Com. v. Andrauskas, D. ( 2023 )

J-S13041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2187 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001604-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2188 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001605-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2189 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001606-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S13041-23
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2190 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001607-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2191 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001608-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2192 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001611-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
-2-
J-S13041-23
DAVID ANDRAUSKAS :
:
Appellant : No. 2193 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001612-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2194 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001613-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANDRAUSKAS :
:
Appellant : No. 2195 EDA 2022
Appeal from the Judgment of Sentence Entered June 28, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001614-2020
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 18, 2023
____________________________________________
* Former Justice specially assigned to the Superior Court.
-3-
J-S13041-23
In these consolidated appeals,1 David Andrauskas appeals from the June
28, 2022 aggregate judgment of sentence of 6½ to 13 years’ imprisonment,
plus $10,905.60 in restitution, imposed after he pled guilty to multiple counts
of burglary, fleeing or attempting to elude a police officer, and related
offenses2 at nine different criminal dockets. After careful review, we affirm
the judgment of sentence.
The relevant facts of this case are summarized at length in the trial court
opinion and need not be reiterated here. See trial court opinion, 12/21/22 at
1-5; notes of testimony, 6/28/22 at 5-17.
The procedural history of this case, as gleaned from the certified record,
is as follows. On April 27, 2022, Appellant entered an open guilty plea to
multiple counts of burglary, fleeing or attempting to elude a police officer, and
related offenses. These charges stemmed from Appellant’s involvement in a
series of burglaries of various retail businesses located in Bucks County,
Pennsylvania, between January 4 through February 8, 2020.
On June 28, 2022, the trial court sentenced Appellant to an aggregate
term of 6½ to 13 years’ imprisonment, plus a restitution in the amount of
$10,905.60. The record reflects that Appellant received credit for time-served
since February 8, 2020.
____________________________________________
1 The appeals in this matter were sua sponte consolidated by this Court on
January 3, 2023.
2 18 Pa.C.S.A. § 3502(a)(4) and 75 Pa.C.S.A. § 3733(a), respectively.
-4-
J-S13041-23
On June 30, 2022, Appellant filed a timely post-sentence motion for
reconsideration of sentence at each trial court docket. The trial court denied
Appellant’s motions on July 22, 2022. This timely appeal followed.3
Appellant raises the following issue for our review:
Did the [trial] court abuse its discretion by imposing a
sentence that exceeded what is necessary to protect
the public and to rehabilitate [Appellant], and that
failed to consider other factors related to [Appellant’s]
rehabilitative needs, family, and pre-trial
incarceration[?]
Appellant’s brief at 4.
Our standard of review in assessing whether a trial court has erred in
fashioning a sentence is well settled. “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.” Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa.Super. 2014) (citation omitted), appeal denied, 117
A.3d 297 (Pa. 2015). Appellant must “establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised its
____________________________________________
3 Nine separate notices of appeal, each containing one trial court docket
number, were filed on Monday, August 22, 2022. See 1 Pa.C.S. § 1908 (for
computations of time, if the last day of any such period shall fall on a Saturday,
Sunday, or on a legal holiday, such day shall be omitted from the
computation). On August 9, 2022, counsel for Appellant had previously filed
nine notices of appeal, each containing all nine trial court dockets. On August
22, 2022, counsel filed an application to withdraw those appeals, which was
granted on October 4, 2022. Appellant and the trial court have complied with
Pa.R.A.P. 1925.
-5-
J-S13041-23
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Commonwealth v. Bullock, 170 A.3d
1109, 1123 (Pa.Super. 2017) (citation omitted), appeal denied, 184 A.3d
944 (Pa. 2018).
Where an appellant challenges the discretionary aspects of his sentence,
as is the case here, the right to appellate review is not absolute.
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal
denied, 206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging
the discretionary aspects of his sentence must invoke this Court’s jurisdiction
by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that Appellant filed a timely notice of
appeal and preserved his claim in a post-sentence motion. Appellant has also
included a statement in his brief that comports with the requirements of
Pa.R.A.P. 2119(f). See Appellant’s brief at 14-16. Accordingly, we must
determine whether Appellant has raised a substantial question.
-6-
J-S13041-23
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538(Pa. 2013). “A substantial question exists only when 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. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)
(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
Here, Appellant baldly contends that his standard-range sentences
“exceeded what is necessary to protect the public and to rehabilitate [him],”
and that the sentencing court “failed to consider other factors related to his
rehabilitative needs, family, and pre-trial incarceration[.]” Appellant’s brief at
14, 16.
“This Court repeatedly has held that a claim of inadequate consideration
of mitigating factors does not raise a substantial question for our review.”
Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa.Super. 2021) (citations
omitted). In Commonwealth v. Caldwell, 117 A.3d 763 (Pa.Super. 2015),
appeal denied, 126 A.3d 1282 (Pa. 2015), a panel of this Court reiterated
that, “ordinarily, a claim that the sentencing court failed to consider or accord
proper weight to a specific sentencing factor does not raise a substantial
question.” Id. at 769. Likewise, in Commonwealth v. Cannon, 954 A.2d
-7-
J-S13041-23
1222 (Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009), we held
that a claim that the trial court failed to consider the defendant’s rehabilitative
needs, age, and educational background did not present a substantial question
for review. Id. at 1228-1229.
Based on the foregoing, we find that Appellant’s argument fails to raise
a substantial question, and, therefore, he has not preserved his challenge to
the discretionary aspects of sentencing. Accordingly, we affirm the June 28,
2022 judgment of sentence.4
Judgment of sentence affirmed.
Judge Murray joins this Memorandum.
Judge Nichols concurs in the result.
____________________________________________
4 Even if Appellant had raised a substantial question for this Court's
consideration, we would find no abuse of discretion. Contrary to Appellant’s
contention, our review of the June 28, 2022 sentencing hearing transcript
reveals that the trial court considered and weighed numerous factors in
fashioning Appellant’s sentence, including his rehabilitative and treatment
needs and the impact of his crimes on the public. See notes of testimony,
6/28/22 at 29-30, 41-43, 52.
-8-
J-S13041-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
-9-