Com. v. Vittone, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALEXANDER ASENOV VITTONE :
:
Appellant : No. 726 MDA 2019
Appeal from the Judgment of Sentence Entered February 27, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000038-2018
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 05, 2020
This case returns to us following remand to give Alexander Asenov
Vittone (Appellant) the opportunity to perfect his appeal. See
Commonwealth v. Vittone, 726 MDA 2019 (Pa. Super. June 8, 2020)
(unpublished memorandum) (finding per se ineffectiveness under
Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), where counsel failed
to include in Appellant’s brief a Rule 2119(f) statement in support of his only
issue challenging the discretionary aspects of his sentence, the
Commonwealth objected, and counsel’s omission resulted in waiver).1
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* Retired Senior Judge assigned to the Superior Court.
1 The Rule states:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in his brief a concise
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Appellant appeals from the judgment of sentence imposed after he pled
guilty to one count of driving under the influence (DUI) and two counts of
aggravated assault by vehicle while DUI.2
On August 20, 2017, while driving in York County, Appellant crossed
into the opposite lane, causing a head-on collision and seriously injuring the
occupants of the other vehicle. Affidavit of Probable Cause, 12/1/17. At the
time of the collision, Appellant had a blood alcohol content (BAC) of 0.152%.
Id.Appellant entered his guilty plea on August 3, 2018, and on February
27, 2019, the trial court sentenced him to an aggregate 18 to 36 months of
incarceration. Appellant filed a timely post-sentence motion, which the trial
court denied on April 3, 2019. This appeal followed. Both Appellant and the
trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
As noted above, this case was remanded after we determined that
Appellant’s counsel was per se ineffective. Upon remand, Appellant obtained
new counsel, who filed a brief which includes a Rule 2119(f) statement, see
Appellant’s Brief at 17, and raises the following issues:
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statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.
Pa.R.A.P. 2119(f) (emphasis added).
2 75 Pa.C.S.A. §§ 3802(b) and 3735.1(a).
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A. Whether the trial court abused its discretion when it
sentenced the Appellant to 18-36 months in a State
Correctional Facility without properly considering the
characteristics of the Appellant, including his significant
medical condition.
B. Whether Appellant’s initial counsel was ineffective for failing
to present information regarding the State Correctional
Facility’s ability to care for the Appellant.
Appellant’s Brief at 6.
Appellant first challenges the discretionary aspects of his sentence.
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
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Appellant has complied with the first three prongs of the test by raising
his discretionary sentencing claim in a timely post-sentence motion, filing a
timely notice of appeal, and setting forth a concise statement pursuant to Rule
2119(f). Therefore, we examine whether Appellant presents a substantial
question.
Appellant argues that the trial court abused its discretion by sentencing
him “without properly considering the characteristics of Appellant, including
his significant medical condition.” Appellant’s Brief at 6, 17. Appellant raises
a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 340
(Pa. Super. 2015) (“This Court has also held that an excessive sentence claim
— in conjunction with an assertion that the court failed to consider mitigating
factors — raises a substantial question.”) (citations omitted).
We review this claim mindful of the following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019) (citation
omitted).
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In addition, statutory authority dictates:
In selecting from the alternatives set forth in subsection (a), 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 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. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
We have explained:
The court is not required to parrot the words of the Sentencing
Code, stating every factor that must be considered under Section
9721(b), however, the record as a whole must reflect due
consideration by the court of the statutory considerations at the
time of sentencing. A sentencing court’s indication that it has
reviewed a pre-sentence report can satisfy the requirement of
placing reasons for imposing sentence on the record. In addition,
our Supreme Court has determined that where the trial court is
informed by a pre-sentence report, it is presumed that the court
is aware of all appropriate sentencing factors and considerations,
and that where the court has been so informed, its discretion
should not be disturbed.
Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super. 2017)
(citations omitted).
Here, the trial court at sentencing stated:
This is a tragic situation. The victims in this case who had
previously testified before the [court,] the impact of this incident
on their lives is immeasurable. It is certainly something that
they’ll live with and have to live with for the rest of their lives.
[Appellant’s counsel] has submitted a sentencing
memorandum, [] which we have reviewed. We’d also note that
he has advised the [c]ourt, and we don’t question this, his client,
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[Appellant], has only recently confirmed a diagnosis of multiple
sclerosis. We’re sorry to be advised of that.
The Commonwealth correctly points out that as much
sympathy as there may be for [Appellant], that really can’t undo
the damage that’s been done and there still has to be some
accountability. . . .
We recognize that we’ve imposed a sentence here that may
present some difficulties for [Appellant] in terms of his new
diagnosis. We do recognize, though, that the state correctional
system is equipped to handle some serious medical situations and
they’ll just have to adapt to [Appellant] to do the same.
N.T., 2/27/19, at 8-9.
The court subsequently explained:
At sentencing, [Appellant’s counsel] summated [sic] the
findings of Dr. Cary L. Twyman regarding the Appellant’s multiple
sclerosis diagnosis and of the Appellant’s arguments from his
[sentencing memorandum], which was docketed on February 25,
2019. [Counsel] indicated that the Appellant’s medical situation
is precarious, requiring medication in excess of $5,000 per month
and constant monitoring for relapses. The Appellant then
expressed his sorrow for his actions and his belief that his
diagnosis with multiple sclerosis has given him an inkling of the
victim’s suffering.
* * *
This [c]ourt took the plea and was present for the victim
impact statements that occurred on that day and that were
submitted in writing. This [c]ourt was in possession of a pre-
sentence investigation that provided context for the crime, which
included inter alia information regarding the Appellant’s
upbringing, his having been law-abiding, and his work ethic. This
[c]ourt reviewed the Appellant’s sentencing memorandum. This
[c]ourt was present when the Appellant apologized to the
victims[.] . . . The [c]ourt has no question as to the Appellant’s
remorse. It is quite evident in his brief remarks that he
understands some portion of the [victims’] suffering. The
Appellant has already begun the path towards rehabilitation;
however, as noted in the pre-sentence investigation, he chose to
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imbibe alcohol a week before his pre-sentence investigation
interview. It is certainly not unlawful for a citizen to consume
alcohol, but the Appellant’s choice to do so following his plea, in a
case of this nature, and without engaging in the intensive
outpatient treatment recommended following his drug and alcohol
evaluation, was slightly concerning vis-à-vis his rehabilitative
needs absent incarceration. The protection of the public can be
served by incarceration which arrests the downward spiral so
many defendants succumb to. And we did not ignore [Counsel’s]
observation that the Appellant has never been in trouble before;
however, all career criminals began with a first offense and the
rehabilitative portion of sentencing aims to guide defendants back
to the law-abiding path that they were once on.
. . . At sentencing, the Appellant did not present anyone from the
Department of Corrections (hereinafter: DOC) to speak to the
ability of the DOC to handle medical conditions such as the
Appellant’s. Rather, the Appellant presented Dr. Cary L.
Twyman’s letter and a final report indicating the dangers of the
Appellant’s disease and the need for fastidious monitoring of the
Appellant’s condition. Of note, Dr. Twyman’s initial Outpatient
Letter states the following: “I will be glad to assist the medical
director of the institution for any further knowledge or intervention
or questions that come up in the future.” . . .
Nothing in the evidence adduced by the Appellant at or prior
to sentencing indicates that the DOC is incapable of managing his
condition. Dr. Twyman’s submissions imply his belief that the
DOC will have to be vigilant in their care for the Appellant.
Moreover, due to the attenuated nature of appellate proceedings,
the Appellant will have, of necessity, been afforded the few more
months of exposure to the experimental drug, which Dr. Twyman
believes would raise confidence in the Appellant’s treatment.
Thus, the harm to be avoided is, perhaps, evanescent. We would
also note that it is the belief of this [c]ourt that the DOC has the
ability to apprise this Court of their inability to care for the
Appellant’s needs, or to bear the costs of his medication, and to
file appropriate motions should they deem it necessary.
Finally, as we stated at sentencing, the Appellant’s
sentences on the lead charges are to run concurrent with one
another. Of note, this diverges from the recommendation made
by the York County Probation Department in their pre-sentence
investigation, which militated for the [18] to [36] months on each
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charge that this [c]ourt imposed, but called for them to run
consecutively with one another. . . . As previously explained,
sympathy for the Appellant’s medical plight could not completely
override the other sentencing concerns this [c]ourt is called upon
to address[.] . . .
The Appellant received standard range sentences on the
lead charges and will be permitted to serve them concurrently in
spite of the horrific nature of the harm he caused to the victims.
Viewed in conjunction with Dr. Twyman’s letters, we believe that
the Appellant received sentences that accounted for his medical
condition and strove to balance this concern against all of the
other worthy concerns of a sentencing judge. We believe the
record is replete with evidence regarding the relevant statutory
concerns and that our sentencing order evidences due
consideration of those concerns. The Appellant’s rehabilitative
needs were balanced against the protective needs of society and
the impact on the victim and society at large. . . .
Trial Court Opinion, 11/8/19, at 5-13 (citations omitted, italics in original).
Upon review of the record, and consistent with both the above law and
excerpts from the trial court, we discern no merit to Appellant’s contention
that the court failed to properly consider Appellant’s medical condition at
sentencing. The court specifically acknowledged Appellant’s diagnosis,
correctly stating that the DOC “is equipped to handle some serious medical
situations.” N.T., 2/27/19, at 8-9; see also Trial Court Opinion, 11/8/19, at
12 (“Nothing in the evidence adduced by Appellant at or prior to sentencing
indicates that the DOC is incapable of managing his condition.”). The court’s
decision was clearly informed, as it observed that it had considered Appellant’s
sentencing memorandum, and “Dr. Cary L. Twyman’s letter and a final report
indicating the dangers of Appellant’s disease and the need for fastidious
monitoring of Appellant’s condition.” Trial Court Opinion, 11/8/19, at 11.
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Accordingly, we discern no error where the sentencing court had the
benefit of a pre-sentence investigation report,3 addressed Appellant’s medical
diagnosis and the DOC’s capabilities, and sentenced Appellant within the
standard-range of the guidelines.
Appellant next argues, for the first time on appeal, that his attorney at
sentencing was ineffective for failing to present information about the “State
Correctional Facility’s ability to care” for his medical needs. Appellant’s Brief
at 6. It is well-settled that “issues not raised in the lower court are waived
and may not be raised for the first time on appeal.” Pa.R.A.P. 302(a). The
Commonwealth recognizes that Appellant’s claim is premature because the
trial court was not given the opportunity to address the issue. See
Commonwealth Brief at 14-15. In addition to citing Rule 302(a), the
Commonwealth states, “as a general rule, [Appellant] should wait to raise his
claim of ineffective assistance of trial counsel until collateral review[.]”
pursuant to Pa. R.A.P. 302(a). We agree.
We have explained:
In Commonwealth v. Grant, 813 A.2d 726 ([Pa.] 2002), our
Supreme Court announced a general rule providing a defendant
“should wait to raise claims of ineffective assistance of trial
counsel until collateral review” pursuant to the Post Conviction
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3 “Where the sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, we will not consider the sentence excessive.”
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those
circumstances, we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Id.-9-
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Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Grant, [813 A.2d]
at 738. Nevertheless, in Commonwealth v. Bomar, 826 A.2d
831 ([Pa.] 2003), reargument denied, July 17, 2003, cert. denied,
Bomar v. Pennsylvania, 540 U.S. 1115, 124 S.Ct. 1053 (2004),
our Supreme Court recognized an exception to Grant and found
that where ineffectiveness claims had been raised in the trial
court, a hearing devoted to the question of ineffectiveness was
held at which trial counsel testified, and the trial court ruled on
the claims, a review of an ineffectiveness claim was permissible
on direct appeal. See Bomar, 826 A.2d at 853-854[.]
Commonwealth v. Quel, 27 A.3d 1033, 1036-37 (Pa. Super. 2011) (some
citations omitted).
Appellant attempts to circumvent settled legal authority by asserting
that his attorney was ineffective at sentencing, but because the same attorney
filed Appellant’s post-sentence motion, Appellant’s ineffectiveness claim was
not raised in the trial court. See Appellant’s Brief at 32-33. This argument is
unavailing, as the issue of counsel’s effectiveness at sentencing was not raised
with the trial court and is not properly before us in this direct appeal. If
Appellant wishes to raise a claim of counsel’s ineffectiveness, he may do so
under the PCRA. 42 Pa.C.S.A. §§ 9541-46.
Judgment of sentence affirmed.
Judge Colins joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2020
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