . Does he understand what he did to get
      [himself] exiled from society? Does he understand this woman’s
      pain? Does he understand the disabilities, the limitations on
      what it does to her career, what it does to her life?

N.T. Sentencing II, 7/26/16, at 10-11.       In contrast to Coulverson, the

sentencing court in the instant case provided Appellant the opportunity to

address those issues and gave him a chance to convince the court that a

lower sentence was warranted. Id. at 13-14. The sentencing judge “is not

required to parrot the words of the Sentencing Code . . . the record as a

whole must reflect due consideration by the court of the statutory

considerations.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super.

2008) (citations omitted).    We are satisfied that the record as a whole

reflects due consideration of the § 9721(b) factors and we decline to deem

the sentence unreasonable on that basis.

      Nor do we find that this sentence is clearly unreasonable pursuant to §

9721(b).    First, a sentence that is within the standard range of the

guidelines, let alone below the mitigated range, is generally viewed as


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appropriate under the Sentencing Code. Moury, supra at 171. Appellant’s

only   real   complaint    regarding   the      length   of   his   sentence   is   the

aforementioned Miller argument, which we have rejected, in conjunction

with an argument that “[a] sentence for third-degree homicide could be

shorter than the sentence [Appellant] received.”              Appellant’s brief at 29.

This point diminishes the nature of Appellant’s crimes.                  Third-degree

homicide, unlike attempted murder, is not a specific-intent crime. Appellant

was found to have intended to kill both victims. He twice shot a woman who

had invited him into her home, for apparently no reason whatsoever.                 He

chased his friend, who had accompanied him to the victim’s home, and tried

to kill him as well.      These brutal acts justified a lengthy sentence, and

Appellant, who managed to amass a prior record score of five by age

seventeen, failed to convince the court that a lesser sentence was

warranted. After review of the four 42 Pa.C.S. § 9781(d) factors, we uphold

that sentence, and we, therefore, find no abuse of discretion.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/10/2017




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