Com. v. Murray, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RONALD ALAN MURRAY :
:
Appellant : No. 770 MDA 2017
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001294-2015
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 09, 2018
Appellant, Ronald Alan Murray, appeals nunc pro tunc from the
judgment of sentence entered in the Franklin County Court of Common
Pleas, following his open plea of nolo contendere to driving under the
influence (“DUI”) and recklessly endangering another person (“REAP”).1 We
affirm.
The relevant facts and procedural history of this case are as follows.
On February 15, 2016, Appellant entered an open plea of nolo contendere to
DUI and REAP. Appellant’s convictions stem from an incident on March 20,
2015, in which Appellant drove while intoxicated with two passengers in his
car. Appellant crashed the car and one of his passengers sustained six rib
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1 75 Pa.C.S.A. § 3802(d)(1)(ii); 18 Pa.C.S.A. § 2705, respectively.
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fractures as a result of the accident. The court sentenced Appellant on April
6, 2016, to twelve (12) to sixty (60) months’ imprisonment for DUI, and a
consecutive six (6) to twenty-four (24) months’ imprisonment for REAP.
Appellant did not file post-sentence motions or a direct appeal.
On October 20, 2016, Appellant timely filed a pro se petition under the
Post Conviction Relief Act (“PCRA”).2 The court appointed counsel, who filed
an amended PCRA petition on December 19, 2016. In the amended petition,
Appellant alleged, inter alia, he contacted plea counsel multiple times about
filing a direct appeal but counsel failed to respond to Appellant’s requests.
Appellant said his wife even contacted counsel about filing an appeal but
counsel ignored her too. Appellant claimed he thought the court was going
to impose concurrent terms of imprisonment based on Appellant’s
discussions with plea counsel prior to the sentencing hearing. Appellant
insisted he wanted to raise a sentencing challenge on direct appeal.
Appellant sought relief in the form of resentencing, withdrawal of his plea, or
reinstatement of his appellate rights nunc pro tunc.
On April 6, 2017, the parties appeared for a PCRA hearing, at which
time PCRA counsel informed the court that the parties agreed to
reinstatement of Appellant’s direct appeal rights nunc pro tunc based on plea
counsel’s acknowledgement that Appellant wanted to file a direct appeal and
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2 42 Pa.C.S.A. §§ 9541-9546.
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counsel neglected to do so. Consequently, the court entered an order
restoring Appellant’s direct appeal rights nunc pro tunc by stipulation of the
parties. PCRA counsel did not expressly ask the court to reinstate
Appellant’s post-sentence motion rights nunc pro tunc, and the court did not
do so. On Monday, May 8, 2017, Appellant timely filed a notice of appeal
nunc pro tunc. That same day, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely filed his Rule 1925(b) statement on May 26, 2017.
Appellant raises one issue for our review:
WHETHER THE TRIAL COURT’S IMPOSITION OF
CONSECUTIVE SENTENCES WAS AN ABUSE OF
DISCRETION AS THE IMPOSITION OF CONSECUTIVE
SENTENCES WAS EXCESSIVE BASED ON THE CRIMINAL
CONDUCT AT ISSUE FOR DRIVING UNDER THE INFLUENCE
AND RECKLESSLY ENDANGERING ANOTHER PERSON
ARISING FROM THE SAME CRIMINAL ACT?
(Appellant’s Brief at 3).3
Appellant argues the court’s imposition of consecutive sentences was
manifestly excessive. Appellant asserts the court essentially sentenced him
twice for the same criminal act because his DUI and REAP convictions arose
from the same criminal conduct, namely, his driving while intoxicated.
Appellant insists the nature of his crimes are so intertwined that imposition
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3 In his statement of questions presented, Appellant raised an additional
issue. Nevertheless, Appellant withdrew that claim in his argument section,
so we give it no further attention.
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of consecutive sentences was unduly harsh. Appellant claims he asked the
court to impose concurrent sentences at the sentencing hearing and set
forth argument in support of that position. Appellant concludes the court
abused its discretion by imposing consecutive sentences, and this Court
must vacate and remand for resentencing. As presented, Appellant’s issue
challenges the discretionary aspects of his sentence. See Commonwealth
v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010) (explaining
challenge to imposition of consecutive sentences implicates discretionary
aspects of sentencing). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or in a
timely filed post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932
(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). See
also Pa.R.Crim.P. 720(A)(1) (stating post-sentence motion shall be filed no
later than 10 days after imposition of sentence).
Where the court reinstates direct appeal rights nunc pro tunc based on
counsel’s ineffectiveness, the defendant is not automatically entitled to
reinstatement of his post-sentence rights nunc pro tunc as well.
Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 (2009).
Nevertheless, a PCRA court can reinstate a defendant’s post-sentence rights
nunc pro tunc if the defendant successfully pleads and proves he was
deprived of the right to file and litigate post-sentence motions as a result of
ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9
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(noting counsel may be deemed ineffective for failing to file post-sentence
motions when claim requires preservation in trial court for purposes of
appellate review). Compare Commonwealth v. Fransen, 986 A.2d 154
(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of
direct appeal rights nunc pro tunc is not entitled to reinstatement of post-
sentence rights nunc pro tunc if he did not request that relief with PCRA
court; appellant’s claim that he was entitled to file post-sentence motions
and to have benefit of evidentiary hearing warranted no relief where
appellant did not plead or prove in PCRA petition that he was deprived of
right to file post-sentence motions).
Instantly, Appellant entered an open plea of nolo contendere on
February 15, 2016, to DUI and REAP. Appellant proceeded to sentencing on
April 6, 2016, at which time plea counsel argued for imposition of concurrent
sentences. The court declined Appellant’s request and imposed consecutive
sentences for Appellant’s crimes. Appellant did not file post-sentence
motions or a direct appeal. Appellant subsequently filed a PCRA petition and
amended PCRA petition, alleging plea counsel’s ineffectiveness for failing to
file a direct appeal on Appellant’s behalf. Appellant claimed he thought the
court was going to impose concurrent terms of imprisonment, based on
Appellant’s discussions with plea counsel, so he wanted to raise a sentencing
challenge on direct appeal. On April 6, 2017, the parties appeared for a
PCRA hearing, at which time PCRA counsel informed the court that the
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parties agreed to reinstatement of Appellant’s direct appeal rights nunc pro
tunc. Consequently, the court entered an order restoring only Appellant’s
direct appeal rights nunc pro tunc, by stipulation of the parties.
Consistent with Liston and Fransen, Appellant needed to plead in his
PCRA petition that plea counsel deprived him of the opportunity to litigate a
post-sentence motion. See Liston, supra; Fransen, supra. Nevertheless,
Appellant did not expressly raise in his PCRA petition or amended PCRA
petition counsel’s ineffectiveness for failing to file post-sentence motions on
Appellant’s behalf. Likewise, Appellant did not expressly ask the court to
restore his post-sentence motion rights nunc pro tunc. The failure to file a
post-sentence motion challenging the discretionary aspects of sentencing
arguably waived his issue on appeal. See Griffin, supra.
On the other hand, Appellant’s PCRA petition made clear he wanted to
raise a sentencing challenge on appeal, so restoration of Appellant’s direct
appeal rights nunc pro tunc without restoration of Appellant’s post-sentence
motion rights nunc pro tunc, was essentially an empty gesture. In light of
Appellant’s stated intent to raise a sentencing claim on appeal, the PCRA
court could have restored Appellant’s post-sentencing rights as well. See
Commonwealth v. Rivera, 154 A.3d 370 (Pa.Super. 2017) (en banc),
appeal denied, ___ Pa. ___, 169 A.3d 1072 (2017) (affirming PCRA court’s
reinstatement of appellant’s post-sentence motion and direct appeal rights
nunc pro tunc based on counsel’s ineffectiveness for failing to consult with
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appellant about whether he wanted to file direct appeal; PCRA court properly
restored Appellant’s post-sentencing rights nunc pro tunc because one issue
appellant wanted to raise regarding withdrawal of his guilty plea required
preservation in trial court). Further, the court’s Rule 1925(a) opinion
addresses Appellant’s discretionary aspects of sentencing claim on the
merits. Thus, the court has already examined the issue Appellant would
have raised in a post-sentence motion nunc pro tunc. Therefore, in the
interest of judicial economy, we will review Appellant’s sentencing issue.
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). This Court must evaluate what constitutes a substantial
question on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825
(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. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
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sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question exists “only where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which 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….” Id. See Gonzalez-Dejusus, supra at 598-99 (explaining as
general rule that court’s exercise of discretion in imposing consecutive
versus concurrent sentences does not present substantial question; noting
that imposition of consecutive sentences raises substantial question in only
rare and most extreme cases; thus, key to resolving preliminary substantial
question inquiry is whether decision to sentence consecutively raises
aggregate sentence to, what appears on its face to be, excessive level in
light of criminal conduct at issue).
Here, the court sentenced Appellant to 12 to 60 months’ imprisonment
for DUI and a consecutive term of 6 to 24 months’ imprisonment for REAP.
Appellant’s convictions stemmed from an incident where Appellant drove
while intoxicated and crashed his vehicle, causing one of his passengers to
sustain multiple rib fractures as a result of the accident. Based on
Appellant’s prior record score of five, the standard range for Appellant’s DUI
offense was 12 to 18 months’ imprisonment, and 6 to 12 months’
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imprisonment for REAP. Thus, the court imposed consecutive low-end
standard range sentences. Appellant’s challenge to the imposition of
consecutive sentences under these facts does not necessarily raise a
substantial question. See id. Compare Commonwealth v. Dodge, 859
A.2d 771 (Pa.Super. 2004), vacated and remanded on other grounds, 594
Pa. 345, 935 A.2d 1290 (2007) (holding appellant’s claim of excessiveness
raised substantial question where court imposed consecutive standard range
sentences for 37 counts of non-violent theft-related offenses for aggregate
sentence of 58½ to 124 years’ imprisonment).
Moreover, the court explained its sentencing rationale on the record as
follows:
Sir, I have reviewed this pre-sentence report prepared by
our probation department, and I’ve heard what [the
Commonwealth] has said, your attorney has said on your
behalf, what you have said and have considered the letters
that have been written as well. The letter from [your
injured passenger] is one of support for you. From reading
the affidavit of probable cause relating to the crime it
appears that his son was also a passenger in the car at the
time and also from reading his account of what happened
that young man said that you refused to let his father
drive. The fear that must have been in that little boy when
you were having difficulty driving and you would not let
someone else drive sticks with me.
The two charges for which you’ll be sentenced are DUI due
to the controlled substance being in your system as well as
alcohol to the point of a .09 blood alcohol content. The
gravity score is a five. Because of your prior record that
spans from 1998 through 2014 you have a score of five
making the standard range 12 to 18 [months].
Additionally you’re here to be sentenced for reckless[ly]
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endangering another person which carries a gravity score
of three and with your prior record score of five the
standard rage is 6 to 12 [months]. These two offenses
really are separate and distinct. You were driving a vehicle
with those medications in your system and alcohol, and
you’ll be sentenced for that and separately be sentenced
for the reckless endangering due to the fact that there was
not…just one person injured, there were two [who] were
put at jeopardy because of your conduct in operating that
motor vehicle….
(N.T. Sentencing, 4/6/16, at 8-9). The record supports the court’s
imposition of consecutive sentences. Thus, even if Appellant had properly
preserved his sentencing claim in a post-sentence motion nunc pro tunc,
Appellant would not be entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2018
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