J-S37033-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON A. NIXON
Appellant
No. 2563 EDA 2012
Appeal from the Judgment of Sentence March 22, 2012
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000509-2011
BEFORE: GANTMAN, J., MUNDY, J., and COLVILLE, J.*
MEMORANDUM BY GANTMAN, J.:
FILED JULY 30, 2013
Appellant, Brandon Nixon, appeals from the judgment of sentence
entered in the Chester County Court of Common Pleas, following his open
guilty plea to the charges of two (2) counts of robbery and one (1) count
each of conspiracy to commit burglary and burglary.1 We affirm.
In its opinion, the trial court fully set forth the relevant facts and
procedural history of this case. Nevertheless, we briefly summarize them as
follows. On September 6, 2008, Appellant and his co-conspirator entered a
private residence by removing the air-conditioning unit and crawling through
the window.
At the time, the residents were sleeping.
When the female
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1
18 Pa.C.S.A. §§ 3701, 903 (3502 related), and 3502, respectively.
___________________________
*Retired Senior Judge assigned to the Superior Court.
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resident investigated the noise, Appellant struck her in the head with a gun,
pushed her into the dining room table causing it to shatter, and threw her
infant son at her. When her brother came to investigate, Appellant struck
the brother in the head several times with a gun; the brother suffered
multiple skull and face fractures and hemorrhaging which led to the wiring of
his jaw.
The police investigated the crime and, in 2011, they were finally able
to link Appellant to the incident. The Commonwealth charged Appellant with
numerous offenses related to the event. On December 15, 2011, Appellant
tendered an open guilty plea to only two (2) counts of robbery and one (1)
count each of conspiracy to commit burglary and burglary.
The court
ordered a Presentence Investigative report (“PSI”) and scheduled sentencing
for a later date.
On March 22, 2012, the court sentenced Appellant to an aggregate
term of nine (9) to twenty (20) years of incarceration. Appellant timely filed
a post-sentence motion on March 26, 2012, an evidentiary hearing followed
on June 16, 2012, and the court denied the motion on August 17, 2012.
Appellant timely filed a notice of appeal on September 13, 2012.
On
September 18, 2012, the court ordered a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b), and amended that order on
October 8, 2012. Appellant timely complied on October 26, 2012.
Appellant raises one issue for our review:
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WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING [APPELLANT] TO CONSECUTIVE SENTENCES
AGGREGATING TO NINE (9) TO TWENTY (20) YEARS IN
PRISON FOR ROBBERY AND CONSPIRACY ARISING OUT
OF THE SAME INCIDENT, FOR THE FIRST MISDEMEANOR
OR FELONY ADULT OFFENSES COMMITTED BY A THEN
TWENTY YEAR OLD DEFENDANT, PURSUANT TO OPEN
GUILTY PLEAS?
(Appellant’s Brief at 7).
Appellant argues the sentence was manifestly excessive, because the
court did not adequately consider the mitigating factors of Appellant’s
circumstances or his potential for rehabilitation.
Specifically, Appellant
contends the court should have given more weight to Appellant’s lack of
serious prior offenses, his “sparkling” pre-sentence investigation report, his
apology and expressions of remorse, his unlikelihood of re-offending, and his
claim of manipulation by his co-conspirator to commit the crime. Appellant’s
challenge
is
to
the
discretionary
aspects
of
his
sentence.2
See
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
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2
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
plea was “open” as to sentencing, so he can challenge the discretionary
aspects of his sentence.
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that sentence is manifestly excessive challenges discretionary aspects of
sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.
910 (Pa.Super. 2000).
Commonwealth v. Sierra, 752 A.2d
Prior to reaching the merits of a discretionary
sentencing issue:
[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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
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decision to exceptional cases.”
Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895
(2009), cert. denied, ___ U.S. ___, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009)
(quoting Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.
1989) (en banc)) (emphasis in original) (internal quotation marks omitted).
Instantly,
Appellant’s
post-sentence
motion
boldly
claimed
the
sentence was excessive and went beyond that necessary to protect the
public and punish Appellant for the gravity of the offenses. Appellant noted
he had no criminal history before or after the events at issue, maintained
steady employment, and was a productive and positive member of society.
Appellant also stated his sentence was disproportionate with other sentences
imposed by the Chester County Court of Common Pleas for similar crimes.
(Appellant’s Post-Sentence Motion, filed 3/26/12, at 1-2).
In his Rule
1925(b) statement, Appellant claimed his sentence was excessive given (a)
his history of law-abiding behavior before and after the incident, (b) his
guilty plea, and (c) his sentence was disproportionate with other sentences
imposed by the Chester County Court of Common Pleas for similar crimes.
(Appellant’s Rule 1925(b) statement, filed 10/26/12, at 1).
On appeal,
Appellant’s Rule 2119(f) statement asserts his sentence was unduly harsh
and excessive because (a) he entered and open guilty plea, (b) the court
imposed consecutive sentences for a single episode, totaling an aggregate of
nine to twenty years, and (c) the court failed to consider Appellant was
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manipulated by a seasoned felon, Appellant had no serious criminal record,
Appellant’s character and attitudes predict he will not re-offend, his sincere
apology and remorse by pleading guilty, and his “sparkling” PSI report.
(Appellant’s Brief at 10).
Appellant properly preserved his claim that the sentence was excessive
on the following grounds only: he had no prior or subsequent criminal
history and he had a “sparkling” PSI.
His claim of manipulation by a
seasoned felon was not raised in his post-sentence motion, so that one is
waived.
Likewise, Appellant waived all other claims raised in his Rule
1925(b) statement and Rule 2119(f) statement for the same reason that
they were not raised in his post-sentence motion.
So, for example, his
claims of positive character and attitudes, his remorse, his guilty plea as a
benefit to the court and the Commonwealth, and his challenge to the
imposition of consecutive sentences are all waived. Finally, Appellant wholly
abandoned on appeal his “disparate” sentence complaint.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.
Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13.
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Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
“[A] court is
required to consider the particular circumstances of the offense and the
character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert.
denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
“In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.” Id.
Instantly, the court had the benefit of a PSI report at sentencing.
Therefore, we can trust that the court considered the relevant factors when
sentencing Appellant. See Tirado, supra at 368 (stating where sentencing
court had benefit of PSI, law presumes court was aware of and weighed
relevant information regarding defendant’s character and mitigating factors).
Additionally, the court imposed sentences which all fell within the standard
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range of the sentencing guidelines.
For the robbery (threatens serious
bodily injury), with a prior record score of “0” and an offense gravity score of
“10”, the standard range was twenty-two to thirty-six months’ incarceration.
The court imposed twenty-four to sixty months’ incarceration, which fell
within the standard range of the sentencing guidelines.
For the second
count of robbery (inflicts serious bodily injury), with a prior record score of
“0” and an offense gravity score of “12”, the standard range was forty-eight
to sixty-six months’ incarceration. The court imposed sixty to one hundred
twenty months’ incarceration, which fell within the standard range of the
sentencing guidelines.
For the burglary (home—person present), with a
prior record score of “0” and an offense gravity score of “9”, the standard
range was twelve to twenty-four months’ incarceration. The court imposed
twelve to thirty-six months’ incarceration, which fell within the standard
range of the sentencing guidelines.
For the conspiracy—burglary (home—
person present), with a prior record score of “0” and an offense gravity score
of “8”, the standard range was nine to sixteen months’ incarceration. The
court imposed twelve to twenty-four months’ incarceration, which fell within
the standard range of the sentencing guidelines. The court imposed these
sentences to be served consecutively.
Hence, Appellant received an
aggregate sentence of nine to twenty years’ incarceration.
Addressing Appellant’s properly preserved claims, the court reasoned
as follows:
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In the matter sub judice, we had the benefit of a presentence report, thus, we would respectfully submit that
we are entitled to the assumption that the relevant
mitigating factors were properly considered in fashioning
the appropriate sentence for this [Appellant]. Additionally,
the record of [Appellant’s] sentencing demonstrates that
this [c]ourt did take into consideration all of the mitigating
factors outlined by the [Appellant] and weighed them
appropriately. As this [c]ourt stated, after an impassioned
plea for leniency from defense counsel,
[Appellant], I have considered everything here. And
as we all know who are in this court room today,
there is a lot for the [c]ourt to consider. I have to
consider the argument of the prosecutor, the
argument
of
your
lawyer,
the
facts
and
circumstances surrounding the crime, the impact this
crime has on the victims. In reality, you victimized
not only that family of strangers that you didn’t
know, but your own family. They seem to be solid
folks. And they are shocked, as well as everyone
else in this courtroom, as to why this ever happened.
But I also am required to consider the factors
specified in our sentencing code, and this is the
difficult part, balancing the background, character
and circumstances of you with the circumstances of
the crime. I have to consider whether there is a
need for incarceration to prevent future offenses by
you and the possibility for your rehabilitation. I
further have to consider and follow the general
principles that the sentence imposed, this is what
make it difficult, 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 victims and on the community and
your rehabilitative needs and the guidelines.
Now, there’s things going both ways here in my
balancing. One, you didn’t put this family through
the [rigors] of a trial. They have been victimized
enough.
The facts here demonstrate extreme
violence. That’s a fact. The offense is more onerous
than usual. There was a weapon used to inflict
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serious harm, almost death to this victim who was in
intensive care. There’s multiple victims, one being
an eighteen month old child that was thrown about
like a rag doll. The physical damage inflicted is
severe, as well as the psychological damage. You
can see it in the victims’ eyes. And then I have to
consider whether a lesser sentence would depreciate
form the seriousness of this attack. I mean, this
type of crime is every homeowner’s nightmare. And
just imagine people invading your home at this time,
4:00 something a.m., asleep, dressed in black, in the
middle of the morning hours, before daylight. It’s
terrifying and traumatic. How did someone do that,
I just don’t understand. I still don’t understand why
you’re involved in this.
And I hear from your family and I look at the PSI,
there is no record, very minor, of a retail theft and
two disorderly conducts. Your lawyer advocated so
strongly that there is really nothing here that jumps
you to a crime of this nature. That’s what is so
shocking about this and makes the sentencing so
difficult. As I said, what makes it more difficult is
you were the inflictor of the more serious harm
versus [the co-defendant]. [The co-defendant] was
encouraging you. And I think if it wasn’t for your
association with [the co-defendant], I don’t think you
would be in this situation, because your PSI doesn’t
reflect you would. Just I am at a loss as to why you
did this.
I saw in the PSI that you have tattooed on you trust,
honor and respect. But yet the conduct in this case
was so far removed from the meaning tattooed on
your body. You should conform your conduct to the
principles you have outlined in your tattoo and you
would never be in this situation. I have been coming
out with different numbers here. That’s what is so
hard about sentencing. Some say that when both
sides are unhappy, it was an appropriate sentence. I
can’t imagine what these victims went through. It’s
obviously had a life-long impact on them. One is
medicated. The rest are still traumatized.
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Here’s what I’m going to do. Yes, it has to be a
state sentence. Justice calls for that under these
terrible facts. But I will hopefully allow you to get
out of prison at a reasonable age and maybe you can
get your life back together and go on to make your
father proud. I think, I believe your apology to this
family was sincere. That went well for you. But
what you did here was just so traumatic, so serious,
I have to sentence you accordingly.
*
*
*
So the totality of my sentence I believe is not less
than nine, [or] more than twenty years in a state
correctional facility. I could have gone much higher
as you well know. I could have gone lower. I
believe I considered everything here. I do credit
some of what your lawyer said. I do believe, I think
you can live a law abiding life. I think this was
somewhat of an aberration. But the problem was,
the aberration was so severe that you almost took
that man’s life. And anything short of that heavy
sentence like this wouldn’t be appropriate. He has
fifty percent less hearing. He has pain down his leg,
probably can’t sleep at night. You just [wreaked]
havoc on that family.
I gave you a little light at the end of the tunnel,
young man. At least you’ll get out. This fellow is
never going to get out of his injuries. He is going to
walk around saying what did you say, what did you
say? Every time he says that, he thinks about why
can’t I hear?
It’s just a terrible thing you got
yourself in.
I feel sorry for the victims of this case. I feel sorry
for your father. He seemed like a good man. You
made a mistake. You’ll pay for it. Just come out
better. The sheriffs will take him into custody.
(Sentencing Transcript, 3/22/12, N.T. 83-94).
The record demonstrates that we heard from [Appellant’s]
family and friends, from [Appellant’s] lawyer, and from
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[Appellant] himself. The record demonstrates that we had
a pre-sentence report, read it, and considered it in
fashioning [Appellant’s] sentence.
We were aware of
[Appellant’s] very limited prior record score of one retail
theft from 1997 and two disorderly conducts, one in 2007
and the other in 2008, which translated into a Prior Record
Score of zero (0) for sentencing purposes here. We knew
of [Appellant’s] educational status, his college experience,
as well as the reasons why he did not graduate from that
college (poor grades and “partying”), and his steps as well
as missteps, after his separation from college, in
attempting to establish a productive, law-abiding life. We
considered all of these factors and balanced them against
the severity of the harm inflicted upon the victims, the
level of [Appellant’s] threat to the community, and
[Appellant’s] need for and ability to be rehabilitated. We
sentenced [Appellant] to a sentence proportionate to his
crime, but one to which left a “light at the end of the
tunnel[,]” so to speak, one from which [Appellant] can
emerge with the majority of his life intact, young enough
to still start and raise a family, pursue a career, and make
a significant productive contribution to society.
For all these reasons, we would respectfully submit that
[Appellant’s] challenge to the excessiveness of his
sentence, whether based on our alleged failure to give
“adequate” weight to certain mitigating factors or just in
general, does not present a substantial question under
these circumstances. …
(Trial Court Opinion, filed December 4, 2012, at 9-13) (most internal
citations omitted). We agree with the court that, under the circumstances of
this case, Appellant’s surviving claims do not appear to raise a substantial
question
as
to
the
discretionary
aspects
of
his
sentence.
See
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995),
appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating: generally “[a]n
allegation that a sentencing court ‘failed to consider’ or ‘did not adequately
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consider’ certain factors does not raise a substantial question that the
sentence was inappropriate”). We emphasize the court had the benefit of a
presentence investigative report, which it carefully reviewed.
So, we can
presume the court was aware of all relevant information regarding
Appellant’s character and properly weighed those considerations along with
any mitigating factors.
See generally Commonwealth v. Rhoades, 8
A.3d 912 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328
(2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1746, 182 L.Ed.2d 536
(2012). Thus, Appellant is not entitled to relief. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Prothonotary
Date: 7/30/2013
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