Com. v. Streeter, C. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CARL STREETER, :
:
Appellant : No. 3092 EDA 2016
Appeal from the Judgment of Sentence August 30, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-CR-0000368-2016
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 31, 2017
Carl Streeter (“Streeter”) appeals from the judgment of sentence
imposed following his guilty plea to one count of access device fraud. See
18 Pa.C.S.A. § 4106(a)(1). We affirm.
On November 25, 2015, Kathleen Ferrigno (“Ferrigno”) reported
fraudulent use of her Lowe’s credit card to Officer Brian Hendrzak at the
Richland Township Police Department. She cited five unauthorized charges,
totaling $713.69, in November 2015 at the Lowe’s store located at 1001
South West End Boulevard in Quakertown, Bucks County, Pennsylvania.
Ferrigno believed that Streeter, who lived with her, had taken her credit card
and made the unauthorized purchases. After reviewing the surveillance
video from Lowe’s, it was confirmed that Streeter was the person who had
used Ferrigno’s credit card.
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On December 1, 2015, Streeter was charged with one count of access
device fraud. On June 30, 2016, Streeter entered a guilty plea to one count
of access device fraud, a felony in the third degree. On the same date, the
trial court sentenced Streeter to three and one-half years to seven years in
prison.1 The trial court also ordered Streeter to pay restitution to Ferrigno
and Lowe’s.
Streeter filed a timely Motion to Modify and Reconsider Sentence,
which the trial court granted in part and denied in part. The trial court
granted Streeter’s request to include in his sentence, an RRRI minimum of
35 months. All other aspects of his Motion were denied. Streeter filed a
timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of Errors Complained of on Appeal.
On appeal, Streeter raises the following questions for our review:
1.) Did the trial court abuse its discretion by imposing a
sentence that deviated above the aggravated range of the
sentencing guidelines and failed to state adequate reasons on
the record for the upward deviation?
2.) Did the trial court abuse its discretion by imposing a
manifestly excessive and unjust sentence that deviated above
the aggravated range of the sentencing guidelines and failed to
take into consideration the protection of the public, the gravity of
1
The trial court imposed the statutory maximum sentence, which was above
the aggravated range of the guidelines. See Trial Court Opinion, 12/14/16,
at 5 n.3 (noting that “[t]he guidelines applicable in [Streeter’s] case were as
follows: mitigated range – 3 months; standard range – 6 to 16 months;
aggravated range – 25 months”); see also 18 Pa.C.S.A. § 1103(3) (stating
that a person may be sentenced, “[i]n the case of a felony in the third
degree, for a term which shall be fixed by the court at not more than seven
years”).
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the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of
[Streeter]?
Brief for Appellant at 4 (capitalization omitted).
Streeter challenges the discretionary aspects of his sentence. Brief for
Appellant at 10.
An appellant challenging the discretionary aspects of the
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (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 or modify sentence, see
Pa.R.Crim.P. [720]; (3) whether the 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, 42 Pa.C.S.A. § 9781(b).
***
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. Moury, 992 A.2d. 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Streeter filed a timely Notice of Appeal, raised his claims in a
timely Motion to Modify and Reconsider Sentence, and included a Rule
2119(f) Statement in his brief. Further, Streeter’s claim that the trial court
imposed an excessive and unjust sentence and failed to offer specific
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reasons for the sentence as required by 42 Pa.C.S.A. § 9781(b) raises a
substantial question. See Brief for Appellant at 10; see also
Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (stating
that “an allegation that the court failed to state adequate reasons on the
record for imposing an aggravated-range sentence … raises a substantial
question for our review.”). Thus, we will review Streeter’s sentencing claim.
Our standard of review is as follows:
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 judgement for reasons of partiality, prejudice, bias,
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(citation omitted).
The Sentencing Code provides courts guidance with regard to its
sentencing provisions:
In selecting from the alternatives set forth in subsection (a), 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. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing….
42 Pa.C.S.A. § 9721(b).
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“[I]t is important to remember that the sentencing guidelines are
advisory in nature.” Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa.
Super. 2012). “In every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in open court a
contemporaneous statement of reasons in support of its sentence.” Id. at
1263-64.
The statute requires a trial judge who intends to sentence a
defendant outside of the guidelines to demonstrate on the
record, as a proper starting point, [its] awareness of the
sentencing guidelines. Having done so, the sentencing court
may deviate from the guidelines, if necessary, to fashion a
sentence which takes into account the protection of the public,
the rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community, so long as [it] also states of record
the factual basis and specific reasons which compelled [it] to
deviate from the guideline range.
Id. at 1264 (citation omitted).
“[I]f the sentencing court proffers reasons indicating that its decision
to depart from the guidelines is not [unreasonable], we must affirm a
sentence that falls outside those guidelines.” Id. (citations and emphasis
omitted).
Here, the trial court considered Streeter’s mental health history and
his drug problem. See N.T., 6/30/16, at 28-36. The trial court noted that
Ferrigno, a 69-year-old disabled woman, allowed Streeter to live with her to
help him with his drug addiction and mental health problems. Id. at 7-8,
29-30. The trial court noted Streeter’s victimization of the person that was
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attempting to assist him and help him get back on his feet. Id. at 30. The
trial court also addressed the risk to the community, Streeter’s prior criminal
history and rehabilitation needs. Id. 31-32. The trial court indicated that
Streeter’s previous two-year prison term was not rehabilitative and did not
act as a deterrent. Id. at 33. The trial court noted that Streeter never
demonstrated a commitment to drug or mental health rehabilitation. Id. at
29-32. Indeed, the trial court pointed out that Streeter only sought
treatment in an effort to gain leniency from the court. Id. at 9, 33. The
trial court further stated that Streeter’s actions had an adverse impact on his
children. Id. at 33. The trial court indicated Streeter required a long prison
term to complete a drug treatment program, and to prevent victimizing
anyone else and because of his lack of remorse. Id. at 32-33. Thus, upon
our review of the record, we conclude that the trial court articulated reasons
for the sentence, in excess of the guideline range, and therefore did not
abuse is discretion. See Bowen, 55 A.3d at 1265.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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