J-S28014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 DOMINIC JAQUARIUSPA RAY                    :
                                            :
                          Appellant         :   No. 26 MDA 2019

       Appeal from the Judgment of Sentence Entered July 30, 2018
   In the Court of Common Pleas of Luzerne County Criminal Division at
                     No(s): CP-40-CR-0001830-2017


BEFORE:   BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 01, 2019

     Dominic Jaquariuspa Ray appeals from the judgment of sentence of

twenty to forty years of incarceration, imposed following his guilty plea to

third-degree murder. We affirm.

     On October 16, 2016, Appellant fired seven shots at Victor Grandy,

killing him. N.T. Guilty Plea, 6/4/18, at 12. Following his apprehension in

New York, Appellant spoke to investigators and confirmed that he was indeed

the shooter.        Id.     Appellant was charged with criminal homicide and

possession of a firearm prohibited. Pursuant to an open plea agreement, the

Commonwealth withdrew the firearms charge and Appellant pled guilty to

third-degree murder.           Since there was no agreement as to sentence,

sentencing was postponed so that a presentence investigation (“PSI”) could

be conducted.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On July 30, 2018, Appellant appeared for sentencing. The court had the

benefit of a PSI report and oral impact statements from the victim’s sister,

uncle, and cousin.     N.T. Sentencing, 7/30/18, at 9-12.      In addition to

testimony from Appellant, the court received testimony from Appellant’s

fiancé, older brother, and a friend of the family.     Id. at 13-21.    At the

conclusion of the hearing, Appellant was sentenced to twenty to forty years of

imprisonment.

      Appellant filed a motion to reconsider his sentence, which was denied.

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

with Pa.R.A.P. 1925.       Appellant presents the following issue for our

consideration: “Whether the trial court abused its discretion in sentencing the

Appellant.” Appellant’s brief at 1.

      Appellant challenges the discretionary aspects of his sentence.

Specifically, he attacks his sentence on two grounds: (1) that the trial court

double-counted factors already ingrained in the sentencing code and (2) that

the court failed to give adequate reasons for the sentence it imposed. The

following principles apply to our consideration of whether review of the merits

of his claim is warranted.    “An appellant is not entitled to the review of

challenges to the discretionary aspects of a sentence as of right. Rather, an

appellant challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction.” Commonwealth v. Samuel, 102, A3d 1001, 1006-

07 (Pa.Super. 2014). In determining whether an appellant has invoked our

jurisdiction, we consider four factors:

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            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether 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.

Id.

      Appellant filed both a timely motion for reconsideration of his sentence

and a notice of appeal. In his motion, Appellant challenged the court’s failure

to consider mitigating factors, such as his remorse and statements made at

sentencing on his behalf, when it fashioned his sentence. However, Appellant

did not challenge the trial court’s alleged double-counting of factors already

accounted for in the sentencing guidelines. He also did not raise this issue in

his concise statement of errors complained of on appeal. Since Appellant’s

first sentencing issue was not raised before the trial court, we cannot consider

it. Id. at 1006. Appellant did properly preserve his second issue. Therefore,

we now proceed to determine whether Appellant has raised a substantial

question as to that claim.

      Appellant’s brief contains a statement of reasons relied upon for his

challenge to the discretionary aspects of his sentence as required by Pa.R.A.P.

2119(f).   In his statement, Appellant claims that a substantial question is

presented by the fact that the trial court imposed a statutory maximum

sentence, without an appropriate discussion of all of the factors. Appellant’s

brief at 3. We find that this claim raises a substantial question, as it challenges

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the adequacy of the reasons given by the trial court for its sentencing choice.

See Commonwealth v. Marts, 889 A.2d 608, 613 (Pa.Super. 2005).

Accordingly, we now turn our attention to Appellant’s challenge to his

sentence.

      The following principles apply to our substantive review of Appellant’s

claim.   “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).        “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,

we review the trial court’s determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      A trial court’s sentence “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.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a

court is required to consider the particular circumstances of the offense and

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the character of the defendant. In considering these factors, the court should

refer to the defendant’s prior criminal record, age, personal characteristics

and potential for rehabilitation.”       Antidormi, supra at 761 (citations and

quotation marks omitted). Finally, when the trial court has been informed by

a PSI, it is presumed that the trial court is aware of and has been informed by

all appropriate sentencing factors and considerations. Commonwealth v.

Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017).

       Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we

find (1) that the court intended to sentence within the guidelines, but “applied

the guidelines erroneously;” (2) a sentence was imposed within the 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.”         42

Pa.C.S. § 9781(c). The instant sentence is the maximum sentence allowed

by law.1 Trial Court Opinion, 11/27/18, at 1. Therefore, it must be affirmed

unless it is unreasonable. While reasonableness is not defined in the statute,



____________________________________________


1 While it is clear that Appellant received a sentence that was above the
standard range of the sentencing guidelines, it is unclear whether the sentence
was in the aggravated range or outside of the sentencing guidelines. Our
analysis and conclusion are the same regardless. See Commonwealth v.
Shugars, 895 A.2d 1270, (Pa.Super. 2006) (analyzing the reasons the court
gave for imposing a sentence in the aggravated range); see also
Commonwealth v. Smith, 863 A.2d 1172, 1177-78 (Pa.Super. 2004)
(looking at the trial court’s explanation for why it sentenced outside of the
guidelines).

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

judgment.’” Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).

      Appellant argues that his sentence was excessive because the court did

not consider the sentencing guidelines, Appellant’s remorse, or discuss the

factors set forth in the sentencing code.     Appellant’s brief at 9.   Instead,

Appellant claims, the trial court placed improper emphasis on the seriousness

of the crime. Id.

      Appellant fails to establish that the instant sentence is unreasonable.

The certified record demonstrates that the trial court properly relied on several

factors in electing to impose the maximum sentence allowed by law, all of

which demonstrated that the court followed the general principles outlined in

§ 9721(b), i.e., that the sentence be consistent with the protection of the

public, gravity of the offense as it relates to the victim and community, and

the rehabilitative needs of the offender.      In fashioning the judgment of

sentence, the trial court referenced the PSI report; arguments made by the

prosecutor and defense attorney; statements made by Appellant’s fiancé,

brother, sister, and friend; statements made by the victim’s sister, uncle, and

cousin; and Appellant’s own allocution. N.T. Sentencing, 7/30/18, at 25-26;

Trial Court Opinion, 11/27/18, at 3. In its opinion, the court explained that it

had the opportunity to “observe the demeanor and candor of those who

addressed the court.” Trial Court Opinion, 11/27/18, at 4. Notably, it listened

to Appellant’s allocution wherein he detailed a “rough upbringing” and


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characterized the homicide as “a bad judgment call.”              N.T. Sentencing,

7/30/18, at 20.

      Our review confirms that the trial court weighed Appellant’s mitigating

factors, along with the seriousness of the crime and Appellant’s failure to take

genuine responsibility for his actions.     We have no license to reweigh the

mitigating circumstances against the aforementioned factors. Macias, supra

at 778.

      Nor did the trial court fail to place on the record its reasons for imposing

the statutory maximum sentence. The court offered the following explanation

for its decision:

            Sir, I’ve accepted the guilty plea as voluntarily, knowingly,
      and intelligently tendered. I take into account the nature of the
      offense and the voluntariness of the plea. I incorporate the terms
      of the presentence investigation, the statements of the
      Commonwealth attorneys and the defense attorneys, the
      statements of Dominique Grandy, Mr. Grandy, Chanel Johnson,
      Lisa Allen, Domenique Nettles, Jeffrey Ray, Aminah Coleman, and
      also the statements offered to the Court and the letter previously
      received by Dominic Ray as was a letter received from Ms. Allen.
      The [c]ourt also takes into account the general standards of
      sentencing which include the protection of the public, the gravity
      of the offense as it relates to the impact on the life of the victim
      and the community, and the rehabilitative needs of the defendant.

             ....

           This sentence is not in the standard range as counsel is
      aware. The Court has imposed the sentence due to the heinous,
      senseless act of violence with a deadly weapon the streets of this
      community taking the life of Victor Grandy. You took his life, and
      you affected the lives of his family and the lives of your family.
      There is no justification for an act of this nature in civilized society.

             ....

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           In addition, as I close the record, I do not believe that you
      have accepted responsibility for the action in question.

N.T. Sentencing, 7/30/18, at 25-27.

      The record establishes that the trial court took into account the relevant

factors and explained the reasons for imposing the maximum sentence

allowed by law. It found that Appellant committed a “heinous” and “senseless

act,” and failed to take responsibility for his actions, which devastated both

the victim’s family and his own. Id. at 27. Accordingly, the trial court acted

well within its discretion when it sentenced Appellant to the statutory

maximum.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/2019




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