Com. v. Petrillo, H. ( 2017 )

J-S54023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HANK CALVIN PETRILLO
Appellant No. 131 WDA 2017
Appeal from the Judgment of Sentence November 30, 2016
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000381-2016
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 16, 2017
Hank Calvin Petrillo appeals from the November 30, 2016 judgment of
sentence entered in the Clearfield County Court of Common Pleas following
his conviction for possession with intent to deliver a controlled substance
(“PWID”) and conspiracy to commit PWID.1 We affirm.
The trial court set forth the history of this case as follows:
[O]n November 22, 2016, [Petrillo] entered Open Pleas of
Guilt to Possession with Intent to Deliver a Controlled
Substance [(“PWID”)], and Criminal Conspiracy to Commit
[PWID], both being ungraded Felonies. [Petrillo] was
consequently sentenced to concurrent periods of
incarceration for each count, both having a minimum
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903, respectively.
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period of twenty-seven (27) months and a maximum
period of fifty-four (54) months.
On November 30, 2016, [Petrillo] filed a Post-Sentence
Motion to Modify Sentence, which was ultimately denied by
this Court on December 22, 2016 following argument.
[Petrillo] then filed a timely Notice of Appeal on January
16, 2016.
Opinion pursuant to Pa.R.A.P. 1925(a), 2/10/17, at 1 (“1925(a) Op.”).
On appeal, Petrillo raises the following issue:
Whether the sentencing court abused its discretion when it
denied [Petrillo]’s request for the sentencing order to
include authorization to participate in the Department of
Correction[s’] Motivational Boot Camp[2] in that it: failed
to indicate why [Petrillo] would be inappropriate for
placement in a Motivational Boot Camp, failed to account
for the rehabilitative need of [Petrillo], and was manifestly
unreasonable to not grant [Petrillo]’s request[.]
Petrillo’s Br. at 5 (full capitalization omitted).
Petrillo is challenging the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
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2
Motivational Boot Camp is a six-month program in which eligible
inmates may participate. The program “provide[s] for rigorous physical
activity, intensive regimentation and discipline, work on public projects,
substance abuse treatment services licensed by the Department of Health,
continuing education, vocational training, prerelease counseling and
community corrections aftercare.” 61 Pa.C.S. § 3903. Section 3904(b) of
the Prisons and Parole Code grants the sentencing judge “the discretion to
exclude a defendant from eligibility if the judge determines that the
defendant would be inappropriate for placement in a motivational boot
camp.” 61 Pa.C.S. § 3904(b).
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1064 (Pa.Super. 2011). Before we address such a challenge, we first
determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant’s brief
includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Petrillo filed a timely notice of appeal, preserved his claim in a timely
post-sentence motion, and included in his brief a concise statement of
reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). We must now determine whether he has
raised a substantial question that the sentence is inappropriate under the
sentencing code and, if so, review the merits.
We evaluate whether a particular issue raises a substantial question on
a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa.Super. 2011). A substantial question exists where a defendant raises a
“plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quoting
Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012)).
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Petrillo claims that the trial court abused its discretion by not
designating him as eligible for placement in the Motivational Boot Camp
program. In essence, Petrillo argues that because participation in boot camp
would best serve his rehabilitative needs, particularly his need for “more
intensive drug addiction counseling as opposed to the traditional prison
setting,” the trial court should have “authoriz[ed] him for boot camp.”
Petrillo’s Br. at 13. Ordinarily, an allegation that a sentence failed to accord
proper weight to a sentencing factor, such as a defendant’s rehabilitative
needs, does not raise a substantial question. See Commonwealth v.
Haynes, 125 A.3d 800, 807 (Pa.Super. 2015); Commonwealth v.
Cannon, 954 A.2d 1222, 1228-29 (Pa.Super. 2008); Commonwealth v.
Coolbaugh, 770 A.2d 788, 793 (Pa.Super. 2001); Commonwealth v.
Lawson, 650 A.2d 876, 881 (Pa.Super. 1994). Petrillo has failed to
persuade us that his claim is outside the ordinary. Accordingly, Petrillo has
failed to raise a substantial question and we are without jurisdiction to
review his claim.
Even had Petrillo raised a substantial question, we would conclude that
the trial court did not abuse its discretion. At sentencing, Petrillo requested
the trial court’s authorization to participate in the Motivational Boot Camp
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program.3 N.T., 11/22/16, at 6. The Commonwealth objected, arguing that
“I’m not sure . . . how that would work with the Jefferson County
sentence.[4]. . . I don’t think that’s necessarily a reasonable option for Mr.
Petrillo at this point.” Id. at 8. The Commonwealth also stated that it didn’t
“believe he’s an appropriate candidate, because of the length of his prior
record and multiple offenses contained therein.” Id. The trial court found:
Much like sentencing generally, a court’s designation of a
defendant as boot camp eligible is discretionary. See 61
Pa.C.S. § 3904(b). Thus, the Court is not required to
authorize a defendant’s participation in boot camp simply
because a defendant requests this alternative. Moreover,
even when a trial judge identifies a defendant as eligible
for participation in boot camp, the defendant’s
participation is contingent upon his approval by a
motivational boot camp selection committee. See 61
Pa.C.S. § 3906(b). Therefore, [Petrillo]’s actual
participation in a motivational boot camp would have been
uncertain even if the Court had granted his initial
participation request. However, it remains that because
the Court’s decision to deny [Petrillo]’s request for boot
camp was entirely discretionary, the Court did not err in its
decision.
1925(a) Op. at 2. We agree.
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3
In his post-sentence motion, Petrillo claimed he was eligible for the
program because he was an addict and because the Department of
Corrections evaluated him and determined “he was a fit and appropriate
candidate for [state intermediate punishment].” N.T., 12/22/16, 2-3. In
contrast, the Commonwealth argued that Petrillo had a “long and lengthy
prior record” and that Petrillo would not be an appropriate candidate. Id. at
4. The trial court denied Petrillo’s motion. Id. at 6.
4
At the time of sentencing, Petrillo was incarcerated in Jefferson
County on an unrelated conviction. N.T., 11/22/16, at 4.
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Finally, to the extent that Petrillo claims that the trial court was
required to state its reasons for denying boot-camp eligibility on the record,
his claim is unavailing. Nothing in section 3904(b) requires a trial court to
state on the record its reasons for not finding a defendant eligible for the
Motivational Boot Camp program. See 61 Pa.C.S. § 3904(b).5
Judgment of sentence affirmed.
Judge Ott joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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5
Section 3904(b) states:
(b) Duties of sentencing judge.--The sentencing judge
shall employ the sentencing guidelines to identify those
defendants who are eligible for participation in a
motivational boot camp. The judge shall have the
discretion to exclude a defendant from eligibility if the
judge determines that the defendant would be
inappropriate for placement in a motivational boot camp.
The judge shall note on the sentencing order whether the
defendant has been identified as eligible for a motivational
boot camp program.
61 Pa.C.S. § 3904(b).
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Date: 11/16/2017
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