Com. v. Divittore, D. ( 2019 )


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  • J-S16041-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    v.                             :
    :
    :
    DENNIS LEE DIVITTORE,                      :
    :
    Appellant               :      No. 1019 MDA 2018
    Appeal from the Judgment of Sentence Entered May 31, 2018
    in the Court of Common Pleas of Dauphin County
    Criminal Division at No(s): CP-22-CR-0001413-2017
    BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
    MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 10, 2019
    Dennis Lee Divittore (“Divittore”) appeals from the judgment of
    sentence imposed following his guilty plea to one count each of burglary,
    unlawful restraint, possessing an instrument of crime (“PIC”), and simple
    assault.1 We affirm.
    The trial court concisely summarized the relevant facts underlying this
    appeal as follows:
    [In the early morning hours of February 23, 2017, Divittore]
    entered the home of Alieski Sanchez [(hereinafter, “the victim”),]
    through a window[,] while wearing a ski mask and carrying a pry
    bar. After entering the home, [Divittore] went to the victim’s
    bedroom and jumped on top of her. A struggle between the victim
    and [Divittore] ensued. During the course of the struggle, the
    victim was struck with the pry bar [Divittore] was carrying, which
    resulted in significant bruising on her face, neck, and knees.
    [Divittore] then left the victim’s home and later returned [that
    same day]. Again, a struggle ensued and the victim was left to
    ____________________________________________
    1   18 Pa.C.S.A. §§ 3502(a)(1)(i), 2902(a)(1), 907(a), 2701(a)(1).
    J-S16041-19
    grab a knife in order to protect herself. [The police apprehended
    Divittore that same day.]
    Trial Court Opinion, 9/24/18, at 3 (citations to record omitted).
    After the Commonwealth charged Divittore with the above-mentioned
    charges, on March 29, 2018, he entered an open guilty plea to all counts.
    Prior to sentencing, the trial court ordered the preparation of a pre-sentence
    investigation report (“PSI”).
    On May 31, 2018, the trial court sentenced Divittore on his respective
    convictions as follows: burglary – four to eight years in prison; PIC – one to
    two years in prison; unlawful restraint – two years of probation; simple assault
    – no further penalty.      The trial court ordered the sentences to run
    consecutively. At the sentencing hearing, the trial court observed that the
    sentence it had imposed for burglary was “a couple of months higher than the
    standard range” of the applicable sentencing guidelines. N.T., 5/31/18, at 13.
    However, the court stated that it believed an aggravated-range sentence was
    appropriate “based on the victim impact as well as the safety of society[.]”
    
    Id. On June
    11, 2018, Divittore filed a post-sentence Motion for
    reconsideration of his sentence, asserting that it was excessive and unduly
    harsh, where the trial court failed to consider his rehabilitative needs and did
    not state sufficient reasons for the sentence on the record.        After the trial
    court denied this Motion, Divittore timely filed a Notice of appeal, followed by
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    a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of
    on appeal.
    Divittore now presents the following questions for our review:
    I. Whether the trial court committed an abuse of discretion when
    it sentenced Divittore to an aggregate period of incarceration of
    not less than five (5) years to no more than ten (10) years at a
    state correctional institut[ion,] followed by two years of
    probation?
    II. Whether the trial court illegally sentence[d] Divit[t]ore on
    [unlawful restraint,] as said [conviction] merged with [the
    burglary conviction,] according to the Criminal Information[?]
    Brief for Appellant at 4 (issues numbered).
    In his first issue, Divittore argues that the trial court abused its
    discretion by imposing a manifestly excessive aggregate sentence, where the
    court failed to adequately consider Divittore’s rehabilitative needs, history and
    character. See 
    id. at 6-8,
    12-16.
    Divittore challenges the discretionary aspects of his sentence, from
    which there is no absolute right to appeal.2 See Commonwealth v. Hill, 
    66 A.3d 359
    , 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
    preserved the sentencing challenge for appellate review, by raising it in a
    timely post-sentence motion, he must (1) include in his brief a concise
    ____________________________________________
    2  The open guilty plea Divittore entered permits him to challenge the
    discretionary aspects of his sentence. See Commonwealth v. Tirado, 
    870 A.2d 362
    , 365 n.5 (Pa. Super. 2005) (explaining that, when the plea
    agreement is open, containing no bargain for a specific or stated term of
    sentence, the defendant will not be precluded from appealing the discretionary
    aspects of his/her sentence).
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    statement of the reasons relied upon for allowance of appeal with respect to
    the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and
    (2) demonstrate that there is a substantial question that the sentence imposed
    is not appropriate under the Sentencing Code. 
    Hill, 66 A.3d at 363-64
    .
    Here, Divittore included a Rule 2119(f) Statement in his brief. See Brief
    for Appellant at 6-8. Accordingly, we will examine the Rule 2119(f) Statement
    to determine whether a substantial question exists.         See 
    Hill, supra
    .
    Divittore asserts as follows:
    Divit[t]orre’s sentence of five … to [ten] years of state
    incarceration is excessive, unreasonable and constitutes too
    severe a punishment[,] in light of the rehabilitative needs of
    Divit[t]orre[,] where the punitive measures inherent in this
    sentencing scheme could have been accomplished with the
    imposition of a lesser sentence. Specifically, Divi[t]torre asserts
    [that] the sentencing court failed to consider his relevant history
    and characteristics at sentencing when it departed from the
    standard range of the sentencing guidelines.
    Brief for Appellant at 7-8.
    The determination of what constitutes a substantial question
    must be evaluated on a case-by-case basis.          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.
    Commonwealth v. Disalvo, 
    70 A.3d 900
    , 903 (Pa. Super. 2013) (citation
    omitted); see also 42 Pa.C.S.A. § 9781(b).
    Here, Divittore’s above-mentioned claims present a substantial question
    for our review. See Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770 (Pa.
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    Super. 2015) (en banc) (stating that “an excessive sentence claim—in
    conjunction with an assertion that the [trial] court failed to consider mitigating
    factors—raises a substantial question.”) (citation omitted); Commonwealth
    v. Bonner, 
    135 A.3d 592
    , 604 (Pa. Super. 2016) (holding that a claim that
    appellant’s standard-range consecutive sentence was excessive, and the trial
    court failed to consider appellant’s rehabilitative needs, raises a substantial
    question). Accordingly, we will address the merits of Divittore’s claims.
    We review discretionary aspects of sentence claims under the following
    standard:   “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.” Commonwealth v. Barnes, 
    167 A.3d 110
    ,
    122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court
    has broad discretion in choosing the range of permissible confinement that
    best suits a particular defendant and the circumstances surrounding his or her
    crime. Commonwealth v. Walls, 
    846 A.2d 152
    , 154-55 (Pa. Super. 2004).
    The Sentencing Code sets forth the considerations a trial court must take into
    account when formulating a sentence, providing that
    the court shall follow the general principle that the sentence
    imposed should call for confinement that is consistent with the
    protection of the public, the gravity of the offense as it relates to
    the impact on the life of the victim and on the community, and
    the rehabilitative needs of the defendant.
    42 Pa.C.S.A. § 9721(b).
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    Importantly, the sentencing court in the instant case had the benefit of
    a PSI. Where a sentencing court is informed by a PSI, “it is presumed that
    the court is aware of all appropriate sentencing factors and considerations,
    and that where the court has been so informed, its discretion should not be
    disturbed.” Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1135 (Pa. Super.
    2009) (citing Commonwealth v. Devers, 
    546 A.2d 12
    , 18 (Pa. 1988)). In
    discussing Devers, this Court in Ventura explained as follows:
    In imposing sentence, the trial court is required to consider the
    particular circumstances of the offense and the character of the
    defendant. The trial court should refer to the defendant’s prior
    criminal record, age, personal characteristics, and potential for
    rehabilitation. However, where the sentencing judge had the
    benefit of a [PSI], it will be presumed that he or she was aware of
    the relevant information regarding the defendant’s character and
    weighed those considerations along with mitigating statutory
    factors. Additionally, the sentencing court must state its reasons
    for the sentence on the record. The sentencing judge can satisfy
    the requirement that reasons for imposing sentence be placed on
    the record by indicating that he or she has been informed by the
    [PSI]; thus properly considering and weighing all relevant factors.
    
    Ventura, 975 A.2d at 1135
    (citation omitted).
    Because the sentencing court here confirmed that it had reviewed
    Divittore’s PSI prior to sentencing him (see N.T., 5/31/18, at 12, and
    Sentencing Order, 5/31/18), it is presumed that the court considered all
    mitigating factors, including Divittore’s rehabilitative needs, character and
    history.   See 
    Ventura, supra
    .     Moreover, the sentencing court stated as
    follows in support of its rejection of Divittore’s excessiveness of sentence
    challenge:
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    [T]his [c]ourt explicitly stated that it was sentencing [Divittore] to
    a few months higher than the standard range because of the
    impact on the victim and for the protection of the public. In
    arriving at this decision, this [c]ourt considered all of the evidence
    presented before it by both the Commonwealth and [Divittore].
    This [c]ourt believes that the information presented to it was
    sufficient to warrant the sentence that it [imposed]. Facts
    relevant to this [c]ourt’s aggravated[-]range sentence included:
    (1) [Divittore] entered the home of the victim wearing a ski mask
    and carrying a pry bar[;] (2) [Divittore] entered the victim’s
    bedroom and jumped on top of her[;] (3) the victim suffer[ed]
    significant bruising on her face, neck, and knees as a result of a
    struggle between herself and [Divittore;] (4) [Divittore]
    reenter[ed] the victim’s home after initially leaving, and the victim
    had to defend herself by using a knife[.] In light of this evidence,
    this [c]ourt chose not to ignore the appalling nature of this crime
    and instead chose to impose a sentence it believed to be proper.
    In addressing [Divittore’s] assertion that this [c]ourt failed
    to consider his history and characteristics at his sentencing, we
    believe that [Divittore’s] history and characteristics were
    adequately considered. At [Divittore’s] sentencing[,] this [c]ourt
    allowed [Divittore] to speak and provide a letter he wrote on his
    behalf. Additionally, this [c]ourt allowed [Divittore’s] former
    girlfriend to speak on his behalf[,] and allowed [Divittore’s]
    counsel to speak on behalf of [Divittore’s] brother. This [c]ourt
    was aware of and considered the fact that [Divittore] was a
    caretaker to his [elderly] mother. While this [c]ourt considered
    all of these factors in sentencing [Divittore], they were simply not
    enough to detract from the heinous nature of [Divittore’s] crime.
    Trial Court Opinion, 9/24/18, at 4-5 (citations to record omitted).
    The sentencing court’s foregoing analysis is supported by the record,
    and we discern no abuse of the court’s discretion, nor do we find its sentence
    unreasonable or excessive, particularly in light of the seriousness of Divittore’s
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    actions.3 Accordingly, Divittore’s challenge to the discretionary aspects of his
    sentence entitles him to no relief.
    In his second issue, Divittore contends that his burglary and unlawful
    restraint convictions should have merged for sentencing purposes, and
    therefore, his sentence is illegal and must be vacated. See Brief for Appellant
    at 10-12. We disagree.
    The Crimes Code provides that
    [a] person commits the offense of burglary if, with the intent to
    commit a crime therein, the person … enters a building or occupied
    structure … that is adapted for overnight accommodations in
    which[,] at the time of the offense[,] any person is present and
    the person commits … a bodily injury crime therein[.]
    18 Pa.C.S.A. § 3502(a)(1)(i) (emphasis added); see also 
    id. § 3502(e)(1)
    (defining “bodily injury crime,” in relevant part, as “[a]n act, attempt or threat
    to commit an act which would constitute a misdemeanor or felony under …
    Chapter 27 (relating to assault)[,]” or “Chapter 29 (relating to kidnapping).”).
    Notably to Divittore’s claim, subsection 3502(d) (hereinafter, the “multiple
    convictions provision”) provides that “[a] person may not be sentenced both
    for burglary and for the offense which it was his intent to commit after the
    burglarious entry[,] or for an attempt to commit that offense, unless the
    ____________________________________________
    3 We note that at sentencing, the victim testified to the impact that Divittore’s
    crimes had upon her emotionally, stating that even though one year had
    elapsed, Divittore’s actions “mar[red] [her] entire life forever[,]” and she “still
    can’t be around people so much because [she] is so scared.” N.T., 5/31/18,
    at 3.
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    additional offense constitutes a felony of the first or second degree.”     
    Id. § 3502(d)
    (emphasis added); see also Commonwealth v. Diaz, 
    867 A.2d 1285
    , 1288 (Pa. Super. 2005) (holding that theft that occurred during course
    of burglary merges with corresponding burglary).
    Here, Divittore argues that
    simple assault is a misdemeanor under Chapter 27, and unlawful
    restraint is a misdemeanor[4] under Chapter 29; therefore, both
    would constitute a “bodily injury crime.”    Both crimes are
    misdemeanors of the second degree; therefore, in accord with
    [the multiple convictions provision], Divittore may not be
    sentenced for both burglary and for either simple assault or
    unlawful restraint.
    Brief for Appellant at 12 (footnote added, some capitalization omitted).
    “[A] claim that crimes should have merged for purposes of sentencing
    challenges the legality of a sentence and, thus, cannot be waived.”
    Commonwealth v. Parham, 
    969 A.2d 629
    , 631 (Pa. Super. 2009).
    Therefore, “our standard of review is de novo and our scope of review is
    plenary.” Commonwealth v. Quinta, 
    56 A.3d 399
    , 400 (Pa. Super. 2012).
    The merger doctrine mandates that
    [n]o crimes shall merge for sentencing purposes unless the crimes
    arise from a single criminal act and all of the statutory elements
    of one offense are included in the statutory elements of the other
    offense. Where crimes merge for sentencing purposes, the court
    may sentence the defendant only on the higher graded offense.
    ____________________________________________
    4 The Criminal Information in this case incorrectly stated that the count of
    unlawful restraint, under 18 Pa.C.S.A. § 2902(a)(1), was graded as a second-
    degree felony. In actuality, subsection (a)(1) grades the offense as a first-
    degree misdemeanor.
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    42 Pa.C.S.A. § 9765. Thus, merger is prohibited “unless two distinct facts are
    present:   1) the crimes arise from a single criminal act; and 2) all of the
    statutory elements of one of the offenses are included in the statutory
    elements of the other.” Commonwealth v. Baldwin, 
    985 A.2d 830
    , 833
    (Pa. 2009).
    In its Opinion, the trial court cogently addressed Divittore’s claim as
    follows:
    Here, the charges of burglary and unlawful restraint did not arise
    from a single criminal act. [Divittore] entered the victim’s home
    on the evening in question, wearing a ski mask and carrying a pry
    bar; two facts that demonstrate he was entering the home for the
    purpose of burglarizing it. Additionally, it was [Divittore’s] counsel
    who made it clear at sentencing that [Divittore] had lost his job
    [prior to the incident] and was drinking on the night of the
    incident; seemingly attempting to assert that [Divittore had]
    entered the home with the intent to find valuables and not attack
    the victim. It was not until [Divittore] entered the victim’s
    bedroom and jumped on top of her, that she was unlawfully
    restrained. Her attempts to resist his restraint was a wholly
    different crime from the initial burglary. Put more simply, the
    burglary was the initial crime and it was not until after that, when
    the victim attempted to get away from [Divittore,] that she was
    unlawfully restrained. Therefore, it is this [c]ourt’s belief that the
    crimes of burglary and unlawful restraint did not arise from one
    single criminal act[,] but instead[,] from two separate ones.
    In addressing the second requirement under [42 Pa.C.S.A.
    § 
    9765, supra
    ], the statutory elements of burglary and unlawful
    restraint are not the same, as evidenced by the definitions below.
    Even if the … crimes of burglary and unlawful restraint did arise
    out of the same criminal act, there is no denying that neither the
    crime of burglary nor unlawful restraint possess the same
    statutory elements.
    Under 18 Pa.[C.S.A.] § 3502[(a)(1)(i),] a burglary occurs
    when:
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    with the intent to commit a crime therein, the person …
    enters a building or occupied structure … that is adapted
    for overnight accommodations in which[,] at the time of
    the offense[,] any person is present and the person
    commits … a bodily injury crime therein[.]
    Under 18 Pa.[C.S.A.] § 2902[(a)(1),] unlawful restraint occurs
    when:
    a person … knowingly restrains another unlawfully in
    circumstances exposing him to risk of serious bodily
    injury[.]
    Trial Court Opinion, 9/24/18, at 5 (emphasis added).
    We agree with the trial court’s foregoing rationale, which is amply
    supported by record and the law, and therefore affirm on this basis in rejecting
    Divittore’s legality challenge, see 
    id., with the
    following addendum.
    Contrary to Divittore’s argument, the multiple convictions provision is
    unavailing to his claim of merger. That provision states, in relevant part, that
    “[a] person may not be sentenced both for burglary and for the offense which
    it was his intent to commit after the burglarious entry ….”        18 Pa.C.S.A.
    § 3502(d) (emphasis added).5 On this matter, the trial court found as follows:
    “[Divittore] entered the [victim’s] home with the intent to find valuables and
    not attack the victim. … [The victim’s] attempts to resist his restraint was a
    ____________________________________________
    5  In the instant case, the Information did not specify what particular crime
    Divittore intended to commit after his illegal entry into the victim’s residence.
    See Commonwealth v. Alston, 
    651 A.2d 1092
    , 1095 (Pa. 1994) (stating
    that, “to secure a conviction for burglary,” the Commonwealth need not even
    “allege or prove what particular crime [a]ppellant intended to commit after his
    [illegal] entry into [a] private residence.”).
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    wholly different crime from the initial burglary.” Trial Court Opinion, 9/24/18,
    at 5 (emphasis added); cf. Commonwealth v. Benchoff, 
    700 A.2d 1289
    ,
    1294 (Pa. Super. 1997) (holding that it is not permissible for trial court to
    sentence defendant for both burglary and simple assault, where simple assault
    is the offense which defendant intended to commit upon gaining entry into the
    victim’s house). Therefore, the multiple convictions provision is inapplicable
    to the count of unlawful restraint against Divittore, and his second issue thus
    fails.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 05/10/2019
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