Com. v. Sult, M. ( 2015 )

J-S58008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK ROGER SULT,
Appellant No. 1656 MDA 2014
Appeal from the Judgment of Sentence August 21, 2014
in the Court of Common Pleas of Luzerne County
Criminal Division at Nos.: CP-40-CR-0000913-2013
CP-40-CR-0000918-2013
CP-40-CR-0003893-2013
CP-40-CR-0004008-2012
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 30, 2015
Appellant, Mark Roger Sult, appeals from the judgment of sentence
imposed following his entry of negotiated guilty pleas at four docket
numbers to criminal solicitation, criminal trespass, two counts of receiving
stolen property, flight to avoid apprehension, and resisting arrest.1
Appellant challenges the discretionary aspects of his sentence. We affirm.
The relevant factual and procedural history of this case is as follows.
On May 28, 2014, Appellant entered negotiated guilty pleas to the above-
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 902(a), 3503(a)(1)(ii), 3925(a), 5126(a), and 5104,
respectively.
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mentioned charges, and the court ordered preparation of a pre-sentence
investigation (PSI) report. At the August 21, 2014 sentencing hearing,
defense counsel requested that the court place Appellant in the boot camp
program, and the Commonwealth objected to such placement. The trial
court sentenced Appellant to an aggregate term of not less than sixty nor
more than 120 months’ incarceration in a state correctional institution. The
court did not recommend boot camp. It stated that Appellant is eligible for
the Recidivism Risk Reduction Incentive Program (RRRI),2 and set the RRRI
minimum sentence at fifty months. Appellant filed a post-sentence motion,
which the court denied on September 2, 2014.
Appellant filed a timely notice of appeal on September 30, 2014. On
October 6, 2014, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). See Pa.R.A.P. 1925(b). On October 27, 2014, the date
the concise statement was due, Appellant filed a “Request for an Extension
of Time to File 1925([b]) Statement[.]” (Request for Extension of Time,
10/27/14). The court did not rule on the request, and Appellant filed a
concise statement two days later, on October 29, 2014. The Commonwealth
filed a response on November 3, 2014. The trial court entered an opinion
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2
61 Pa.C.S.A. §§ 4501-4512.
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addressing the issues Appellant raised in the Rule 1925(b) statement on
November 21, 2014. See Pa.R.A.P. 1925(a).3
Appellant raises one question for our review:
1. Did the [trial] court abuse its discretion by failing to
adequately consider the rehabilitative needs of [Appellant],
and foreclosing [Appellant’s] participation in boot camp when
it sentenced [Appellant] to an aggregate sentence of [sixty]
to 120 months on his consolidated guilty plea after failing to
consider [Appellant’s] actions in taking responsibility for his
behavior, his employment and participation in drug
treatment, and after failing to consider or discuss
[Appellant’s] potential and need for rehabilitation, thus
resulting in a manifestly excessive sentence?
(Appellant’s Brief, at 5).
In his issue on appeal, Appellant claims that the aggregate sentence
foreclosing his participation in boot camp is harsh and excessive because the
court failed to consider that he took responsibility for his actions; was
seeking help for his drug addiction; was working two jobs; and was devoted
to his four-year-old son and turning his life around. (See id. at 8-9). He
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3
Appellant’s Rule 1925(b) statement was untimely. Nevertheless, this Court
may address the merits of a criminal appeal where an appellant files an
untimely concise statement if the trial court prepared an opinion addressing
the issue(s) raised on appeal. See Commonwealth v. Thompson, 39 A.3d
335, 340 (Pa. Super. 2012) (“[w]hen counsel has filed an untimely Rule
1925(b) statement and the trial court has addressed those issues we . . .
may address the merits of the issues presented.”) (citation omitted); see
also Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015),
appeal granted in part, 121 A.3d 954 (Pa. 2015); Commonwealth v.
Burton, 973 A.2d 428, 430-33 (Pa. Super. 2009) (en banc).
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asserts that the court did not take into account either the victim’s belief that
he has great potential or his rehabilitative needs. (See id. at 13-14).
At the outset, we observe that Appellant’s issue challenges the
discretionary aspects of his sentence. However, “[t]he right to appeal the
discretionary aspects of a sentence is not absolute.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (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 [, see Pa.R.A.P. 2119(f)]; 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. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
In the instant case, Appellant timely appealed, preserved his claim in
the trial court, and included a Rule 2119(f) statement in his brief. See id.With respect to the substantial question requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits 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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
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“[T]his Court has 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. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted).
Therefore, we will review Appellant’s claim on the merits.
Our standard of review in sentencing matters is well settled:
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. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
In fashioning a defendant’s sentence, the court must “follow the
general principle that the sentence imposed 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 the defendant.” 42 Pa.C.S.A. § 9721(b). Therefore,
“a sentencing court must formulate a sentence individualized to that
particular case and that particular defendant.” Clarke, supra at 1287(citation and internal quotation marks omitted).
Here, at the sentencing hearing, the court heard statements from
Appellant, one of his victims, and that victim’s daughter, argument from
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defense counsel and the Commonwealth, and noted that it received
documents pertaining to the case submitted by the parties. (See N.T.
Sentencing, 8/21/14, at 2, 4-13). Appellant advised the court that he was
working two jobs, that he was participating in treatment for his drug
addiction, and that he regularly spends time with his son. (See id. at 10-
12). He stated that he was “fighting [to] . . . get back as fast as possible so
that [he] can get back to [his] son and [his] life with him.” (Id. at 12).
Defense counsel indicated that Appellant is amenable to rehabilitation and
asked the court to consider boot camp. (See id. at 8-9, 13). The
Commonwealth, however, requested that the court impose a state sentence
but specifically objected to placement in boot camp. (See id. at 6-7). It
noted that Appellant had pleaded guilty to multiple burglaries in the past and
had not received heavy sentences, and that he committed his most recent
offense while on bail. (See id.). It acknowledged that Appellant has a
problem with drug addiction and stated that state prison is the best place for
him to address this issue. (See id.).
The victim informed the court that the loss of her personal property
was “very distressful.” (Id. at 4). She also noted her sympathy for
Appellant given his potential and her hope that he would “use his sentencing
time productively.” (Id.). The victim’s daughter stated that her mother
“has been not herself ever since [her property was stolen and] her quality of
life has been greatly impacted because of this[.]” (Id. at 5). Before
imposing sentence, the court stated that it took into consideration the PSI
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report, the statements of the parties and the victim, and the nature of
Appellant’s offenses. (See id. at 13). It determined that “[s]tate
incarceration is best suited to handle any and all of [Appellant’s] needs.”
(Id. at 15).
Thus, the record reflects that the court considered extensive
information regarding Appellant’s background and concluded that a state
sentence was appropriate in this case. Further, “where, as here, the
sentencing court had the benefit of a pre-sentence investigation report, we
can assume [it] was aware of relevant information regarding [Appellant’s]
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010),
appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S. Ct. 1746 (2012)
(citation and internal quotation marks omitted). Accordingly, after review of
the record, we conclude that the trial court did not abuse its discretion in
imposing Appellant’s sentence. See Clarke, supra at 1287. Appellant’s
sole issue on appeal does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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