Com. v. Caesar, L. (memorandum)
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J. S28003/14 NON-PRECEDENTIAL DECISION COMMONWEALTH OF PENNSYLVANIA v. LAMONT CAESAR, Appellant SEE SUPERIOR COURT I.O.P. 65.37 : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1813 EDA 2009 Appeal from the Judgment of Sentence, March 29, 2006, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0300183-2005 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2014 Lamont Caesar appeals from the judgment of sentence of March 29, 2006. We affirm. On January 20, 2006, appellant entered open guilty pleas to numerous offenses relating to a crime spree which took place over three days in October 2004. At case number 0503-0018, appellant pled guilty to one count of attempted murder, two counts of robbery, two counts of aggravated assault, one count of criminal conspiracy, and a violation of the Uniform -0019, appellant pled guilty to two counts of robbery, criminal conspiracy, and VUFA. At case number 0509-0072, appellant pled guilty to one count of attempted murder, three counts of robbery, two counts of aggravated assault, criminal conspiracy, and two counts of VUFA. On March 29, 2006, appellant * Retired Senior Judge assigned to the Superior Court. J. S28003/14 appeared before the Honorable William J. Mazzola for sentencing. The as appellant, who exercised his right of allocution. The court also reviewed victim impact statements and a preand took the testimony of Steven Spielberger, one of the victims who was shot in the neck, chest, and arm by appellant. (Notes of testimony, 3/29/06 imprisonment. Appellant filed a pro se motion for reconsideration of he raised a challenge to the discretionary aspects of sentencing, was quashed for failure to include the requisite Rule 2119(f)1 statement in his brief. Commonwealth v. Caesar, No. 1472 EDA 2006, unpublished memorandum (Pa.Super. filed April 29, 2008). On August 26, 2008, appellant filed a timely PCRA2 petition seeking restoration of his direct appeal rights due to ineffective assistance of appellate counsel. New counsel was appointed, and on May 29, 2009, nunc pro tunc. This timely appeal followed on June 18, 2009.3 On August 31, 2009, appellant was 1 Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A. 2 Post-Conviction Relief Act, 42 Pa.C.S.A. ยงยง 9541-9546. 3 -defendant, Craig Carter, is currently pending before this court at docket number 2190 EDA 2008. -2- J. S28003/14 ordered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b); appellant timely complied on was harsh and excessive because the sentencing judge failed to adequately consider On November 6, 2009, Judge Mazzola issued a Rule 1925(a) opinion addressing the discretionary remand to obtain the notes of testimony from the January 2006 guilty plea hearing. On February 2, 2011, the trial court ordered appellant to provide the transcript from the guilty plea hearing or, if unavailable, a statement pursuant to Pa.R.A.P. 1923.4 Apparently the notes of testimony could not be located; and on June 14, 2011, after contacting plea counsel and reviewing 4 Rule 1923. Statement in Absence of Transcript If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal. -3- J. S28003/14 es from the proceedings, appellant filed a court filed a supplemental opinion. On July 6, 2011, the Commonwealth proposed statement of the record in absence of notes of testimony under respond. On July 7, 2011, the trial court granted the motion, withdrawing its June 24, 2011 supplemental opinion and giving the Commonwealth 21 absence of a transcript. On August 16, 2011, the Commonwealth filed its response, and on July 18, 2012, the trial court filed a second supplemental opinion. Briefs have been filed, and this matter is now ripe for disposition. 5 1. aggregate sentence of 20 to 48 years was harsh and excessive because the sentencing judge failed to addiction and that he had a prior record score of zero[?] 5 We agree with the trial court that, as the only issue raised on appeal pertains to the discretionary aspects of sentencing, the notes of testimony of the guilty plea hearing are unnecessary. (Second supplemental opinion, delayed for four years. -4- J. S28003/14 A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). When challenging the discretionary aspects of a sentence, an appellant m 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. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 requirement that an appellant separately set forth the reasons relied upon for allowance of appeal evident in the Sentencing Code as a whole of limiting any challenges to the trial impinging on the sentencing decision to exceptional Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original). Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004). Instantly, appellant has complied with Rule 2119(f) by including the -4.) However, we find that appellant does not raise a substantial question for our review. In his Rule 1925(b) statement and again in his statement of questions involved, appellant alleges only that the trial court failed to adequately consider his drug addiction and his prior record score of zero. An argument that the sentencing court failed to consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review; as such, we need not address it. Commonwealth v. Hanson, 856 A.2d -5- J. S28003/14 1254, 1257-1258 (Pa.Super. 2004), citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). See also Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005), citing Williams, supra (an allegation that the sentencing court did not adequately consider various factors is, in effect, a request that this court substitute its judgment for that of the lower In addition, the c Court has ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately Griffin, supra at 8, citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). At any rate, we note that there was extensive discussion concerning marijuana at the time of the incidents. (Notes of testimony, 3/29/06 at 9.) The trial court considered this testimony as well as other mitigating evidence history. (Id. at 5-6.) The trial court noted that it could have imposed a far (Id. at 68-69.) The trial court did state as an aggravating factor that appellant victimized some of the same people twice during his three-day -6- J. S28003/14 crime spree. (Id. at 69.) In short, there is simply nothing to support s sentence. There is nothing to review here. To the extent appellant alleges in his Rule 2119(f) statement that the trial court failed to state on the record the guideline ranges for the offenses, and failed to state adequate reasons for those sentences which exceeded the Rule 1925(b) statement or in his statement of the questions involved. Therefore, they are waived. Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 2116. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/23/2014 -7-
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