Com. v. Coleman, C.

J-A03044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

CLARENCE COLEMAN, :

:

Appellant : No. 119 WDA 2018

Appeal from the Judgment of Sentence Entered October 16, 2017

in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007562-1987

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 12, 2019

Clarence Coleman (Appellant) appeals from the October 16, 2017

judgment of sentence imposed following a resentencing hearing pursuant to

Miller v. Alabama, 567 U.S. 460 (2012),1 and Commonwealth v. Batts

(Batts II), 163 A.3d 410 (Pa. 2017). We affirm.

We provide the following background.

On the evening of November 3, 1985, the victim, Richard

Banyots of Girard, Ohio went to the residence of [Appellant] in

Youngstown, Ohio.[2] A short time after Banyots arrived there,

* Retired Senior Judge assigned to the Superior Court.

1 In Miller, the United States Supreme Court held that a “mandatory

[sentence of] life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition on cruel and unusual

punishments.” 567 U.S. at 465 (internal quotations omitted).

2 According to the testimony at trial, Banyots went to the residence in order

to pay Joyce McGee to have sex with him. However, Banyots did not have

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[Appellant] and Jerome McDavis beat and attempted to rob

[Banyots]. They then transported him in the trunk of his own car

to an area on the banks of the Monongahela River near Clairton,

Allegheny County, Pennsylvania. There, [Appellant] shot

[Banyots] three times. He then fled the scene, stopping only to

throw the gun into the river. [Banyots’s] body was never

recovered.

Commonwealth v. Coleman, 643 A.2d 702 (Pa. Super. 1994) (unpublished

memorandum at 1).

Appellant, who was 17 years old, was arrested and charged with

Banyots’s murder. On April 21, 1988, a jury convicted Appellant of first-

degree murder, and he was sentenced to life in prison without parole (LWOP).

On October 16, 2017, Appellant, represented by private counsel, was

resentenced to 35 years to life in prison after a new sentencing hearing was

conducted pursuant to the mandate of Miller and Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016) (holding that Miller applied

retroactively on collateral review).

Appellant timely filed a post-sentence motion on October 23, 2017, and

on October 27, 2017, the sentencing court denied that motion without a

hearing. On November 13, 2017, counsel requested leave to withdraw. That

motion was granted on November 15, 2017. New counsel entered an

appearance on the same day.

any money and the two did not engage in sex. See Commonwealth’s Brief at

3-4 (citing Trial Court Opinion, 10/29/1993).

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On November 17, 2017, Appellant pro se filed a motion to correct an

illegal sentence. The sentencing court denied that motion by order dated

December 19, 2017. On January 17, 2018, Appellant, through counsel, filed

a notice of appeal from the December 19, 2017 order.3

Before we reach the issues set forth by Appellant on appeal, we must

determine whether this appeal was timely filed. Where a criminal defendant

timely files a post-sentence motion, a notice of appeal must be filed within 30

days from the order denying that motion. Pa.R.Crim.P. 720(A)(2)(a). In this

case, Appellant a timely filed post-sentence motion, which was denied on

October 27, 2017. Thus, Appellant had 30 days, until November 27, 2017, to

file a timely notice of appeal. The notice of appeal in this case was filed on

January 17, 2018, which was 51 days late.

However, we have excused an untimely-filed notice of appeal where

there has been a breakdown in the court system. See Commonwealth v.

Patterson, 941 A.2d 493, 499 (Pa. Super. 2007) (pointing out that despite

the general rule that “an appellate court cannot extend the time for filing an

appeal,” this “does not affect the power of courts to grant relief in the case of

fraud or breakdown in the processes of the court”).

In this case, there were several breakdowns. First, in denying

Appellant’s post-sentence motion, a court is required to inform the defendant

that he, inter alia, has “the right to appeal and the time limits within which

3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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the appeal must be filed.” Pa.R.Crim.P. 720(B)(4)(a). Here, the order denying

Appellant’s post-sentence motion merely states “Motion is Denied.” Order,

10/27/2017. In Patterson, we held that a trial court’s failure to comply with

Pa.R.Crim.P. 720(B)(4) constituted a breakdown in the court system which

excused an otherwise untimely-filed appeal. 970 A.2d at 499.

However, we would be remiss not to point out that the sentencing

court’s failure to comply with Pa.R.Crim.P. 720 was not the only breakdown in

the court system. On November 17, 2017, Appellant filed a pro se motion

for correction or modification of an illegal sentence. At that time, Appellant

was represented by counsel. Pursuant to Pa.R.Crim.P. 576(4),

[i]n any case in which a defendant is represented by an attorney,

if the defendant submits for filing a written motion, notice, or

document that has not been signed by the defendant’s attorney,

the clerk of courts shall accept it for filing, time stamp it with the

date of receipt and make a docket entry reflecting the date of

receipt, and place the document in the criminal case file. A copy

of the time stamped document shall be forwarded to the

defendant’s attorney and the attorney for the Commonwealth

within 10 days of receipt.

Pa.R.Crim.P. 576(4). Here, the docket does not reflect that a copy of this

motion was ever sent to counsel.4 Thus, due to these breakdowns in the court

4 We also point out that this motion was filed after the denial of Appellant’s

post-sentence motion, but prior to the expiration of the period for which

Appellant had to appeal his judgment of sentence. As discussed supra, the

clerk of courts should have forwarded it to counsel. Moreover, because

Appellant was represented by counsel, the trial court should have taken no

action on it. See Commonwealth v. Blakeney, 108 A.3d 739, 762 (Pa.

2014) (“[N]o defendant has a constitutional right to hybrid representation,

either at trial or on appeal.”). Furthermore, it was not a supplemental post-

sentence motion, because the post-sentence motion had already been

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system, we conclude that we may treat this notice of appeal as a timely-filed

direct appeal from Appellant’s judgment of sentence. On appeal, Appellant

raises the following question for our review: “Did the trial court commit an

error of law and/or abuse its discretion in not imposing a shorter term of years

at the minimum end of Appellant’s sentence range?” Appellant’s Brief at 2.5

Appellant’s issue implicates the discretionary aspects of his sentence. It

is well settled that, with regard to the discretionary aspects of sentencing,

there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to the

discretionary aspects of a sentence], we must engage in a four

part analysis to determine: (1) whether the appeal [was timely-

filed]; (2) whether Appellant preserved his issue; (3) whether

Appellant’s brief includes a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary

aspects of sentence; and (4) whether the concise statement raises

a substantial question that the sentence is appropriate under the

sentencing code.... [I]f the appeal satisfies each of these four

requirements, we will then proceed to decide the substantive

merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

decided. See Pa.R.Crim.P. 720(B)(1)(b). It was also not a PCRA petition,

because it was filed prior to Appellant’s judgment of sentence becoming final.

See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). (“[A]ll

motions filed after a judgment of sentence is final are to be construed as PCRA

petitions.”). Thus, there was no authority for the trial court to rule on this

motion.

5The Commonwealth filed a brief in response. In addition, we point out that

Appellant asked for and received an extension of time to file a reply brief.

That brief was never filed.

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Here, as discussed supra, Appellant timely filed a notice of appeal, and

he sought reconsideration of his sentence in a timely-filed post-sentence

motion. In addition, he has included a concise statement of reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s

Brief at 5-6. Therefore, we now consider whether Appellant has raised a

substantial question for our review.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citation and quotation marks omitted).

Appellant contends that his minimum sentence of 35 years in prison is

“not appropriate because the trial court … improperly [failed] to consider

[that] the impulsive, impetuous nature of the crime [was a] mitigating factor

that would warrant a minimum sentence of fewer than 35 years.” Appellant’s

Brief at 5. Appellant also claims that the trial court erred “by not taking into

account [Appellant’s] background.” Id. at 6.

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Appellant’s claims are allegations that his minimum sentence is

manifestly excessive because the sentencing court failed to consider

mitigating factors. In that regard,

“this Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a

substantial question for our review.” []Disalvo, 70 A.3d [at] 903

[] (internal citation omitted).

However, “prior decisions from this Court involving whether

a substantial question has been raised by claims that the

sentencing court ‘failed to consider’ or ‘failed to adequately

consider’ sentencing factors [have] been less than a model of

clarity and consistency.” Commonwealth v. Seagraves, 103

A.3d 839, 842 (Pa.[ ]Super.[ ]2014) (citing [Commonwealth v.

Dodge, 77 A.3d 1263 (Pa. Super. 2013)]). In []Dodge, this

Court determined an appellant’s claim that the sentencing court

“disregarded rehabilitation and the nature and circumstances of

the offense in handing down its sentence” presented a substantial

question. Dodge[, 77 A.3d] at 1273.

This Court has also held that an excessive sentence claim—

in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.

Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en

banc) (some citations and quotation marks omitted).

Based on the above precedent, we find that Appellant has raised a

substantial question, and we will review the merits of his discretionary-

aspects-of-sentence claim under the following standard.

If this Court grants appeal and reviews the sentence, the

standard of review is well-settled: sentencing is vested in the

discretion of the trial court, and will not be disturbed absent a

manifest abuse of that discretion. An abuse of discretion involves

a sentence which was manifestly unreasonable, or which resulted

from partiality, prejudice, bias or ill will. It is more than just an

error in judgment.

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Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)

(citations omitted).

In Batts II, our Supreme Court held, inter alia, that a lower

court, in resentencing a juvenile offender convicted of first-degree

murder prior to Miller, may impose a minimum term-of-years

sentence and a maximum sentence of life imprisonment, thus

“exposing these defendants to parole eligibility upon the

expiration of their minimum sentences.” Batts II, 163 A.3d at

439. In determining the minimum term-of-years sentence, the

Court mandated that lower courts consult the sentencing

requirements codified at 18 Pa.C.S. § 1102.1 for guidance. Id. at

457. Specifically for a juvenile convicted of first-degree murder

pre-Miller, the portion of section 1102.1 that a lower court must

consider is the guidelines set forth in subsection 1102.1(a).

Subsection 1102.1(a)(1) provides, in relevant part, as follows.

(a) First degree murder.--A person who has been

convicted after June 24, 2012, of a murder of the first

degree, first degree murder of an unborn child or

murder of a law enforcement officer of the first degree

and who was under the age of 18 at the time of the

commission of the offense shall be sentenced as

follows:

(1) A person who at the time of the commission of the

offense was 15 years of age or older shall be

sentenced to a term of life imprisonment without

parole, or a term of imprisonment, the minimum of

which shall be at least 35 years to life.

18 Pa.C.S. § 1102.1(a)(1).

Commonwealth v. White, 193 A.3d 977, 984 (Pa. Super. 2018).

In this case, because Appellant was convicted prior to June 24, 2012,

the sentencing court had the discretion to sentence Appellant to a minimum

term-of-years sentence of less than 35 years. In support thereof, Appellant

presented the testimony of Maria Guido, L.S.W., at the sentencing hearing.

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She testified that she was engaged by the court for “the purpose of providing

the [c]ourt with background information to assist the [c]ourt in determining a

proper resentence.” N.T., 10/16/2017, at 15. She testified that she has

worked specifically with juvenile offenders, and was trained by the Youth

Sentencing and Re-Entry Project in Philadelphia in June of 2016. Id. at 16.

She was qualified without objection as an expert.

Ms. Guido testified that she based her testimony on the records

from the Department of Corrections; interviews with family

members; interviews with [Appellant]; letters and information

from prisoners that [Appellant] has mentored in prison; and,

information obtained from newspapers during the time period of

the offense and conviction. She described his ongoing support

system of his family and friends who would continue to support

him upon his release from prison and his prospects for successful

rehabilitation and integration back into society through work and

continued counseling. Specifically, Ms. Guido testified that

[Appellant] grew up in a very chaotic environment and that his

mother became pregnant with him when she was only 14 years

old. She described his father as extremely cruel and abusive to

not only his wife but [Appellant]. Ms. Guido testified that

[Appellant’s] mother, Dorothea, described incidents where

[Appellant] was hit when he was 9 months old and that she was

repeatedly beat by her husband. She testified that [Appellant]

was anxious as a child, was bullied in school and grew up with a

stutter. She testified that [Appellant] was taught by his father that

he needed to fight and be aggressive and use whatever was

available as a weapon. She also testified that a very important

figure in [Appellant’s] and his mother’s life was his aunt who

passed away when he was 12 years old, which caused him

significant trauma. She testified that after the death of his aunt,

who was the matriarch of the family, he looked for guidance to his

peers and cousins for validation and a support system. She

testified that as a result he became involved in delinquent

activities causing him to be arrested when he was 15 years old

and placed in the juvenile system twice in Ohio and was released

when he was 17 years old. He was [sent] to his father but

ultimately, due to the conflict with his father, he began living with

various cousins.

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Regarding his incarceration, [Ms.] Guido testified that he

was currently incarcerated at SCI Coal Township where he has

been since 2003. She testified that in his first 15 years he

struggled with adjusting to prison but since being at Coal

Township he has done very well. She testified that [Appellant]

works part-time and has had no recent serious or violent

misconducts and participates in a number of volunteer projects

and organizations. She testified that he maintains a relationship

with his family, including his mother and his brother. She testified

that [Appellant] has four children, two of whom have passed

away. One of his children is incarcerated and he has a daughter

who [sic] he maintains contact with. She testified that [Appellant]

participates in a juvenile lifers group and is interested in helping

young kids who are [at] risk [of] engaging in criminal activity.

She testified that based on her review of all of the

information[, Appellant] has matured during his 30 years of

incarceration and has not had a serious infraction in the last 15

years. Ms. Guido testified that [Appellant] shows significant

remorse for the murder of the victim and he has a support system

upon release and he would likely engage in mental health

treatment to continue his progress. She testified that it is her

opinion that [Appellant] has exceeded expectations for

rehabilitation within the Department of Corrections. She also

testified that he should be able to transition successfully into the

community and be a productive citizen in society.

On cross-examination Ms. Guido acknowledged that the

records from the Department of Corrections indicated that

[Appellant] described his childhood as normal and reported no

physical, sexual or emotional abuse. She also testified that

[Appellant] acknowledged his role in the murder but denied

actually shooting the victim. She testified that at the time of the

murder he agreed to accept the blame under the mistaken belief

that as a juvenile he would get a lesser sentence.

[Appellant] also presented the testimony of Sergeant Casey

Ranck of the State Correctional facility in Coal Township where

[Appellant] is currently incarcerated. Sgt. Ranck testified that he

has interacted with [Appellant] for approximately 3 years and that

[Appellant] is very well behaved and volunteers for activities and

extra work. He testified that [Appellant] interacts well with the

other inmates and also helps mentor newer inmates who are in

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the unit. [Appellant] also offered the testimony of two other

correctional officers who were present to testify at the hearing and

whose testimony would be cumulative to that of Sgt. Ranck’s.

[Appellant] testified by reading a statement expressing his

sorrow to the victim’s family, acknowledging his wrongdoing and

expressing his remorse. [Appellant] testified that he had matured

during his incarceration and develop[ed] to the point that he was

able to share his experience with others as a learning tool in hopes

of making a positive difference in the lives of others coming

through the penitentiary. [Appellant] also testified that at the time

of trial he was offered a sentence of 10 to 20 years and rejected

the deal because it would have required him to testify against his

co-defendant which he didn’t want to do because he respected

him and he did not want to be regarded as a snitch.

On cross examination [Appellant] denied that he was the

“trigger man” but did acknowledge his involvement in the crime.

[Appellant] also acknowledged that he had two other juvenile

adjudications. [Appellant] also acknowledged that he had various

misconducts during his incarceration and testified to the

circumstances regarding those misconducts.

Trial Court Opinion, 7/17/2018, at 3-6 (citations omitted).

The trial court considered all of this testimony and offered the following

in support of its decision to sentence Appellant to a minimum of 35 years of

incarceration.

In this case, [Appellant] … was 17 years and 10 months old

at the time of the offense on November 3, 1985. There was no

specific testimony regarding his education[al] background,

however, the Department of Corrections records indicate that he

was “kicked out” of school in the 9th grade due to poor

performance and fighting and received his GED in 2008. There

was no evidence he suffered from any mental, intellectual or

physical disabilities. The testimony and evidence does support a

finding that [Appellant] had an abusive father [who] affected the

stability of [Appellant’s] home environment. The death of his

aunt, who was a stable figure in his life, when [Appellant] was 12

years old … had a significant impact on him. However, according

to records from the Department of Corrections, [Appellant] did

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report that he had a normal childhood with no history of physical,

sexual or emotional abuse.

The testimony establishes that [Appellant] had juvenile his

adjudications that [led] to placement in juvenile facilities and

some improvement in his development as a result of the structure

that was imposed. His record of juvenile offenses, adjudications

and placements reflects a level of familiarity with the criminal

justice system. There were clearly negative influences on

[Appellant], thereafter, when he was released at age 17, however,

he was at an age that he clearly understood the nature of the

crime he was involved in.

The circumstances of the killing of the victim in this case

indicate[] that this was not a crime of sudden provocation or

impulse and while [Appellant] denies that he was the one [who]

shot the victim, his confessions contradict this assertion. His

Department of Correction[s] records indicate that [Appellant]

stated that he did not participate in the robbery of the victim, but

that he didn’t stop it, and that he got into the car and drove to

Pennsylvania but that he didn’t really know anything about the

crime. He indicated in his testimony that he agreed to take

responsibility believ[]ing he would receive a lesser sentence as a

juvenile, however, even when being faced with an offer of 10 to

20 years [of incarceration] he still refused to accept the plea offer

as he would be required to testify against his co-defendant. This

decision, which he indicates was premised on his desire to “not

come across as a snitch,” demonstrates that he had the

opportunity to negotiate with prosecutors prior to his conviction.

Finally, as to the possibility of [Appellant’s] rehabilitation,

the record reflects that he has had a number of misconducts,

although most of these occurred [prior to] and including 2002.

The Department of Corrections records reflect that his evaluations

under “Job Performance,” “Attitude and Relationships,” and

“Personal Characteristics” were all rated as average in 2016,

which was confirmed by the testimony of Sgt. Ranck. The

testimony of Ms. Guido does reflect that he has made progress in

his rehabilitation and has attempted to aid other prisoners coming

into the system. The testimony also establishes that he has family

members or friends [who] can support him upon his release. In

his testimony [Appellant] expressed remorse for his

involvement[,] but acknowledged the impact on the loss of the

victim’s life on his family. [Appellant] expressed that he had

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matured during his years of incarceration and that he has

attempted to act as a mentor to some younger inmates. All of the

evidence and documents concerning [Appellant] were taken into

consideration pursuant to Miller and the direction given by the

decisions of the Pennsylvania Supreme Court []regarding the

imposition of an individualized sentence for [Appellant] as a

juvenile offender convicted of [f]irst[-d]egree [m]urder.

Trial Court Opinion, 7/17/2018, at 11-13 (paragraphing added).

On appeal, Appellant argues that the trial court failed to focus its

attention on the fact that “any incidents [of misconduct] in the last decade

were technical and non-violent.” Appellant’s Brief at 10. Additionally,

Appellant suggests the trial court did not acknowledge Sergeant Ranck’s

testimony that Appellant “is an asset to the prison community and does not

cause any trouble.” Id. at 11. Further, Appellant contends that the trial court

should have noted that Ms. Guido “actually testified that [Appellant] has

‘exceeded [] expectations concerning rehabilitation within the Department of

Corrections and should be given a chance to appear before the Pennsylvania

Parole Board.’” Id. Additionally, Appellant argues that Appellant’s failing to

accept the plea bargain offer prior to trial revealed that he “lacked the

intellectual development and capacity to fully appreciate, understand and

consider the import and consequences of his decisions.” Id. Appellant also

suggests that the trial court should have weighed more heavily the fact that

Appellant “was a young man without a family and without a home.” Id. at

12. According to Appellant, “[i]f he had a stable home, [Appellant] would not

have been in the brothel where the robbery took place.” Id. Appellant argues

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that his “intention was to assist [McDavis] in robbing [] Banyots and there

was no premeditation regarding murder.” Id. at 12-13.

Reviewing the above argument in light of what the court considered at

resentencing, it is apparent that the court did indeed consider all of the

arguments set forth by Appellant. The trial court recognized that Appellant’s

age fell just below the 18-year-old cutoff set forth in Miller, but also

considered a number of other factors in Appellant’s life, including his prior

involvement and knowledge of the criminal justice system and lack of family

stability.

Based on the foregoing, it was within the trial court’s discretion to

conclude that Appellant should serve a minimum sentence of 35 years of

incarceration. In fact, this new sentence would permit him to face a parole

board, as Appellant indicated he wished to do, in 2022. Thus, we find the

sentencing court did not abuse its discretion in fashioning Appellant’s

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2019

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