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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.
DOMINIC JAQUARIUSPA RAY

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 26 MDA 2019 Appeal from the Judgment of Sentence Entered July 30, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP

- 40

- CR

- 0001830

- 2017

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J. MEMORANDUM BY BOWES, J.: FILED JULY 01, 2019 Dominic Jaquariuspa Ray appeals from the judgment of sentence of twenty to forty years of incarceration, imposed fol lowing his guilty plea to third

- degree murder. We affirm. On O ctober 16, 2016, Appellant fired seven shots at Victor Grandy, killing him. N.T. Guilty Plea, 6/4/ 18, at 12. Following his apprehension in New York, Appellant spoke t o investigators and confirmed that he was indeed the shooter. Id . Appellant was charge d with criminal homicide and possession of a firearm prohibited. Pursuant to a n open plea agreement, the Commonwealth withdrew the firearm s charge and Appellant pled gui lty to third

- degree murder . Since t here was no agreement as to sentence , sentencing w as postponed so that a presentence investigation (“PSI”) could be conducted

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On July 30, 2018, Appellant appeared for sentencing. The court had the benefit of a PSI report and oral impact statements from the victim’s sister, uncle, and cousin. N.T. Sen tencing , 7/30/18, at 9

- 12. In addition to testimony from Appellant, the c ourt received testimony from Appellant’s fiancé , older brother, and a friend of the family. Id . at 13

- 21. At the conclusion of the hearing, Ap pellant was sentenced to twenty to for ty years of imprisonment. Appellant filed a motion to reconsider his sentence, which was denied. Appellant timely appealed, and both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant presents the following issue for our considerati on: “Whether the trial court abused its discretion in sentencing the Appellant.” Appellant’s brief at 1. Appellant challenges the discretion ary aspects of his sentence. Specifically, he attacks his sentence on two grounds: (1) that the trial court double

- counted factors al ready ingrained in the sentencing code and (2) that the court fail ed to give adequate reasons for the sentence it imposed. T he following principles apply to our consideration of whether review of the merits of his claim is warrant ed. “ An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging t he discretionary aspects of his sentence must invoke this Court’s jurisdiction. ” Commonwealth v. Samu el , 102, A3d 1001, 1006

- 07 (Pa.Super. 2014). In determining whether an appellant has invoked our jurisdiction, we consider four factors:J

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- (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. Id

. Appellant filed both a timely motion for reconsideration of his sentence and a notice of appeal. In his motion , Appellant challenged the court’s failure to consider mitigating factors, such as his remorse and statements made at sentencing on his behalf, when it fashioned his se ntence
. However, Appellant did n ot challenge the trial court ’s alleged doub le

- counting of factors already accounted for in the sentencing guidelines

. He also did not raise this issue in his concise statement of errors complained of on appeal. Since Appe llant’s first sentencing issue was not raised before the trial court, we cannot consider
it. Id . at 1006. Appellant did properly preserve his second issue. Therefore, we now proceed to determine whether Appellant has raised a subst antial question as to that claim

. Appellant’s brief contains a statement of reasons relied upon for his challenge to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f). In his statement, Appellant claims that a substantial question is presented by the f act that the trial court imposed a statutory maximum sentence, without an appropriate discussion of all of the factors . Appellant’s brief at 3. We find that this claim raises a substantial question , as it challengesJ

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t he adequacy of the reasons given by t he trial court for its sentencing choice. See Commonwealth v. Marts , 889 A.2d 608, 613 (Pa.Super. 2005). Accordingly, we now turn our attention to Appellant’ s challenge to his
sentence. The following principles apply to our substantive review of Appella nt’s claim. “When reviewing sentencing matters, this Court must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of t he crime.” Commonwealth v. Ventura , 975 A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re

- weigh the sentencing factors and impose our judgment in the place of the sentencing court.” Commonwealth v. Macias , 968 A.2d 773, 778 (Pa.Super. 2009). Instead ,
we review the trial court’s determination for an 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 o r misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Antidormi , 84 A.3d 736, 760 (Pa.Super. 2014). A trial court’s sentence “should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of t he defendant .” 42 Pa.C.S. § 9721(b). “When imposing sentence, a court is required to consider the particular circumstances of the offense andJ

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the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal reco rd, age, personal characteristics and potential for rehabilitation.” Antidormi , supra at 761 (citations and quotation marks omitted). Finally, when the trial court has been informed by

a PSI , it is presumed that the trial court is aware of and has been i nformed by all appropriate sentencing factors and considerations

. Commonwealth v. Bullock , 170 A.3d 1109, 1126 (Pa.Super. 2017). Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we find (1) that the court intended to sentence within the guidelines, but “applied the guidelines erroneously;” (2) a sentence was imposed within t h e guidelines, “but the case involves circumstances where the application of the guidelines would be clearly unreasonable;” or (3) “the sentencing court sentenced
out side the sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S. § 9781(c). The instant sentence is the m aximum sentence allowed by law

. 1 Trial Court Opinion, 11/27/18, at 1. Therefore, it must be affirmed unless it is unreasonable. While reasonableness is not defined in the statute,

_________________ __________ ______ ____ _______ 1 While it is clear that Appellant received a sentence that was above the standard range of the sentencing guidelines, it is unclear whether the sentence was in the aggravated range or outside of the sentencing guidelines. O ur analysis and conclusion are the same regardless. See Commonwealth v. Shugars , 895 A.2d 1270, (Pa.Super. 2006) ( analyzing the reasons the court gave for imposing a sentence in the aggravated range); see also Commonwealth v. Smi th , 863 A.2d 1172, 1177

- 78 (Pa

. Super. 2004) (looking at the trial court’s explanation for why it sentenced outside of the guidelines).J

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it “commonly connotes a decision that is ‘irrational’ or ‘not guided by sound judgment.’” Commonwealth v. Walls , 926 A.2d 957, 963 (Pa. 2007). Appellant argues that his sentence was excessive because the cour t did not consider the sentencing guidelines, Appellant’s remorse, or discuss the factors set forth in the sentencing code. Appellant’s brief at 9. Instead, Appellant claims, the trial court placed improper emphasis on the seriousness of the crime. Id

. Appellant fails to establish that the instant sentence is unreasonable. The certified record demonstrates that the trial court properly relied on several factors in electing to impose the maximum sentence allowed by law , all of which demonstrated that the court followed the general principles outlined in § 9721(b), i.e. , that the sentence be consistent with the protection of the public, gravity of the offense as it relates to the victim and community, and the rehabilitative needs of the offender. In f ashioning the judgment of sentence, the trial court referenced the PSI report; arguments made by the prosecutor and defense attorney; statements made by Appellant’s fiancé, brother, sister, and friend; statements made by the victim’s sister, uncle, and

cou sin; and Appellant’s own allocution. N.T. Sentencing , 7/30/18, at 25

- 26; Trial Court Opinion, 11/27/18, at 3. In its opinion, t he court explained that it had the opportunity to “observe the demeanor and candor of those who addressed the court

. ” Trial Co urt Opinion, 11/27/18, at 4. Notably, i t listened to Appellant’s allocution wherein he detailed a “rough upbringing” andJ

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characterized the homicide as “a bad judgment call.” N.T. Sentencing , 7/30/18, at 20. Our review confirms that the trial court weighed Appellant’s mit igating factors, along with the seri ousness of the crime and Appellant’s failure to take genuine responsibility for his actions. We have no license to reweigh the mitigating circumstances against the aforementioned factors. Macias , supra at 778. Nor did the trial court fail to place on the record its reasons for imposing the statutory maximum sentence . The court offered the following explanation for its decision:

Sir, I’ve accepted the guilty plea as voluntarily, knowingly, and in telligently tendered. I take into account the nature of the offense and the voluntariness of the plea. I incorporate the terms of the presentence investigation, the statements of the Commonwealth attorneys and the defense attorneys, the statements of Dom inique Grandy, Mr. Grandy, Chanel Johnson, Lisa Allen, Domenique Nettles, Jeffrey Ray, Aminah Coleman, and also the statements offered to the Court and the letter previously received by Dominic Ray as was a letter received fro m Ms. Allen. The [c] ourt also takes into account the general standards of sentencing which include the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.

. . . . This sentence is not in the standard range as counsel is aware. The Court has imposed the sentence due to the heinous, senseless act of violence with a deadly weapon the streets of this community taking the life of Victor Grandy. You took his life, an d you affected the lives of his family and the lives of your family. There is no justification for an act of this nature in civilized society.

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- In addition, as I close the record, I do not believe that you have accepted responsibility for the action in question. N.T. Sentencing , 7/30/18, at 25

- 27. The record establishes that the trial court took into account the relevant factors and explained the reasons for imposing the maximum sentence allowed by law . It found that Appellant committed a “h einous” and “senseless
act , ” and failed to take responsibility for his actions , which devastated both the victim’s family and his own. Id

. at 27. Accordingly, the trial court acted well within its discretion when it sentenced Appellant to the statutory

m aximum. Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/1/2019