Com. v. Kinney, F. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FRANCIS DENNIS KINNEY, : No. 2480 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered July 16, 2019,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0006786-2018
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 08, 2020
Francis Dennis Kinney appeals from the July 16, 2019 judgment of
sentence entered by the Court of Common Pleas of Bucks County following his
conviction of driving under the influence (“DUI”) of alcohol and a controlled
substance and possession of drug paraphernalia.1 After careful review, we
affirm.
The trial court provided the following factual and procedural history:
On July 5, 2018, at approximately 3:30 in the
morning, a [Pennsylvania] State Trooper observed
[appellant] unconscious and slumped over the
steering wheel of his car which was located on the side
of the off ramp of State Route 63 West in Bensalem
Township. [Appellant] submitted to a blood test which
tested positive for a combination of alcohol and drugs
at a level that impaired his ability to safely operate his
vehicle. His blood alcohol content was .092. His blood
1 75 Pa.C.S.A. § 3802(d)(3) and 35 P.S. § 780-113(a)(32), respectively.
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also tested positive for both fentanyl and morphine.
Three empty glassine baggies were recovered from []
the center console of his vehicle.
On July 16, 2019, [appellant] entered guilty pleas to
[DUI] of alcohol and a controlled substance [], in
violation of 75 Pa.C.S.[A.] § 3802(d)(3),[Footnote 1]
and possession of drug paraphernalia in violation of
35 P.S. § 780-113(a)(32). [Appellant] was sentenced
to a term of incarceration of two months to six months
for the DUI offense with a consecutive term of
one year [of] probation for the drug paraphernalia
offense. On July 26, [2019, appellant] filed a motion
to modify and reconsider sentence. By order dated
August 16, 2019, [appellant’s] motion was denied.
On August 23, 2019, [appellant] filed a timely notice
of appeal from the judgment of sentence.
[Footnote 1] The maximum sentence that
can be imposed for this offense is three to
six months. The mandatory minimum
sentence is 72 hours. [See 75 Pa.C.S.A.
§ 3804(c)(1)(i).]
Trial court opinion, 10/11/19 at 1-2 (citations to the record and extraneous
capitalization omitted).
The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant timely
complied. The trial court subsequently filed an opinion pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
A. Did the sentencing court fail to state sufficient
reasons on the record to support a sentence in
the aggravated range of the sentencing
guidelines?
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B. Was a minimum sentence of sixty days [of]
incarceration for a first offense driving under the
influence manifestly excessive, unreasonable,
and not in accordance with the sentencing
norms set forth in 42 Pa.C.S.[A.] § 9721?
Appellant’s brief at 4 (full capitalization omitted).
In both of his issues, appellant raises a challenge to the discretionary
aspects of his sentence.
Challenges to the discretionary aspects of sentence
are not appealable as of right. Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
Rather, an appellant challenging the sentencing
court’s discretion must invoke this Court’s jurisdiction
by (1) filing a timely notice of appeal; (2) properly
preserving the issue at sentencing or in a motion to
reconsider and modify the sentence; (3) complying
with Pa.R.A.P. 2119(f), which requires a separate
section of the brief setting forth “a concise statement
of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence[;]”
and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code. Id. (citation omitted).
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).
Here, appellant filed a timely notice of appeal and filed a post-sentence
motion in which he alleged that the trial court imposed a manifestly excessive
and unreasonable sentence not in accordance with the sentencing norms set
forth in 42 Pa.C.S.A. § 9721. (See appellant’s post-sentence motion, 7/26/19
at unnumbered page 2.) Appellant also included a Rule 2119(f) statement in
his brief. (See appellant’s brief at 9.)
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We must now determine whether appellant has raised a substantial
question.
“The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.”
Commonwealth v. Prisk, 13 A.3d 526, 533
(Pa.Super. 2011). Further:
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. (internal citations omitted).
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 2015). This court
has held that a claim that a trial court does not sufficiently state its reasons
for deviating from the sentencing guidelines raises a substantial question.
Commonwealth v. Twitty, 876 A.2d 433, 439 (Pa.Super. 2005), appeal
denied, 892 A.2d 823 (Pa. 2005), citing Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999), appeal denied, 790 A.2d 1013 (Pa. 2001).
This court has also held that a claim that the trial court failed to consider the
factors enumerated in 42 Pa.C.S.A. § 9721 constitutes a substantial question.
Commonwealth v. Derry, 150 A.3d 987, 992 (Pa.Super. 2016), citing
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal
denied, 63 A.3d 776 (Pa. 2013).
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Here, appellant contends that the trial court “failed to state adequate
reasons on the record as to why an aggravated sentence was warranted when
the case did not differ from any other driving under the influence matter.”
(Appellant’s brief at 9.) Appellant further contends that the trial court failed
“to cite or explain how [a]ppellant’s sentence is in accordance with
42 Pa.C.S.[A.] § 9721(b).” (Id. at 10.) We, therefore, find that appellant has
raised a substantial question as to both of his claims, and we shall consider
this appeal on its merits. Twitty, 876 A.2d at 439; Derry, 150 A.3d at 992.
When reviewing the merits of appellant’s claim, we are governed by the
following standard of review:
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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Hoch, 936
A.2d 515, 517-518 (Pa.Super. 2007) (citation omitted).
On appeal, appellant argues that the trial court failed to adequately state
sufficient reasons on the record to support a sentence in the aggravated range
of the sentencing guidelines. (Appellant’s brief at 9.) Specifically, appellant
contends that he “received an aggravated sentence on the [DUI] case not
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because of aggravating factors surrounding the [DUI], but because of the
[trial] court’s thoughts on the negotiated sentence on the endangering the
welfare [of a child] case.”2 (Id. at 14.) The record belies appellant’s
argument.
In every case where the court imposes a sentence
outside the sentencing guidelines . . . the court shall
provide a contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines. Failure to comply shall be grounds for
vacating the sentence and resentencing the
defendant.
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015), quoting
Commonwealth v. Rodda, 723 A.2d 212, 215 (Pa.Super. 1999), citing
42 Pa.C.S.A. § 9721(b). A trial court satisfies this requirement “when the
judge states [her] reasons for the sentence on the record and in the
defendant’s presence.” Commonwealth v. Antidormi, 84 A.3d 736, 760
(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014), quoting
Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995), rev’d.
on other grounds, 689 A.2d 211 (Pa. 1997).
During the sentencing hearing, as the trial court was imposing
appellant’s sentence, the court made the following remarks for the record:
For the driving under the influence offense that
occurred on July 5th of 2018, the mandatory minimum
2 Under a separate docket number not related to this appeal, appellant pled
guilty to one count of endangering the welfare of a child. (See notes of
testimony, 7/16/19 at 30.) Appellant entered guilty pleas on both the instant
case and the endangering the welfare of a child case in open court during the
same hearing.
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sentence here is 72 hours. The facts of this case, I
think, warrant a more significant sentence.
I want to make it very clear that the imposition of this
sentence is not based on the facts of the subsequent
case. I have accepted that plea agreement, so I am
not going to accept that agreement and then punish
you in this case for something that happened in
another case.
However, the facts of this case are very serious. You
were abusing heroin at the time you were driving and
then you complicated that -- aggravated that by also
consuming alcohol. You were in such bad condition
that you couldn’t get off [interstate] 95. You stopped
on an off-ramp at 3 o’clock in the morning and
endangered everybody trying to get on or off of that
highway.
....
The fact that nobody died is amazing to me. I guess,
because it was 3 o’clock in the morning, everybody
had enough time to see that you were obstructing
their -- the off-ramp, but I think it calls for more than
72 hours.
If you had just been pulled over for drunk driving, you
would have gotten 72 hours. If you had just been
pulled over and determined to be under the influence
of something, you would have gotten 72 hours.
Now, here, you went far beyond the normal “I didn’t
realize I was drunk, Officer,” kind of case. You knew
darn well you shouldn’t be anywhere near a car.
....
Based on that, the sentence of the [trial c]ourt is that
. . . you pay the cost of prosecution and you undergo
imprisonment for 60 days with a maximum sentence
of six months.
Notes of testimony, 7/16/19 at 27-29.
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Here, the record reflects that the trial court provided the reasons for its
imposition of an aggravated sentence and did so on the record and in
appellant’s presence. Accordingly, we find that the trial court did not abuse
its discretion when it imposed an aggravated sentence in this case.
In his second issue, appellant avers that the trial court imposed an
unreasonable sentence because the court failed to consider the factors set
forth in 42 Pa.C.S.A. § 9721(b). Additionally, appellant contends that the trial
court failed to consider appellant’s rehabilitative needs when imposing his
sentence. (Appellant’s brief at 16.) As noted in detail supra, the trial court
provided its reasons on the record during the sentencing hearing for the
imposition of an aggravated sentence. Therefore, we now turn to whether the
trial court failed to consider appellant’s rehabilitative needs when crafting his
sentence.
This court has held that, “[w]hen imposing a sentence, the sentencing
court must consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is,
the protection of the public, gravity of offense in relation to impact on []
community, and rehabilitative needs of the defendant. And, of course, the
court must consider the sentencing guidelines.” Commonwealth v.
Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015), appeal denied, 126 A.3d
1282 (Pa. 2015), quoting Commonwealth v. Fullin, 892 A.2d 843, 847-848
(Pa.Super. 2006). We have further held that a sentencing court may either
expressly or implicitly consider the factors enumerated in Section 9721(b).
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Commonwealth v. Peck, 202 A.3d 739, 746-747 (Pa.Super. 2019), citing
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007). The Peck court
cautioned, however, that this court “should not reweigh the proper sentencing
factors considered by the trial court and impose our own judgment in the place
of the trial court.” Peck, 202 A.3d at 747, citing Commonwealth v. Macias,
968 A.2d 773, 778 (Pa.Super. 2009).
Here, the record reflects that the trial court considered appellant’s
rehabilitative needs, as the court made rehabilitation part of the sentence it
imposed:
As a condition of that sentence, you are to obtain a
drug and alcohol evaluation and abide by any
recommended treatment. You are to submit yourself
to random testing twice a week.
Notes of testimony, 7/16/19 at 29. Moreover, the trial court was notified by
appellant’s counsel of other rehabilitative steps undertaken by appellant
before it imposed sentence:
[Appellant] completed the CRN evaluation[3] back in
November, just after this DUI happened, so he
actually took responsibility, got down to get the CRN
3 A CRN evaluation is “[a] uniform prescreening
evaluation procedure for all [DUI] offenders to aid and
support clinical treatment recommendations offered
to the judiciary, prior to sentencing.” 67 Pa.Code
§ 94.2 []; see 75 Pa.C.S.A. § 3816 [] (CRN
evaluations are used “to assist the court in
determining what sentencing, probation[,] or
conditions of Accelerated Rehabilitative Disposition
would benefit the person or the public.”).
Commonwealth v. Parsons, 166 A.3d 1242, 1244 n.1 (Pa.Super. 2017).
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evaluation very quickly as opposed to many clients
who, as you are aware, don’t do it right away. He did
it.
Not only did he do the CRN evaluation right away, but
then he got involved in the alcohol highway safety
classes and then he completed those and then he
completed the services for substance abuse treatment
with family services, both in intensive
outpatient/general outpatient, and continues to
participate in that treatment.
Id. at 24-25.
Based on our review of the record, we find that the trial court adequately
considered the rehabilitative needs of appellant when it crafted its sentence.
Indeed, the record reflects that the trial court was notified by appellant’s
counsel of the rehabilitation efforts appellant undertook prior to sentencing,
and the trial court imposed additional rehabilitation requirements as a
condition of appellant’s sentence. Therefore, we discern no abuse of
discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/20
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