Com. v. Litvinov, D. ( 2021 )

J-S04004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 737 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001159-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 738 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001161-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 739 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001163-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S04004-21
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 740 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001164-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 741 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000364-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIMITRIY V. LITVINOV :
:
Appellant : No. 742 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001158-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
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DMITRIY V. LITVINOV :
:
Appellant : No. 760 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000462-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 761 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000464-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 762 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001090-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 763 MDA 2020
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Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001139-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DMITRIY V. LITVINOV :
:
Appellant : No. 764 MDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001157-2010
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2021
Appellant, Dmitriy V. Litvinov, appeals from the judgment of sentence
entered on November 26, 2019 following resentencing, as made final by the
order entered on April 23, 2020 disposing of post-sentence motions. We
affirm.
The trial court summarized the facts and relevant procedural history of
this case as follows:
Beginning in January of 2010, [Appellant] and his accomplices
began a spree of, among other things: burglary, armed robbery,
and kidnapping. Through March of the same year, [Appellant]
robbed numerous individual persons and establishments [in
Centre County, Pennsylvania]. In carrying out several of these
crimes, [Appellant] brandished firearms - including a stolen
WASR-10 - AK style assault rifle. In several instances, [Appellant]
and his accomplices physically assaulted victims and threatened
their lives at gunpoint. When [Appellant] and his accomplices
were finally apprehended, the Commonwealth charged
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[Appellant] with numerous crimes, including [r]obbery,
[k]idnapping, and [c]riminal [m]ischief. [Appellant] was
sentenced to several mandatory minimum sentences which were
legally permissible when imposed [] in 2010. Following the United
States Supreme Court's holding in Alleyne v. U.S., 570 U.S. 99(2013), those mandatory minimum sentences were deemed to be
unlawful. [Appellant] was subsequently resentenced by [the trial
court] in November of 2019, for an aggregate sentence [] of
twenty-eight (28) to fifty-six (56) years [of imprisonment].
Importantly, [Appellant] was also issued a [f]inal [r]emoval
[o]rder dated February 23, 2013 [directing deportation] following
[Appellant’s] original sentencing.
Trial Court Opinion, 4/23/2020, at 2.
The trial court resentenced Appellant on November 26, 2019. Appellant
filed a post-sentence motion on December 4, 2019. Following the grant of an
extension, the trial court denied relief by order and opinion dated April 23,
2020. These timely appeals resulted.1
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1 On May 15, 2020, Appellant filed 11 notices of appeal, each bearing, in its
caption, the 12 trial court docket numbers at which the Commonwealth filed
the original charges in this case. Upon review of each individual certified
record, a different docket number is check-marked on each corresponding
notice of appeal. It does not appear, however, that a notice of appeal was
included within the certified record of the twelfth case, trial court docket no.
CP-14-CR-1162-2010. The last recorded entry which appears on that trial
court docket is the order denying Appellant’s post-sentence motion. Our
Supreme Court “in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) […]
held that an appeal must be quashed if an appellant fails to file separate
notices of appeal at each docket number implicated by an order resolving
issues that involve more than one trial court docket [as] indicated in the Note
to Pa.R.A.P. 341.” Commonwealth v. Stansbury, 219 A.3d 157, 159 (Pa.
Super. 2019), appeal denied, 235 A.3d 1073 (Pa. 2020). In Stansbury,
however, this Court declined to quash an appeal in which the appellant’s notice
listed two docket numbers where the trial court misinformed Stansbury that
he could perfect appellate jurisdiction by filing a single notice of appeal. We
determined that the trial court's failure to properly advise Stansbury of his
appellate rights amounted to a “breakdown in the court system,” and,
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On appeal, Appellant presents the following issues2 for our review:
I. Whether the trial court abused its discretion in accepting or
potentially accepting, in whole or in part, the prosecution's legally
incorrect, unsubstantiated, and speculative claim that the final
order of removal, i.e., deportation order, to the country of
Kazakhstan that was issued by an administrative law judge from
the United States Immigration Court due to [Appellant’s] multiple
convictions for "aggravated felonies" might possibly be
disregarded by the birth country and[,] as such, there remained a
strong "need for confinement that is consistent with the protection
of the public" such that the [trial] court lacked both sufficient and
accurate information necessary to impose its global sentence?
II. Whether the trial court [improperly disregarded the explicit
statutory commands at 42 Pa.C.S.A. § 9721(b) and committed
legal error by imposing a sentence which focused exclusively upon
the "need for confinement that is consistent with the protection of
the public" where the issuance of a final deportation order against
Appellant substantially diminished the need to consider that
sentencing factor]?
Appellant’s Brief at 4 (superfluous capitalization omitted).
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therefore, excused his failure to comply with Walker. See Stansbury, 219
A.3d at 160; see also Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa.
Super. 2020) (en banc). Similarly, here, at resentencing, the trial court
misinformed Appellant that he could file a single notice of appeal. See N.T.,
11/26/2019, at 45. Thus, we excuse Appellant’s non-compliance with
Walker. On July 16, 2020, this Court granted Appellant’s motion to
consolidate the appeals. Finally, we note our review is not hampered because
the certified record for trial court docket no. CP-14-CR-1162-2010 lacks a
notice of appeal. As discussed, Appellant’s claims do not focus upon trial court
docket no. CP-14-CR-1162-2010 and, instead, challenges the factors relied
upon by the trial court in imposing his overall aggregate sentence. Thus, the
certified record contains all of the materials, including the transcripts and
exhibits from the resentencing hearing, the parties’ briefs on the issue, as well
as the trial court’s opinions, needed to conduct a proper review of Appellant’s
overarching appellate claim.
2 Although presented as two appellate issues, Appellant’s claims are
inter-related and we will examine them together.
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Appellant contends, “the [r]e-[s]entencing [c]ourt did not place
sufficient emphasis on the reality that [Appellant] will someday be deported
and inevitably returned to [his home country,] Kazakhstan[,] because, as a
non-citizen [of the United States], he was convicted of several "[c]rimes [o]f
[v]iolence" and multiple "[a]ggravated [f]elonies" as defined by federal law[.]”
Appellant’s Brief at 18. Appellant contends that the trial court impermissibly
relied upon the Commonwealth’s suggestion that Appellant may not be
deported despite a removal order dated February 23, 2013, which was
presented to the trial court at resentencing. Id. at 23. Appellant claims that
“if, after being paroled, [Appellant] were ever found to be in the United States,
it would be mandatory that he serve his remaining sentence” in a Pennsylvania
prison. Id. at 33. As such, Appellant argues:
The required balancing between the three main Section 9721(b)
[sentencing] factors necessarily must change, mathematically
speaking, whenever a [d]efendant is subject to a non-waivable
mandatory [d]eportation [o]rder such as [Appellant,] the need for
"public protection" is effectively nullified when the person being
sentenced will be exiled as soon as he is paroled. This singular
fact should have resulted in a different sentencing scheme being
utilized by the [r]e-[s]entencing [c]ourt.
Id. at 24.3
It is well-established that:
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3 While Appellant objects that his overall, aggregate sentence is excessive,
this Court notes that Appellant does not explicitly challenge the consecutive
nature of his sentences.
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The right to appeal the discretionary aspects of a sentence is not
absolute. To determine whether an appellant has properly
preserved the discretionary aspects of sentencing for appellate
review, we must conduct the following four[-]part analysis: (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. The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish a substantial
question, the appellant must show actions by the sentencing court
inconsistent with the [s]entencing [c]ode or contrary to the
fundamental norms underlying the sentencing process.
Commonwealth v. Derrickson, 242 A.3d 667, 679 (Pa. Super. 2020).
Here, Appellant filed a timely post-sentence motion and notice of appeal
which preserved the sentencing issue raised above. In addition, Appellant’s
brief complies with our rules. Furthermore, we have previously determined:
an averment that the [trial court imposed a sentence] based solely
on the seriousness of the offense and failed to consider all relevant
factors raises a substantial question and an allegation that the
court considered an impermissible sentencing factor raises a
substantial question. Moreover, a claim that the trial court failed
to consider relevant sentencing criteria, including the protection
of the public, the gravity of the underlying offense and the
rehabilitative needs of [an a]ppellant, as 42 Pa.C.S.A. § 9721(b)
requires, presents a substantial question for our review.
Id. at 680 (internal citations, quotations, and original brackets omitted).
Based on the foregoing, we will proceed to the merits of Appellant’s claims.
Our standard of review 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. In this context, an abuse
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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.
Deference is accorded to the trial court's pronouncement of
sentence because the trial court is in the best position to
determine the proper penalty for a particular offense based upon
an evaluation of the individual circumstances before it.
When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of the defendant.
Commonwealth v. Wallace, 244 A.3d 1261, 1278–1279 (Pa. Super. 2021)
(internal citations, quotations, and brackets omitted). “The balancing of the
Section 9721(b) sentencing factors is the sole province of a sentencing judge.”
Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019) (citation
omitted). “Generally, our review of a sentence is limited in these
circumstances to whether the sentencing court explicitly or implicitly
considered the [S]ection 9721(b) factors, and we may not re-weigh the
significance placed on each factor by the sentencing judge.” Commonwealth
v. Williams, 69 A.3d 735, 742 (Pa. Super. 2013) (citation omitted).
Initially, we reject Appellant’s suggestion that deportation must be
considered specifically when fashioning an individualized sentence. There is
no legal authority to support that proposition. Instead, the trial court was
required to consider all of the factors set forth in Section 9721(b), including
the protection of the public. Moreover, there is no legal requirement that the
sentencing court reevaluate the balancing of factors of Section 9721(b), or
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that the sentencing matrices change mathematically, whenever a criminal
defendant is subject to deportation. Here, upon review of the certified record,
the deportation issue was squarely addressed by the parties and the trial court
devoted substantial consideration to Appellant’s claim during resentencing. At
the resentencing hearing, the trial court recognized Appellant’s remorse
during allocution and that approximately 40 people were present to support
Appellant. N.T., 11/26/2019, at 26-27 and 44. However, the trial court found
that the “very brazen acts” of Appellant “absolutely terrorized the victims of
the various crimes over a period of several months[.]” Id. at 44. In its
subsequent opinion, the trial court emphasized that Appellant “and his
accomplices robbed several establishments and individuals at gunpoint, and
in several instances physically assaulted his victims.” Trial Court Opinion,
4/23/2020, at 5. As such, the trial court believed that its sentence was
necessary not only to protect the public, but also because of the gravity of the
offenses and the effect on the victims and community. Id. at 3. Based upon
our deferential standard of review, we may not reweigh the significance placed
on each factor by the sentencing judge.
Moreover, as Appellant acknowledges, deportation is determined after
parole.4 When fashioning an individual sentence, the trial court is required to
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4 Appellant may also be paroled into “the custody of the United States
Immigration and Customs Enforcement for deportation prior to the expiration
of [his] minimum term of imprisonment” if he qualifies under 61 Pa.C.S.A.
§ 6143.
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address the current need to protect the public at large5 and should not
consider imminent or prospective consequences that follow parole.
For all of the foregoing reasons, we discern the trial court did not abuse
its discretion in balancing the three factors set forth in Section 9721(b) in
imposing an individualized sentence. As such, there is no merit to Appellant’s
appellate sentencing claim.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2021
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5 Appellant’s argument that the trial court should consider deportation as an
alternative means of protecting the public baldly supposes that the term
“public,” as defined in Section 9721, refers only to people in the United States.
Appellant does not cite any relevant authority in support, and we decline to
read Section 9721 so narrowly.
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