Com. v. Hill, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DUSTIN A. HILL
Appellant No. 1294 MDA 2020
Appeal from the Judgment of Sentence entered May 5, 2020
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0003670-2018
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DUSTIN A. HILL
Appellant No. 1295 MDA 2020
Appeal from the Judgments of Sentence entered May 5, 2020
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0003659-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: MAY 19, 2021
Appellant, Dustin A. Hill, appeals from the judgments of sentence
imposed in the Court of Common Pleas of Luzerne County on May 5, 2020.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Counsel has filed a brief and petition to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), challenging the discretionary aspects and the legality
of Appellant’s sentences. We grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentences.
The factual and procedural background is not at issue. The trial court
summarized it as follows.
This matter arises from two informations filed by the Luzerne
County District Attorney against [Appellant]. Information
number 3659 of 2018 was filed on November 20, 2018 and
charged [Appellant] with fleeing or attempting to elude police
officer, unauthorized use of automobiles and other vehicles,
habitual offenders and driving while operating privilege is
suspended or revoked. These charges resulted from a high
speed pursuit of [Appellant] while he was operating a vehicle as
a habitual offender with his license suspended due to a DUI
conviction and without the consent of the owner.
Information number 3670 of 2018 was filed on November 20,
2018 and charged [Appellant] with possession with intent to
deliver a controlled substance. This charge resulted from a
traffic stop during which [Appellant] fled from the police and
discarded fifteen bundles of fentanyl as he ran.
[Appellant] pled guilty to fleeing or attempting to elude police
officer on September 16, 2019 and possession with intent to
deliver a controlled substance on September 30, 2019.
Sentencing occurred on May 5, 2020. [Appellant] received a
sentence of 48 to 96 months on the possession with intent
charge and a consecutive sentence of 12 to 24 months on the
fleeing or attempting to elude charge. Both sentences were
within the standard range of the sentencing guidelines based on
[Appellant]’s prior record score of five. [Appellant] received
credit for 591 days of incarceration served prior to sentencing.
On May 14, 2020, a motion for reconsideration was filed on
behalf of [Appellant]. The motion requested a Recidivism Risk
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Reduction Incentive sentence as well as concurrent sentences.
This motion was denied on September 9, 2020.
Timely notices of appeal were filed on behalf of [Appellant] on
October 5, 2020. Orders were then issued by [the trial court] on
October 6, 2020 which required that a Concise Statement of
Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
be filed by [Appellant] within twenty-one days. Appellate
counsel complied with the order by filing concise statements on
October 26, 2020. In the statements, appellate counsel
indicated his intention to file an Anders brief since there were
no “non-frivolous” issues to be raised on appeal.
Trial Court Opinion, 12/23/20, at 1-2.
The Anders brief challenges the legality and the discretionary aspects
of Appellant’s sentences. Before we address the merits of the challenges,
however, we must consider the adequacy of counsel’s compliance with
Anders and Santiago. Our Supreme Court requires counsel to do the
following.
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: (1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
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that the appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
Counsel’s brief complies with these requirements by (1) providing a
summary of the procedural history and facts; (2) referring to matters of
record relevant to this appeal; and (3) explaining why the appeal is
frivolous. Counsel also sent his brief to Appellant with a letter advising him
of the rights listed in Orellana. Accordingly, all of Anders’ requirements
are satisfied.
Appellant first argues that the sentencing court erred in not
considering Appellant eligible for the Recidivism Risk Reduction Incentive
(RRRI) program.
This Court has held that an attack upon the power of a court to
impose a given sentence is a challenge to the legality of a
sentence. Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa.
Super. 2004); see also Commonwealth v. Hansley, 994 A.2d
1150 (Pa. Super. 2010) (challenge to trial court’s imposition of
RRRI sentence with mandatory minimum sentence constitutes
challenge to trial court’s sentencing authority).
Commonwealth v. Robinson, 7 A.3d 868, 870 (Pa. Super. 2010). “Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.
2009) (citation omitted).
RRRI eligibility is set forth in 61 Pa.C.S.A. § 4503:
“Eligible person.” A defendant or inmate convicted of a criminal
offense who will be committed to the custody of the department
and who meets all of the following eligibility requirements:
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(1) Does not demonstrate a history of present or past
violent behavior.
(2) Has not been subject to a sentence the calculation of
which includes an enhancement for the use of a deadly
weapon as defined under law or the sentencing guidelines
promulgated by the Pennsylvania Commission on
Sentencing or the attorney for the Commonwealth has not
demonstrated that the defendant has been found guilty of
or was convicted of an offense involving a deadly weapon
or offense under 18 Pa.C.S. Ch. 61 (relating to firearms
and other dangerous articles) or the equivalent offense
under the laws of the United States or one of its territories
or possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation or
criminal attempt, criminal solicitation or criminal
conspiracy to commit any of these offenses.
(3) Has not been found guilty of or previously convicted of
or adjudicated delinquent for or criminal attempt, criminal
solicitation or criminal conspiracy to commit murder, a
crime of violence as defined in 42 Pa.C.S. § 9714(g)
(relating to sentences for second and subsequent offenses)
or a personal injury crime as defined under section 103 of
the act of November 24, 1998 (P.L. 882, No. 111),[1]
known as the Crime Victims Act, except for an offense
under 18 Pa.C.S. § 2701 (relating to simple assault) when
the offense is a misdemeanor of the third degree, or an
equivalent offense under the laws of the United States or
one of its territories or possessions, another state, the
District of Columbia, the Commonwealth of Puerto Rico or
a foreign nation.
(4) Has not been found guilty or previously convicted or
adjudicated delinquent for violating any of the following
provisions or an equivalent offense under the laws of the
United States or one of its territories or possessions,
another state, the District of Columbia, the Commonwealth
____________________________________________
1“Personal injury crime” is defined as, inter alia, "an act, attempt or threat to
commit an act which would constitute a misdemeanor or felony under the
following: . . . 18 Pa.C.S.A. Ch. 27 (relating to assault).” 18 P.S. § 11.103.
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of Puerto Rico or a foreign nation or criminal attempt,
criminal solicitation or criminal conspiracy to commit any
of these offenses:
18 Pa.C.S. § 4302(a) (relating to incest).
18 Pa.C.S. § 5901 (relating to open lewdness).
18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
pornography).
Received a criminal sentence pursuant to 42 Pa.C.S. §
9712.1 (relating to sentences for certain drug offenses
committed with firearms).
Any offense listed under 42 Pa.C.S. Ch. 97 Subch. H
(relating to registration of sexual offenders) or I (relating
to continued registration of sexual offenders).
Drug trafficking as defined in section 4103 (relating to
definitions).
(5) Is not awaiting trial or sentencing for additional criminal
charges, if a conviction or sentence on the additional charges
would cause the defendant to become ineligible under this
definition.
(6) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 13, imd. effective.
61 Pa.C.S. § 4503(1)–(6) (footnotes omitted).
The court is required to ascertain whether the defendant is eligible for
a RRRI sentence:
(b.1) Recidivism risk reduction incentive minimum sentence.--
The court shall determine if the defendant is eligible for a
recidivism risk reduction incentive minimum sentence under 61
Pa.C.S. Ch. 45 (relating to recidivism risk reduction incentive).
If the defendant is eligible, the court shall impose a recidivism
risk reduction incentive minimum sentence in addition to a
minimum sentence and maximum sentence except, if the
defendant was previously sentenced to two or more recidivism
risk reduction incentive minimum sentences, the court shall have
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the discretion to impose a sentence with no recidivism risk
reduction incentive minimum.
42 Pa.C.S. § 9756(b.1).
Instantly, the record shows that Appellant’s eligibility was raised at the
sentencing hearing. Indeed, in response to counsel’s argument that
Appellant was eligible for RRRI, the sentencing court, relying on the
presentence investigation report, noted that he was not. N.T., 5/5/20, at
12-14. Thus, at sentencing, the trial court determined that Appellant was
not eligible for the RRRI program, but it did not elaborate on the reasons.
Trial counsel, while reiterating that Appellant was eligible for RRRI, did not
challenge the court’s determination or its reliance on the presentence
investigation report. Id. In his brief in response to the Anders Brief,
without much elaboration, Appellant stated that he “did not possess a
conviction/sentence for an offense that would disqualify him from
participation in RRRI[.]” Response, 2/19/21, at 11-12. The record,
however, shows otherwise.
In its order denying Appellant’s motion for reconsideration, the trial
court noted:
[Appellant] is not eligible for a [RRRI] sentence as a result of his
guilty to recklessly endangering another person on case number
1579 of 2016. To be eligible for [a] RRRI sentence, a defendant
must not have been found guilty of a personal injury crime as
defined in 18 P.S. Section 11.103. Person injury crimes as
defined by Section 11.103 include Chapter 27 offenses.
Recklessly endangering another person is a chapter 27 offense,
See 18 Pa.C.S.A. [§] 2705.
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Order, 9/9/20, at 1.
We agree. On January 6, 2017, Appellant pled guilty to recklessly
endangering another person, graded as M2, for which, on March 1, 2017, he
was sentenced to three to six months’ imprisonment. This 2017 recklessly
endangering another person conviction makes Appellant ineligible for the
RRRI program. See Commonwealth v. Garzone, 993 A.2d 1245 (Pa.
Super. 2010). In Garzone, we noted:
[A]ssuming, arguendo, the RRRI is applicable to [a]ppellant’s
case, [a]ppellant is not an eligible offender since he pled guilty
to recklessly endangering another person. See 61 Pa.C.S.A.
§ 4503(3) (a defendant is an eligible offender if the “has not
been found guilty of or previously convicted of or adjudicated
delinquent for or an attempt or conspiracy to commit a personal
injury crime as defined under section 103 of the act of November
24, 1998, [which is found at 18 P.S. § 11.11.103].”); 18 P.S. §
11.103 (defining “personal injury crime” to include those found
in 18 Pa.C.S. Ch.27); 18 Pa.C.S.A. § 2705 (setting forth the
crime of recklessly endangering another person).
Id. at 1254 n. 7.
In light of the foregoing, we conclude that the legality of sentence
claim is without merit.
Next, as noted, Appellant argues that the trial court abused its
discretion by failing to run the sentence imposed at 3659-2018 concurrently
with the sentence imposed at 3670-2018.2 This issue implicates the
____________________________________________
2 In the Anders Brief and Appellant’s response to the Anders Brief,
Appellant argues that the trial court erred in applying an offense gravity
score (OGS) of 9, rather than 8, when calculating his sentence at 3670-
(Footnote Continued Next Page)
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discretionary aspects of his sentence. Commonwealth v. Moury, 992 A.2d
162, 169 (Pa. Super. 2010) (challenging the imposition of consecutive
sentences implicates the discretionary aspects of the sentence).
Because “there is no absolute right to appeal when challenging the
discretionary aspect of a sentence,” Commonwealth v. Dodge, 77 A.3d
1263, 1268 (Pa. Super. 2013), an appellant challenging the discretionary
aspects of a sentence must invoke this Court’s jurisdiction by satisfying a
four-part test. We must determine: 1) whether the appellant has filed a
(Footnote Continued) _______________________
2018. The issue is waived because it was not raised before the trial court in
Appellant’s motion for reconsideration. See Pa.R.A.P. 302(a).
In any event, even if properly before us, Appellant would not be entitled to
relief. First, a challenge to the calculation of the OGS implicates a challenge
to the discretionary aspects of his sentence. See, e.g., Commonwealth v.
Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc) (“misapplication of
the Sentencing Guidelines constitutes a challenge to the discretionary
aspects of sentence”).
As noted, Appellant argues that the trial court should have applied offense
OGS 8, as opposed to OGS 9. According to Appellant, the trial court should
have applied the sentencing guidelines in force at the time of sentencing, not
those in force at the time of the offense.
Pursuant to 204 Pa. Code § 303.1(c), the applicable sentencing guidelines
edition is determined not by the date of sentencing, but by the date of the
offense. See also Commonwealth v. Kimbrough, 872 A.2d 1244, 1263
(Pa. Super. 2005) (same). Under the edition in force at the time the
underlying crime was committed (here September 23, 2018), the OGS for
possession with intent to deliver was 9. Under the edition in force at the
time of sentence, the OGS for possession with intent to deliver was 8. The
trial court, which applied the OGS as determined at the time of the
commission of the crime, did not err in applying the OGS 9. The claim has
no merit.
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timely notice of appeal; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; (3) whether
the 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. Moury, 992 A.2d at 169-70.
For purposes of our review, we accept that Appellant has met the first
three requirements of the above test. Therefore, we must determine
whether Appellant raised a substantial question. Whether a particular issue
constitutes a substantial question regarding the appropriateness of sentence
is a question to be evaluated on a case-by-case basis. See, e.g.,
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001), appeal
denied, 796 A.2d 979 (Pa. 2002).
As noted in Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.
Super. 2010),
[a] substantial question will be found where an appellant
advances a colorable argument that the sentence imposed is
either inconsistent with a specific provision of the Sentencing
Code or is contrary to the fundamental norms which underlie the
sentencing process. At a minimum, the [Pa. R.A.P.] 2119(f)
statement must articulate what particular provision of the code
is violated, what fundamental norms the sentence violates, and
the manner in which it violates that norm.
Id. at 585-86 (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
A review of Appellant’s statement of questions and his Pa.R.A.P.
2119(f) statement reveals that Appellant failed “to articulate what particular
provision of the code is violated, what fundamental norms the sentence
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violates, and the manner in which it violates that norm.” The most we can
gather from Appellant’s statement is a generic complaint concerning the
length of the sentence due to the imposition of consecutive sentences and
the failure to consider certain mitigating factors.
Regarding the imposition of consecutive sentences, it is well
established that “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.”
Moury, 992 A.2d at 171-72 (emphasis added); see also Commonwealth
v. Dodge, 77 A.3d at 1270 (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.”). Appellant failed to explain why the instant
sentence is “unduly harsh, considering the nature of the crimes and the
length of imprisonment,” Moury, supra, or why the sentence, which falls
within the sentencing guidelines, is “clearly unreasonable” under the
circumstances. Dodge, supra.
Similarly, Appellant failed to raise a substantial question regarding the
sentencing court’s alleged failure to consider Appellant’s acceptance of
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responsibility for the crimes and its failure to account for his addiction. This
Court has held on numerous occasions that an allegation that a sentencing
court failed to consider or did not adequately consider mitigating factors
does not raise a substantial question for our review. See, e.g.,
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999).3
Even if we were to find that Appellant raised a substantial question for
our review, he would not be entitled to relief. Indeed, the record shows that
Appellant was sentenced “in the low end of the standard range,” N.T.
Sentencing, 5/20/20, at 13, and that the sentencing court had the benefit of
a presentence investigation report. As such, we presume that it was “aware
of all appropriate sentencing factors and considerations,” and we will not
disturb the sentencing court’s discretion. Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers,
546 A.2d 12 (Pa. 1988)). As we indicated in Moury, 992 A.2d at 171,
“where the sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, we will not consider the sentence
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3 A review of Appellant’s argument in support of his claim suggests that
Appellant is mostly dissatisfied with the way the sentencing court handled
the mitigating circumstances. It is well established, however, that mere
dissatisfaction with a sentence is not enough to trigger our jurisdiction.
Moury, 992 A.2d at 175 (“court[’s] refus[al] to weigh the proposed
mitigating factors as [a]ppellant wished, absent more, does not raise a
substantial question.”).
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excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.
2011).
In light of the foregoing, Appellant’s claim that the sentencing court
abused its discretion in fashioning his sentence would be without merit.
We have conducted an independent review of the record and have
addressed Appellant’s arguments on appeal. Based on our conclusions
above, we agree with Appellant’s counsel that the issue Appellant seeks to
litigate in this appeal is without merit, and our independent review of the
record has not revealed any other meritorious issues. We affirm the
judgment of sentence and grant counsel’s application to withdraw.
Judgments of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/19/2021
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