Com. v. Cannon, M. ( 2015 )

J. S59044/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL C. CANNON, :
:
Appellant : No. 845 WDA 2015
Appeal from the Judgment of Sentence December 15, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0001075-2014
CP-02-CR-0001076-2014
CP-02-CR-0001107-2014
CP-02-CR-0001610-2014
CP-02-CR-0001611-2014
CP-02-CR-0002486-2014
CP-02-CR-0002488-2014
CP-02-CR-0002506-2014
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 15, 2015
Appellant, Michael C. Cannon, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas after he entered an
open guilty plea to numerous counts of burglary,1 theft,2 and related
offenses. Appellant claims the aggregate sentence of six to twelve years’
imprisonment followed by three years’ probation was “clearly unreasonable,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3502(a)(2).
2
18 Pa.C.S. § 3921(a).
J.S59044/15
unduly harsh[,] and manifestly excessive.” Appellant’s Brief at 8. We
affirm.
On January 3, 2014, detectives from Ross Township and West View
Borough arrested Appellant. Appellant confessed to committing numerous
burglaries and other offenses between October 2013 and January 2014.
Appellant was charged in the following criminal cases: (1) CR-1075-2014,
burglary of the home of Joseph Halder; (2) CR-1076-2014, burglary of the
home of John Gaisor; (3) CR-1107-2014, burglary of the homes of Dennis
Carleton and Christopher Banks; (4) CR-1610-2014, burglary of the home of
Christopher Meyer and Nathaniel Vickinovac; (5) CR-1611-2014, burglary of
the home of Timothy Knable; (6) CR-2486-2014, a burglary of the home of
Appellant’s parents; (7) CR-2488-2014, a separate burglary of the home of
his parents; and (8) CR-2506-2014, a separate theft of a firearm from his
parents. On October 1, 2014, Appellant entered open guilty pleas to all
charges.
On December 15, 2014, the trial court sentenced Appellant to an
aggregate six to twelve years’ imprisonment, followed by three years’
probation. Specifically, the court imposed three terms of two to four years’
imprisonment each in CR-1075-2014, CR-1076-2014, and CR-1610-2014, to
run consecutively, as well as a consecutive term of three years’ probation in
CR-2506-2014. The court also imposed concurrent two-to-four year
sentences in each of the remaining cases, as well as a three-year
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probationary term in CR-2488-2014, to run concurrent with the probationary
term in CR-2506-2014.
On December 23, 2014, Appellant’s plea counsel filed timely a post-
sentence motion challenging the sentence and requesting an extension of
time to file a brief. At the same time, plea counsel requested leave to
withdraw from representation. The trial court granted both the leave to
withdraw and the request to extend the time to file a brief. Present counsel
entered his appearance on January 12, 2015, and filed a brief in support of
Appellant’s sentencing challenge. Appellant’s post-sentence motion was
denied on May 26, 2015, by an order entered by operation of law. Appellant
filed a timely notice of appeal the following day. The court did not order a
Pa.R.A.P. 1925(b) statement but filed an opinion in support of its sentence.
Appellant’s sole contention in this appeal is that the trial court abused
its discretion when sentencing. He asserts the aggregate sentence was
“manifestly excessive” and the trial court “focused on the seriousness of the
offense and failed to consider [the] protection of the community or [his]
rehabilitative needs.” Appellant’s Brief at 8, 18-19. No relief is due.
Appellant has complied with the procedural requirements for
preserving a challenge to the discretionary aspects of his sentence by (1)
timely filing a post-sentence motion raising the claim, (2) timely filing a
notice of appeal, and (3) including in his brief a Pa.R.A.P. 2119(f) statement
of the reasons for relied upon for allowance of appeal. See
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.),
appeal denied, 104 A.3d 1 (Pa. 2014). Therefore, we consider whether
Appellant has raised a substantial question. See id. (citation omitted).
It is well settled that
[w]hether a particular challenge to a sentence amounts to
a substantial question is determined on a case-by-case
basis. “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.”
Id. at 1266 (citations omitted).
As to a trial court’s decision to order sentences to run consecutively,
we note:
[T]he imposition of consecutive rather than
concurrent sentences lies within the sound discretion
of the sentencing court. Long standing precedent of
this Court recognizes that 42 Pa.C.S.[ ] § 9721
affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other
sentences being imposed at the same time or to
sentences already imposed. A challenge to the
imposition of consecutive rather than concurrent
sentences does not present a substantial question
regarding the discretionary aspects of sentence.
“We see no reason why [a defendant] should be
afforded a ‘volume discount’ for his crimes by having
all sentences run concurrently.”
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may
create a substantial question. When determining whether
a substantial question has been raised, we have focused
upon “whether the decision to sentence consecutively
raises the aggregate sentence to, what appears upon its
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face to be, an excessive level in light of the criminal
conduct in this case.”
Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014)
(citations omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
“[A]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas
a statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721, has been rejected.”
Buterbaugh, 91 A.3d at 1266 (citation omitted). “[A] claim that a court did
not weigh the factors as an appellant wishes does not raise a substantial
question.” Zirkle, 107 A.3d at 133 (citations omitted).
Instantly, we discern no extreme circumstance presented by the
aggregate sentence of six to twelve years’ imprisonment followed by three
years’ probation. Although the trial court sentenced consecutively in four of
the eight cases, it sentenced concurrently in the remaining four cases. All of
the individual sentences fell below the Sentencing Guideline’s suggested
mitigated ranges.3 We further read Appellant’s boilerplate assertion that the
3
Appellant’s prior record score was “REFEL,” and the lead charge of
burglary, in all cases except CR-2506-2014, had an offense gravity score of
seven. The Sentencing Guidelines, therefore, suggested a minimum
sentence between thirty-five and forty-five months, plus or minus six for
aggravating or mitigating factors.
In CR-2506-2014, the lead offense of theft had an offense gravity
score of eight because the item taken was a firearm. The Sentencing
Guidelines recommended a minimum sentence between forty and fifty-two
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trial court failed to consider necessary factors as a challenge to the weight
given to the factors by the court. See Appellant’s Brief at 18 (asserting
court “focused on the seriousness of the offense and failed to consider
protection of the community or [his] rehabilitative needs”). Thus, we find no
substantial question warranting review. See Zirkle, 107 A.3d at 133-34;
Buterbaugh, 91 A.3d at 1266.
In any event, were we to accept Appellant’s assertion that the trial
court failed to consider necessary factors, a review of the record confirms
that Appellant’s sentencing claim lacks merit. The court’s on-the-record
statements at the sentencing hearing evince its consideration of all
necessary factors, including Appellant’s heroin addiction and relapse before
committing the instant offenses. See N.T., 12/15/14, at 12-14. The record
reveals no further basis to disturb the sound discretion exercised by the
court, and we would affirm based on the opinion of the Honorable Edward J.
Borkowski. See Trial Ct. Op., 6/30/15, at 6-9 (concluding, inter alia, trial
court considered all relevant factors, and “[r]ather than being a sentence
that was unreasonable, harsh, and excessive, the [t]rial [c]ourt imposed a
carefully crafted and reasonable, if not lenient sentence”).
Judgment of sentence affirmed.
months, plus or minus nine months. As noted above, the trial court ordered
a probationary sentence in that case.
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J.S59044/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
APPELLEE, CC NO.: 201401075
CC NO.: 201401076
v. CC NO.: 201401107
CC NO.: 201401610
MICHAEL CANNON, CC NO.: 201401611
CC NO.: 201402486
APPELLANT. CC NO.: 201402488
CC NO.: 201402506
OPINION
BORKOWSKI, J.
PROCEDURAL HISTORY
Appellant was charged by eight separate informations with nine counts of
burglary, eight counts of theft by unlawful taking, seven counts of receiving stolen
property, and multiple summary counts for eleven criminal episodes involving
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residential properties and items taken in those incidents.
1
Appellant was charged by criminal infonnation:(CC 201401075) with one count of burglary,
one count of theft by unlawful taking, one count of receiving stolen property, one count of
criminal mischief, and one summary count of retail theft; (CC 201401076) with two counts of
burglary, and one summary count of criminal mischief; (CC 201401107) with two counts of
burglary, and two counts of receiving stolen property; (CC 201401610) with one count of
burglary and two counts of theft by unlawful taking; (CC 201401611) with one count of burglary
and one count of theft by unlawful taking; (CC 201402486) with one count of burglary, one
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On October 1, 2014, Appellant pied guilty to the charges at each
information.
On December 15, 2014, Appellant was sentenced by the Trial Court to an
aggregate term of incarceration of six to twelve years followed by three years
probation.2 Appellant was also ordered to pay restitution.
On December 23, 2014, Appellant filed a post sentence motion, which was
denied by the Trial Court on May 26, 2015.
Appellant filed a timely notice of appeal on May 27, 2015.
count of theft by unlawful taking, and one count of receiving stolen property; (CC 201402488)
with one count of burglary, one count of criminal trespass, one count of theft by unlawful taking,
one count of receiving stolen property, and one summary count of criminal mischief; and, (CC
201402506) with two counts of theft by unlawful taking and two counts of receiving stolen
rroperty.
Appellant was specifically sentenced as follows:
CC 201401076 Count one: burglary - two to four years incarceration;
CC 201401076 Count two: burglary - two to four years incarceration to be served concurrent to
the period of incarceration imposed at count one;
CC 201401075 Count one: burglary - two to four years incarceration to be served consecutive to
the period of incarceration imposed at CC 201401076 count one;
CC 201401107 Count one: burglary - two to four years incarceration to be served concurrent to
the periods of incarceration imposed at CC 201401076;
CC 201401610 Count one: burglary - two to four years incarceration to be served consecutive to
the period of incarceration imposed at CC 201401075;
CC 201401611 Count one: burglary - two to four years incarceration to be served concurrent to
the period of incarceration imposed at CC 201401076;
CC 201402486 Count one: burglary - two to four years incarceration to be served concurrent to
the period of incarceration imposed at CC 201401076;
CC 201402506 Count one: theft by unlawful taking - three years probation to be served
consecutive to the period of incarceration imposed at CC 201401610;
CC 201402488 Count one: burglary - two to four years incarceration to be served concurrent to
the periods of incarceration imposed at CC 201401076. Appellant was also sentenced to three
years probation to be served concurrent with the period of probation imposed at CC 201402506.
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STATEMENT OF ERRORS ON APPEAL
Appellant raises the following claim on appeal and it is set forth exactly as
he presented it within his notice of appeal:
Whether the Court of Common Pleas imposed a sentence that
was clearly unreasonable, unduly harsh and manifestly
excessive, where it focused exclusively on the retributive
aspects of sentencing and failed to adequately consider the need
for the protection of the community and rehabilitative needs of
the defendant and, thus abused its discretion?
FINDINGS OF FACT
The Commonwealth provided the following recitation of facts at Appellant's
plea proceeding:
Had the Commonwealth proceeded to trial in the case ending 01075 --
this is a West View Police Department case -- we would have called
Detective Ganster; also the victim in this case, Mr. Joseph Hadler; and
our witness, Mr. William Cox.
They would have testified that on or about October of 2013
spanning up until January of 2014, the Defendant burglarized Mr.
Hadler's house and stole some antiques and various copper piping,
and it was sold to an antique mall, and there were also things that
were taken from the antique mall. There was a confession in that case.
In the case ending in 01610 -- this is an Ohio Township Police
Department case -- we would have called Detective Ryan Ging; also
the victim, Mr. Vickinovac, V-I-C-K-I-N-0-V-A-C, who would have
testified that on or about the 15th of October, roommates reported a
theft of a firearm and laptop, various personal items, from the
apartment. The Defendant later confessed to that. There is restitution
in that case: $500 to Mr. Meyer and $700 to Mr. Vickinovac.
Your Honor , in the very first case, there is $4,450 to the victim,
Joe Hadler.
In the third case, 02506, had the Commonwealth proceeded to
trial, we would -- this is Shaler Township Police Department -- we
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would have called Detective Benko and also the victim, Mr. Leo
Cannon.
They would have testified that on or about November 2013,
various things were taken from the residence, including firearms and
personal property. There is no restitution that's sought in this case due
to the victim being related to the Defendant.
In the case 02488 -- this is a Shaler Township Police
Department case -- we would have called Detective [ ... ] S-T-E-L-1-
T-A-N-O; also victim Sharon Cannon; and witness Leo Cannon, and
they would have testified that on or about the 21st of November 2013,
there was a reported burglary at the home with theft of electronics as
well as currency. There is no restitution being sought in this case. [ ..
.]
In the case ending 02486 -- this is a Shaler Police Department
case -- we would have called Detective Benko and the victims, Sharon
and Leo Cannon, parents of the Defendant.
The Defendant broke into the parents' house and stole a
television from the master bedroom. The parents called the police and
suspected their son as the assailant in this case. There's no restitution
being sought in that.
The case ending in 01611 -- that's a Bellevue Police
Department case -- we would have called Detective Mason and the
victim, Mr. Timothy Knable, K-N-A-B-L-E.
Your Honor, they would have testified that on or about the 8th
of December 2013, the Defendant allegedly took a TV, computer, and
some gold chains, and he cut himself whenever he broke a window
when he broke into the residence. Defendant admitted to stealing the
items and trading them to a drug dealer for heroin. Your Honor, the
amount of restitution in that case is $2,300 to Tim Knable.
Case ending in 01076 -- this is a Ross Township Police
Department case -- we would have testified that on or about the 1ih of
December 2013, the victim, Mr. John Gasior, G-A-S-1-0-R, came
home to his house, and guns and various guitars and personal items
were taken from that house. He has restitution and an insurance
deductible of $500 being sought in that case.
And, finally, in the case ending in 01107 -- this is a Bellevue
Borough Police Department case -- we would have called Detective
Dold, D-0-L-D, and the victim, Mr. Dennis Carleton, C-A-R-L-E-T-
0-N, victim Christopher Banks, and the witness, Mr. William Cox,
who would have testified that on or about -- in January 2014, the
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Defendant was under arrest and he confessed to the commission of
various other crimes, including a burglary that happened, with Dennis
Carleton and Christopher Banks as the victims.
There's $3,000 in restitution for Dennis Carleton, and $120 to
Mr. William Cox in this case.
Your Honor, there are confessions in all of these cases. We
would have submitted them, and with that, the Commonwealth would
rest.
(Guilty Plea Transcript, October 1, 2014, pp. 4-8).
DISCUSSION
Appellant alleges in his sole claim that the Trial Court imposed an
unreasonable, unduly harsh, and manifestly excessive sentence based on the
argument that the Trial Court focused exclusively on the retributive aspects of
sentencing and failed to adequately consider the rehabilitative needs of the
defendant. This claim is without merit.
A defendant challenging the discretionary aspects of his sentence must
satisfy a four-part test in order to invoke the Superior Court's jurisdiction to review
his claim:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and ( 4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) ( quotations and
citations omitted). A substantial question is raised when a defendant alleges that
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the sentencing court failed to take into consideration certain statutory factors
before sentencing a defendant. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.
Super. 2012). A sentence will be deemed unreasonable if a sentencing court fails to
consider certain statutory factors before sentencing a defendant. 42 Pa. C.S.
9721(b) ("protection of the public, 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").
Contrary to Appellant's claim, the record clearly establishes that, prior to
sentencing Appellant, the Trial Court considered all relevant factors:
The Court has taken into account the presentence report. The
guidelines speak for themselves in terms of, as I indicated, in the
mitigated, standard, and aggravated range[s]. The Court is certainly
aware of Mr. Cannon's background. The Court has taken into account
the impact of the various crimes on the victims in these matters which
are stated in the presentence report and they were reiterated briefly by
Mr. Phelan this morning on behalf of his uncle.
The Court notes that Mr. Cannon has received a county
sentence from this Court for similar type conduct all related to drug-
seeking behaviors which are extensive and go back to 2008, I believe.
He's had the opportunity to receive treatment locally, serve probation
without verdict to probation and community supervision and the Court
even extended leniency and a sentence that was imposed most
recently in terms of a county sentence.
He has demonstrated the ability to work productively in society
and in fact made positive steps in terms of paying the full amount of
restitution. However, he has relapsed on multiple occasions despite
opportunities to be maintained in the community and despite
opportunities in terms of professionals to help him address the issues
from which he suffers from which has been characterized accurately
as a disease that has, in effect ruined his life thus far in bona fide
employment and being in the community for an extensive period of
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time without relapsing. Unfortunately, these treatment facilities and
treatment professionals have been unable to fully address that in a
sense that it's not their failure but his failure to beat his addiction.
Consequently, the Court believes that in terms of my sentencing
function to his rehabilitative needs and his individual background, the
Court has to take into account the severe and wide-ranging effect on
the victims in these cases who have described their tranquility and
safety of their home being disrupted and forever changed. Of course,
he has had the opportunity to not engage in such conduct but has in
fact re-engaged himself in such conduct to feed his addiction
presumably and this community at this point in time deserves
protection from such repeated conduct in the near future.
[ ... ]
Sir, ordinarily I sentence consecutively on each count for each harm.
These were separate residences in each of these instance[s]. However,
in light of your family's position on the case[,] their presence and
support of you, I have deviated from the standard practice in terms of
separate harms. If I were to sentence you in the mitigated range on
each of those counts, you would be doing 20 to 40 years; do you
understand that? However, you have demonstrated a capacity for
intensive rehabilitation and making restitution and holding a job. This
is a significant period of time but not nearly as significant as it could
have been so I will consider the matter concluded.
Sentencing Transcript, December 15, 2014, pp. 12-14, 19. As the record cited
hereinabove clearly establishes, the Trial Court properly considered all statutory
factors prior to sentencing Appellant in the mitigated and standard range on eleven
separate incidents, and thus did not abuse its discretion in sentencing Appellant as
it did. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (where a pre-
sentence report is reviewed, it is presumed that the sentencing court considered and
weighed all required factors, and trial court did not abuse its discretion in
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sentencing defendant to an aggregate sentence of twenty-six to one hundred years
for two robberies, conspiracy to commit robbery, and burglary). See also
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (appellate court
will not reweigh sentencing factors where the record demonstrates that the trial
court considered the facts of the crime and defendant' s character in fashioning a
sentence).
Rather than being a sentence that was unreasonable, harsh, and excessive,
the Trial Court imposed a carefully crafted and reasonable, if not lenient sentence.
Appellant's claim is without merit.
CONCLUSION
Based upon the foregoing, the judgment of sentence imposed by this Court
should be affirmed.
By the Court,
DATE:JV%'t302 Wts
orkowski
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