Com. v. Dixon, C. ( 2022 )

J-S16040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES DWIGHT DIXON :
:
Appellant : No. 554 MDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000642-2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 3, 2022
Appellant, Charles Dwight Dixon, appeals from the aggregate judgment
of sentence of 91/2 to 20 years’ incarceration, imposed after he pled guilty to
homicide by vehicle while DUI, aggravated assault by vehicle while DUI, DUI-
controlled substance, and the summary offense of disregarding traffic lanes.1
For the reasons set forth below, we affirm.
On October 14, 2018, Appellant, a bus driver driving a passenger bus
while he was impaired by cocaine, drove the bus off Interstate 380 in
Lackawanna County, Pennsylvania and crashed it into trees, killing one of the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3735(a) (in effect February 1, 2004 to December 23, 2018), 75
Pa.C.S. § 3735.1(a), 75 Pa.C.S. § 3802(d), and 75 Pa.C.S. § 3309(1),
respectively.
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passengers and seriously injuring three other passengers. N.T. Guilty Plea at
5-6; N.T. Preliminary Hearing at 18-20. On December 7, 2020, Appellant
entered a plea of guilty to homicide by vehicle while DUI, aggravated assault
by vehicle while DUI, DUI-controlled substance, and the summary offense of
disregarding traffic lanes. N.T. Guilty Plea at 2-9. For defendants with
Appellant’s prior record score, the sentencing guidelines provided standard
range minimum sentences of 42-54 months and an aggravated minimum
sentence of 5 years for homicide by vehicle while DUI and standard range
minimum sentences of 30-42 months and an aggravated minimum sentence
of 41/2 years for aggravated assault by vehicle while DUI. 204 Pa. Code §§
303.15, 303.16(a); Guideline Sentence Forms.
On March 8, 2021, the trial court sentenced Appellant to consecutive
terms of 5 to 10 years’ incarceration for homicide by vehicle while DUI, 41/2
to 10 years’ incarceration for aggravated assault by vehicle while DUI, and 3
to 6 months for the DUI conviction, resulting in an aggregate sentence of 117
months to 201/2 years’ incarceration, and imposed a fine for the summary
offense conviction. N.T. Sentencing at 52-53; 3/8/21 Sentencing Order. At
this sentencing hearing, Appellant admitted that he was addicted to drugs and
had been unsuccessful in stopping using drugs prior to the accident,
repeatedly expressed remorse for his actions, and testified that after the
accident, he sought treatment for his addiction. N.T. Sentencing at 43-50.
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Appellant also presented testimony of the Lackawanna County Prison chaplain
concerning Appellant’s remorse and positive behavior in prison. Id. at 32-35.
On March 17, 2021, Appellant filed a motion for reconsideration of
sentence in which he sought to vacate the DUI sentence on the ground that
the DUI conviction merged with the homicide by vehicle while DUI and
aggravated assault by vehicle while DUI convictions and also sought reduction
of the homicide by vehicle while DUI and aggravated assault by vehicle while
DUI sentences on the ground that those sentences were harsh and excessive
and failed to take into account mitigating factors, including Appellant’s
background, remorse and low likelihood of reoffending. Petition for
Reconsideration of Sentence ¶¶3-5. On April 9, 2021, the trial court granted
the motion for reconsideration with respect to the DUI sentence, denied the
motion in all other respects, and issued a modified sentencing order that
imposed consecutive terms of 5 to 10 years’ incarceration for homicide by
vehicle while DUI and 41/2 to 10 years’ incarceration for aggravated assault
by vehicle while DUI, an aggregate sentence of 91/2 to 20 years’ incarceration,
and no sentence for the DUI conviction on the ground that it merged with
those other convictions. Trial Court Order, 4/9/21; 4/9/21 Modified
Sentencing Order. This timely appeal followed.
Appellant presents the following single issue for our review:
Whether the aggravated sentence was inappropriately harsh,
excessive, an abuse of discretion and contrary to the fundamental
norms of the sentencing guidelines and failed to consider
appellant's remorse for his actions, his positive history over th[e]
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past ten years including his effort to address his addiction issues
which indicates that he has a very low risk of reoffending, thus
belying the sentencing court's emphasis on incapacitation.
Appellant’s Brief at 4.
This issue is a challenge to the discretionary aspects of Appellant’s
sentence. Challenges to the discretionary aspects of a sentence are not
appealable as of right and may be considered only where the following
requirements are satisfied: 1) the appellant has preserved the issue in the
trial court at sentencing or in a motion for reconsideration of sentence; 2) the
appellant has included in his brief a concise statement of the reasons relied
on for his challenge to the discretionary aspects of his sentence in accordance
with Pa.R.A.P. 2119(f), and 3) the challenge to the sentence raises a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Commonwealth v. Akhmedov, 216 A.3d 307, 328
(Pa. Super. 2019) (en banc); Commonwealth v. Dempster, 187 A.3d 266,
272 (Pa. Super. 2018) (en banc).
Appellant has satisfied these requirements. Appellant filed a timely
motion for reconsideration of sentence in which he argued that his sentence
was harsh and excessive because it was beyond the standard guideline range
and failed to take mitigating factors into account. Petition for Reconsideration
of Sentence ¶¶3(c)-(f), 4-5. Appellant has also included a Pa.R.A.P. 2119(f)
statement in his brief. Appellant’s Brief at 8-9.
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A substantial question exists where the appellant advances a colorable
argument that the sentencing judge’s actions were inconsistent with a specific
provision of the Sentencing Code or were contrary to the fundamental norms
of the sentencing process. Commonwealth v. DiClaudio, 210 A.3d 1070,
1075 (Pa. Super. 2019); Commonwealth v. Antidormi, 84 A.3d 736, 759
(Pa. Super. 2014). The argument that Appellant advances is that the trial
court’s imposition of an aggravated range sentence was excessive and
unreasonable because the court failed to consider mitigating factors and did
not articulate adequate reasons for an aggravated sentence. This presents a
substantial question. Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (en banc) (claim that sentence was excessive coupled with claim
that trial court did not consider defendant’s rehabilitative needs presents a
substantial question); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.
Super. 2008) (claim that trial court failed to state adequate reasons for
imposing an aggravated range sentence raises a substantial question).
This issue, however, fails on the merits. Our standard of review on this
challenge to Appellant’s 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.
DiClaudio, 210 A.3d at 1074-75 (quoting Antidormi).
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Contrary to Appellant’s contentions, the trial court stated adequate
reasons for imposing sentences for homicide by vehicle while DUI and
aggravated assault by vehicle while DUI in the aggravated range of the
sentencing guidelines. Imposition of an aggravated range sentence is justified
where the trial court bases the sentence on a fact or facts about the
defendant’s crime warranting a more severe punishment that are not inherent
in the offense of which he was convicted. Commonwealth v. Clemat, 218
A.3d 944, 960 (Pa. Super. 2019); Commonwealth v. Fullin, 892 A.2d 843,
848-49 (Pa. Super. 2006). Here, the trial court made clear that it based the
aggravated range sentences that it imposed on the fact that Appellant did not
merely drive a vehicle while impaired; rather, the vehicle that he chose to
drive while impaired was a bus carrying 12 passengers whom he was
responsible for safely transporting. N.T. Sentencing at 51-52. That very
serious additional factor, not present in ordinary homicide by vehicle while
DUI and aggravated assault by vehicle while DUI cases, was a ground on which
the trial could properly conclude that aggravated range sentences were
appropriate.
The trial court also did not fail to consider Appellant’s mitigating factors.
The trial court had the benefit of and reviewed a pre-sentence report and
heard evidence of Appellant’s background and remorse. N.T. Sentencing at
32-50; N.T. Hearing on Petition for Reconsideration of Sentence, 4/5/21, at
4-5; Trial Court Opinion at 3, 11, 16. The court specifically noted the
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mitigating factors that Appellant argues, but concluded that the serious
aggravating factor of his disregard of his responsibility as a bus driver, coupled
with his mature age at the time of the accident and lengthy failure to make
efforts to stop using cocaine before the accident, far outweighed the mitigating
factors. N.T. Sentencing at 51-52; Trial Court Opinion at 15-16 & n.12. Where
the trial court has considered the defendant’s mitigating evidence and
rehabilitation prospects, its failure to accord them the weight that the
defendant desires does not constitute an abuse of the trial court’s sentencing
discretion. Commonwealth v. Velez, 273 A.3d 6, 12 (Pa. Super. 2022);
Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014).
Because Appellant has not shown that the trial court abused its
discretion in the sentences that it imposed, we affirm the trial court’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/03/2022
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