J-S68004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DESIREE ARNETT HICKS,

                          Appellant                   No. 3305 EDA 2014


          Appeal from the Judgment of Sentence Entered June 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011814-2012


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 10, 2015

      Appellant, Desiree Arnett Hicks, appeals from the judgment of

sentence of an aggregate term of 25 to 50 years’ incarceration, imposed

after she pled guilty to third-degree murder and criminal conspiracy.

Appellant solely challenges discretionary aspects of her sentence.          We

affirm.

      The trial court detailed the facts of Appellant’s case, as follows:

            [Appellant] and Aaron Hayes, Sr. lived together at a house
      on the 7000 block of Elmwood Street, Philadelphia. On May 27,
      2012, Hayes informed [Appellant] that she would need to move
      out of the home, as Hayes was in a relationship with a different
      woman who would be moving in.

            At the end of May 2012, [Appellant] entered an auto
      mechanic shop and stated that Hayes had “swung on her,” that
      “that M-F-er tried to put his hands on [her],” and that she
      wanted to “have Aaron fucked up.” Present in the shop was
      Miguel Gonzalez, who [Appellant] knew had “bad blood” with
      Hayes.
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            [Appellant] subsequently asked Gonzalez to shoot and kill
      Hayes. In a series of text messages, [Appellant] communicated
      with Gonzalez, informing him that Hayes’ “schedule don’t change
      until June 17th” and that if Gonzalez could “somehow get the
      wallet…or just [a] TD Bank card,” [Appellant] would be able to
      assist Gonzalez “with some green” so that Gonzalez could pay
      for repairs to his vehicle.

            In the early morning hours of May 31, 2012, [Appellant]
      unlocked Hayes’ van and Gonzalez hid within the vehicle, which
      was parked near Hayes’ home. [Appellant], meanwhile, was in a
      parked car owned by Gonzalez’s girlfriend, which Gonzalez had
      borrowed that morning. When Hayes exited the home just
      before 5:00 a.m. and opened his van, Gonzalez jumped from the
      van and shot Hayes three times with a gun provided by
      [Appellant]. After shooting Hayes, Gonzalez returned to the car
      in which [Appellant] was waiting and the two fled the scene.
      Emergency personnel transferred Hayes to the University of
      Pennsylvania Hospital, where he later died of the gunshot
      wounds.

Trial Court Opinion (TCO), 1/21/15, at 1-2 (citations to the record omitted).

      On April 14, 2014, Appellant entered an open guilty plea to third-

degree murder and criminal conspiracy to commit murder.          On June 27,

2014, she was sentenced to 20 to 40 years’ incarceration for her murder

conviction, as well as a consecutive term of 5 to 10 years’ incarceration for

her conspiracy offense.   Appellant filed a timely post-sentence motion for

reconsideration of her sentence, which the court denied. She filed a timely

notice of appeal, and also timely complied with the court’s order to file a

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

Herein, Appellant presents one issue for our review:

      I. Was the aggregate sentence of 25-50 years imposed by the
      court manifestly excessive and an abuse of discretion since it
      amounted to the functional equivalent of a life sentence and
      failed to give adequate weight to [Appellant’s] age (58 yrs. old),


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      the age of her prior convictions, her history as a victim of
      domestic violence and the good works she has performed while
      incarcerated[?]

Appellant’s Brief at 3.

      Appellant presents a challenge to the discretionary aspects of her

sentence.    Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super.

2008) (“A challenge to an alleged excessive sentence is a challenge to the

discretionary aspects of a sentence.”).

      A challenge to the discretionary aspects of a sentence must be
      considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. When challenging the
      discretionary aspects of the sentence imposed, an appellant
      must present a substantial question as to the inappropriateness
      of the sentence. Two requirements must be met before we will
      review this challenge on its merits. First, an appellant must set
      forth in his brief a concise statement of the reasons relied upon
      for allowance of appeal with respect to the discretionary aspects
      of a sentence. Second, the appellant must show that there is a
      substantial question that the sentence imposed is not
      appropriate under the Sentencing Code. That is, [that] 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.           We
      examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
      determine whether a substantial question exists. 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. at 886-87 (citations, quotation marks and footnote omitted; emphasis in

original).

      Here, Appellant’s Rule 2119(f) statement presents the following

argument, in its entirety:




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            [Appellant] respectfully submits that her appeal from the
      discretionary aspects of sentencing should be heard by this
      Honorable Court. In the instant case, the 25-50 year sentence
      amounts to the functional equivalent of a life sentence. It is
      manifestly excessive in that it fails to give adequate weight to
      [Appellant’s] age (58 yrs. old), the age of her prior convictions,
      her history as a victim of domestic violence and the good works
      she had performed while incarcerated and must be reversed.

Appellant’s Brief at 9.

      Essentially, Appellant contends that the court failed to give adequate

weight to mitigating factors.   She does not cite to any legal authority to

support her assertion that this claim constitutes a substantial question for

our review.    Indeed, “this Court has held on numerous occasions that a

claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013) (citation omitted). We also note that Appellant

does not state what provision of the Sentencing Code, or fundamental norm

underlying the sentencing process, that the trial court violated in fashioning

her sentence.     Therefore, we conclude that Appellant’s claim does not

constitute a substantial question for our review.

      Nevertheless, even had Appellant’s sentencing challenge satisfied this

requirement, we would conclude that her underlying argument lacks merit.

Appellant avers that in fashioning her lengthy sentence, the trial court failed

to properly consider the fact that, while incarcerated prior to sentencing, she

“attempt[ed] to mentor other inmates and to tutor them in preparation for

taking their GED exams.” Appellant’s Brief at 6. Appellant also asserts that



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the court did not take into account her age at the time of sentencing, her

“traumatic and poverty filled childhood,” and that she was the victim of “a

horrible prior incident of domestic violence in which she was shot in the head

and stabbed 75 times by another paramour.” Id. Appellant explains that

this “prior history as a victim of severe domestic violence” clarified that “her

actions in the instant case were an irrational reaction to the perceived threat

of domestic violence at the hands of the victim.”      Id. at 10-11.   Further,

Appellant points out that the convictions upon which [her] prior record score

was based were thirty-seven and twenty-two years old, respectively.” Id. at

11.   In sum, Appellant maintains that “[g]iven the horrible history of

domestic violence underscoring this reaction, as well as [Appellant’s] age

and good works she had performed while in custody, the lower court’s

sentence was grossly disproportionate and manifestly excessive as it

amounted to the functional equivalent of a life sentence.” Id.

      Initially, “[i]t is well settled that the proper standard of review when

considering whether to affirm the sentencing court's determination is an

abuse of discretion.”   Commonwealth v. Perry, 32 A.3d 232, 236 (Pa.

2011) (citation and internal quotation marks omitted).           “An abuse of

discretion is more than a mere error of judgment; thus, a sentencing court

will not have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.”   Id. (citations and internal quotation marks

omitted).

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      Here, the trial court explained its sentencing rationale, as follows:

      [I]n fashioning an appropriate sentence, the [c]ourt explicitly
      considered the evidence presented during [Appellant’s] guilty
      plea hearing, the information contained in the pre-sentence
      report and mental health evaluation, the Sentencing Guidelines,
      the need to protect the public, the gravity of the offense and its
      impact on the victim, the mitigation report submitted on behalf
      of [Appellant], and all victim impact statements submitted to the
      [c]ourt. Contrary to [Appellant’s] assertion in her Statement of
      Errors, the [c]ourt explicitly stated that it considered all
      mitigation evidence presented by [Appellant], which included the
      age of [Appellant’s] criminal history, her age at the time of
      sentencing, her history as a victim of domestic violence, as well
      as those efforts undertaken by [Appellant] while incarcerated.
      The [c]ourt sentenced [Appellant] to 20 to 40 years[’]
      incarceration for the third[-]degree murder charge and 5 to 10
      years[’] incarceration on the conspiracy charge.            These
      sentences were to run consecutive to each other, for an
      aggregate sentence of 25 to 50 years[’] incarceration. While the
      sentence on the third[-]degree murder charge was within the
      standard range of the Sentencing Guidelines, the sentence
      imposed on the conspiracy charge was significantly below the
      standard range of the Guidelines. This was done in order for the
      [c]ourt to achieve an aggregate sentence which was fair under
      all the circumstances surrounding this case.

            The record demonstrates that the sentence imposed by the
      [c]ourt was reasonable and commensurate with the outrageous
      criminal conduct committed by [Appellant]. [Appellant] hired
      someone to kill Mr. Hayes to prevent him from evicting [her]
      from his house so that another woman could move in. She was
      motivated by greed.       She directly participated in the cold-
      blooded killing by providing the gun and unlocking the victim’s
      van so that her hired assassin could hide inside and surprise the
      victim. The [c]ourt’s aggregate sentence of 25 to 50 years was
      well below the 40 to 80 year maximum, and explicitly reflected
      the [c]ourt’s careful balancing of all relevant sentencing factors,
      including the mitigating evidence submitted by [Appellant].
      Because there is no basis to [Appellant’s] claim that the
      sentence was in any way unreasonable, it should not be
      disturbed.

TCO at 3-4 (citations to the record omitted).

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     It is apparent from the trial court’s discussion, which is supported by

the record, that the court carefully considered the information proffered at

the sentencing hearing, including the mitigating factors stressed by

Appellant herein.   There is nothing in the record to support Appellant’s

assertion that the court abused its discretion in fashioning her aggregate

sentence. Accordingly, even had Appellant presented a substantial question

for our review, we would deem her sentencing challenge meritless.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2015




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