Commonwealth v. Nelson

1

COMMONWEALTH OF PENNSYLVANIA v. KHALIL NELSON Appellant

No. 1561 EDA 2023

No. J-S06037-24

Superior Court of Pennsylvania

May 20, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 20, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001174-2022

Benjamin D. Kohler, Esq.

BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J

Khalil Nelson ("Nelson") appeals from the judgment of sentence imposed following his convictions for persons not to possess a firearm, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia.^[1] We affirm.

The factual history of this case is as follows:

[In January 2022], Police Officer [Duane] Wright (["Officer] Wright") was conducting surveillance in the area . . . when he saw [Nelson] exit an apartment complex and cross to the south side of the street. [Nelson] reached into the front of his waistband, stooped down, and placed a gun curbside near the tire of an unoccupied minivan. Afterwards, [Nelson] continued walking westbound . . .. Officer Wright radioed for back-up officers to stop [Nelson,] and he was arrested. The firearm was retrieved from the location by Officer [Ryan] Wong and subsequently determined to be a loaded Glock 22 with a laser on the bottom of the barrel.

Trial Court Opinion, 11/30/23, at 2 (citations to the record omitted).

In October 2022, Nelson proceeded to a nonjury trial and the court found him guilty of the above-stated offenses.^[2] At the sentencing hearing in December 2022, the trial court noted its review of both Nelson's criminal record and the presentence investigation report ("PSI"). See N.T., 12/20/22, at 5, 34-36. The trial court stated that it "[took] into consideration [that Nelson] did waive [his] right to a jury trial, saving the Commonwealth the cost and expense of such. So, [the trial court] will grant some mitigation." Id. at 37. The trial court then imposed a standard range sentence of six to twelve years for persons not to possess a firearm, and no further penalties for carrying a firearm without a license and for carrying a firearm in Philadelphia.^[3]

Nelson filed a timely post-sentence motion, which the trial court denied by operation of law. This timely appeal followed.^[4] Nelson raises the following issue for our review:

Is the sentence imposed unduly harsh and excessive under the circumstances of this case[,] where the sentencing court expressly stated during the sentencing hearing that it "will grant some mitigation[,]" but did not impose a sentence in the mitigated range of the applicable sentencing guidelines, but rather imposed a sentence in the standard range applicable under the sentencing guidelines?

Nelson's Brief at 4 (footnote omitted).

Nelson's issue implicates the discretionary aspects of his sentence. "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges the discretionary aspects of their sentence, this Court must consider their brief on this issue as a petition for permission to appeal. Prior to reaching the merits of a discretionary sentencing issue, this Court conducts a four-part analysis to determine the following:

[(1)] whether [Nelson] 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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170.

Nelson filed a timely notice of appeal and properly preserved his issue in his post-sentence motion and Rule 1925(b) statement. He included a Pa.R.A.P. 2119(f) statement in his brief. Thus, Nelson has met the technical requirements for seeking review of the discretionary aspects of his sentence, and we must determine whether Nelson raised substantial question.

Whether a substantial question exists is examined on a case-by-case basis. See Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018). A substantial question exists if "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." Id. (internal citation omitted). We examine an appellant's Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists. See Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019). "[The] inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. (emphases in original).

Bald assertions of sentencing errors will not be accepted by this Court. See Commonwealth v. Faison, 297 A.3d 810, 835 (Pa. Super. 2023). "[T]he Superior Court has held that a claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits." Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa. Super. 1995) (internal citations and quotation marks omitted). Additionally, "an allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Jones, 613 A.2d 587, 593 (1992) (internal quotation marks omitted). This Court has previously stated that ". . . a claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question." Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (internal citations omitted; emphasis in original). Similarly, "[a] claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Id. at 339 (internal citation omitted). However, a claim of excessiveness in conjunction with a failure to consider mitigating factors can raise a substantial question. See Radecki, 180 A.3d at 468.

In his Rule 2119(f) statement, Nelson notes he waived his right to a jury trial and agreed to a bench trial, and the trial court expressly recognized this as a mitigating factor. See Nelson's Brief at 19.^[5] He also emphasizes that "[a]t sentencing[,] both [Nelson] and his attorney expressly asked for mitigation." Id. at 24. Nelson asserts that the trial court said it would grant some mitigation, but it did not impose a mitigated range sentence. See id. at 22-23. Nelson also contends there were numerous mitigating circumstances including his age (twenty-nine years old at the time of the offenses), his consistent legitimate employment, and his "undiagnosed and untreated mental health conditions," which the trial court did not consider. Id. at 22, 24. In sum, Nelson claims that the trial court failed to mitigate when it said it would, and failed to adequately consider all mitigating circumstances. See id. at 25.

Following our review, we conclude that Nelson has failed to raise a substantial question. This Court will not accept a bald assertion of sentencing errors, see Faison, 297 A.3d 810 at 835, and Nelson points to no portion of the Sentencing Code or a fundamental norm of sentencing that the trial court's recognition and acceptance of mitigating circumstances requires it to impose a mitigated range sentence. Additionally, a claim arguing insufficient consideration of mitigating factors does not raise a substantial question. Swope, 123 A.3d 333 at 339 (internal citation omitted). Thus, Nelson has not demonstrated a colorable assertion that the trial court's sentence was inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.

Even if Nelson raised a substantial question, no relief would be due. Our narrow and well-established standard of review for challenges to 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 a[t] a manifestly unreasonable decision.

Commonwealth v. Torres, 303 A.3d 1058, 1065 (Pa. Super. 2023) (citation omitted). See also Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018). When the sentencing court applies the sentencing guidelines, this Court may only vacate if the case involves circumstances where the application of the guidelines would be clearly unreasonable. See 42 Pa.C.S.A. § 9781(c)(2); see also Commonwealth v. McCarthy, 180 A.3d 368, 380 (Pa. Super. 2018).

Our legislature has determined "the sentence imposed should call for total confinement that is consistent with . . . the protection of the public, the gravity of the offense as it relates to the impact on the . . . community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A § 9721(b). Moreover, "[i]n every case in which the court imposes a sentence for a felony . . ., the court shall make as a part of the record[] and disclose in open court at the time of sentencing, a...