Com. v. Schweizer, W. ( 2015 )

J. A34010/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WALTER R. SCHWEIZER, : No. 369 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 20, 2013,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0008282-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 14, 2015
Appellant appeals his judgment of sentence, challenging the
discretionary aspects of that sentence. Finding no merit, we affirm.
Appellant was charged with driving under the influence of alcohol
(“DUI”) and related offenses as a result of a single vehicle motorcycle
accident in Shrewsbury Township on July 19, 2012. Appellant fled the scene
of the accident on foot, but was discovered by police nearby in an
intoxicated state.
On February 14, 2013, appellant entered a guilty plea. However, on
April 29, 2013, on the advice of new counsel, appellant filed a motion to
withdraw his guilty plea. Apparently, appellant was subsequently permitted
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to withdraw his plea.1 On October 11, 2013, a jury convicted appellant of
DUI -- general impairment, DUI -- highest rate of alcohol, and immediate
notice of accident to police department.2
On December 20, 2013, the court sentenced appellant for the DUI --
highest rate of alcohol conviction to 8 months’ to 5 years’ imprisonment
(county jail), a sentence within the standard range of the Sentencing
Guidelines. The court was apprised by a pre-sentence investigative report.
(Notes of testimony, 12/20/13 at 1; 1/22/14 at 9.) Appellant filed a
post-sentence motion on December 30, 2013, seeking a reduction of his
sentence. At a hearing on that motion, the court made the following
underlined remarks which form the basis of appellant’s present appeal:
However, the Defendant then consulted with
different counsel and chose to withdraw his guilty
plea and exercise his right to trial, and he absolutely
has the right to exercise his right to trial, and we
note that, and we would never consider punishing an
individual for going to trial. We just don’t do that.
We think it’s their constitutional right. They have
the right to enforce [sic] the Commonwealth to do
that.
However, we do think that we can, particularly,
in an instance where someone pleads guilty and then
decides essentially to go to trial and roll the dice, we
1
We can find no order in the record permitting appellant to withdraw his
plea. A hearing was held on the motion on May 1, 2013, but the court
merely continued sentencing until the Commonwealth had an opportunity to
review the motion. Thereafter, the court held status hearings at which the
case was continued, but the motion to withdraw the plea was not addressed.
Ultimately, a jury trial commenced on October 10, 2013.
2
75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3746, respectively.
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think we can take that as an indication from their
standpoint that they’re attempting to avoid
responsibility for the criminal act for which they have
committed, and that can show, also, a lack of
remorse on the Defendant’s part, and we think that
those are appropriate considerations.
Notes of testimony, 1/22/14 at 9-10.3
On appeal, appellant challenges the discretionary aspects of his
sentence.
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. Two requirements must be
met before we will review this challenge on its
merits. 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. Second, the appellant must
show that there is a substantial question that the
sentence imposed is not appropriate under the
Sentencing Code. The determination of whether a
particular issue raises a substantial question is to be
evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must
show actions by the trial court inconsistent with the
Sentencing Code or contrary to the fundamental
norms underlying the sentencing process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014),
quoting Commonwealth v. Bowen, 55 A.3d 1254, 1262-1263 (Pa.Super.
2012), appeal denied, 64 A.3d 630 (Pa. 2013).
3
The underlined portion is quoted in appellant’s brief at 23. We have
included a fuller quote to give a better sense of what the trial court was
stating.
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Appellant’s brief does contain the requisite concise statement.
Therein, appellant argues that the trial court relied upon an impermissible
factor in crafting his sentence. Appellant argues that the trial court
improperly relied upon his decision to withdraw his plea and proceed to jury
trial as a reason to impose an excessive sentence. We note that such a
claim has been found to raise a substantial question and we will, therefore,
consider the merits of appellant’s claim. Commonwealth v. Allen, 24 A.3d
1058, 1064-1065 (Pa.Super. 2011).
Our standard of review of a challenge to the
discretionary aspects of sentence 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. 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
or 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),
quoting Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super.2007).
Appellant argues that he has been given an excessive sentence
because he exercised his constitutional right to trial. Appellant relies upon
the following holding by our supreme court:
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We believe the [Commonwealth v.] Staley[,
324 A.2d 393 (Pa.Super. 1974)] principle that a
demand for a jury trial is not a factor which warrants
escalating the severity of a sentence is sound. That
principle is premised primarily upon the rationale
that the right to a trial by jury is a fundamental one,
constitutionally guaranteed to all criminal
defendants, and that a practice which exacts a
penalty for the exercise of the right is without
justification and unconstitutional. The price exacted
by imposing a harsher sentence on one who chooses
to put the state to its proof by a jury trial rather than
plead guilty is obvious. Not only is the individual
defendant penalized for the present exercise of his
constitutional right but, should the practice become
sufficiently well known within a given jurisdiction, a
substantial chilling effect on the exercise of the right
would inevitably ensue.
....
Accordingly, we reaffirm the Superior Court’s holding
in Commonwealth v. Staley that it is
constitutionally impermissible for a trial court to
impose a more severe sentence because a defendant
has chosen to stand trial rather than plead guilty.
Commonwealth v. Bethea, 379 A.2d 102, 104-105 (Pa. 1977).
We find no error under Bethea. Appellant misperceives what behavior
the trial court was considering when it crafted appellant’s sentence. In the
fuller quotation that we have provided, it is quite clear that the trial court
was well aware that it is impermissible to consider a defendant’s choice to go
to trial rather than plead guilty as a sentencing factor. Rather, the trial
court simply interpreted appellant’s choice to first plead guilty and then
withdraw the plea as a failure to take responsibility for appellant’s crime and
a lack of remorse. Lack of remorse is a proper sentencing factor.
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Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa.Super. 2009). We
see no error in this.
Moreover, we cannot find that appellant’s sentence was excessive.
The sentencing range for appellant under the standard range of the
Sentencing Guidelines was 90 days’ to 9 months’ imprisonment. (Notes of
testimony, 12/20/13 at 9.) Appellant’s minimum sentence of 8 months was,
therefore, within the standard range. This court has previously held that
“where the sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super.
2011). As previously noted, the trial court was apprised of a pre-sentence
investigative report. Since appellant’s sentence was not excessive, we find
no prejudice to appellant by the court’s consideration of his lack of remorse.
Accordingly, we shall affirm the judgment of sentence.
Judgment of sentence affirmed.
Shogan, J. joins the Memorandum.
Stabile, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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