Com. v. Ware, M. ( 2016 )

J-S38043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. WARE
Appellant No. 2931 EDA 2015
Appeal from the Judgment of Sentence August 20, 2015
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000029-2015
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 11, 2016
Appellant Michael J. Ware appeals from the judgment of sentence
entered in the Wayne County Court of Common Pleas following his open
guilty plea to three counts of involuntary manslaughter and three counts of
recklessly endangering another person (“REAP”).1 We affirm.
On August 30, 2014, Appellant allowed his unlicensed 15-year-old
daughter (“J.W.”) to drive his vehicle with another minor, R.A.K. J.W. and
R.A.K. subsequently picked up four teenage boys as passengers. J.W. lost
control of the vehicle on a turn and crashed. Three of the teenage boys died
as a result of the accident.
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1
18 Pa.C.S. §§ 2504 and 2705, respectively.
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The trial court further provides:
[Appellant] stood at the scene of a vehicular accident that
left three teenage boys dead and told police that he did
not know his underage daughter took his vehicle. Despite
his daughter taking full responsibility for the accident,
[Appellant] did not confess to investigating officers that he
had given his underage daughter permission to drive his
vehicle. It was not until two and a half months after the
accident when police learned the truth. In a signed written
statement from [J.W.],[2] police learned that [Appellant]
had given his underage daughter permission the day of the
accident to drive his vehicle with her friend. It is uncertain
whether [Appellant] would eventually have divulged the
truth; however, the likelihood is low based on [Appellant’s]
self-seeking behavior and lack of remorse.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 24, 2015, at 2-3.
On July 9, 2015, Appellant pled guilty to the aforementioned
convictions in exchange for the seven additional charges against him being
nolle prossed. In his written guilty plea colloquy, Appellant indicated that he
understood the judge had the power to sentence him to a maximum of five
years’ incarceration for each of his involuntary manslaughter convictions and
a maximum of two years’ incarceration for each of his REAP convictions. He
also indicated that he understood the judge had the power to impose his
sentences consecutively, resulting in a possible aggregate sentence of 21
years’ incarceration.
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2
The trial court indicated at sentencing that R.A.K., not J.W., incriminated
Appellant.
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On August 20, 2015, after reviewing Appellant’s pre-sentence
investigation (“PSI”) report, a letter from Appellant, letters from Appellant’s
friends and family, and letters from the victims’ families, the trial court
sentenced Appellant to 20-40 months’ incarceration for each of his
involuntary manslaughter convictions and 6-24 months’ incarceration for
each of his REAP convictions. The court imposed the sentences
consecutively, which resulted in an aggregate sentence of 78-192 months’
(6½-16 years’) incarceration.
On August 31, 2015, Appellant filed a motion to modify sentence, 3
which the trial court denied the same day. On September 30, 2015,
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSE[D] ITS DISCRETION, AND VIOLATE[D]
GENERAL SENTENCING PRINCIPLES, WHEN[] IT
SENTENCED [APPELLANT], FOLLOWING A GUILTY PLEA,
TO THE MANIFESTLY EXCESSIVE 20 MONTHS TO 40
MONTHS [OF] INCARCERATION ON EACH OF THREE
COUNTS OF INVOLUNTARY MANSLAUGHTER TO BE
SERVED CONSECUTIVELY, AND SIX MONTHS TO 24
MONTHS [OF] INCARCERATION ON EACH OF THREE
COUNTS OF RECKLESSLY ENDANGERING ANOTHER
PERSON TO BE SERVED CONSECUTIVELY FOR A TOTAL OF
78 MONTHS TO 192 MONTHS[’ INCARCERATION]?
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3
Because August 30, 2015 fell on a Sunday, Appellant’s post-sentence
motion, filed Monday, August 31, 2015, was timely. See 1 Pa.C.S. § 1908.
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WHETHER THE [TRIAL] COURT ERRED BY SENTENCING
[APPELLANT] IN THE AGGRAVATED RANGE OF THE
SENTENCING GUIDELINES BASED ON [APPELLANT’S]
FAILURE TO COOPERATE WITH THE POLICE, WHICH IS
HIS CONSTITUTIONAL RIGHT UNDER THE 5TH AMENDMENT
AGAINST SELF INCRIMINATION[?]
Appellant’s Brief at 5.
In his combined issues, Appellant challenges the discretionary aspects
of his sentence. Challenges to the discretionary aspects of sentencing do
not entitle a petitioner to review as of right. Commonwealth v. Allen, 24
A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must invoke this Court’s jurisdiction by
satisfying the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.
Instantly, Appellant preserved his issue in a post-sentence motion,
filed a timely notice of appeal and included in his brief a concise statement
of reasons relied upon for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See
Appellant’s Brief at 12. Thus, we must determine whether Appellant has
raised a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Id. (internal citations omitted).
We observe:
a defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in
an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence
will not raise a substantial question. See Commonwealth
v. Moury, 992 A.2d 162, 171–172 (Pa.Super.2010) (“The
imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the
most extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.”)
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(internal citations omitted) (emphasis in original).
“[O]rdinarily, a claim that the sentencing court failed to consider or
accord proper weight to a specific sentencing factor does not raise a
substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97
(Pa.Super. 2001) (internal citation omitted) (emphasis in original).
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However, “reliance on impermissible sentencing factors can raise a
substantial question.” Dodge, 77 A.3d at 1273 (citing Commonwealth v.
Roden, 730 A.2d 995 (Pa.Super.1999)).
Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Id.
Appellant argues the trial court relied on unreasonable and inaccurate
findings in sentencing Appellant. He claims the consecutive imposition of his
aggravated range sentences resulted in an aggregate term of imprisonment
that is clearly unreasonable based on the nature and circumstances of his
offense. He avers the court ignored certain mitigating factors, such as
Appellant’s lack of intent to harm anyone and his statements that he was
extremely sorry when it stated its reasons for sentencing him in the
aggravated range. He further contends the court improperly considered his
failure to cooperate with police in determining his sentence. Appellant’s
combined claims raise a substantial question for our review. Thus, we grant
his petition for allowance of appeal and address the merits of his claims.
We review Appellant’s sentencing claim under the following standard:
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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. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en
banc), appeal denied, 104 A.3d 1 (Pa.2014).
The standard range sentence for involuntary manslaughter is 6-14
months’ incarceration, and the aggravated range is 20 months. The trial
court sentenced Appellant to the aggravated range sentence of 20 months
for each of his involuntary manslaughter convictions, and imposed the
sentences consecutively with his REAP sentences, which were in the
standard range. The court stated at the sentencing hearing and in its
written sentencing order that its reasons for sentencing Appellant in the
aggravated range was that Appellant “showed no remorse and failed to
cooperate with police and lied to them.” Sentence, 8/20/2015.
Appellant claims the trial court ignored his displayed remorse. He
directs us to the sentencing transcript, where he stated:
I cannot begin to say how sorry I am that three young
children, Ryan, Shamus, and Cullen were lost to this world
last August 30th. I will never be able to feel the loss that
the families of the boys will forever feel. I can only say
that hopefully today brings some form of closure for
everyone affected by this horrible tragedy. Neither I [n]or
my daughter, [J.W.], ever meant any harm to anyone that
day. May the boys rest in peace.
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N.T. Sentencing, August 20, 2015, at 27-28.
Appellant also directs us to the following, where the court later stated:
The probation officer tells me on page 14 that the
defendant was cooperative in the [PSI] and you appeared
remorseful. I’ll talk more about that in a while, too.
Id. at 30-31.
Appellant claims the trial court ignored the fact that he was remorseful
when it stated that he “showed no remorse.” We disagree.
At sentencing, the court explained:
I read your account of the events that day and your two
page letter to me dated August 10, 2015. Ten days before
today, ten days before your sentencing. Given the facts in
this case I would have thought that the first sentences in
such a letter would have been, “I’m so very, very sorry for
what I have done. I’ve set in motion the deaths of three
young and vibrant men in the primes of their lives, I’ve
caused such pain to their family, friends, and loved ones.
I’m truly remorseful and take full responsibility for the
deaths and pain I’ve caused”… Instead… you wrote… “Care
for our 85 year old mom is a very difficult subject to
discuss for several reasons…” Sir, I’m sorry that your
mom aged and [is] suffering from infirmities, but where is
your common decency to express remorse and sympathy
for your victims?...
The probation officer asked you how specifically you felt
about this offense. This was your response to the
probation officer, “It’s horrible. Three lives were lost. I’m
crushed. The families, it’s horrible, I don’t know how to
say it. It’s so sad I think about it daily, every waking
hour.” Not once did you say I’m sorry. Not once did you
say I’m responsible. It was all so preventable,
irresponsible, reckless, stupid, selfish, and criminal.
Id. at 35-36.
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The record shows the trial court considered that Appellant said he was
sorry and that he did not mean to cause any harm. The trial court, however,
did not find Appellant took full responsibility for his actions. It further
considered that Appellant lied to police officers about giving his permission
to his daughter to drive the vehicle:
Now let’s talk about your lying both explicitly and
implicitly. What is it within you, sir[,] that allows your
15[-] year[-]old daughter take all the blame for this
horrific manslaughter? How could any parent sit [] with
[his] daughter and not speak the truth when your
daughter tries to protect you and says that she took the
car without your knowing it. How?! How does any parent
do that? What does that say about the potential of
rehabilitation of you? I suggest it says a great deal.
And then as if that isn’t [abhorrent] enough, your daughter
continues to take on the full weight of this manslaughter
for 60 days, 60 days, 24 hours a day before her friend, not
[J.W.], her friend, and certainly not you, tell the police the
truth. You never spoke the truth and you left your
daughter to bear this alone. What kind of father does
this?! You denied you gave [J.W.]… that car [to take] to
Dunkin Donuts. You denied you knew she took the car on
this [fateful] trip. You walked out and said goodbye to
them. You asked them to bring you back the bacon, egg,
and cheese sandwich found at the wreck. If you lied in a
situation like this, which you most certainly did, I hope you
understand I do not believe a word you say.
Id. at 34-35.
Although Appellant claims he had a right not to incriminate himself to
police officers, the transcript reveals the trial court considered specifically
that Appellant let his daughter take the blame for his actions. The court was
free to consider this factor in sentencing.
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We do not find the trial court abused its discretion in sentencing
Appellant to the aggravated range sentence or in imposing his sentences
consecutively. The record reflects it considered the PSI report, Appellant’s
testimony and letters written by Appellant, Appellant’s family and the
victims’ families.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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