Com. v. Price, L. ( 2017 )

J-S64030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LESLIE ALAN PRICE,
Appellant No. 187 MDA 2017
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000076-2016, CP-41-CR-0000417-
2015, CP-41-CR-0000743-2014, CP-41-CR-0001318-2013, CP-41-CR-
0001665-2013, CP-41-CR-0001966-2013
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2017
Leslie Alan Price (“Appellant”) appeals from the judgment of sentence
imposed on June 10, 2016, following his conviction and sentencing at CR-
0000076-2016 (simple assault) and revocation of his probation at CR-1318-
2013 (forgery), CR-1665-2013 (theft by unlawful taking), CR-743-2014
(theft by deception and receiving stolen property), CR-1966-2013 (theft by
deception), and CR-417-2105 (forgery).1 We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 1 The sentencing court also revoked Appellant’s probation at CR-777-2015
(furnishing a drug free urine) when it issued its judgment of sentence.
Appellant, however, failed to include CR-777-2015 in his notice of appeal;
(Footnote Continued Next Page)
J-S64030-17
The sentencing court set forth the following factual recitation:
On January 20, 2014, [Appellant] entered guilty pleas and
was sentenced in cases 1318-2013, 1665-2013, and 1966-
2013. Under case 1318-2013, [Appellant] pled guilty to forgery,
a felony of the third degree, arising out of taking a $50 check
that he received for sealing an individual’s driveway and altering
it to a $150 check. Under case 1665-2013, [Appellant] pled
guilty to theft by unlawful taking, a felony of the third degree,
related to taking copper heat exchangers from his employer’s
premises and selling them as scrap metal for cash. Under 1966-
2013, [Appellant] pled guilty to theft by deception, a
misdemeanor of the second degree, related to taking an elderly
woman with Alzheimer’s disease to her bank, posing as her
grandson, and obtaining $100 cash from her. [Appellant] was
sentenced to serve 24 months[] on the Intermediate
Punishment (IP) program with the first five months to be served
at the Pre-Release Center (PRC) for theft by unlawful taking, a
consecutive term of 24 months’ probation for forgery and a
consecutive term of 12 months’ probation for theft by
deception. These sentences were consecutive to any sentence
[Appellant] was already serving.
On May 25, 2014, under case 743-2014, [Appellant] pled
guilty to theft by deception and receiving stolen property,
misdemeanors of the first degree, arising out of an incident on
October 16, 2013 where [Appellant] removed a PS3 Move game
system and two video games valued at $1109.70 from a
residence. [Appellant] took these items to Elite Games,
represented that he owned them, and sold them for cash.
[Appellant] was sentenced to two years’ probation for theft by
deception and a consecutive one-year probationary term for
receiving stolen property to be served consecutive to any
sentence he was serving.
On April 22, 2015, under case 417-2015, [Appellant] pled
guilty to forgery, a felony of the third degree, arising out of an
incident that occurred between June 30, [2014] and July 5,
2014, in which [Appellant] took a check he received for $50 and
(Footnote Continued) _______________________
thus, Appellant’s sentence entered at CR-777-2015 is not before this Court.
Pa.R.A.P 902.
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altered it to a $150 check. [Appellant] was sentenced to 24
months’ probation consecutive to any sentence he was serving.
On June 17, 2015, under case 777-2015, [Appellant] pled
guilty to furnishing drug free urine, a misdemeanor of the third
degree, arising out of an incident on September 11, 2014 in
which [Appellant] was instructed to provide a urine sample to
his probation officer. The probation officer had received a tip
that [Appellant] was going to provide a false urine sample, so
the probation officer directed [Appellant] to pull down his pants
and underwear before taking the drug test. When [Appellant]
did so, the probation officer observed a device with a bag of
urine. [Appellant] was sentenced to serve 12 months’ probation
consecutive to any sentences he was presently serving.
On June 1, 2016, [Appellant] came before the court for a
guilty plea and sentencing hearing under case 76-2016 and a
probation violation hearing and re-sentencing under cases
1318-2013, 1665-2013, 1966-2013, 743-2014, 1680-2014,
1688-2014, 1692-2014, 417-2015, and 777-2015.1
1 The court did not include the facts for offenses for
cases 1680-2014, 1688-2014, or 1692-2014,
because the revocation sentences imposed in these
cases was guilt without further punishment and are
not part of this appeal.
Under case 76-2016, [Appellant] pled guilty/no contest to
a consolidated count of simple assault that encompassed counts
3 and 4 of the Information in exchange for a consecutive period
of incarceration, the minimum of which was nine months.
[Appellant] was serving several probationary sentences and
tested positive for opiates. [Appellant] resisted the probation
agents who were trying to detain him in the Adult Probation
Office and then he resisted the sheriff deputies that tried to put
him in the back of the transport vehicle to take him to the
Lycoming County Prison. One of the probation agents was
injured when [Appellant] shoved her head into a filing cabinet,
and one of the sheriff deputies was [injured] when [Appellant]
kicked him in the thigh/groin area.
[On June 10, 2016, the court entered an order sentencing
Appellant] to an aggregate term of five years, three months to
17 years’ incarceration in a state correctional institution. This
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sentence consisted of nine months to two years’ incarceration
for simple assault in case 76-2016, a consecutive term of one to
four years’ incarceration for forgery in case 1318-2013, a
consecutive term of one to four years’ incarceration for theft by
unlawful taking in case 1665-2013, a consecutive term of one to
two years’ incarceration for theft by deception in case 743-
2014, a consecutive term of six months to two years’
incarceration for theft by deception in case 1966-2013, a
consecutive term of six months to two years’ incarceration for
forgery in case 417-2015 and a consecutive term of six months
to one year of incarceration for furnishing a drug free urine in
case 777-2015.
Sentencing Court Opinion, 6/21/17, at 1–4.
Although Appellant wished to appeal his sentence, his appointed
counsel failed to perfect his appeal in a timely manner. Following a
conference and agreement of the parties, the court reinstated Appellant’s
appeal nunc pro tunc on January 12, 2017. Order, 1/12/17 at 1. Appellant
filed his timely statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant presents a single question for our review:
Whether the sentence of the court on the probation revocation
and new charge was excessive and unduly harsh in light of the
underlying crimes and [Appellant’s] involvement with treatment
court?
Appellant’s Brief at 7.
Preliminarily, we note that Appellant is challenging the discretionary
aspects of his sentence; thus, he is not entitled to an appeal as of right.
Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa. Super. 2013)
(“[W]e unequivocally hold this Court’s scope of review in an appeal from a
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revocations sentencing includes discretionary sentencing challenges). See
also Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016). An
appellant invoking our jurisdiction must satisfy the following four-part test:
(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.
Derry, 150 A.3d at 991 (citations omitted).
Because Appellant’s rights were reinstated nunc pro tunc, the defects
relating to timeliness of his appeal are cured. Commonwealth v. Wright,
846 A.3d 730, 735 (Pa. Super. 2004). Appellant properly preserved the
issue by filing a motion to reconsider his sentence and an amended motion
seeking the same. Further, we note that Appellant’s brief does not contain a
fatal defect; it includes a Pa.R.A.P. 2119(f) statement. Thus, the first three
parts have been satisfied.
This Court must next determine whether Appellant raised a substantial
question that his sentence is not appropriate under the Sentencing Code.
Whether a substantial question exists must be determined on a case-by-case
basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). 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 provisions of the sentencing code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id.
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In his brief, Appellant asserts that he presents a substantial question
concerning the length of his sentence. Appellant’s Brief at 17. Specifically,
he states “his sentence is unreasonable because the sentencing court failed
to fully consider the extent of [Appellant’s] involvement in Drug Court in that
he was attempting to address his addiction when it imposed such an
excessive and unduly harsh sentence, in addition to other individual
circumstances.” Id. The rehabilitative needs of a defendant are among the
factors a court should consider when sentencing a defendant. 42 Pa.C.S. §
9721(b). However, “[t]his Court has held on numerous occasions that the
claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v. Downing, 990
A.2d 788, 794 (Pa. Super. 2010). See also Commonwealth v. Zirkle, 107
A.3d 127, 133 (Pa. Super. 2014) (finding no substantial question where the
appellant argued the sentencing court gave too much weight to victim’s
statements because “we have held that a claim that a court did not weigh
the factors as an appellant wishes does not raise a substantial question”).
But see Commonwealth v. Ziegler, 112 A.3d 656, 662 (Pa. Super. 2015)
(“[A]n excessiveness claim in conjunction with an assertion that the court
did not adequately consider a mitigating factor may present a substantial
question.”).
In this case, Appellant specifically asserts that the sentencing court
erred because it failed to appropriately consider that Appellant has had
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issues with his mental health and was “obsessively focused on [Appellant’s]
significant addiction issues.” Appellant’s Brief at 21. However, Appellant
concedes that the sentencing court acknowledged Appellant’s mental health
issues and his participation in treatment court. Id. Thus, Appellant is
arguing that the sentencing court failed to place proper emphasis on
mitigating factors when it sentenced him. This argument does not satisfy
the substantial-question standard. Zirkle, 107 A.3d at 133. Appellant has
failed to allege that the sentencing court’s actions were inconsistent with a
specific provision of the sentencing code or contrary to the fundamental
norms which underlie the sentencing process. Thus, Appellant has failed to
raise a substantial question regarding the appropriateness of his sentence
under the Sentencing Code.
Even assuming, arguendo, that Appellant had raised a substantial
question, the sentencing court did not abuse its discretion. Our standard of
review of a challenge to the discretionary aspects of sentence is well-
established:
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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
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Moreover, “An abuse of discretion requires the trial court to have acted
with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.” Commonwealth v.
Rush, 162 A.3d 530, 544 (Pa. Super. 2017). This Court has further held:
In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court’s
discretion, as he or she is in the best position to measure factors
such as the nature of the crime, the defendant’s character, and
the defendant’s display of remorse, defiance, or indifference.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
Further, in the violation of probation context, the sentencing court
enjoys an even greater degree of deference. Indeed:
[W]here the revocation sentence was adequately considered and
sufficiently explained on the record by the revocation judge, in
light of the judge’s experience with the defendant and awareness
of the circumstances of the probation violation, under the
appropriate deferential standard of review, the sentence, if
within the statutory bounds, is peculiarly within the judge’s
discretion.
Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014). In Pasture
the Pennsylvania Supreme Court also noted a sentencing court does not
abuse its discretion by imposing a harsher post-revocation sentence where
the appellant initially received a lenient sentence and failed to adhere to the
conditions imposed. Id. at 28.
Herein, Appellant committed numerous additional crimes while he was
on probation and assaulted two probation agents. As the sentencing court
stated:
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[T]he offenses [for which appellant was convicted] were
extremely serious. While under the influence of a controlled
substance, [Appellant] openly and physically resisted law
enforcement personnel causing injury to them and jeopardizing
the safety of others. [Appellant’s] criminal conduct took place in
the Adult Probation Office and then near the back door to the
courthouse near prisoner transport. The personnel, time and
resources used to control [Appellant] caused the entire
courthouse to be short-staffed and increased the risk of harm to
many others.
Regarding the history and characteristics of [Appellant],
the simple assault constituted [Appellant’s] sixth conviction since
he was first sentenced on January 30, 2014. Since being placed
on supervision, [Appellant] committed theft, DUI (controlled
substance) and drug free urine charges. When he committed
the simple assault offence, “he had nine other offenses for which
he was serving a sentence.”
Sentencing Court Opinion, 6/21/17, at 7.
The sentencing court further considered the fact that Appellant had
significant failures on probation, his substance-abuse issues were
uncontrolled, and Appellant failed to control his behaviors despite the
interventions provided to him. Sentencing Court Opinion, 6/21/17, at 11.
Specifically, the court noted that “the prior sanctions and treatments failed
to work.” Id. Given the above, the sentencing court wanted to protect the
public from Appellant’s behaviors and the court was convinced “that a state
prison stay for a lengthy period of time could best rehabilitate [Appellant].”
Id.
Hence, were we to address this issue, we would find that the
sentencing court did not act with manifest unreasonableness, partiality,
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prejudice, bias, ill-will or abused its discretion in any manner. For all the
foregoing reasons, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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