J-S69017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    DUWAYNE A. DIXON, JR.,
                      Appellant
                                                      No. 351 WDA 2017


            Appeal from the Judgment of Sentence February 9, 2017
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016492-2008


BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                         FILED DECEMBER 13, 2017

        Appellant, Duwayne A. Dixon, Jr., appeals from the judgment of

sentence of sixteen years and eleven months to thirty-three years and ten

months of incarceration, imposed February 9, 2017, following a jury trial

resulting in his conviction for aggravated assault, conspiracy, criminal attempt

– homicide, intimidation of a witness, and retaliation against a witness. 1

        We adopt the following statement of facts and procedural history from

two prior memoranda of this Court. See Commonwealth v. Dixon, 156 A.3d

339 (Pa. Super. 2016) (unpublished memorandum at 1-3); see also

Commonwealth v. Dixon, 120 A.3d 379 (Pa. Super. 2013) (unpublished
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   See 18 Pa.C.S. §§ 2702(a)(1), 903(a)(1), 901(a), 4952(a)(1), and 4953(a).
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memorandum at 1-3). In 2008, Appellant shot Andre Ripley, who had been

scheduled to testify against the leader of Appellant’s gang in an unrelated

criminal matter. Ripley was hospitalized for two months, unable to see. 2 In

January 2013, a jury convicted Appellant of the aforementioned crimes. In

March 2013, the Honorable Joseph Williams imposed an aggregate sentence

of twenty-eight to fifty-six years of incarceration and a consecutive forty years

of probation.

       Appellant timely appealed, and this Court vacated his sentence and

remanded for resentencing based upon the trial court’s failure to merge the

sentences for Appellant’s convictions for aggravated assault and criminal

attempt – homicide, as well as other sentencing irregularities.

       Upon remand, Judge Williams resentenced Appellant to an aggregate

sentence of twenty to forty years of incarceration followed by seven years of

probation. Appellant filed a post-sentence motion and a motion for recusal,

both of which were denied. Appellant timely appealed. Our Court vacated

Appellant’s sentence due to Judge Williams’ improper personal attack upon

Appellant at the sentencing hearing. We found that although the sentence

itself did not appear excessive in light of the circumstances, the trial court’s

remarks meant that the sentence could not be divorced from the appearance

of bias.

____________________________________________


2 At Appellant’s third sentencing, the Commonwealth indicated that since the
time of the shooting, Mr. Ripley has regained his eyesight but now suffers
from seizures. See Notes of Testimony (N.T.), 2/9/17, at 12.

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      Upon remand, Judge Williams recused himself, and the matter was

reassigned to the sentencing court.         Following a hearing, the court

resentenced Appellant to an aggregate sentence of sixteen years and eleven

months of incarceration to thirty-three years and ten months of incarceration.

Appellant filed a post-sentence motion, which the court denied.

      Appellant timely appealed, and both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following question for our review:

      1. Was the sentence imposed upon [Appellant] after remand
      unreasonable, manifestly excessive, contrary to the dictates of the
      Sentencing Code, and an abuse of the sentencing court’s
      discretion by focusing upon retribution and the seriousness of the
      victim’s injury, and not upon [Appellant’s] need for rehabilitation?
      And did the court improperly focus upon the seriousness of
      [Appellant’s] crime, which is a factor already accounted in the
      sentencing guidelines via the offense gravity score? Finally, did
      the court abuse its discretion in imposing a sentence of 16 years,
      11 months to 33 years, 10 months of incarceration, a sentence
      that is so manifestly excessive that it constitutes too severe a
      punishment?

Appellant’s Brief at 6.

      Appellant challenges the discretionary aspects of his sentence.        A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal. See Commonwealth v. Coulverson, 34

A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 2119(f). This Court

conducts a four-part analysis to determine: (1) whether Appellant has timely

filed a notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether


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Appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code, 42 Pa.C.S. § 9781(b). Commonwealth v. Leatherby, 116

A.3d 73, 83 (Pa. Super. 2015) (citation omitted).

      Appellant timely filed a notice of appeal and preserved his issue in a

post-sentence motion for reconsideration of sentence. See Mot. for Recons.,

2/21/17, at 1-6.    Appellant has included an appropriate Pa.R.A.P. 2119(f)

statement in his brief.   We must now determine whether he has raised a

substantial question that the sentence is inappropriate under the sentencing

code, and, if so, review the merits.

      The determination of a substantial question must be evaluated on a

case-by-case basis.    Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).      A substantial question exists only where the Appellant

advances a colorable argument that the sentencing judge’s actions were either

inconsistent with a specific provision of the Sentencing Code, or contrary to

the   fundamental     norms    which    underlie    the   sentencing   process.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). A claim

that a sentence is manifestly excessive may raise a substantial question if

Appellant’s Pa.R.A.P. 2119(f) statement sufficiently articulates the manner in

which the sentence was inconsistent with the Code or contrary to its norms.

Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).                “When

imposing a sentence, the sentencing court must consider the factors set out

in 42 [Pa.C.S.] § 9721(b), that is, the protection of the public, gravity of

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offense in relation to impact on victim and community, and rehabilitative

needs of the defendant. And, of course, the court must consider the

sentencing guidelines.”   Commonwealth v. Caldwell, 117 A.3d 763, 768

(Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015).

      In his statement, Appellant contends that he has raised a substantial

question because his sentence is manifestly excessive and unreasonable, and

that the court focused solely on the seriousness of the offense and “double

counted” the seriousness. See Appellant’s Brief at 14-19. In Caldwell, we

concluded that the appellant’s claim that his sentence was unduly excessive

together with his claim that the court failed to consider his rehabilitative

needs, constituted a substantial question.      Caldwell, 117 A.3d at 770.

Accordingly, we will review Appellant’s challenge to the discretionary aspects

of his sentence on the merits.

      Appellant contends that the court improperly focused on retribution and

the seriousness of the victim’s injury without considering his need for

rehabilitation. See Appellant’s Brief at 22. Further, Appellant claims that the

court focused extensively on the seriousness of the offense, a factor already

considered by the sentencing guidelines. See Appellant’s Brief at 25. Finally,

Appellant argues that the court failed to explain on the record why it imposed

consecutive aggravated range sentences, making the sentence too severe a

punishment.

      When reviewing a challenge to the discretionary aspects of sentencing,

we determine whether the trial court has abused its discretion.           See

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Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014). We

observe:

        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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).

        With regard to consecutive sentences, we have noted that

        the imposition of consecutive rather than concurrent sentences
        lies within the sound discretion of the sentencing court. Long
        standing precedent of this Court recognizes that 42 Pa.C.S.A. §
        9721 affords the sentencing court discretion to impose its
        sentence concurrently or consecutively to other sentences being
        imposed at the same time or to sentences already imposed. A
        challenge to the imposition of consecutive rather than concurrent
        sentences does not present a substantial question regarding the
        discretionary aspects of sentence. We see no reason why [a
        defendant] should be afforded a “volume discount” for his crimes
        by having all sentences run concurrently.

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (internal

citations and quotations omitted).

        Additionally, “where the sentencing judge had the benefit of a

presentence investigation report, it will be presumed that he or she was aware

of the relevant information regarding the defendant’s character and weighed

those      considerations    along    with   mitigating    statutory    factors.”

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

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      On the record, the court stated:

      I have reviewed everything and I believe that I am familiar with
      the underlying facts of the case. The only significant difference
      between the last sentencing and now is corrected guidelines
      request reflecting a one prior record score, which does change the
      guidelines in the case.

      Having said that, and having considered these guidelines as well
      as everything else, including the total of 15 misconducts, the most
      recent of which was a little over a month ago, all of the
      misconducts or the great majority of them continue to be in the
      nature of [Appellant] refusing to comply with the rules and/or
      fighting and disrespecting authority figures.

      None of these factors lead me to believe that [Appellant] has yet
      matured or decided that he does want to comport his behavior to
      the ordinary rules of society, which combined with the underlying
      facts here and the extraordinary nature of those as well as any
      lack of remorse to the victim leads me to sentence him as follows:
      on count three, the criminal attempt felony ones, I will sentence
      him in the aggravated range, 95 to 190 months; at count four, a
      felony for intimidating, again [the] sentence is in the aggravated
      range of 72 to 144 months consecutive, and at count five a
      sentence of 36 to 72 months consecutive. I believe with the
      length of the sentence here that it is likely that he will serve some
      period of time on parole, so I don’t believe that a consecutive
      probation would be meaningful.

See N.T., 2/9/17, at 14-15.

      Thus, the record reflects that the court had the benefit of the

presentence investigation report and considered Appellant’s character and

rehabilitative needs. See Clarke, 70 A.3d at 1287. The court did not focus

on the seriousness of the offense, but instead focused on 1) Appellant’s

repeated   misconduct    in   prison,    showing   his   lack   of   amenability   to

rehabilitation; 2) the nature of the underlying facts; and 3) Appellant’s lack of

remorse for the victim’s injury.        The court thus imposed the consecutive

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sentences it felt appropriate and which were within its discretion.      See

Johnson, 961 A.2d at 880. Accordingly, we decline to find that the trial court

has abused its discretion in fashioning its sentence. See Shugars, 895 A.2d

at 1275.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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