Com. v. Zguro, L. ( 2015 )


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  • J-S16013-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    LARRY T. ZGURO
    Appellant                   No. 1448 MDA 2014
    Appeal from the Judgment of Sentence May 23, 2014
    In the Court of Common Pleas of Dauphin County
    Criminal Division at No(s): CP-22-CR-0002285-2006
    BEFORE: PANELLA, J., OLSON, J., and OTT, J.
    MEMORANDUM BY PANELLA, J.                             FILED MAY 27, 2015
    Appellant, Larry T. Zguro, appeals from the judgment of sentence
    imposed after the trial court revoked his sentence of probation.    The only
    issue on appeal is whether the sentence imposed was excessive, considering
    Zguro’s medical and rehabilitative needs. After careful review, we affirm.
    In 2006, Zguro entered a negotiated guilty plea to three counts of
    theft by unlawful taking, arising from allegations that he had posed as a
    home buyer to steal jewelry from homes on the market.         The trial court
    sentenced Zguro to a term of imprisonment of 4 to 23 months, to be
    followed by three years of probation. Zguro was immediately paroled and
    transferred pursuant to a Massachusetts detainer.
    After Zguro was paroled in Massachusetts, he failed to report to his
    Pennsylvania probation officer.     On April 27, 2011, his probation officer
    J-S16013-15
    learned that Zguro was serving a prison sentence in Nevada on charges of
    receiving stolen property. Zguro was eventually extradited to Pennsylvania,
    and on August 13, 2012, the trial court revoked his probation, closed his jail
    sentence, and reinstated his sentence of probation.      His supervision was
    then transferred to Nevada, where Zguro resided.
    On March 27, 2013, Zguro’s probation officer learned that Zguro was
    once again in violation of his sentence by failing to report.         Shortly
    thereafter, his probation officer issued a detainer under the Interstate
    Compact. Nevada authorities arrested Zguro on April 7, 2013, and held him
    pursuant to the detainer. Upon talking to Zguro by telephone the next day,
    the officer learned that Zguro was suffering from prostate cancer.        The
    officer attempted to lift the detainer in order to avoid the expense of
    extradition of a seriously ill offender, but such an action was deemed
    unavailable under the Interstate Compact.
    The officer contacted Zguro again and informed him that the detainer
    was still active.   Zguro promised that he would pay off the balance of his
    restitution and costs in order to have his case closed. Later that day, Zguro
    left a message for his probation officer, claiming that he just missed the
    overnight mail, and that the money would be sent the next day. It never
    arrived.
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    Zguro again contacted his probation officer, claiming that he had been
    transferred to California to treat his medical condition. The probation officer
    requested documentation of Zguro’s hospitalization, but never received any.
    In February 2014, Zguro was arrested on the detainer while gambling
    at a casino in Nevada. Zguro claimed that he could pay off his restitution
    and costs from his gambling winnings, but no payment was ever made. At
    the same time, Zguro accrued new charges of swindling a 75-year-old
    woman out of nearly $20,000 in 2012. At the time of his revocation hearing,
    Zguro had outstanding warrants in Massachusetts and Colorado.
    After reviewing Zguro’s history, and receiving evidence of his medical
    condition, the trial court imposed a sentence of imprisonment of 18 to 36
    months and a consecutive 3 year probationary sentence. However, the trial
    court gave Zguro 29 days to pay his restitution to his Dauphin County
    victims, in which case he would be released from prison.
    Zguro’s counsel filed post-sentence motions, which the trial court
    denied, but no timely direct appeal was filed. On August 8, 2014, Zguro’s
    direct appellate rights were reinstated via a Post Conviction Relief Act
    petition asserting that counsel had been ineffective per se for failing to file
    an appeal. This appeal followed.
    On appeal, Zguro raises only one issue.         He contends that the
    sentence imposed by the trial court was excessive considering his medical
    condition. Zguro concedes that this raises a challenge to the discretionary
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    aspects of his sentence.     See Appellant’s Brief, at 8.      Our review of
    revocation proceedings includes review of the discretionary aspects of the
    sentence imposed.      See Commonwealth v. Cartrette, 
    83 A.3d 1030
    ,
    1042 (Pa. Super. 2013) (en banc).
    “A challenge to the discretionary aspects of a sentence must be
    considered a petition for permission to appeal, as the right to pursue such a
    claim is not absolute.” Commonwealth v. McAfee, 
    849 A.2d 270
    , 274 (Pa.
    Super. 2004) (citation omitted). When challenging the discretionary aspects
    of the sentence imposed, an appellant must present a substantial question
    as to the inappropriateness of the sentence.       See Commonwealth v.
    Tirado, 
    870 A.2d 362
    , 365 (Pa. Super. 2005). “Two requirements must be
    met before we will review this challenge on its merits.” McAfee, 
    849 A.2d at 274
     (citation omitted). “First, an appellant must set forth in his brief a
    concise statement of the reasons relied upon for allowance of appeal with
    respect to the discretionary aspects of a sentence.” 
    Id.
     (citation omitted).
    “Second, the appellant must show that there is a substantial question
    that the sentence imposed is not appropriate under the Sentencing Code.”
    
    Id.
     (citation omitted).   That is, “the sentence violates either a specific
    provision of the sentencing scheme set forth in the Sentencing Code or a
    particular fundamental norm underlying the sentencing process.”       Tirado,
    
    870 A.2d at 365
     (citation omitted). We examine an appellant’s Rule 2119(f)
    statement to determine whether a substantial question exists. See 
    id.
     “Our
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    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.
     (citation omitted); see also Pa.R.A.P. 2119(f).
    In the present case, Zguro’s appellate brief contains the requisite Rule
    2119(f) concise statement, and, as such, is in technical compliance with the
    requirements to challenge the discretionary aspects of a sentence.      Zguro
    argues in his Rule 2119(f) statement that the sentence imposed by the trial
    court was excessive, and that the trial court failed to consider his need for
    rehabilitation, as required by 42 Pa.C.S.A. § 9721(b).         This raises a
    substantial question for our review.    See Commonwealth v. Riggs, 
    63 A.3d 780
    , 786 (Pa. Super. 2012).
    We cannot conclude that the trial court abused its discretion. Zguro
    has been given multiple opportunities to close this case out and pay
    restitution to his victims; he has taken advantage of none of those
    opportunities.   Furthermore, Zguro has a significant history of absconding
    from supervision, as well as a significant criminal history.   The trial court
    also indicated that part of the reason for imposing a lengthy period of
    incarceration was to place Zguro in a state institution, which would be better
    equipped to handle his medical condition.     Finally, it must be noted that
    Zguro was given yet another opportunity to avoid this prison sentence by
    paying his restitution within 29 days of being sentenced. Nothing about the
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    sentence imposed is unreasonable.      We therefore conclude that Zguro’s
    issue on appeal merits no relief.
    Judgment of sentence affirmed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/27/2015
    -6-
    

Document Info

Docket Number: 1448 MDA 2014

Filed Date: 5/27/2015

Precedential Status: Precedential

Modified Date: 5/27/2015