Com. v. Davidowski, A. ( 2017 )

J-S29011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANNA BEVERLY DAVIDOWSKI
Appellant No. 2639 EDA 2016
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000321-2016,
CP-15-CR-0003572-2015
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 09, 2017
Anna B. Davidowski appeals from her judgment of sentence, entered
in the Court of Common Pleas of Chester County, following her conviction of
two counts of driving under the influence (DUI).1 After careful review, we
affirm.
The facts and procedural history of this case have been set forth by
the trial court as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Driving under influence of alcohol or controlled substance, 75 Pa.C.S.A. §
3802(a), a misdemeanor of the second degree, and driving under influence
of alcohol or controlled substance, 75 Pa.C.S.A. § 3802(a), a misdemeanor
of the first degree.
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On March 20, 2013, [Davidowski] was arrested in Berks County
for [DUI]. She ultimately received [accelerated rehabilitative
disposition (ARD)] for that conviction. She was incident-free until
January 14, 2015. On that date, [Davidowski] was pulled over
by police in Chester County after she was seen driving on [two]
flat tires. When the police officer approached her, he detected a
strong odor of alcohol on her breath. He also noticed that she
had glassy, bloodshot eyes, slurred speech[] and was completely
unaware that there was a problem with her vehicle. She was
charged with DUI under term 3572-15.
During the next [eleven] months, [Davidowski] was arrested in
Berks County for DUI on three separate occasions. Those
incidents occurred on April 18, 2015, September 25, 2015, and
November 23, 2015. During these incidents, [Davidowski’s]
driving was beyond reckless. She was very lucky that she did
not seriously injure either herself or anyone else.
On November 24, 2015, the day after her fourth arrest for DUI
in Berks County, [Davidowski] was again arrested in Chester
County for DUI. In that case, she crossed over the double
yellow lines of Route 10, which is a very heavily travelled road,
and she hit a tractor-trailer head-on, causing extensive damages
to both vehicles. Luckily, the truck driver was not hurt.
[Davidowski], on the other hand, suffered a broken sternum and
a bloody lip. The truck driver stated that [Davidowski’s] head
was down immediately prior to the accident as if she was passed
out. Following the accident, [Davidowski] was abrasive and
aggressive toward the truck driver and to police officers who
arrived on the scene. She was charged with DUI under term
number 321-16 for this incident and her bail was revoked.
On June 2, 2016, [Davidowski] entered an open guilty plea to
the two counts of DUI occurring in Chester County. Sentencing
was deferred until July 22, 2016. On that date, she was
sentenced to [one to two] years’ imprisonment for the January
14, 2015 incident[] and a consecutive [two to four] years’
imprisonment for the November 24, 2015 incident. Both of
these sentences were to run consecutively to the [one to five]
year sentence she received in Berks County for the charges
pending against here there.
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On July 29, 2016, [Davidowski] filed a [p]etition for
[r]econsideration and [r]eduction of [s]entence. Her [p]etition
was denied by court [o]rder dated August 3, 2016.
Trial Court Opinion, 12/14/16, at 1-3 (internal citations omitted).
On July 29, 2016, Davidowski filed a petition for reconsideration and
reduction of sentence, which the trial court denied. See Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa. Super 2003) (issues challenging
discretionary aspects of sentencing must be raised in post-sentence motion
to modify sentence imposed or by raising claim during sentencing
proceedings). The instant, timely appeal followed, and pursuant to Pa.R.A.P.
1925(b), Davidowski filed a court-ordered concise statement of errors
complained of on appeal on September 13, 2016. Davidowski raises the
following question for our review:
Did the trial court abuse its discretion when it imposed an
aggregate sentence of not less than three (3) years[’] nor more
than six (6) years’ state incarceration to be served consecutively
to a one (1) year to five (5) year sentence imposed by the Berks
County Court of Common Pleas? In imposing the foregoing
sentence, did the trial court fail to give appropriate weight to
mitigating factors?
Brief of Appellant, at 4.
Our standard upon review of a decision of a sentencing court 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 abused 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,
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Bowen, 975 A.2d 1120, 1122 n.3 (Pa. Super. 2009)
(citation omitted).
Davidowski raises a challenge to the discretionary aspects of her
sentence. When the discretionary aspects of a judgment of sentence are
questioned, an appeal is not guaranteed as of right. Commonwealth v.
Moore, 617 A.2d 8, 11 (Pa. Super. 1992). Rather, appellant must meet
four criteria before an appeal may be taken: (1) the appeal must be timely;
(2) appellant must have preserved his issue(s); (3) appellant must set forth
in his brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
sentence, and (4) the concise statement must raise a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013). This Court
will find a “substantial question” and review the discretionary aspects of a
sentence only where an aggrieved party can clearly articulate why the
sentence imposed by the trial court compromises the sentencing scheme as
a whole. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). See also
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (“We will
be inclined to recognize a substantial question where an appellant advances
a colorable argument that the trial court’s actions are inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms which underlie the sentencing process”).
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Here, Davidowski has included in her brief a statement pursuant to
Rule 2119(f), setting forth the reasons in support of her appeal. She claims
that the trial court abused its discretion by fashioning a sentence that is
outside of the sentencing guidelines, above the applicable mandatory
minimum sentences and unreasonable pursuant to 42 Pa.C.S.A. §
9781(c)(3).2 We find that this issue raises a substantial question, and
therefore, proceed to review its merits. See Commonwealth v. Cook, 941
A.2d 7, 11 (Pa. Super. 2007) (claim that sentencing court misapplied
sentencing guidelines presents substantial question, as required for appellate
court to reach merits of discretionary sentencing issue).
Section 9781(c) of the Sentencing Code provides, in relevant part, that
“[t]he appellate court shall vacate the sentence and remand the case to the
sentencing court with instructions if it finds . . . (3) the sentencing court
sentenced outside the sentencing guidelines and the sentence is
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2
Davidowski also appears to challenge The Honorable Patrick Carmody’s
order that her sentence was ordered to run consecutively to her Berks
County sentence. Brief of Appellant, at 15. It is well established that under
42 Pa.C.S.A. § 9721 the sentencing court has the discretion to impose its
sentence concurrently or consecutively to other sentences imposed at the
same time or to existing sentences. Commonwealth v. Mastromarino, 2
A.3d 581, 586 (Pa. Super. 2010). Any challenge to the exercise of this
discretion does not ordinarily raise a substantial question unless the overall
sentence is excessive. Id. (citing Commonwealth v. Marts, 889 A.2d 608,
612 (Pa. Super. 2005)). The consecutive nature of Davidowski’s sentences
does not render her overall sentence excessive. Thus, we decline to find
that this issue raises a substantial question for our review. Mastromarino,
supra.-5-
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unreasonable. In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.” 42 Pa.C.S.A. § 9781(c)(3). In
making an unreasonableness inquiry, this Court is to consider four factors:
(1) the nature and circumstance of the offense and the history and character
of the defendant; (2) the opportunity of the sentencing court to observe the
defendant, including any presentence investigation; (3) the finding upon
which the trial court based defendant’s sentence; and (4) the sentencing
guidelines. See 42 Pa.C.S.A. § 9781(d).
A permissible and legal sentence under statutory law is not rendered
improper simply because the sentence exceeds the sentencing guidelines;
the guidelines do not supersede the statutes. Commonwealth v. Johnson,
873 A.2d 704, 709 (Pa. Super. 2005). The trial court, while required to
consider the sentencing guidelines and the individual whose liberty is at
stake, must also consider other factors, including the protection of the
public, the gravity of the offense in relation to impact on victims and
community, and the rehabilitative needs of the defendant. Id.Davidowski’s underlying convictions were for her fourth and fifth DUI
offenses, which are collectively punishable by an aggregate term of
imprisonment not to exceed seven years. See 18 Pa.C.S.A. § 106(b)(6) and
(7). Accordingly, the trial court could have imposed a statutory maximum
term of imprisonment of seven years. Here, the trial court sentenced
Davidowski to three to six years’ imprisonment, a sentence that falls outside
the sentencing guidelines, but falls short of the statutory maximum.
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In fashioning Davidowski’s sentence, the sentencing court took into
consideration all relevant factors, including the protection of the public, the
gravity of the offense, Davidowski’s rehabilitative needs and the information
set forth in Davidowski’s memorandum in aid of sentencing.3 Trial Court
Opinion, 12/14/16, at 5. The trial court, in a written statement, also noted
that two of Davidowski’s five arrests occurred on back-to-back days and that
she had five DUI arrests in a timespan of less than one year, most of which
occurred while on bail for her January 14, 2015 DUI arrest in Berks County. 4
Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (if trial court imposes
sentence outside of sentencing guidelines, it must provide written statement
setting forth reason for deviation, and failure to do so is grounds for
resentencing). Moreover, at Davidowski’s sentencing hearing, the Honorable
Patrick Carmody explained the sentencing court’s reasons for imposing a
sentence deviating upward from the Sentencing Guidelines as follows:
Sentencing guidelines are simply guidelines. They’re totally
inadequate to cover the situation involved here.
...
[You are] using [your car] like a personal bumper car when [you
are] driving around drunk. And there by the grace of God you
stand here today.
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3
Davidowski waived her right to a pre-sentence investigation (PSI) report.
N.T. Sentencing, 12/20/2016, at 4-5.
4
Trial Court Order Denying Petition for Reconsideration and Reduction of
Sentence, 8/3/16, at 1.
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The protection of the public in this case is extremely
needed because you did everything – each one of these arrest
is what could be called a wake-up call. And you just kept getting
back in the car and driving and endangering people . . . I will tell
you that I’ve been in the criminal justice system for over [thirty]
years. [It is] rare that [I have] ever seen a case with such
horrifically reckless behavior, extended behavior for such a
period of time.
N.T. Sentencing Hearing, 6/22/16, at 33-34 (emphasis added). In light of
the foregoing, we can discern no abuse of discretion in the court’s sentence.
Johnson, supra.
Davidowski also raises the issue of whether in imposing her sentence,
the trial court failed to give appropriate weight to mitigating factors. “This
court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Disalvo, 70 A.3d at 903 (citing Commonwealth v. Downing,
990 A.2d 788, 794 (Pa. Super. 2010)). Accordingly, we conclude
Davidowski’s argument that the sentencing court failed to give adequate
weight to mitigating factors does not raise a substantial question appropriate
for our review. See Id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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