Com. v. Grossman, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL MARTIN GROSSMAN :
:
Appellant : No. 719 WDA 2018
Appeal from the Judgment of Sentence March 6, 2018
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000154-2016,
CP-61-CR-0000208-2013, CP-61-CR-0000657-2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 18, 2019
Appellant, Samuel Martin Grossman, appeals from the judgment of
sentence entered on March 6, 2018, in the Venango County Court of Common
Pleas. After review, we affirm in part, vacate in part, and remand with
instructions.
The trial court provided the following background:
On March 6, 2018, [Appellant] was sentenced at criminal
docket number 657-2017 to the following:
At C.R. No. 657-2017 on Count 2, Driving Under the
Influence of Alcohol, 2nd Offense - Lowest Rate of
Alcohol, a violation of 75 Pa. C.S.A. §3802(a)(2), an
ungraded Misdemeanor, … imprisonment in the
Venango County Jail for a period of not less than five
(5) days and not more than six (6) months … The
Sentence and Order of Court at C.R. No. 657-2017 on
Count 4, Driving While Operating Privilege
Suspended/revoke - DUI Related with Alcohol in the
System, in violation of 75 Pa. C.S.A. §1543(b)(1.1)(i),
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a Summary offense, … a fine of $1,000, and undergo
an imprisonment in the Venango County Jail for and
during the period of not less than ninety (90) days ….
The sentence imposed at Count 4 is intended to run
concurrent with the sentence imposed at Count 2, for
a total aggregate sentence of 3 months to 6 months
in the Venango County Jail. Credit at C.R. No. 657-
2017 shall be allowed for 171 days previously served
in the Venango County Jail from September 17, 2017
until March 6, 2018. Any lesser sentence would
depreciate the seriousness of the offense.
Judge Boyer’s 3/6/18 sentencing order, at 1, 5-6. As a result of
this new criminal conviction, [Appellant’s] probations at both
criminal docket numbers 208-2013 and 154-2016 were revoked,
as this Court found his then-new criminal charges at 657-2017 to
be material violations of the terms of his probation [at docket
numbers 208-2013 and 154-2016]. Accordingly, we resentenced
[Appellant] at both 208-2013 and 154-2016 as follows:
The Sentence and Order of Court at C.R. No. 208-
2013 on Count 1, Corruption of Minors, in violation of
18 Pa. C.S.A. §6301(a)(1)(ii), a Felony 3, is … a fine
of $500 as originally imposed, and undergo an
imprisonment in a State Institution of the Department
of Corrections for a minimum of which shall be three
and one-half (3½) years, the maximum of which shall
be seven (7) years, to be computed from the
expiration of the sentence imposed at C.R. No. 657-
2017 … the Sentence and Order of Court at C.R. No.
154-2016 on Count 1, False Reports, in violation of 18
Pa. C.S.A. §4906(b)(1), a Misdemeanor 3, is … a fine
of $100 as originally imposed, and undergo an
imprisonment in a State Institution of the Department
of Corrections for a minimum of which shall be six (6)
months, the maximum of which shall be twelve (12)
months, to be computed from the expiration of the
sentence imposed at C.R. No. 657-2017 … The
sentence impose[d] at CR. No. 154-2016 and C.R. No.
208-2013 are intended to run concurrent with each
other; however, those sentences are to run
consecutive to the sentence imposed at C.R. No. 657-
2017. The sentence at C.R. No. 657-2017 is a County
Sentence, which will need to be completed prior to
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[Appellant] serving his State Sentence in this case.
Credit at C.R. No. 208-2013 and C.R. No. 154-2016
shall be allowed for 539 days previously served in the
Venango County Jail from August 26, 2014 until
January 22, 2015 (150 days), from September 29,
2015 until July 8, 2016 (284 days) and from April 28,
2017 until August 10, 2017 (105 days).
Judge Boyer’s 3/6/18 sentencing order, at 6-8.
Trial Court Opinion, 7/18/18, at 1-2. The sentencing order included trial court
docket numbers C.R. No. 154-2016, C.R. No. 208-2013, and C.R. No. 657-
2017. Appellant filed a single post-sentence motion that included all three
docket numbers on March 16, 2018, and the trial court denied Appellant’s
post-sentence motion in a single order on April 18, 2018. Appellant filed a
single notice of appeal on May 14, 2018, which included all three docket
numbers.1 We note that on June 1, 2018, our Supreme Court held that,
prospectively, “when a single order resolves issues arising on more than one
lower court docket, separate notices of appeal must be filed. The failure to
do so will result in quashal of the appeal.” Commonwealth v. Walker, 185
A.3d 969, 977 (Pa. 2018). Because Appellant’s consolidated notice of appeal
in this matter was filed prior to our Supreme Court’s June 1, 2018 decision in
Walker, we need not quash.
On appeal, Appellant raises the following questions for this Court’s
consideration:
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1 Both the trial court and Appellant complied with Pa.R.A.P. 1925.
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1. Whether the sentence[ing] court erred and/or abused its
discretion in allocating credit time first to his county sentence, for
which he appears to have been at all relevant times on unsecured
bail, rather than his revocation case for which a detainer was
lodged?
2. Whether the lower court erred and/or abused its discretion in
structuring a sentence scheme that was manifestly excessive in
nature in that it imposed a statutory maximum sentence to run
consecutively to his first-offense DUI offense, and whether the
sentence imposed failed to give due consideration to all relevant
sentencing factors?
Appellant’s Brief at 5.
Appellant first challenges the trial court’s allocation of credit for time
served. Appellant points out that he satisfied the bail conditions on the new
charges at docket C.R. No. 657-2017, and he argues that the trial court failed
to award credit for time served at dockets C.R. No. 154-2016 and C.R. No.
208-2013. It is well settled that a challenge to the trial court’s failure to award
credit for time served prior to sentencing involves the legality of sentence.2
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (citations
omitted). Issues relating to the legality of a sentence are questions of law.
Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016). Our
standard of review over such questions is de novo, and our scope of review is
plenary. Id.
____________________________________________
2 We note that Appellant is not assailing the Department of Corrections’
computation of credit for time served, as such a challenge must be addressed
in an action brought before the Commonwealth Court. Commonwealth v.
Heredia, 97 A.3d 392, 394-395 (Pa. Super. 2014).
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Our Supreme Court has discussed the allocation of credit for time served
when a criminal defendant has satisfied his bail conditions as follows:
[I]f a defendant is being held in custody solely because of a
detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time which
he spent in custody shall be credited against his original sentence.
If a defendant, however, remains incarcerated prior to trial
because he has failed to satisfy bail requirements on the new
criminal charges, then the time spent in custody shall be credited
to his new sentence.
Gaito v. Pennsylvania Bd. of Probation and Parole, 412 A.2d 568, 571
(Pa. 1980).
As noted above, the trial court allocated 539 days of time credit to the
sentences that were imposed after probation was revoked at dockets C.R. No.
208-2013 and C.R. No. 154-2016. Appellant is not challenging the allocation
of the credit for those 539 days. Rather, Appellant claims that the 171 days
he served from September 17, 2017 through March 6, 2018, should also be
credited toward his revocation sentences at dockets C.R. No. 208-2013 and
C.R. No. 154-2016 and not his new sentence at C.R. No. 657-2017. We agree,
in part.
The record reveals that Appellant was arrested and taken into custody
at docket C.R. No. 657-2017 for the DUI and related offenses on September
17, 2017. On September 19, 2017, detainers were lodged at docket numbers
C.R. No. 208-2013 and C.R. No. 154-2016. Appellant posted bail at docket
C.R. No. 657-2017 on October 18, 2017. Thus, the only time credit Appellant
could receive at docket C.R. No. 657-2017 is the time from September 17,
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2017, through October 18, 2017. Gaito, 412 A.2d at 571. The 139 days
beginning on October 18, 2017, and ending on March 6, 2018, cannot be
credited toward Appellant’s sentence at docket C.R. No. 657-2017 because
Appellant satisfied the bail conditions at that docket number. Gaito, 412 A.2d
at 571. Accordingly, we are constrained to vacate that part of Appellant’s
judgment of sentence allocating credit for time served and remand to the trial
court to apply Appellant’s time credit consistent with this Memorandum. See
Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008) (remanding to
the trial court for the proper application of credit for time served).
In his second issue on appeal, Appellant avers that the sentence
imposed at docket C.R. No. 208-2013 was manifestly excessive and asserts
the trial court did not consider his rehabilitative needs or mitigating factors.
Appellant’s Brief at 10, 16-17. Appellant’s issue presents a challenge to the
discretionary aspects of his sentence.
It is well settled that when an appellant challenges the discretionary
aspects of his sentence, there is no automatic appeal; rather, the appeal will
be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-
part test:
[W]e conduct a four-part analysis to determine: (1)
whether [the] appellant has filed a timely notice of
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appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. §9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Appellant has satisfied the first three elements of the four-part test from
Moury. Appellant preserved the sentencing issue by filing a timely post-
sentence motion and notice of appeal, and he provided a statement of reasons
for allowance of appeal from the discretionary aspects of his sentence
pursuant to Pa.R.A.P. 2119(f) in his brief. Next, we must determine if
Appellant has raised a substantial question for our review. Moury, 992 A.2d
at 170.
A substantial question requires a demonstration that “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.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s 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. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
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In his Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court
imposed a manifestly excessive sentence and failed to consider his
rehabilitative needs and mitigating factors. Appellant’s Brief at 10. We
conclude that Appellant has presented a substantial question for our review.
See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015)
(stating that a claim that a sentence is manifestly excessive, together with an
allegation that the trial court failed to consider mitigating factors and
rehabilitative needs, presents a substantial question).
It should be noted that “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.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is
not merely an error in judgment; rather, an appellant must establish that the
trial court ignored or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable
decision. Id.
Here, the trial court stated on the record that it reviewed a pre-sentence
investigation report (“PSI”), noted that Appellant’s probation had been
revoked four times at docket C.R. No. 208-2013 and two times at docket C.R.
No. 154-2016, and opined that Appellant had shown he was not amendable
to probation, revealed a pattern of non-compliance, and committed new
crimes. N.T., 3/6/18, at 14-26. The trial court ordered the sentences at
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dockets C.R. No. 208-2013 and C.R. No. 154-2016 to run concurrently with
each other but consecutively to the sentence imposed at docket C.R. No. 657-
2017. Id. at 24-26.
As noted above, the trial court had the benefit of a PSI, which gives rise
to a presumption that the trial court properly considered and weighed all
relevant factors. See Commonwealth v. Finnecy, 135 A.3d 1028, 1038
(Pa. Super. 2016) (“[W]here the sentencing judge had the benefit of a [PSI]
report, it will be presumed that he or she was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”). Therefore, we find
no merit to Appellant’s claims that the trial court did not consider his
rehabilitative needs or mitigating factors in this case.
Moreover, the trial court explained Appellant’s multiple failures on
probation in the past, yet ordered only one of his sentences to be served
consecutively. Appellant’s displeasure with the duration of his aggregate
sentence does not illustrate or establish any abuse of discretion. Despite
being granted probation previously, Appellant repeatedly chose to violate the
terms of probation. Appellant committed multiple crimes, and it is well settled
that the imposition of consecutive as opposed to concurrent sentences is solely
within the discretion of the trial court. See Commonwealth v. Hoag, 665
A.2d 1212, 1214 (Pa. Super. 1995) (a defendant is not entitled to a “volume
discount” for multiple crimes by having sentences run concurrently). After
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review, we discern no abuse of discretion by the trial court in the sentence
imposed. Accordingly, Appellant is entitled to no relief on his challenge to the
discretionary aspects of his sentence, and we affirm the judgment of sentence.
For the reasons set forth above, we affirm that part of the judgment of
sentence with respect to their duration, and we vacate in part and remand for
allocation of time credit only.
Judgment of sentence affirmed in part, vacated in part, and remanded
with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2019
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