J-S66023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS LOMAX                               :
                                               :
                       Appellant               :   No. 1886 EDA 2017

            Appeal from the Judgment of Sentence March 16, 2010
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008210-2009


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.:                               FILED APRIL 11, 2019

       Thomas Lomax appeals, nunc pro tunc, from the judgment of sentence

imposed on March 16, 2010, in the Court of Common Pleas of Philadelphia

County. On appeal, Lomax challenges the discretionary aspects of his

sentence. We affirm.

       Lomax entered non-negotiated pleas of guilty to the crimes of robbery

and possessing an instrument of crime (“PIC”) and was sentenced to

concurrent terms of eight to sixteen years’ incarceration on the robbery charge

and two and a half to five years’ incarceration on the PIC charge. At the same

time, he pled guilty to aggravated assault and PIC arising from an unrelated

incident1. The sentencing was consolidated pursuant to Pa.R.Crim.P. 701. He

was sentenced to five to ten years on the aggravated assault charge and two

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1   CP-5-CR-0008921-2009
J-S66023-18



and a half to five years on the PIC charge, both to run concurrent to the

sentences stemming from the robbery.

        On April 6, 2010, the court denied his post sentence motion for

reconsideration of sentence. He did not file an appeal.

        On October 8, 2010, Lomax filed a timely pro se petition for relief

pursuant to the Post Conviction Relief Act2 (“PCRA”) in which he claimed his

trial counsel was ineffective in communicating with him regarding his guilty

plea.

        New counsel was appointed who filed an amended petition on August

16, 2012 seeking reinstatement of Lomax’s appellate rights nunc pro tunc. On

July 8, 2013, the court granted Lomax leave to file an appeal nunc pro tunc,

which was filed on July 31, 2013. However, on January 14, 2015, this Court

dismissed Lomax’s appeal due to counsel’s failure to file a brief.

        On April 1, 2015, Lomax filed a second pro se PCRA petition requesting

new counsel be appointed. New counsel was appointed, who filed an amended

petition on March 13, 2017 seeking reinstatement of Lomax’s appellate rights

nunc pro tunc. On May 15, 2017, the PCRA court again reinstated his appellate

rights. This timely appeal followed.

        In his sole issue on appeal, Lomax argues that the trial court abused its

discretion by imposing a manifestly excessive sentence. “A challenge to the

discretionary aspects of a sentence must be considered a petition for

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2   42 Pa.C.S.A. §§ 9541-9546.

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permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part analysis to determine: (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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

      Here, Lomax preserved his issue through a timely motion for

reconsideration of the sentence imposed, and filed a timely appeal. Counsel

has included the required Rule 2119(f) statement. We therefore review the

Rule 2119(f) statement to determine if Lomax has raised a substantial

question.

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for

which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.” Id. (citation

omitted); see also Pa.R.A.P. 2119(f).


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       Lomax “must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at

274 (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.” Tirado, 870

A.2d at 365.

       Lomax’s Rule 2119(f) statement claims that the trial court imposed a

manifestly excessive sentence. A generic claim that a sentence is excessive

does   not   raise   a   substantial   question   for   our   review.   See,   e.g.,

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013). However,

Lomax asserts that the Court focused solely on the seriousness of the offense

and did not consider his individual characteristics. See Appellant’s Brief, at 7.

An averment that the court sentenced based solely on the seriousness of the

offense and failed to consider all relevant factors has been found to raise a

substantial question. See Commonwealth v. Macias, 968 A.2d 773 (Pa.

Super. 2009). We therefore turn to Lomax’s claim.

       Our standard of review of a sentencing challenge is well settled:

       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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

      Here, the trial court reviewed a pre-sentence report. Where the trial

court had the benefit of reviewing a pre-sentence report, we must

      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.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment procedure.
      Having been fully informed by the pre-sentence report, the
      sentencing court’s discretion should not be disturbed. This is
      particularly true, we repeat, in those circumstances where it can
      be demonstrated that the judge had any degree of awareness of
      the sentencing considerations, and there we will presume also that
      the weighing process took place in a meaningful fashion. It would
      be foolish, indeed, to take the position that if a court is in
      possession of the facts, it will fail to apply them to the case at
      hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992). As the

trial court in this case had the benefit of a pre-sentence report as well as a

mental health report, combined with the trial court’s consideration of the

seriousness of the offenses we conclude that it considered all relevant

sentencing factors.

      We acknowledge the court sentenced Lomax outside the guidelines for

robbery and note that it does not appear the trial judge explicitly stated his

reasons for sentencing Lomax when he imposed sentence. See Pa.R.Crim.P.




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§ 704(C)(2). However, Lomax has not challenged this omission on appeal.

Since it is not an illegal sentence claim, it is waived.

      This issue was brought up during the hearing on Lomax’s motion for

reconsideration of sentence during which the Judge explained his reasons for

sentence on the record.

      No one would argue that if he got a five to ten-year sentence on
      the robbery bill and a different Judge on the aggravated assault
      gave him three to something, or five to something on the
      aggravated assault bill and made them run consecutive, they
      would both be perfectly acceptable guideline sentences. They
      would be within the normal range, and there would be no grounds
      for any attack on the sentence, or reasons for the Court to
      reconsider.

      It’s a situation where there was two separate events committed
      at two separate times; one where the defendant’s out on bail for
      one felony when he committed another felony and the fact that
      they were disposed of together under a 701 plea consolidated
      allowed him to retain a prior record score of zero for both and
      allowed a consolidated sentence.

      In effect my sentence takes that into consideration, and I could
      have made it look easier administratively if I gave the five to ten
      on one and three to something on the other and made them run
      consecutively. I didn’t do that, and I just made everything on the
      robbery bill, which a rose by any other name would smell as sweet
      except no different.

N.T., 4/6/2010, at 7-8.

      Thus, the Judge recognized that he imposed the greater sentence on

the robbery charge even though the guidelines were higher on the aggravated

assault charge. He reasoned that he essentially sentenced Lomax to eight to

sixteen years total on both cases in front of him. Rule of Criminal Procedure

701 provides that, before the imposition of a sentence, a defendant may plead

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guilty to other offenses committed by him within the jurisdiction of the

sentencing court. When such pleas are accepted, the court must sentence the

defendant for all of the offenses. It is clear the judge took into account the

consolidated nature of the sentencing and fashioned an aggregate sentence

which considered both cases, and all four offenses, that were before him.

      As the court balanced the individual sentence for robbery with a below

guidelines sentence on the aggravated assault charge, we find the aggregate

sentence as a whole was not unreasonable considering the consolidated

nature of the plea hearing. See Pa.R.Crim.P. 701.

      We conclude that Lomax’s claim is without merit. As this is the only issue

presented by Lomax on appeal, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/19




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