Com. v. MOURY
Decision Date | 24 March 2010 |
Docket Number | No. 158 EDA 2009.,158 EDA 2009. |
Citation | 992 A.2d 162 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Clinton Oliver MOURY, Appellant. |
Court | Pennsylvania Superior Court |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Karen M. Oill Moury, Harrisburg, for appellant.
Megan K. Kampf, Asst. Dist. Atty., for Com., appellee.
¶ 1 Appellant, Clinton Oliver Moury, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for two (2) counts of discharge of a firearm into an occupied structure,1 carrying a firearm without a license,2 possession of an instrument of crime with intent ("PIC"),3 two (2) counts of driving under the influence ("DUI"),4 six (6) counts of recklessly endangering another person ("REAP"),5 accidental damage to unattended vehicle or property,6 and two (2) counts of criminal conspiracy.7 We affirm.
¶ 2 The court summarized the relevant facts and procedural history of this case as follows:
(Trial Court Opinion, dated July 13, 2009, at 1-2). Mr. Bressi pled guilty and was sentenced pursuant to a negotiated plea agreement. Significantly, the Commonwealth offered the same plea deal to Appellant, which he rejected in favor of a jury trial.
¶ 3 From September 30 to October 3, 2008, the court held a jury trial. On October 3, 2008, the jury found Appellant guilty of discharging a firearm into an occupied structure, REAP, the DUI offenses, PIC, criminal conspiracy, and the firearm offense. On November 18, 2008, the court sentenced Appellant to two (2) to four (4) years incarceration for the first count of discharge of a firearm into an occupied structure, a consecutive sentence of one (1) to three (3) years incarceration for the second count of discharge of a firearm into an occupied structure; five (5) years probation on each PIC, firearms, and conspiracy charge, running concurrently to each other, but consecutive to the term of incarceration; and two (2) years probation for all of the six (6) counts of REAP, running concurrently to each other, but consecutively to the five (5) year probationary term. Appellant's aggregate sentence was three (3) to six (6) years of incarceration, followed by seven (7) years of probation.
¶ 4 On Monday, December 1, 2008, Appellant timely filed a post-sentence motion for modification of sentence. On December 2, 2008, the court denied Appellant's post-sentence motion. On December 31, 2008, Appellant filed a notice of appeal. On January 5, 2009, the court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b), which Appellant timely filed on January 28, 2009.
¶ 5 Appellant raises three issues for our review:
¶ 6 In his first issue, Appellant argues the court was biased and expressed ill-will towards Appellant through the judgment of sentence, because Appellant had exercised his right to a jury trial. Appellant maintains he should have received a lighter sentence than his codefendant, where Appellant was the accomplice in their crimes, had no prior record, and expressed genuine remorse. Because Appellant chose to proceed to trial while his co-defendant accepted a plea deal, Appellant is convinced the court was angry and sentenced Appellant to a much greater period of incarceration and probation. Appellant concludes the sentencing court's decision to impose such a harsh sentence on Appellant was unrelated to Appellant's actual convictions and amounted to "judicial vindictiveness due to Appellant exercising his constitutional right to a jury trial," and therefore constituted a "manifest abuse of discretion." (Appellant's Brief at 14).
¶ 7 Appellant concedes his minimum sentence is within the standard range of the sentencing guidelines on each count of discharge of a firearm into an occupied structure. Appellant further concedes the Sentencing Commission assigned this offense an offense gravity score of ten (10). Nonetheless, he argues the Sentencing Commission intended this offense gravity score to apply only to cases where a defendant intentionally fires a gun at an occupied structure. Appellant contends the fundamental norms underlying the Sentencing Code and our Supreme Court's decision in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), obligate a court to weigh the individual circumstances of a criminal defendant and modify the sentence to reflect the defendant's degree of culpability. According to Appellant, logic and justice should have compelled the sentencing court to consider the guidelines applicable to offenses with an offense gravity score of five (5) when determining his sentence because Appellant was no more than reckless and not a violent offender. Therefore, the court abused its discretion in strictly applying the guidelines to Appellant under the particular circumstances of this case.
¶ 8 Next, Appellant argues the court's imposition of consecutive sentences for each count of discharge of a firearm into an occupied structure was consistent with the court's "desired result to `warehouse' him by imposing two sentences at the lower end of the guidelines range, to be run consecutively." (Appellant's Brief at 27). Appellant contends this Court's decisions in Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004), appeal granted and order vacated, 594 Pa. 345, 935 A.2d 1290 (2007) ("Dodge I") and following remand for reconsideration in Commonwealth v. Dodge 957 A.2d 1198 (Pa.Super.2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) ("Dodge II"), stand for the proposition that it is an abuse of discretion for a court to impose consecutive sentences "for convictions arising from the same criminal activity" if the court makes only a "rather cursory explanation and other factors fail to justify the result." (Appellant's Brief at 28). Appellant asserts the court's explanation for imposing consecutive sentences was insufficient, given Appellant's lack of a prior criminal record, genuine remorse for his actions, payment of full restitution to the victims, and the lack of any bodily injury to the victims. Appellant also maintains his role in the criminal conduct is relevant to the length of the sentence and insists the court's imposition of consecutive sentences was improper because he was merely the accomplice. Appellant concludes this Court should vacate the judgment of sentence and remand the case for resentencing.8 Appellant's claims challenge the discretionary aspects of sentencing.
¶ 9 Our...
To continue reading
Request your trial-
Santiago v. Streeval
...judges have discretion to decide whether sentences will run consecutively or concurrently. 42 Pa. Cons. Stat. § 9721(a) ; Commonwealth v. Moury , 2010 PA Super 46, ¶ 17, 992 A.2d 162. So, all that the length of Santiago's sentence necessarily suggested to him was that his five crimes, in th......
-
Commonwealth v. Dodge
...bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question. See Commonwealth v. Moury, 992 A.2d 162, 171–172 (Pa.Super.2010) (“The imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the mos......
-
Commonwealth v. Antidormi
...fails to present a substantial question with regard to his sentence under subsections 3304(b) and 6105(a)(1). See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.2010) (citing Commonwealth v. Cruz–Centeno, 447 Pa.Super. 98, 668 A.2d 536, 545 (1995)) (“[W]here a sentence is within the sta......
-
Commonwealth v. Parker
...and citations omitted); see Commonwealth v. Garang, 9 A.3d 237, 244–245 (Pa.Super.2010) (citations omitted); Commonwealth v. Moury, 992 A.2d 162, 178 (Pa.Super.2010) (citations omitted).In this case, Appellant objected to the flight charge at the charging conference. See N.T., 3/3/11, at 12......