Com. v. Sirbaugh, W. ( 2019 )

J-S05010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM DAVID SIRBAUGH, JR. :
:
Appellant : No. 845 WDA 2018
Appeal from the Order Entered April 23, 2018
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000723-2016,
CP-11-CR-0001781-2015,
CP-11-CR-0001852-2016
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 15, 2019
William David Sirbaugh, Jr. appeals from the judgment of sentence
entered in the Cambria County Court of Common Pleas, following his
negotiated guilty plea to receiving stolen property, unsworn falsifications to
authorities, and possession of drug paraphernalia.1 Appellant argues the court
failed to consider his need for drug rehabilitation and therefore imposed an
excessive sentence. We affirm.
On March 23, 2017, Appellant entered a guilty plea to the above crimes,
all three of which stemmed from separate incidents. In exchange, the
____________________________________________

Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3925(a), 4904(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.
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Commonwealth nolle prossed a number of other related charges against him.
At the plea hearing, the Commonwealth gave a brief recitation of the relevant
facts pertaining to each crime: Appellant and accomplices sold brass vases
stolen from a cemetery for scrap metal; Appellant submitted forged
prescriptions to his probation officer as explanation for several positive drug
tests; and, Appellant was caught in possession of drug paraphernalia. At
Appellant’s request, the trial court ordered a pre-sentence investigation report
(“PSI”) to determine Appellant’s eligibility for enrollment in rehabilitative
facilities. Ultimately, Appellant did not qualify for enrollment prior to
sentencing.
At sentencing, Appellant’s counsel explained that Appellant’s criminal
history stemmed from a lengthy battle with drug addiction and noted efforts
to get Appellant into a rehabilitation facility. The trial court ultimately imposed
an aggregate sentence of 16 to 48 months’ incarceration, followed by 12
months’ probation. In explaining the sentence, the trial court specifically
expressed a hope that Appellant would utilize the rehabilitative services
available to him while incarcerated.
After a successful petition filed pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546, Appellant’s direct appeal rights were
reinstated. Appellant filed a timely post-sentence motion requesting
reconsideration of his sentence. Following a hearing, the court denied the
motion. In doing so, the court explained that it stayed within the sentencing
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guidelines, and even imposed a sentence on the lower end of the guideline
range. This timely appeal is now before us.
Appellant raises one issue for our review: that the trial court abused its
discretion when it imposed a manifestly excessive sentence and failed to
consider mitigating factors. Specifically, Appellant believes the court failed to
take into account Appellant’s need for drug rehabilitation.
“It is well-settled that appeals of a discretionary aspect of a sentence
are not reviewable as a matter of right.” Commonwealth v. Miller, 965 A.2d
276, 277 (Pa. Super. 2009) (citation omitted). To invoke this Court’s
jurisdiction, an appellant challenging the discretionary aspects of his sentence
must first satisfy a four-part test. See Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa. Super. 2013). We consider:
(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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
Here, Appellant has filed a timely notice of appeal. His issue was
properly preserved in a motion to reconsider and modify sentence. Appellant
has included a concise statement of reasons relied on for allowance of appeal,
pursuant to Pa.R.A.P. 2119(f). As his issue has been properly preserved, we
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must decide whether he has raised a substantial question. See
Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super. 2019).
“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. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation
and internal quotation marks omitted). “A claim that a sentence is manifestly
excessive such that it constitutes too severe a punishment raises a substantial
question.” Id., at 995 (citation and internal quotation marks omitted). This
Court has held that a challenge to the imposition of consecutive sentences as
unduly excessive, together with a claim that the sentencing court failed to
consider a defendant’s rehabilitative needs when fashioning his sentence, does
present a substantial question. See Commonwealth v. Caldwell, 117 A.3d
763, 770 (Pa. Super. 2015).
Based on the above, we find Appellant raises a substantial question.
Thus, we proceed to the merits of his claim.
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.
Gonzalez, 109 A.3d at 731 (citation omitted).
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“In fashioning a sentence, the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of offense as it relates to the impact
on [the] life of the victim and on the community, and the rehabilitative needs
of the defendant.” Miller, 965 A.2d at 277 (citation and internal quotation
marks omitted). Though the Pennsylvania Sentencing Guidelines are
nonbinding, “where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(citation omitted). And where the sentencing court had the benefit of a PSI,
we may assume the court was aware of relevant sentencing factors. See id.Here, Appellant believes the court imposed an unduly harsh consecutive
sentence, and failed to consider his need for drug rehabilitation. That claim,
however, is belied by the record.
At the plea hearing, the court ordered a PSI report. The court specified
that the report should assess Appellant’s eligibility for a drug rehabilitation
program as a diversion from incarceration. See N.T. Plea, 3/23/17, at 10. At
sentencing, Appellant’s counsel informed the court that Appellant had been
given a state sentence on other criminal charges before sentencing in this
case, and would therefore be ineligible for the county’s drug rehabilitation
program. See N.T. Sentencing, 5/18/17, at 2-3. Appellant instead requested
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that his sentence on the instant charges run concurrent to his state sentence
in the other, unrelated case. See id., at 3.
The court stated that it read Appellant’s PSI, and took special note of
Appellant’s “massive” prior record. Id., at 5. The court also repeatedly
mentioned its extensive consideration of Appellant’s drug problem. See id.,
at 5-8. Ultimately, the court imposed a standard range sentence of 14-36
months’ incarceration on the receiving stolen property conviction, a
consecutive sentence of 2-12 months’ incarceration on the unsworn
falsifications conviction, and a 12-month probationary sentence on Appellant’s
conviction for possession of drug paraphernalia. See id., at 6-7. The court
declined to make this sentence concurrent with Appellant’s state sentence on
his other, unrelated criminal charges. The court then informed Appellant of
the accessibility of drug rehabilitation programs in state prison, and
encouraged Appellant to avail himself of these while incarcerated. See id., at
5, 7-8.
Appellant himself acknowledges his sentence is within the standard
range of the Sentencing Guidelines. See Appellant’s Brief, at 6. The sentencing
court also had the benefit of a PSI. And the court recognized Appellant’s
struggles with drug addiction, acknowledging these when imposing his
sentence. Indeed, it was Appellant’s conviction on other charges in an
unrelated criminal case and receipt of a state sentence that divested the
sentencing court of its ability to order his participation in a county drug
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rehabilitation program. Based on the foregoing, we find no grounds for
disturbing Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2019
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