Com. v. Davis, M ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK GREGORY DAVIS :
:
Appellant : No. 2781 EDA 2022
Appeal from the Judgment of Sentence Entered August 17, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004094-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 03, 2023
Mark Gregory Davis appeals from the judgment of sentence entered
following his open guilty plea to driving under the influence (“DUI”) –
controlled substance, recklessly endangering another person, possession of
paraphernalia, and illegally operating a vehicle without ignition interlock.1
Davis argues the court abused its discretion by imposing an excessive
sentence. We affirm.
On April 16, 2021, Falls Township police officers and fire fighters
responded to an accident that caused a vehicle to catch fire on Route 13 North
in Bucks County. N.T., 2/1/22, at 6-7, 17; N.T., 8/17/22, at 3. The first
responders blocked off a portion of the road with a barricade consisting of 30
flares, 75 to 80 cones, and six or seven police and fire vehicles, all with
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1 75 Pa.C.S.A. § 3802(d)(2); 18 Pa.C.S.A. § 2705; 35 P.S. § 780-113(a)(32);
and 75 Pa.C.S.A § 3808(a)(1), respectively.
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flashing lights. N.T., 2/1/22, at 7-10. The barricade and lights were about 600
yards away from the accident. Id. at 10. As a result of the barricade, oncoming
traffic had to exit Route 13. Id.
Davis failed to exit Route 13 and drove through the barricade at an
estimated speed of 70 miles per hour. Id. at 18. Davis brought his vehicle to
a stop once he reached the firetrucks that had the roadway completely blocked
off. Id. Officer Michael Parnes approached the stopped vehicle and directed
Davis to get out of his vehicle. Id. at 19. Officer Parnes detected the odor of
alcohol and marijuana. Id. Additionally, as Davis was pulled out of his vehicle,
officers observed a glass smoking device, previously on Davis’s lap, fall to the
ground. Id. at 20. At that point in time, Officer Parnes believed that Davis was
under the influence of a controlled substance and alcohol, such that Davis was
unable to safely operate his vehicle. Id. at 24. Davis refused to submit to a
blood draw and no field sobriety tests were conducted because of safety
concerns related to the vehicle fire. Id. at 21, 24-25. Officer Parnes conducted
a search of Davis’s driving history and learned that Davis was required to have
an ignition interlock device in his vehicle. Id. at 26. Davis’s vehicle did not
have an ignition interlock device at the time of the incident. N.T., 8/17/22 at
10.
On June 13, 2021, Davis pleaded guilty to the above-referenced
offenses. At sentencing, on August 17, 2022, Davis stated that he had been
speeding on the night of the incident, but that he was confused about what
had occurred on the roadway during his incident. Id. at 6. Davis also said he
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did not know he was required to have an ignition interlock device in his vehicle.
Id. at 10. Davis spoke about his addiction issues, his decision to have his
parents adopt his daughter, and his past drug treatment success. Id. at 8,
13-14. Davis concluded by speaking about his desire to get back to his family,
friends, passions, hobbies, and work. Id. at 13-14. Davis also submitted a
letter to the court.
Before imposing Davis’s sentence, the court stated:
Okay. Let’s not forget what charges are here. Third offense driving
under the influence, recklessly endangering four different people,
all of whom I assume are first responders trying to protect the
safety of the community, having the paraphernalia with you. . .
driving a vehicle that you were prohibited from operating because
it did not have an ignition interlock control because of your prior
drunk driving charges.
You have provided me with a 13-page, small-writing statement in
which at no time did you accept responsibility for your conduct,
did you at no time show any remorse for your conduct, at no time
did you show any sympathy or understanding of the harm you put
other people in. All you talked about was how you had been picked
on throughout your life.
You don’t care about anybody but yourself. You profess to have
this love for your child. I’m not saying you don’t, but you seem to
think that means that you can do as you please and have no
responsibility and that your daughter is your keep-out-of-jail-free
card. It ain’t happening.
You’ve been through the system. You’ve been through jail. You’ve
been on probation. You’ve been in treatment. At times you
successfully completed it.
But you are a danger to the community. I have no doubt in my
mind that when you walk out of a state correctional institution in
the future the first opportunity you have to get high, to get behind
the wheel of the car and go out and do as you please, you’ll do.
You won’t even hesitate to think about the repercussions to
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yourself should you get caught driving or what you might do to
other people.
I am going to impose a sentence in the aggravated range of the
DUI, and I’m doing that, one, because of those issues I just
mentioned: the lack of remorse, the lack of an acceptance of
responsibility, the multiple persons in jeopardy. But I’m doing it
also because I won’t put – impose sentences on the other open
counts.
Id. at 14-16.
At the conclusion of sentencing hearing, the court imposed a sentence
in the aggravated range of 27 to 60 months’ incarceration on the DUI offense,
with no further penalty on the other charges.
Davis filed a motion for reconsideration of sentence. At a hearing on the
motion, Davis apologized and explained that the goal of his letter to the court
was to paint a broad picture of himself and factors of his personal life. N.T.,
9/26/22, at 3-7. After hearing testimony from Davis, the court denied the
motion. Id. at 7.
Before denying the motion, the court stated:
Let me say this, Mr. Davis. I don’t question your remorse and your
apology. I don’t challenge that . . .
But, look, I hear what you’re saying. But all those various factors
were taken into consideration at the time of sentencing.
Id. at 5, 7.
Davis filed a timely appeal. Davis raises the following issue:
Did the trial court abuse its discretion in sentencing [Davis] by
imposing a manifestly excessive sentence at the high end of the
aggravated range, relying on improper factors and the nature of
the offense and failing to consider all relevant factors?
Davis’s Br. at 7.
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Davis 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. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits
of Davis’s claim, we must determine whether: “(1) the appeal is timely; (2)
the appellant has preserved his issue; (3) his brief includes a concise
statement of the reasons relied upon for allowance of an appeal with respect
to the discretionary aspects of his sentence; and (4) the concise statement
raises a substantial question whether the sentence is inappropriate under the
Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super.
2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who challenges
the discretionary aspects of a sentence “shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence”).
Here, Davis has complied with the first three requirements: his appeal
is timely, he preserved the issue in a post-sentence motion, and his brief
includes a statement of the reasons for allowance of appeal. We now turn to
whether Davis has raised a substantial question.
A substantial question exists when the appellant makes a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Moury, 992
A.2d 162, 170 (Pa.Super. 2010). Davis’s Rule 2119(f) statement claims that
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the sentencing court failed to consider relevant factors such as family history,
age, or rehabilitative needs and considered improper factors. Davis’s Br. at 9-
10. This presents a substantial question. See Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa.Super. 2014) (stating “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question”); see also Commonwealth v.
Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023) (finding an excessive
sentence claim coupled with a claim of disregard for appellant’s “rehabilitative
potential” raises a substantial question); Commonwealth v. Crawford, 254
A.3d 769, 782 (Pa.Super. 2021) (stating that a claim that the sentencing court
relied on improper factors raises a substantial question). Thus, we proceed to
the merits of Davis’s claim.
Davis argues that the sentencing court relied on improper factors,
focused on the nature of the offense that was already addressed by the
Sentencing Guidelines, and failed to consider all relevant factors. Davis’s Br.
at 11-16. With respect to improper factors, Davis argues that the court
justified its sentence, in part, “on the inappropriate and unfounded belief that
[Davis] will use drugs and commit another DUI, as soon as possible” and
“[Davis’s] lack of remorse.” Id. at 14. Davis further argues that the sentencing
court focused on factors related to the nature of the offenses that were already
contemplated in the Sentencing Guidelines, namely, elements of the offense
to which Davis entered his guilty plea. Id. at 15. He contends that the
sentencing court failed to consider relevant factors, including his history and
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character and his rehabilitative needs. Id. at 15-16. Additionally, Davis argues
that the sentencing court’s statements during the hearing on his motion for
reconsideration of sentence indicates acknowledgment of his remorse, such
that the sentencing court should be precluded from relying on lack of remorse
to justify sentencing Davis in the aggravated range. Id. at 15.
“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. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018) (citation omitted). An abuse of discretion occurs where “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.” Id. (citation omitted). However, we may not reweigh the sentencing
factors and impose our own judgment in place of that of the trial court. See
Commonwealth v. Peck, 202 A.3d 739, 747 (Pa.Super. 2019).
In imposing a sentence, the sentencing court must consider, “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.” 42 Pa.C.S.A. § 9721(b). Moreover, “[a] sentencing court
may consider any legal factor in determining that a sentence in the aggravated
range should be imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592-
93 (Pa.Super. 2015). Further, the sentencing judge’s reasons for sentencing
in the aggravated range must reflect this consideration. Id. at 593.
Additionally, the Sentencing Guidelines “are merely one factor among many
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that the court must consider in imposing a sentence.” Commonwealth v.
Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
Here, although the court sentenced Davis in the aggravated range, it is
still within the Sentencing Guidelines. The court conducted the sentencing
without any improper considerations. The record reflects that, at the time of
sentencing, the court considered the fact that Davis’s actions posed a threat
to the public and to the safety of the public officials at the scene who
themselves are tasked with ensuring the safety of the public. The record also
indicates that the court considered the absence of the required ignition
interlock, the fact that it was Davis’s third offense, and the lack of remorse,
sympathy, or responsibility in Davis’s letter. Those facts clearly relate to public
safety and the gravity of the offense. Further, the sentencing court referenced
the letter and stated that, despite the trials and tribulations outlined in the
letter, Davis posed a danger to the community to such a degree that the
aggravated sentence was appropriate. The court also considered Davis’s
rehabilitative needs and he was given the opportunity, in his letter and
testimony at sentencing, to touch upon his struggles with addiction, drug use
at the time of the incident, and past success in drug treatment. At no point
did the sentencing court deprive Davis of informing it of his history of addiction
and past treatment.
With respect to the court’s comments that Davis would reoffend when
released from prison, which Davis claims the court improperly considered,
there is no information in the record to indicate that the hyperbolic statement
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is indicative of a founded belief that Davis would reoffend immediately
following the conclusion of his incarceration. Rather, the court’s stated
reasoning in imposing the aggravated sentence, coupled with the history of
committing the same offense, reflects a concern that, given his history, Davis
may commit the same crime, at any point in time, and pose a threat to the
safety of the community.
Second, the court did not focus solely on factors already contemplated
by the sentencing guidelines. The fact that Davis drove under the influence of
a controlled substance for the third time and jeopardized the lives of first
responders as a result, is not merely an element of the crime of DUI. The
crime of DUI – impaired ability provides, in relevant part, that, “[a]n individual
may not drive, operate or be in actual physical control of the movement of a
vehicle,” when “[t]he individual is under the influence of a drug or combination
of drugs to a degree which impairs the individual’s ability to safely drive,
operate or be in actual physical control of the movement of the vehicle.” 75
Pa.C.S.A. § 3802(d)(2).
The factors considered by the court, including the presence of a
barricade that all the other motorists followed, the presence of officers, and
the fact that it was a third offense, are not elements of the offense. Rather,
those factors were considered, in conjunction with all other legally relevant
factors and the elements of the above offense, to decide that the aggravated
range sentence was appropriate. Additionally, the Sentencing Guidelines serve
as a guide and are not controlling. See Yuhasz, 923 A.2d at 1118 (stating
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that the Sentencing Guidelines “are purely advisory in nature”). The fact that
the number of convictions is factored into Sentencing Guidelines is not
determinative. Rather, it is one factor that the court considered, and that it
was the third conviction was not the sole basis of the sentence. On the issue
of consideration of all relevant factors, the court expressly stated, at the
motion for reconsideration of sentence hearing, that it considered Davis’s work
history, parental struggles, and treatment needs.
The court’s reasons for its sentence expressed an appropriate
consideration of the protection of the public, the gravity of the offense as it
related to the impact on the life on the victims and on the community, and
the rehabilitative needs of Davis. See 42 Pa.C.S.A. § 9721(b). We discern no
abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2023
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