Commonwealth v. Lomax

• Docket Number: 926 WDA 2022,J-S01045-23
• Decision Date: 06 June 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. YVONNE LOMAX Appellant
• Court: Pennsylvania Superior Court

1

COMMONWEALTH OF PENNSYLVANIA v. YVONNE LOMAX Appellant

No. 926 WDA 2022

No. J-S01045-23

Superior Court of Pennsylvania

June 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered March 11, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002037-2021

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Yvonne Lomax, appeals judgments of sentence imposed by the Erie County Court of Common Pleas after she entered a guilty plea to corruption of minors and simple assault. On direct review nunc pro tunc, Appellant challenges the discretionary aspects of her sentence. Upon review, we affirm.

On January 7, 2022, Appellant pleaded guilty to the above charges in exchange for the Commonwealth's agreement to nolle prosse additional charges for criminal trespass, recklessly endangering another person, harassment burglary, and a second count of corruption of minors. N.T. 1/7/22, 4-6; Statement of Understanding of Rights, 1/7/22, ¶ 5; Disposition/Commitment Form, 1/6/22, 1-2; Bills of Information 9/23/21, 1-3.

Appellant agreed that the factual basis for her plea involved her breaking into a home of a woman named Carolyn Williams, in the 1200 block of East 28th Street, in the City of Erie, on July 12, 2021, while in the presence of two of her minor children, and striking Ms. Williams in her face with a closed fist while Ms. Williams was in the presence of her six-month-old child. N.T. 1/7/22, 6-7.

On March 11, 2022, the plea court imposed concurrent terms, at the bottom of the standard range recommended by the Sentencing Guidelines, including nine to twenty-three months' imprisonment, to be followed by two years' probation, for corruption of minors, and six to twelve months' imprisonment for simple assault.^[1] Sentencing Order, 3/11/22, 1; N.T. 3/11/22, 8. Prior to imposing the sentence, the court noted that it considered the statements of the parties, in addition to Appellant's "age, background, criminal record, character, rehabilitative needs, nature, circumstances, and seriousness of the offense, the protection of the community, sentencing guidelines, impact of the crime on the victim, and the pre-sentence report." N.T. 3/11/22, 8.

Appellant did not file a timely post-sentence motion or an appeal. After she filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46, in which she requested the reinstatement of her post-sentence motion and direct appeal rights nunc pro tunc, the plea court granted that relief and appointed new counsel. Order, 6/8/22, 1. Appellant thereafter filed a timely post-sentence motion in which she requested a reconsideration of her sentence because it was supposedly "manifestly excessive" and "clearly unreasonable."^[2] Post-Sentence Motion, 7/8/22, ¶ 3. She asserted that a "sentence with less jail time would have been appropriate to protect the community and to punish and rehabilitate" her and attached correspondence allegedly from her victim to show that the victim wanted to "drop the charges" against her. Id. After the plea court subsequently denied the post-sentence motion, Appellant timely filed a notice of appeal and an untimely court-ordered concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).^[3] Order Denying Post-Sentence Motion, 7/12/22, 1; Notice of Appeal, 8/10/22, 1; Rule 1925 Order, 8/10/22, 1; Rule 1925(b) Statement, 9/9/22, 1-2.

Appellant presents the following question for our review: "Were the sentences manifestly excessive and clearly unreasonable, unaccompanied by a sufficient statement of reasons, and not individualized as required by law?" Appellant's Brief at 1 (unnecessary capitalization omitted).

Appellant's sole claim on appeal challenges the discretionary aspects of her sentence. As such, this Court's jurisdiction is limited because challenges to the discretionary aspects of a sentence are not appealable as of right. Commonwealth v. Moser, 283 A.3d 850, 858 (Pa. Super. 2022). Instead, to invoke our jurisdiction, with respect to this claim, Appellant needed to: (1) file a timely notice of appeal; (2) properly preserve the issue at sentencing or in a motion to reconsider and modify the sentence; (3) comply with Pa.R.A.P. 2119(f), which requires Appellant to include a separate section in her brief setting forth "a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence[;]" and (4) present a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022).

As acknowledged above, Appellant satisfied the requirement of filing a timely notice of appeal following the reinstatement of her direct appeal rights. She also filed a post-sentence motion. In the motion, she preserved her argument that her sentence was excessive and unreasonable as follows:

[Appellant] argues that the sentence in her case was manifestly excessive and clearly unreasonable in its overall [sic] and that a sentence with less jail time would have been appropriate to protect the community and to punish and rehabilitate the petitioner, especially since she has five children and has been incarcerated since July 19, 2022. She further indicates that the victim wanted to drop the charges and had called the [Appellant's] attorney prior to the court proceedings in this case to state that. A letter from the victim is attached hereto.

Post-Sentence Motion, 7/8/22, ¶ 3.

To the extent that Appellant alludes to a claim that the plea court abused its discretion by not offering an adequate statement of reasons for the sentence in her Statement of the Question Presented section of her brief, we note that she fails to offer any arguments to that effect in her brief and has waived any claim to that effect. See Commonwealth v. Jackson, 431 A.2d 944, 945 n.1 (Pa. 1981) (claim addressed in a "Statement of Questions Involved" but not addressed in the "Argument" section of an appellant's brief is waived). Even if that claim were included in the argument section of Appellant's brief, it would be waived because it was not preserved either at sentencing or in the claim included in Appellant's post-sentence motion nunc pro tunc. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (discretionary sentencing claim waived where, although appellant filed a post-sentence motion for reconsideration of sentence, the motion did not include the specific claim raised on appeal); Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal").

We next appreciate that Appellant included a separate section in her brief pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 2-3. The last threshold question prior to engaging in review of the merits of Appellant's claim is whether her Rule 2119(f) statement raises a substantial question.

A substantial question exists where the appellant advances a colorable argument that the sentencing judge's actions were inconsistent with a specific provision of the Sentencing Code or were contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en banc); Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014). "The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011).

In her Rule 2119(f) statement, Appellant asserts:

The fundamental norm violated was that the sentence was manifestly excessive in that it was not individualized. The specific portion of the Code violated was 42 Pa.C.S. § 9781(b), which requires that a sentence not be clearly unreasonable.

…

Here, the court did not individualize the sentence for [Appellant]. She argues that the jail portion of the sentence was unnecessary and that the trial court failed to consider the fact that she has five children to care for and that the victim did not wish for [Appellant] to be incarcerated and wanted to drop the charges.

Appellant's Brief at 3.

Section 9781(b) is the only specific provision of the Sentencing Code addressed by Appellant's Rule 2119(f) statement. To the extent that Appellant asserts that the sentencing court violated Section 9781(b), we are unable to discern the existence of a substantial question. Section 9781(b) merely codifies the procedure by which a party may seek review of the discretionary aspects of a sentence with this Court as follows:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S. § 9781(b); see Commonwealth v. McFarlin, 587 A.2d 732, 735 (Pa. Super. 1991) (en banc) ("In effect, § 9781(b) merely requires an accused to indicate how the trial court possibly abused its discretion before the appellate court will consider the merits of his contentions as to the discretionary aspect of sentence."). Where Section 9781(b) does not address the reasonableness of a sentence or the exercise of a sentencing court's discretion, it cannot be violated by the imposition of a sentence. Accordingly, an alleged violation of Section 9781(b) cannot support a substantial question.

In the alternative, Appellant argues that the sentencing c...