Com. v. Boyer

Citation856 A.2d 149
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Jay Michael BOYER, Appellant.
Decision Date03 August 2004
CourtSuperior Court of Pennsylvania

Edward J. Rymsza, Williamsport, for appellant.

David P. Johnson, Asst. Dist. Atty., Lewisburg, for Com., appellee.

BEFORE: DEL SOLE, P.J., JOYCE, and KLEIN, JJ.

OPINION BY JOYCE, J.:

¶ 1 Jay Michael Boyer, Jr. (Appellant) appeals from the judgment of sentence entered in the Court of Common Pleas of Union County, following his conviction for one count of conspiracy to commit robbery, two counts of robbery, one count of burglary, and two counts each of terroristic threats, unlawful restraint, and simple assault. On appeal, Appellant claims that the imposition of a 26 to 100 year sentence was manifestly excessive; that he was denied a fair trial because the trial court permitted the introduction of evidence of the guilty plea of a co-defendant; that the trial court failed to give a cautionary instruction to the jury that this guilty plea should not be considered as evidence; that the omission of a corrupt source instruction was error; and that the trial court erred in finding that Appellant's counsel did not render ineffective assistance. Upon review, we affirm the judgment of sentence, and dismiss the ineffective assistance of counsel claims without prejudice.

¶ 2 On August 31, 2001, Appellant and his two co-defendants forcefully entered the residence of an elderly couple. Appellant was armed with a pellet gun. The perpetrators threatened to shoot the victims, tied them up with duct tape, and stole a large sum of money. Following conviction, the sentencing court imposed the five-year mandatory minimum sentences on the convictions for conspiracy to commit robbery (18 Pa.C.S.A. § 903) and burglary (18 Pa.C.S.A. § 3502), and imposed five and one-half years minimums on the two counts of robbery (18 Pa.C.S.A. § 3701(a)(1)(ii)). The court also imposed the statutory maximum sentence of twenty years on each of these charges. Next, the court sentenced Appellant applying the deadly weapon enhancement to 15 to 60 months' imprisonment both counts of unlawful restraint (18 Pa.C.S.A. § 2902) and both counts of making terroristic threats (18 Pa.C.S.A. § 2706). Finally, the trial court sentenced Appellant to serve 12 to 24 months' imprisonment on both counts of simple assault (18 Pa.C.S.A. § 2701). Appellant was sentenced to the statutory maximum on each charge, and each sentence was ordered to be served consecutively. N.T. Sentencing, 12/17/02, at 14. A post-sentence motion was filed alleging that the sentences for simple assault should merge with the sentences for robbery. The trial court granted this relief in an order filed May 9, 2003. Accordingly, Appellant received an aggregate sentence of 312 to 1,200 months' imprisonment.

¶ 3 Appellant argues that his sentence was manifestly excessive and that the court erred by considering only the serious nature of the offenses and failing to consider mitigating factors such as his age (19) at sentencing, his rehabilitative needs, his limited education, his years of drug dependency, and his family dysfunction. We note there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 621 (2002). Rather, allowance of appeal will be permitted only when the appellate court determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. Id. The determination of what constitutes a substantial question is made on a case-by-case basis. Commonwealth v. McNabb, 819 A.2d 54 (Pa.Super.2003). A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Id. at 56.

¶ 4 An appellant who seeks to challenge the discretionary aspects of his or her sentence must provide a separate statement, pursuant to Rule of Appellate Procedure 2119(f), specifying where the sentence falls in relation to the Sentencing Guidelines and what particular provision of the Sentencing Code has been violated. Id. The 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm. Id. Appellant has included a 2119(f) statement, and we will proceed to a determination of whether Appellant has raised a substantial question.

¶ 5 In Appellant's 2119(f) statement he alleges that the trial court imposed a manifestly excessive sentence and focused solely on the serious nature of the crimes he committed. We find that Appellant has raised a substantial question, and we will therefore address the merits of his claim. See Commonwealth v. Walls, 846 A.2d 152 (Pa.Super.2004)

(wherein a panel of this court stated that it is error for the trial court to base its sentence on the seriousness of the crime alone).

¶ 6 Initially, it is necessary that we dispel a misconception at the heart of Appellant's argument. At page 13, Appellant claims that based on federal truth-in-sentencing incentive grant laws (TIS), he is condemned to served at least 85% of his maximum sentence before he is eligible for parole, necessitating in this instance a minimum sentence of 85 years' imprisonment. Brief for Appellant at 13. This assertion is incorrect.

¶ 7 While it is true that to qualify for federal TIS grants, a state must require certain violent offenders to serve not less than 85% of their sentence (see 42 U.S.C. §§ 13701-13712), and while it is also true that Pennsylvania qualifies for the federal grant program (see Carter v. Muller, 45 F.Supp.2d 453, 456 (E.D.Pa. 1999)

), it is not true that a violent offender in Pennsylvania must serve 85% of his maximum sentence in order for Pennsylvania to qualify for the TIS grants.

¶ 8 Pursuant to the TIS, a state is eligible for the grant when a person convicted of certain violent crimes serves, on average, not less than 85% of the prison term established under that State's sentencing and release guidelines. 42 U.S.C. § 13704(a)(3)(A). In Pennsylvania, our sentencing and release guidelines provide that, at the discretion of the Parole Board, parole may be granted after the expiration of the minimum term. 61 P.S. § 331.21 (emphasis supplied). The misconception stems from the fact that a state may alternatively qualify for the TIS grant by showing that inmates serve on average not less than 85% of the maximum prison term. 42 U.S.C. § 13704(a)(3)(B) (emphasis supplied).

¶ 9 However, Pennsylvania does not qualify under section (B); it qualifies under subsection (A). Carter; Commonwealth v. Baldwin, 760 A.2d 883 (Pa.Super.2000). Pennsylvania is an indeterminate sentencing state; indeterminate sentencing under this section of the Federal Act, is defined as: "a system by which — (A) the court may impose a sentence of a range defined by statute; and (B) an administrative agency, generally, a parole board, or the court, controls release within the statutory range. . . ." 42 U.S.C. § 13701(1). Accordingly, Appellant's assertion that there is a requirement that violent offenders in Pennsylvania must serve 85% of their maximum sentence is without merit as there is no such mandate. In Pennsylvania, the determination as to whether an inmate serves only his minimum sentence, serves the maximum term, or serves some amount of time in between, is a decision to be made by the inmate in how he conducts himself while incarcerated and ultimately up to the Pennsylvania Board of Probation and Parole. Accordingly, Appellant is entitled to no relief as to this aspect of his appeal.

¶ 10 With respect to the balance of Appellant's challenge to the discretionary aspects of his sentence, we note that a sentencing judge is given a great deal of discretion in the determination of a sentence, and that sentence will not be disturbed on appeal unless the sentencing court manifestly abused its discretion. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.2001) appeal denied, 568 Pa. 695, 796 A.2d 979 (2002); 42 Pa.C.S.A. § 9721. The "[s]entencing court has broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime." Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8, 12 (1992).

¶ 11 Discretion is limited, however, by 42 Pa.C.S.A. § 9721(b), which provides that a sentencing court must formulate a sentence individualized to that particular case and that particular defendant. Section 9721(b) provides: "[t]he court shall follow the general principle that the sentence imposed 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.A. § 9721(b).

¶ 12 In Commonwealth v. Walls, supra,

this Court reviewed a trial court's imposition of a 21 to 60 year sentence after the appellant pled guilty to charges that he sexually molested his seven-year old granddaughter during overnight visits. We held the court abused its discretion when it imposed a sentence outside the sentencing guidelines based on the serious and heinous nature of the crime without taking into account the other section 9721(b) factors. We stated: "The focus should not be upon the seriousness, heinousness or egregiousness of the offense generally speaking, but, rather, upon how the present case deviates from what might be regarded as a "typical" or "normal" case of the offense under consideration." Walls, supra at 158.

¶ 13 We note that in the case at bar, Walls is not directly on point because here, Appellant's sentences fall squarely within the standard range of the sentencing guidelines for all of his convictions. See 204 Pa.Code § 306.15-16 (Pennsylvania Sentencing Guidelines). This is true...

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