Opinion
J. S55025/16 No. 3810 EDA 2015
09-19-2016
COMMONWEALTH OF PENNSYLVANIA, v. JAMES ALVIN JONES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 12, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000709-2012 BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant, James Alvin Jones, appeals from the Judgment of Sentence imposed on May 12, 2014, in the Court of Common Pleas of Chester County. After careful review, we conclude that Appellant's sentence was not excessive relative to his co-defendants where (i) the Commonwealth had stronger evidence against Appellant; (ii) the evidence indicated Appellant was more culpable than his co-defendants; and (iii) the trial court sufficiently explained its reasoning behind the sentence imposed. We, therefore, affirm on the basis of the trial court's well-reasoned opinion.
The trial court summarized the facts underlying Appellant's convictions as follows:
Appellant's conviction is the consequence of a deadly attack upon rival gang members that occurred on the night of December 3, 2011[,] during the course of a student-arranged bonfire parlay at 1641 Baltimore Pike in New Garden Township, Chester County, PA. Many in attendance at the party were Kennett High School students, and most attendees were not gang members. However, gang activity is rampant in parts of southern Chester County, the principal gangs being the "Surenos" or Sur 13 and its rival, the Vikings, also referred to as the "Vaqueros" or "VK", both comprised principally of members of Mexican/Spanish ancestry.Trial Court Opinion, dated 3/10/16, at 5-6 (unpaginated) (paragraph breaks added).
On that night, [Appellant], who was not a Sur 13 gang member, but a close acquaintance and member of a gang known as "the Bloods", was in the company of several members of Sur 13, who were ultimately charged with third[-]degree murder and other crimes in this case. During that evening, news of the Vikings attendance at the bonfire party became known to Sur 13 gang members and to [Appellant], and was disseminated to other Sur 13 gang members.
Emboldened with mindless machismo, Sur 13 gang members conceived a plan to attack the Vikings who were attending the bonfire party. During the evening before the attack, Appellant had a knife in his possession which he displayed to Sur 13 members and passed around. This knife was later identified as the knife used to kill both victims.
[Appellant] and as many as fifteen gang members and hangers-on drove in two vehicles to 1641 Baltimore Pike. The two groups exited the vehicles and approached the Vikings in two cadres around a house trailer located on the property. Circumstances became immediately chaotic, with many of the party attendees running in fear from the scene. Police believed that three of the five Vikings present locked themselves in vehicles to avoid harm, but the victims, 27[-]year[-]old Cuahuctemoc Bedolla and 29[-]year[-]old Jose Rodriquez did not reach safety and were attacked and murdered. The victims were attacked by as many as ten Sur 13 gang members.
The trial court summarized the procedural history as follows:
On August 23, 2013, Appellant entered into a counseled written plea agreement with the Commonwealth in which he pled guilty to two counts of murder in the third degree, 18 Pa.C.S.A. § 2502(c)[,] and one count of criminal conspiracy to commit third degree murder, 18 Pa.C.S.A. § 903.Id. at 1-4 (unpaginated) (some paragraph breaks added).
The written plea agreement provided for a negotiated term of imprisonment of 20 years to 40 years for the murder of Cuahuctemo Bedolla. See Count 3 of the information. Under the terms of the plea agreement, Appellant entered an open [plea] of guilty to murder in the third degree in the death of the second victim, Jose Rodriguez, stated in Count 5 of the information, and to Count 1 of the information charging criminal conspiracy. Appellant and the Commonwealth agreed that the sentence to be imposed by the sentencing judge in his discretion on Count 5 would be consecutive to the sentence imposed on [C]ount 3.
[The trial court deferred sentencing] to allow the Commonwealth and the Appellant to submit sentencing memorandums, which were filed on November 4, 2013. On November 6, 2013, [the trial court] sentenced Appellant as follows: Count 3, 20 to 40 years imprisonment; Count 5, 20 to 40 years imprisonment consecutive to Count 3; and Count 1, 10 years consecutive probation.
Appellant filed a timely motion for reduction of sentence, pursuant to which, on April 22, 2014 following hearing on the motion, oral argument and consideration of briefs, [the trial court] granted Appellant's motion in part, vacated the sentence on Count 5, and ordered Appellant to be presented for resentencing on May 12, 2014. On the latter date, [the trial court] resentenced Appellant on Count 5 to 14 years, 6 months to 29 years imprisonment consecutive to Count 3. In all other respects, the sentences imposed on November 6, 2013 on Counts 1 and 5 remained unchanged. No direct appeal was taken from the foregoing judgment of sentence.
On June 11, 2015, Appellant filed a pro se PCRA Petition, which he amended after the appointment of counsel, seeking the reinstatement of his direct appeal rights. The PCRA court granted the Petition and Appellant timely filed the instant appeal. Appellant raises the following issue for our review:
Whether the trial judge abused his discretion and sentenced [A]ppellant to an excessive sentence that was unfair when compared to the sentences given his [c]o-[d]efendants.Appellant's Brief at 4.
Appellant challenges the discretionary aspects of his sentence. A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Prior to reviewing such a claim on its merits:
[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa. Super. 2008) (citations and quotations 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 . . . .
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.
Appellant complied with the first two requirements by filing a timely Notice of Appeal and preserving his sentencing issues by filing a Petition to Reconsider Sentence. Although Appellant did not include in his brief a separate Rule 2119(f) Statement, the Commonwealth has not objected to this defect and, thus, we decline to find that the defect is fatal. Finally, Appellant's claim—that the trial court imposed a disparate sentence relative to his co-defendants—does raise a substantial question regarding the appropriateness of Appellant's sentence. See Commonwealth v. Mastromarino , 2 A.3d 581, 589 (Pa. Super. 2010) (concluding that an appellant raises a substantial question when he avers an unexplained disparity between his sentence and that of his co-defendant).
This Court may overlook the appellant's failure to comply with Rule 2119(f) "where the appellee fails to object to the omission and a substantial question is evident from the appellant's brief." Commonwealth v. Kneller , 999 A.2d 608, 614 (Pa. Super. 2010).
We turn to the merits of Appellant's claim, bearing in mind the following standard of review:
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. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation omitted).
The law governing our inquiry into allegations of a manifest abuse of discretion in sentencing multiple co-defendants is well-settled:
[C]o-defendants are not required to receive identical sentences. Generally, a sentencing court must indicate the reasons for differences in sentences between co-defendants. This is not to say, however, that the court must specifically refer to the sentence of a co-defendant. Rather, it requires that when there is a disparity between co-defendants' sentences, a sentencing court must give reasons particular to each defendant explaining why they received their individual sentences.Mastromarino , 2 A.3d at 589 (citation and quotation marks omitted).
In Mastromarino , this Court concluded that the trial court adequately placed on the record its reasons for sentencing Mastromarino to a greater sentence than his co-defendants, because Mastromarino had a greater role in the crime. Id. at 590.
In the instant case, the Honorable Ronald C. Nagle accepted guilty pleas from Appellant and each of his 11 co-defendants. Judge Nagle also presided at all 12 sentencing hearings. At Appellant's initial sentencing, and again at his re-sentencing, Appellant's trial counsel relied on the sentences imposed on Appellant's co-defendants to argue for a shorter sentence for Appellant. See N.T., 11/6/13, at 42-45, 52; N.T., 5/12/14, at 3-5. At both of Appellant's sentencing hearings, the Commonwealth argued that the evidence against Appellant was stronger than that against his co-defendants, Appellant was more culpable than his co-defendants, and Appellant had a more extensive record of prior criminal conduct than his co-defendants. See N.T., 11/6/13, at 28-30, 56; N.T., 5/12/14, at 5-8. Judge Nagle carefully considered these arguments, along with the report from Appellant's Pre-Sentence Investigation and sentencing memorandums from both parties, before imposing sentence in this case. See N.T., 11/6/13, at 10, 58-60; N.T., 5/12/14, at 4-5, 8-10.
Judge Nagle has authored a comprehensive, thorough, and well-reasoned Opinion, including a detailed discussion of the 11 other sentences imposed and an explanation for the higher sentence imposed in Appellant's case. After a careful review of Appellant's argument and the record, we affirm the Judgment of Sentence on the basis of that Opinion. Trial Court Opinion, at 12-17 (unpaginated). See also N.T., 11/6/13, at 62-65 (explaining the reasons for imposing Appellant's initial sentence and taking into account Appellant's greater admitted culpability); N.T., 5/12/14, at 8-10 (reflecting on the "considerable thought" put into crafting Appellant's sentence, and basing the modified sentence on the evidence showing that Appellant stabbed both victims).
The parties are directed to attach a copy of the trial court's March 10, 2016 Opinion to all future filings.
Judgment of Sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/19/2016
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