Com. v. Allshouse, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANE ALLSHOUSE :
:
Appellant : No. 1899 WDA 2016
Appeal from the Judgment of Sentence November 2, 2016
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000258-2016
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 25, 2017
Shane Allshouse appeals the judgment of sentence imposed on
November 2, 2016, in the Court of Common Pleas of Jefferson County. A
jury found Allshouse guilty of persons not to possess firearms,1 a felony of
the second degree, and the trial court imposed a sentence of five to ten
years’ imprisonment. The sole issue raised by Allshouse in this appeal is a
challenge to the discretionary aspects of his sentence. Based upon the
following, we affirm.
The evidence supporting Allshouse’s conviction was summarized by the
trial court, as follows:
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a)(1).
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[Allshouse] had been convicted of aggravated assault in 2004 and
was thus statutorily disqualified from possessing a firearm, and
when [Pennsylvania State] Trooper Seth Rupp went out to
investigate a reported suicide at [Allshouse’s] residence,
[Allshouse] informed him that the rifle the victim had used was
his. … In addition, …, [Allshouse] admitted both elements of the
offense [18 Pa.C.S. § 6105(a)(1)] in front of the jury, first that he
had both possessed and used the firearm, and also that he had
been convicted of aggravated assault. His only defense was
ignorance of the law, which [is] not a legally cognizable defense
and which the jury also did not have to believe as a matter of
fact.1
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1
Whether or not the jurors believed [Allshouse] had not
been told earlier, they heard that Trooper Rupp had told
him shortly after the shooting that he could not possess a
firearm.
__________________________________________
Trial Court Opinion, 4/24/2017, at 1.
As already stated, the jury convicted Allshouse of persons not to
possess a firearm, and the trial court sentenced him to five to ten years’
imprisonment. Allshouse filed a timely post sentence motion for
reconsideration of sentence, which was denied, and this appeal followed. 2
At the outset, we state the prerequisites for review of a discretionary
aspects of sentencing claim:
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth
v. Hunter, 2001 PA Super 38, 768 A.2d 1136 (Pa.Super. 2001).
Prior to reaching the merits of a discretionary sentencing issue:
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2
Allshouse timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement.
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We 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 and modify sentence, see [Pa.R.Crim.P. 720];
(3) whether 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).
Commonwealth v. Evans, 2006 PA Super 132, 901 A.2d 528,
533 (Pa.Super. 2006) (citations omitted).
****
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, 2010 PA Super 46, 992 A.2d 162,
170 (Pa.Super. 2010) (citation, quotation marks, and quotation
omitted).
Commonwealth v. Grays, ___ A.3d ___, ___ [2017 PA Super 245] (Pa.
Super. July 27, 2017).
Instantly, the appeal is timely and Allshouse preserved the
discretionary aspect of sentencing issue by filing a post sentence motion for
reconsideration. Further, Allshouse has included in his brief the required
Pa.R.A.P. 2119(f) statement, asserting “A claim that the sentencing court
sentenced within the guidelines but failed to consider the factors set out in
42 Pa.C.S. § 9721(b) presents a substantial question.” Allshouse’s Brief at 5
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(citation omitted). Section 9721(b) requires the sentencing court to “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. § 9721(b). In
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc), this Court held that “[a]rgument that the sentencing court failed
to consider the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question.” (citation omitted). Accordingly, all the requirements
for review of the discretionary aspects of sentencing claim have been met.
Our standard of review 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 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 judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable
decision.
Additionally, our review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S.[A.]
§§ 9781(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it
finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied the
guidelines erroneously;
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(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases[,] the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.[A.] § 9781.
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.[A.] § 9781(d).
Commonwealth v. Johnson, 125 A.3d 822, 825-27 (Pa. Super. 2015)
(case citations omitted).
Here, the sentencing guideline recommendations for possession of a
firearm, based upon Allshouse having a prior record score of two, and an
offense gravity score of 10 was 24 months for the mitigated range, 36-48
months for the standard range, and 60 months for the aggravated range.
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See Pennsylvania Sentencing Guideline Form, 11/2/2016.3 The statutory
maximum sentence for a felony of the second degree is 10 years’
imprisonment. See 18 Pa.C.S. § 1103(2). Therefore, Allshouse’s 5-10 year
sentence is the statutory maximum and falls in the aggravated range of the
sentencing guidelines. Because the sentence falls within the guidelines, we
review the sentence to determine if the trial court’s application of the
guidelines is “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
At sentencing, the trial court explained its sentence, addressing
Allshouse, as follows:
You weren’t allowed by law, as your attorney pointed out; and as
the jury found, you’re not allowed [to possess a firearm]
because you have a felony aggravated assault, which also is
what makes your prior record score a two. The situation
regarding firearms charges and why I take them so seriously, I
mean, regular citizens’ gun rights are under attack constantly;
and by regular citizens, I mean those that don’t have a criminal
record or mental health commitment or other things that take
away the right to bear arms. And in your case, that right was
taken away even though you continued to possess the gun your
father gave you at 12. Now, the standard range sentence is
anywhere from three to four years. I can’t go away from
sentencing you to total confinement because this is exactly the
kind of thing the law was meant to prevent people who have
felonies to possess firearms. And why don’t they want a person
who’s committed a felony like aggravated assault to possess a
firearm? Because bad things can happen, and people can get
killed. In your case, not only did you possess it, you did not
keep it in a safe manner or with ammo separate; and because of
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3
See Pennsylvania Sentencing Guidelines Manual (7th edition) (9/25/2015),
204 Pa. Code § 303.15 (“Firearms-persons not to possess: convicted of
enumerated felony (loaded/ammo available) [18 Pa.C.S. § 6105](a.1)(1)”).
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that, a child’s committed suicide, which I am finding is an
aggravating factor to your case of possession of a firearm. This
isn’t one where police came in the door because the child was
acting up and the school [sic] saw the gun and arrested you. In
that case, I’d probably still go with a standard range or maybe
mitigated, but it would be at the bottom because I think after
you’ve already served a year in jail, you’ve got to know you can’t
have a gun. But I’m finding the aggravated factor that this gun
was used in a suicide. And I’m going to sentence you to no less
than five nor more than ten years in a state correctional facility
with credit for the time you’ve served at any time on this case….
N.T., 11/2/2016, at 5–7.
Allshouse argues that the trial court’s 5-10 year sentence is “clearly
unreasonable” because “[t]he objectives of [42 Pa.C.S. §] 9721(b) of the
Pennsylvania Sentencing Code could have been achieved without the
imposition of such a lengthy sentence.” Allshouse’s Brief at 6. Additionally,
Allshouse argues that he “and other similarly situated offenders would be
deterred by a mitigated or standard range sentence.” Id. at 8. These
arguments are meritless. The Pennsylvania Supreme Court has made clear
that “under the current Sentencing Code there is no requirement that a
sentencing court’s imposition of sentence must be the minimum possible
confinement[.]” Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007).
Consequently, these arguments fail to warrant relief.
Allshouse further contends a mitigated or standard range sentence is
warranted because: (a) his underlying felony occurred in 2004 and he has
been offense free for 11 or 12 years, (b) he is forty years of age, suffers
from disability (artificial eye, back and cardiac problems) and has family
support, and (c) “[s]uicide on the part of a third party is insufficient and
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beyond [Allshouse’s] reasonable foreseeability and control. Commonwealth
v. Basinger, 592 A.2d 1363 (Pa. Super. 1991).” Allshouse’s Brief at 7–8.
Allshouse asserts the trial court “gave death of a third party primary
importance in sentencing while relegating moot mitigating factors including
the fact that [Allshouse’s] underlying felony conviction occurred in 2004 and
involved a domestic dispute, [Allshouse’s] poor health, age (40) and family
support.” Id. at 8.
The trial court rejected these arguments in its opinion, stating:
[Allshouse] lists several “mitigating circumstances” he says the
Court failed to consider at sentencing, but the record does not
support his claim. On the contrary, the Court reviewed his
presentence investigation report prior to the hearing and was thus
familiar with his history. See Commonwealth v. Antidormi, 84
A.3d 736, 761 (Pa. Super. 2014) (saying that the existence of a
presentence report creates the presumption that the sentencing
judge was aware of relevant information regarding the
defendant’s character and weighed it along with mitigating
statutory factors). It also presided over his trial, and between it
and the sentencing hearing, either [Allshouse] or his attorney
highlighted each of the allegedly mitigating circumstance[s]. He
now assumes, though, that the Court’s failure to mention them
equates with a failure to consider them rather than an assessment
that they did not warrant a lesser sentence, and the record simply
does not sustain that assumption.
Nor was it error for the Court to consider the deadly
outcome of [Allshouse’s] crime. Had he not possessed the rifle,
and had he not kept it loaded in a highly visible location, easily
accessible to a 16-[y]ear-old girl who did not know how to
operate it, she may still be alive today, and her twin sister
certainly would not have found her dead from its blast. That is
not to say that [Allshouse] anticipated that outcome. In choosing
to possess a firearm, however, he chose to accept the very sort of
risk the legislature purposed to avoid when it enacted 18 Pa.C.S.
§ 6105. See also Sentencing Transcript, 11/[2]/2016, pp. 5-7
(recording the Court’s contemporaneous explanation for why it
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was imposing the maximum sentence in this case). The Court
could not overlook that, not because it bore any animosity or ill-
will toward [Allshouse], but because the egregious consequences
of his crime called for a more severe penalty.
Trial Court Opinion, 4/24/2017, at 2.
It is well settled that this Court is not permitted to substitute its
judgment for that of the sentencing court and re-weigh the various
sentencing factors at play in a sentencing decision. Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (“We cannot re-weigh the
sentencing factors and impose our judgment in the place of the sentencing
court.” (citing Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007)).
Furthermore, in the present case, the sentencing court had the benefit of a
presentence report and has also indicated in its opinion that it was aware of
and weighed the mitigating factors; therefore, we are required to presume
that it gave proper consideration and weight to the various factors Allshouse
presented in support of mitigation of the sentence. Macias, supra (citing
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)). Consequently, we
cannot disturb Allshouse’s sentence based on his position that the trial court
should have given greater significance to mitigating factors.
Furthermore, Allshouse’s argument that “suicide on the part of a third
party is insufficient and beyond [Allshouse’s] reasonable foreseeability and
control,” with citation to Basinger, supra, fails to warrant relief.
In Basinger, the defendant was driving under the influence (DUI)
when he fatally struck an intoxicated pedestrian who jumped in front of his
vehicle. The defendant entered a guilty plea to DUI-first offense and was
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sentenced to one to two years’ imprisonment. On appeal, this Court found
the trial court, in sentencing the defendant, had speculated on matters that
were not of record, regarding the cause of the accident. Id. at 1367. In
addition, this Court pointed out the trial court had rejected its own credibility
determination accepting the defendant’s testimony that he could not have
avoided the fatal accident. Id. at 1368. Therefore, this Court remanded the
case for resentencing. Id. However, the Basinger Court made clear:
Our finding today in no way limits a trial judge in imposing a
maximum sentence when such a sentence can be justified on the
record. The sound discretion of the trial judge will not be
overturned by this Court when the reasons for the sentence are
established on the record and the Sentencing Code or the
Sentencing Guidelines, when applicable, have been properly
applied.
Id. at 1367.4
Here, in contrast to Basinger, the sentence imposed is a fully justified
sentence based upon facts of record. See N.T., 11/2/2016, at 6, supra
(stating that Allshouse not only possessed the rifle, he did not keep it in a
safe manner and because of that, a child committed suicide). See also Trial
Court Opinion, 4/24/2017, supra at 2. Therefore, we conclude Allshouse is
not entitled to relief on this claim.
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4
It bears noting that Basinger did not involve the sentencing guidelines.
See id. at 1365–1366.
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In sum, we conclude the trial court’s reasons for imposing a sentence
in the aggravated range do not appear to be “clearly unreasonable.” 42
Pa.C.S. § 9781(c)(2). Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
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