Com. v. Hershberger, J. ( 2018 )

J-S50033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN DWIGHT HERSHBERGER, :
:
Appellant : No. 271 WDA 2018
Appeal from the Judgment of Sentence, August 28, 2017,
in the Court of Common Pleas of Cambria County,
Criminal Division at No(s): CP-11-CR-0001254-2014,
CP-11-CR-0001256-2014, CP-11-CR-0001257-2014.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 27, 2018
Justin Dwight Hershberger appeals from the judgment of sentence
imposed after the trial court resentenced him following remand from this
Court. We affirm.
The pertinent facts and partial procedural history are as follows: In
February of 2015, a jury convicted Hershberger and his co-defendant,
Nicholas Myers, of multiple counts of robbery and related charges.1 On March
24, 2015, the trial court sentenced him to an aggregate term of six to twelve
years of imprisonment.2
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1 18 Pa.C.S.A. § 3502(a)(4).
2 Myers received the same aggregate sentence.
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Hershberger filed a timely appeal to this Court, in which he challenged
the sufficiency of the evidence supporting his convictions and the discretionary
aspects of his sentence. On January 19, 2017, we issued an unpublished
memorandum finding those issues meritless, and affirming Hershberger’s
judgment of sentence.
Thereafter, Hershberger filed a petition for panel reconsideration in
which he raised new claims that challenged the legality of several of his
individual sentences. On June 28, 2017, we filed an unpublished
memorandum in which, although we reaffirmed our prior rejection of
Hershberger’s challenge to the sufficiency of the evidence, we agreed that
some of the sentences imposed upon Hershberger were illegal. 3 See
Commonwealth v. Hershberger, 2017 WL 2800120 (Pa. Super. 2017). We
therefore vacated Hershberger’s judgment of sentence and remanded for
resentencing. Id.The trial court resentenced Hershberger on August 28, 2007. Originally
the new aggregate sentence was 73 ½ to 147 months of incarceration, a
sentence longer than that which was originally imposed. However, in response
to Hershberger’s motion to modify sentence, the trial court, on January 5,
2018, resentenced Hershberger to an aggregate term of 72 to 144 months of
incarceration, or six to twelve years, the same as the original sentence. This
____________________________________________
3In light of this conclusion, we did not address Hershberger’s challenge to the
discretionary aspects of his sentence.
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appeal follows. Both Hershberger and the trial court have complied with
Pa.R.A.P. 1925.
Hershberger raises the following issue on appeal:
1. Did the trial court abuse its discretion in imposing a
sentence which was unduly harsh given the
circumstances?
Hershberger’s Brief at 4 (excess capitalization omitted). 4
Hershberger challenges the discretionary aspects of his sentence. As
this Court has summarized:
Challenges to the discretionary aspects of sentence do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of 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 appellant’s
____________________________________________
4 On August 20, 2018, Hershberger filed a pro se document with the county
clerk of courts in which he asked present counsel to withdraw from continuing
to represent him in this appeal, and essentially asked to proceed pro se. The
clerk of courts forwarded the filing to counsel of record. Although counsel had
already filed an appellate brief for Hershberger, on September 18, 2018,
counsel filed an application to withdraw as counsel because the attorney-client
relationship had significantly deteriorated.
It is well settled that “once the [appellate] brief has been filed, any right
to insist on self-representation has expired.” Commonwealth v. Jette, 23
A.3d 1032, 1044 (Pa. 2011). Because Hershberger filed his request to
proceed pro se after counsel had filed an appellate brief on his behalf,
counsel’s application to withdraw, which is based on Hershberger’s desire to
proceed pro se, is denied.
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brief has a fact 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).
Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations
omitted).
Hershberger has filed a timely appeal, properly preserved his sentencing
issue, and provided the requisite Rule 2119(f) statement. Thus, we must
determine whether he has raised a substantial question.
The presence of a substantial question is determined on a case-by-case
basis and only exists when the appellant advances a colorful 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. Diehl, 140 A.3d
34, 44-45 (Pa. Super. 2016) (citations omitted). “[W]e cannot look beyond
the statement of questions presented and the prefatory [Rule] 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed,
125 A.3d 394 (Pa. 2015).
Moreover, this Court does not accept bald assertions of sentencing
errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
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appeal, which are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) (citing
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
Appellant’s Rule 2119(f) statement reads, in pertinent part, as follows:
[Appellant] contends that the trial court’s sentence was
based upon vindictiveness.
***
While the trial court modified [its aggregate new
sentence] after the filing of Post-Sentence Motions, it is
[Hershberger’s] position that this evidences the trial court’s
animus towards him and [Hershberger] would respectfully
request that this Honorable Court remand the matter for re-
sentencing.
Hershberger’s Brief at 11-12.
We conclude that Hershberger’s unsubstantiated assertion of animus
and/or vindictiveness fails to raise a substantial question. Compare
Commonwealth v. Tapp, 997 A.2d 1201, 1202-03 (Pa. Super. 2010)
(reiterating that challenges to the length of the sentence following retrial citing
judicial vindictiveness, in violation of North Carolina v. Pearce, 395 U.S.
711 (1969), raise a substantial question). Unlike in both Tapp and Pearce,
Hershberger was not resentenced after his original convictions were vacated,
but rather, only because some of the individual sentences imposed were
illegal.
Even if Hershberger had raised a substantial question, his claim of
vindictiveness is without merit. Sentencing is a matter vested in the sound
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discretion of the sentencing court, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion, which in this context, is not
shown merely to be 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.
Shull, 148 A.3d 820, 831 (Pa. Super. 2016).
According to Hershberger, when the trial court originally imposed his
new aggregate sentence the court “did not point to any objective evidence to
support an increase in sentence, which raises the presumption of
vindictiveness.” Hershberger’s Brief at 14. As to his modified sentence,
Hershberger claims that “the vindictive nature of the resentencing also goes
to the increased sentences imposed on the burglary and criminal [mischief]
convictions.” Id.Our review of the record refutes Hershberger’s assertions. Because the
trial court modified the length of his new aggregate sentence in order to mirror
the aggregate sentence originally imposed, Hershberger’s vindictiveness claim
fails. Moreover, the trial court’s increasing certain individual sentences in
order to re-impose an aggregate in accordance with its original sentencing
scheme was not improper. See generally, Commonwealth v.
Goldhammer, 517 A.2d 1280 (Pa. 1986). Hershberger cites no authority to
the contrary. Finally, as the trial court stated:
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At [Hershberger’s] original sentencing on March 24,
2015, the Court noted that the reasons for the original
sentence imposed included his long and chronic history of
criminal activity coupled with his lack of remorse or
responsibility. There has been nothing brought to the
Court’s attention since the time of his original sentence to
change our assessment. We noted, at [Hershberger’s]
initial sentencing, that rehabilitative efforts that
[Hershberger] received in the past were to no avail.
On remand the Court originally increased the aggregate
sentence by 45-90 days but amended this sentence to run
it concurrently by our Order of January 5, 2018. In sum,
the Court re-imposed the original sentence in terms of the
total length of incarceration. We made our intent clear in
that Order that we did not wish to impose any additional
time periods of incarceration with that amendment. The
Court respectfully asks the Honorable Superior Court to
affirm our sentence in this matter.
Trial Court Opinion, 3/15/18, at 3 (citation omitted).
Our review of the record supports the trial court’s comments. See
Order, 1/8/18, at (explaining trial court’s intention to impose the same
aggregate sentence imposed prior to Superior Court’s remand). We thus
affirm Hershberger’s judgment of sentence.
Application to withdraw denied. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2018
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