Com. v. Raven, W. , 97 A.3d 1244 ( 2014 )

J-S29030-14
2014 Pa. Super. 168
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALTER PAUL RAVEN
Appellant No. 1341 MDA 2013
No. 1342 MDA 2013
Appeal from the Judgments of Sentence of June 10, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at Nos.: CP-40-CR-0003415-2012
CP-40-CR-0003629-2012
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED AUGUST 12, 2014
Walter Raven appeals his June 10, 2013 judgments of sentence. We
affirm.
On September 18, 2012, Raven was charged at CP-40-CR-0003415-
- ury
privileges suspended or revoked
offenders, careless driving, tampering with or fabricating physical evidence,
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*
Retired Senior Judge assigned to the Superior Court.
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and several related summary offenses.1 The sentencing court2 aptly has
summarized the factual history of 3415-2012 as follows:
On September 2, 2012, at approximately 12:19 a.m., law
enforcement officers were dispatched to 304 State Route 315,
Pittston Township, Luzerne County, Pennsylvania to investigate a
motor vehicle accident. Two individuals, Donnie Pizano and
Robin Walsh, were killed in the accident. They had been riding a
motorcycle. The vehicle which struck the motorcycle fled the
scene.
Further investigation revealed that [Raven] had been operating
the vehicle which struck the motorcycle and fled the scene.
Within twelve hours of the accident, [Raven] power washed his
vehicle along with the assistance of another individual. After
obtaining a search warrant, police officer
vehicle and observed damage consistent with the accident.
Witnesses were interviewed and identified [Raven] as the driver
of the vehicle involved in the accident. At the time of the
accident, [Raven] was operating his vehicle with a license that
had been suspended due to driving under the influence of a
controlled substance.
At the time of this incident, Raven also had a pending criminal case at
CP-40-0003629- 3629-
occurred on February 8, 2011. On that date, Sergeant Leonard Galli of the
Exeter Borough Police Department contacted Raven through a confidential
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1
75 Pa.C.S. §§ 3742, 3742.1, 1543(b), 6503.1, 3714(b), and 18
Pa.C.S. § 4910, respectively.
2
of his sentence, we refer to the trial court as the sentencing court.
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ption narcotics.
Thereafter, Raven met with the CI and delivered eight morphine sulfate pills
to him in exchange for $100. Sergeant Galli subsequently filed a criminal
complaint charging Raven with possession of a controlled substance and
delivery of a controlled substance.3
On May 3, 2012, Raven entered into negotiated plea agreements at
both 3629-2012 and 3415-2012. At 3415-2012, Raven pleaded guilty to
AUDI, AIDPI while not properly licensed, DWS DUI related, habitual
offenders, careless driving, and tampering with or fabricating evidence. At
3629-2012, Raven pleaded guilty to one count of delivery of a controlled
substance.
On June 10, 2013, Raven was sentenced at both cases. At that
hearing, the court sentenced Raven within the standard range of the
sentencing guidelines for each offense.4 Imposed consecutively, those
sentences resulted in an aggregate term of seventy-eight to three hundred
-
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3
35 P.S. §§ 780-113 (a)(16) and (a)(30).
4
Specifically, the sentencing court imposed separate twenty-one to
eighty-four-month terms of imprisonment for delivery of a controlled
substance, AIDPI, and AIDPI while not properly licensed. The court imposed
separate sentences of six to twenty-
offenders, and for tampering with physical evidence. The court also
DUI related. Each
sentence was ordered to run consecutively to the others.
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sentence motion seeking to modify his sentence. Therein, Raven argued,
inter alia, that his AIDPI and AIDPI while not properly licensed convictions
should have merged for the purposes of sentencing. Raven also argued that
the sentencing court failed to consider the mitigating evidence that he
presented at the June 10, 2013 sentencing hearing. On June 28, 2013, the
-sentence motion without a hearing.
On July 16, 2013, Raven filed notices of appeal at both 3629-2012 and
3415-2012. On July 17, 2013, the sentencing court ordered Raven to file
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Raven timely complied. On September 12, 2013, the sentencing
court issued an opinion pursuant to Pa.R.A.P. 1925(a).5
Raven presents the following issues for our consideration:
1. Whether, based upon the elements of the crimes and the
underlying facts, the consecutive sentence imposed relative to
[AIDPI] while not properly licensed, [DWS DUI related], and
habitual offenders should have been merged?[6]
2. Did the [sentencing c]ourt impose a manifestly excessive and
unreasonable sentence as a result of failing to consider the
relevant sentencing criteria, including protection of the public,
the gravity of the underlying offense[,] and the rehabilitative
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5
sua sponte.
6
In his post-sentence motion, Raven argued that the sentencing court
erred in failing to merge his convictions for AIDPI and AIDPI while not
properly licensed. Evidently, Raven has abandoned this claim on appeal,
because he now argues that DWS DUI related and habitual offenders merge
with AIDPI while not properly licensed.
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needs of [Raven,] and thereby fail[] to impose an
individualized sentence when the [c]ourt sentenced [Raven]
to the highest sentence allowable of the standard range of the
sentencing guidelines and ran each and ever[y] sentence,
under 3415-2012 [and] 3629-2012, consecutive[ly] to one
another?
Brief for Raven at 6 (citations omitted).
question implicating the legality of his sentence.7 Consequently, our
standard of review is de novo and the scope of our review is plenary. See
Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001).
The merger doctrine is a rule of statutory construction designed to
determine whether the legislature intended for the punishment of one
offense to encompass that of another offense. Commonwealth v.
Davidson, 938 A.2d 198, 217 (Pa. 2007). The objective of the doctrine is
to prevent a defendant from being punished more than once for the same
criminal act. Id.
In 2002, the Pennsylvania Legislature enacted Section 9765 of the
Sentencing Code, which provides:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
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7
Challenges to the legality of sentence are non-waivable. See
Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007). For this
en has waived his first
claim is without merit. See Brief for Commonwealth at 5.
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court may sentence the defendant only on the higher[-]graded
offense.
42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two
distinct criteria are satisfied: (1) the crimes arise from a single criminal act;
and (2) all of the statutory elements of one of the offenses are included
within the statutory elements of the other. Id.
Court and the Pennsylvania Supreme Court historically have struggled to
articulate and apply the proper test for merger claims. In Commonwealth
v. Jones, our Supreme Court addressed the issue of merger pursuant to
section 9765, but was unable to reach a consensus. 912 A.2d 815 (Pa.
2006); see Commonwealth v. Williams, 920 A.2d 887, 889 (Pa. Super.
Jones
8
In the lead plurality opinion in Jones, Justice Castille (now Chief
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8
As the Jones Court itself notes, jurisprudence on this issue has often
created fractured plurality opinions. In Jones, Chief Justice Cappy and
Justice Baer joined Justi
dissent, joined by Justice Eakin. Justice Saylor generally agreed with Justice
because the criminal acts at issue in Jones pre-dated the effective date of
section 9765. Justice Nigro did not participate.
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t in
accordance with Section 9765. Id.
elements of these two crimes differ, and sentencing thus cannot be merged
pursuant to our jurisprudence and the legislative intent as evidenced by 42
Pa.C.S. §
One year after Jones, a panel of this Court addressed the merger
doctrine in Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007).
In Williams, the appellant contended that the trial court erred in imposing
consecutive sentences following his guilty plea to firearms possessed by a
felon and carrying a firearm without a license. We began by noting that,
with respect to offenses occurring after the effective date of section 9765,
neither the plurality opinion nor the dissenting opinion in Jones garnered
the support of more than half of the Justices. This Court then adopted
doctrine jurisprudence and the legislative intent of section 9765. Williams,
920 A.2d at 891.
The Pennsylvania Supr
Jones plurality and held that the plain
language of Section 9765 precludes courts from merging sentences when
each offense contains a statutory element that the other does not.
Commonwealth v. Baldwin, 985 A.2d 830, 834 (Pa. 2009). In Baldwin,
Chief Justice Castille articulated the scope of this approach:
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The General Assembly has taken it upon itself to choose the
merger test that allows for the most expansive sentencing
exposure without accounting for any of the refinements and
nuances in our prior jurisprudence in this area. But, there is
more to the jurisprudence of sentencing than such simple,
procrustean dictates. Although the statute allows for maximum
exposure for criminal sentences as a constitutional matter, there
still exists substantive review of individualized sentencing
decisions. Thus, I would caution both trial courts and the
Superior Court, as the frontline appeals court reviewing
sentences, to be cognizant of the fact that, while the statute
may put a draconian end to merger claims, it does not
supplant the review for reasonableness which is independently
commanded by Section 9781 of the Judicial Code.
Baldwin, 985 A.2d at 839 (Castille, C.J., concurring).
Instantly, Raven contends that the sentencing court erred in failing to
merge his sentences for DWS DUI related and habitual offenders with his
sentence for AIDPI while not properly licensed. There is no dispute that all
three of these offenses arose out of the same set of facts, constituting a
single criminal act. See S.C.O. at 2. Therefore, the only issue for our
review is whether all of the statutory elements of one of the offenses are
included within the statutory elements of another. See Baldwin, supra at
837; 42 Pa.C.S. § 9765. Raven argues that they are so included. We
disagree. The specific crimes relevant to our review are defined as follows:
[AIDPI] while not properly licensed: A person whose
operating privilege was disqualified, canceled, recalled, revoked
or suspended and not restored or who does not hold a valid
class of vehicle being operated commits an offense under this
section if the person was the driver of any vehicle and caused an
accident resulting in injury or death of any person.
75 Pa.C.S. § 3742.1.
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[DWS DUI Related]: A person who drives a motor vehicle on a
highway or traffic[-]way of this Commonwealth at a time when
voked[:]
(1) as a condition of acceptance of Accelerated
section 3802 (relating to driving under influence of
alcohol or controlled substance) or the former
section 3731,
(2) because of a violation of section 1547(b)(1) (relating
to suspension for refusal) or 3802 or former section
3731[,] or
(3)
License Compact) for an offense substantially similar
to a violation of section 3802 or former section 3731
75 Pa.C.S. § 1543(b)(1) (formatting modified for clarity).
Habitual offenders: A habitual offender under section
1542 . . . who drives a motor vehicle on any highway or
operating privilege is suspended, revoked or canceled commits a
misdemeanor of the second degree.
person whose driving record demonstrates that they have accumulated three
convictions for any of the statutorily enumerated traffic offenses within a
period of five years. 75 Pa.C.S. § 1542.
Commonwealth to demonstrate that Raven caused an accident that resulted
in the injury or death of a person, and that his operating privilege was either
disqualified, canceled, recalled, revoked or suspended (and not restored), or
See 75 Pa.C.S. § 3742.1.
DUI related required the Commonwealth to
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condition of acceptance of ARD (for driving under influence, or for a similar
offense that occurred outside of the Commonwealth), or for a refusal to
submit to chemical testing. A review of the plain language of these statutes
demonstrates that DWS DUI related clearly imposes an additional
requirement that a license suspension be related to DUI or ARD.9 Such an
element is not contemplated by the AIDPI statute.
Raven also contends that a DUI related suspension as is required by
Section 1543(b)
statute. Therefore, according to Raven, the DUI related suspension element
review of our case law demonstrates that this argument is unavailing. In
Commonwealth v. Rhoades, this Court addressed the issue of whether an
ictions for two separate counts of aggravated assault should
merge. 8 A.3d 912 (Pa. Super. 2010). The two subsections of our
aggravated assault statute at issue in Rhoades provided as follows:
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9
of a motor vehicle by an indiv
22. This is incorrect. Although Raven pleaded guilty to a violation of DWS
DUI related, his argument erroneously relies upon the statutory language
contained within the non-DUI related subsection. See id. at 21; 75 Pa.C.S.
§ 1543(a).
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A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life;
***
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon;
18 Pa.C.S. § 2702.
In finding that the subsections did not merge, we explained as follows:
[T]he charges for aggravated assault at counts [six] and
[seven], 18 Pa.[C.S.] §§ 2702(a)(1) and 2702(a)(4),
respectively, did not share identical statutory elements. . . .
[W]hen the two subsections are read together it is apparent that
subsection [four] contains an element that is not found in the
greater offense of subsection [one]. Specifically, subsection
[four] requi
[one], which prohibits any attempt to cause or the causing of
serious bodily injury but which does not limit itself to any
particular mode of causing such an injury. It is therefore
possible that a subsection [one] assault may be proved in some
cases without necessarily proving a subsection [four] assault.
Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010). As in
Rhoades, it is entirely possible that a conviction for AIDPI while not
properly licensed could be sustained without necessarily proving a Section
1543(b) violation.10 As discussed supra,
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10
See generally 75 Pa.C.S. § 1532 (enumerating certain offenses for
privilege).
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not properly licensed did not require any particular category of license
suspension, whereas his conviction for DWS DUI related did. Because each
sentences do not merge.
Raven also maintains that his habitual offenders conviction should
merge with his conviction for AIDPI while not properly licensed. This claim is
similarly meritless. A conviction for habitual offenders requires the
Commonwealth to demonstrate that a person has accumulated three
separate convictions for serious traffic offenses within a five-year period.
See 75 Pa.C.S. § 1542. AIDPI while not properly licensed has no such
element, and additionally requires that a person cause an accident resulting
in injury or death. Because these two offenses each require proof of an
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
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004).
To obtain review on the merits of a challenge to the discretionary
aspects of his sentence, Raven must meet two requirements. First, Raven
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must include a Pa.R.A.P. 2119(f) statement in his brief.11 Second, he must
show that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b). A
specific provision of the sentencing scheme set forth in the Sentencing Code
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Our inquiry
must focus upon 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.
sary Rule 2119(f) statement, and
therefore, is in technical compliance with the requirements to challenge the
discretionary aspects of his sentence. Therein, Raven contends that the trial
eing a non-
violent person, and his willingness to assist others, even when it placed him
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11
In pertinent part, Rule 2119 provides:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall 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. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f).
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question because it resulted in a sentence that was manifestly excessive to
his crimes. Id.
It is well-
mitigating factors raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). However, a sentencing
court generally has discretion to impose multiple sentences concurrently or
consecutively, and a challenge to the exercise of that discretion does not
ordinarily raise a substantial question. Commonwealth v. Pass, 914 A.2d
442, 446 47 (Pa. Super. 2006); Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa. Super. 1995) (stating that an appellant is not entitled to a
ey to resolving the preliminary
substantial question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An
appellant making an excessiveness claim raises a substantial question when
specific provision of the sentencing scheme set forth in the Sentencing Code
Mouzon, 812 A.2d at 627. Applying Mouzon, this Court has held that an
excessive sentence claim in conjunction with an assertion that the court
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failed to consider mitigating factors raises a substantial question.
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). Because
Felmlee and Mastromarino, we grant Raven
appeal and consider the merits of his claim.
Our standard of review in this context is as follows:
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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Additionally, our review of the discretionary aspects of a sentence is confined
by the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d). Subsection
9781(c) provides:
The appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within
the sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where
the application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
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In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
guidelines. He, therefore, must demonstrate that the application of those
guidelines would be clearly unreasonable. Id. § 9781(c)(2). Raven submits
that the sentencing court did not weigh the nature and circumstances of his
crimes, or his mitigating history and characteristics. To this end, Raven
that he was unaware he had caused an accident, and that he fled from the
scene to obtain medication from his home. Brief for Raven at 30. The
allegation that the court failed to consider this information. See Notes of
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nd. The court heard testimony
himself. Id. at 11-
conditions, his reputation for being a non-violent person, and his willingness
to assist others. The sentencing court also reviewed letters submitted on
behalf of Raven, and several victim impact statements presented by the
Commonwealth. Id. at 7. Finally, the court had the benefit of a pre-
sentence investigation report, and considered all of the mitigating
information contained therein.12 N.T. at 5.
Based upon all of this evidence, the court imposed consecutive
not that the court failed to consider the pertinent sentencing factors, but
rather that the court weighed those factors in a manner inconsistent with his
wishes. Accordingly, we conclude that the record supports the sentencing
The
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12
Raven argues that the mere fact that the sentencing court was
provided with his pre-sentence investigation report does not demonstrate
that the court properly considered the mitigating circumstances contained
within it. Brief for Raven at 34. We disagree. See Commonwealth v.
Devers, 546 A.2d 12 (Pa. 1988) (holding that when a sentencing court has
the benefit of a pre-sentence report, we must presume that the sentencing
judge was aware of, and duly considered, any character-related information
contained therein).
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range of the sentencing guidelines, and the record reflects that the court
carefully considered all of the evidence presented at the sentencing hearing.
As such, we discern no abuse of discretion, nor can we conclude that the
sentencing court arrived at a manifestly unreasonable decision. See
Shugars, 895 A.2d at 1275.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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