Com. v. Supik, J. ( 2023 )

J-S42028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH DAVID SUPIK :
:
Appellant : No. 394 WDA 2022
Appeal from the Judgment of Sentence Entered February 7, 2022
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000293-2021,
CP-16-CR-0000294-2021, CP-16-CR-0000295-2021,
CP-16-CR-0000296-2021, CP-16-CR-0000297-2020,
CP-16-CR-0000297-2021, CP-16-CR-0000298-2020,
CP-16-CR-0000299-2020
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 17, 2023
Appellant, Joseph David Supik, appeals from the February 7, 2022
judgment of sentence entered in the Court of Common Plea of Clarion County
after the trial court sentenced Appellant to an aggregate term of five to ten
years’ incarceration upon Appellant pleading guilty but mentally ill to eight
counts of terroristic threats.1 We affirm.
The record demonstrates that, on November 8, 2021, Appellant pleaded
guilty but mentally ill to eight counts of terroristic threats. Trial Court Order,
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. § 2706(a)(1). Appellant pleaded guilty but mentally ill to one
count of terroristic threats at each of the eight trial court dockets listed in the
caption supra.
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11/15/21. The criminal charges stemmed from Appellant sending letters
containing terroristic threats to various Clarion County employees, as well as
Clarion County District Attorney Drew Welsh (“District Attorney Welsh”) and a
Clarion County magisterial district judge, while Appellant was incarcerated in
a state correctional institution. At the November 8, 2021 plea hearing, the
trial court, upon reviewing Appellant’s psychological assessment and based
upon the stipulations of the parties, found that Appellant “is suffering from a
mental illness that contributed to [the] offenses.” Id.
On February 7, 2022, the trial court sentenced Appellant to an
aggregate term of five to ten years’ incarceration and ordered Appellant to
pay the costs of prosecution.2 Sentencing Order, 2/8/22, at ¶1. At the time
of sentencing, the trial court also found Appellant to be “severely mentally
disabled and in need of treatment pursuant to the provisions of the Mental
Health Procedures Act,” 15 P.S. §§ 7101 – 7503, as well as 42 Pa.C.S.A.
§ 9727 (setting forth the disposition of a person pleading guilty but mentally
ill). Sentencing Order, 2/8/22, at ¶2. As part of the sentencing order, the
trial court directed the Department of Corrections to provide Appellant “with
____________________________________________
2 The caption of the trial court sentencing order listed all eight trial court
docket numbers as follows:
297 – 299 CR 2020
293 – 297 CR 2021[.]
See Sentencing Order, 2/8/22.
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such treatment as is psychiatrically and psychologically indicated for his
mental illness.” Id.
On February 14, 2022, Appellant filed a motion for reconsideration,
asking the trial court to reconsider the sentence. Motion for Reconsideration,
2/14/22, at ¶¶1-6. The motion for reconsideration also included a request to
withdraw Appellant’s guilty plea. Id. at ¶¶7-17. The trial court ordered the
Commonwealth to file a response. Counsel for the Pennsylvania Office of
Attorney General, for reasons discussed more fully infra, filed a response on
February 24, 2022, and District Attorney Welsh filed a response on February
25, 2022. On March 4, 2022, the trial court denied Appellant’s motion for
reconsideration and the request to withdraw his guilty plea. This appeal
followed.3
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3 Both Appellant and the trial court complied with Pa.R.A.P. 1925. The
Pennsylvania Office of Attorney General filed an appellate brief, addressing
Appellant’s second issue. District Attorney Welsh filed an appellate brief,
stating that he relied on the trial court’s Rule 1925(a) opinion, as well as his
response filed in opposition to Appellant’s motion for reconsideration to
address Appellant’s issues.
In his notice of appeal, Appellant listed all eight trial court docket numbers on
a single notice of appeal. A copy of the notice of appeal was filed at each trial
court docket. Our Supreme Court in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018) held that, “the proper practice under [Pa.R.A.P.] 341(a) is to
file separate appeals from an order that resolves issues arising on more than
one docket.” Walker, 185 A.3d at 977; see also Pa.R.A.P. 341(a) and official
comments. This Court, however, has held that the requirements of Walker
and Rule 341 may be overlooked where there is a breakdown in the judicial
system and a defendant is misinformed or misled regarding his or her
appellate rights. Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super.
2020) (en banc), appeal denied, 251 A.3d 773 (Pa. 2021).
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Appellant raises the following issues for review:
1. Whether the trial court abused its discretion in denying
[Appellant’s] post-sentence motion seeking leave to
withdraw his guilty plea due to a conflict of interest with the
Clarion County District Attorney's Office?
2. Whether the trial court abused its discretion in sentencing
[Appellant] to an aggregate sentence of [five to ten years’]
incarceration upon acceptance of his plea of guilty but
mentally ill to eight [] counts of terroristic threats [] for
letters written to various individuals while incarcerated?
Appellant’s Brief at 4 (extraneous capitalization omitted).
In his first issue, Appellant challenges the trial court’s denial of his
post-sentence motion seeking to withdraw his guilty plea. Appellant’s Brief at
13-16.
“It is well-settled that the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court” and, as
such, this Court reviews a trial court order denying a motion to withdraw a
____________________________________________
In the case sub judice, the trial court sentencing order contains eight trial
court docket numbers in the case caption, as detailed supra. Moreover, eight
trial court docket numbers appear on the “post-sentence rights – rights after
sentencing” form executed by Appellant and his counsel. Finally, the trial
court order denying Appellant’s motion for reconsideration also contains eight
trial court docket numbers on a single order. See Trial Court Order, 3/4/22.
Under these circumstances, we find the use of eight trial court docket numbers
on the aforementioned trial court orders and forms was misleading and
constitutes a breakdown in court operations. Therefore, although we do not
condone counsel’s filing of a single notice of appeal listing eight trial court
docket numbers, we decline to quash Appellant’s appeal on the ground the
notice of appeal does not comply with the mandates of Walker and its
progeny, as well as Rule 341.
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guilty plea for an abuse of discretion. Commonwealth v. Hart, 174 A.3d
660, 664 (Pa. Super. 2017), relying on Commonwealth v. Broaden, 980
A.2d 124 (Pa. Super. 2009), appeal denied, 992 A.2d 885 (Pa. 2010).
Although no absolute right to withdraw a guilty plea exists in
Pennsylvania, the standard applied differs depending on whether
the defendant seeks to withdraw the plea before or after
sentencing. When a defendant seeks to withdraw a plea after
sentencing, he[, or she,] must demonstrate prejudice on the order
of manifest injustice. [A] defendant may withdraw [the] guilty
plea after sentencing only where necessary to correct manifest
injustice. Thus, post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry
of guilty pleas as sentence-testing devices.
Hart, 174 A.3d at 664 (citations and quotation marks omitted).
“Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly.” Id. (citation omitted).
In determining whether a plea is valid, the court must examine
the totality of circumstances surrounding the plea. Pennsylvania
law presumes a defendant who entered a guilty plea was aware of
what he[, or she,] was doing, and the defendant bears the burden
of proving otherwise.
Id. (citations and quotation marks omitted).
Here, Appellant asserts that the trial court erred in denying his request
to withdraw his guilty plea after sentencing on the ground that a conflict of
interest existed in District Attorney Welsh’s prosecution of three of the eight
criminal cases and because District Attorney Welsh was permitted to make a
victim impact statement at Appellant’s sentencing hearing. Appellant’s Brief
at 13-16. Appellant contends,
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an actual conflict of interest was established once charges were
filed that named District Attorney Welsh as the victim in [three]
separate cases [(CP-16-CR-0000293-2021 (“CR-293-2021”),
CP-16-CR-0000294-2021 (“CR-294-2021”) and
CP-16-CR-0000295-2021 (“CR-295-2021”))]. That conflict was
acknowledged by the Clarion [County] District Attorney's Office,
when those [three] cases, in addition to [two] other cases
[(CP-16-CR-0000296-2021 (“CR-296-2021”) and
CP-16-CR-0000297-2021 (“CR-297-2021”))] were referred [] to
the [Pennsylvania] Office of [] Attorney General. District
Attorney[ Welsh's] decision to continue prosecuting the three
[remaining] cases [(CP-16-CR-0000297-2020 (“CR-297-2020”),
CP-16-CR-0000298-2020 (“CR-298-2020”), and
CP-16-CR-0000299-2020 (“CR-299-2020”))] was erroneous, as
the conflict was still ongoing. Further, of the three [] cases that
District Attorney Welsh chose to continue prosecuting, two [] of
these cases named [] a detective employed by the Clarion County
District Attorney's Office, as the victim. District Attorney Welsh
spoke to his concern over threats made to his office and its
employees during [Appellant’s] sentence hearing. [Appellant]
submits that District Attorney Welsh's decision to petition the
[trial] court for consecutive sentences in [a] state [correctional
institution] further supports an inference of prejudice resulting
from the apparent conflict.
Id. at 15 (record citations, extraneous capitalization, and paragraph
formatting omitted).
In denying Appellant’s request to withdraw his guilty plea after
sentencing, the trial court stated,
[Appellant] claims that the comments made by District Attorney
Welsh at [Appellant’s] sentence[ing] hearing created a "conflict of
interest." At no time prior to the filing of his post[-]sentence
motion did [Appellant] object to the Clarion County District
Attorney's [O]ffice handling the prosecution of [three of] his
cases. [Appellant] was aware at all times leading up to his plea
hearing and his sentence[ing] hearing that [three of] the cases
were being prosecuted by District Attorney Welsh and that
[District] Attorney Welsh would be present at all hearings. The
comments made by District Attorney Welsh at the time of the
sentence[ing] hearing did not go beyond typical comments made
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by a prosecutor at a sentence[ing] hearing or those offered by a
victim of a crime. Furthermore, there was no agreement that
District Attorney Welsh would stand silent at the time of the
sentenc[ing] hearing. The fact that District Attorney Welsh made
comments at [Appellant’s] sentenc[ing] hearing does not provide
grounds for a withdrawal of a guilty plea after sentencing as
[District Attorney Welsh’s actions] in no way resulted in
[Appellant] entering his plea unknowingly, unintelligently, or
involuntarily.
Trial Court Opinion, 5/26/22, at 3-4 (extraneous capitalization omitted).4
A review of the record demonstrates, and Appellant concedes, that
counsel from the Pennsylvania Office of Attorney General served as the
prosecutor in CR-293-2021, CR-294-2021, CR-295-2021, CR-296-2021, and
CR-297-2021, while District Attorney Welsh remained the prosecutor in
CR-297-2020, CR-298-2020, and CR-299-2020. See 71 P.S. § 732-205(a)(3)
(stating, “The Attorney General shall have the power to prosecute in any
county criminal court the following cases[ . . . u]pon the request of a district
attorney . . . who represents that there is the potential for an actual or
apparent conflict of interest on the part of the district attorney or his[, or her,]
office”); see also Commonwealth v. Lutes, 793 A.2d 949, 956 (Pa. Super.
2002) (stating, a conflict of interest exists when a district attorney has a direct
financial interest or a non-economic, personal interest in the outcome of the
prosecution), relying on Commonwealth v. Eskridge, 604 A.2d 700 (Pa.
1992) and Commonwealth v. Balenger, 704 A.2d 1385 (Pa. Super. 1997).
____________________________________________
4 For ease of reference, we assigned page numbers to the trial court’s
unpaginated Rule 1925(a) opinion.
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After Appellant pleaded guilty but mentally ill to eight criminal charges of
terroristic threats, District Attorney Welsh, in his capacity as prosecutor in the
three aforementioned cases, made the following statement at Appellant’s
sentencing hearing:
Your Honor, . . . I will speak at this moment addressing the cases
which I’m prosecuting, not the cases in which I may be a victim
in any way.
[Appellant], I think, I would imagine, presents a difficult situation
for the [trial] court in trying to craft a sentence. Obviously, this
is a guilty but mentally ill sentence in this situation. I know the
law is clear [] that it should be the same sentence, but requires
him to get certain mental health treatment aspects.
I know from my experience in dealing with [Appellant,]
prosecuting his cases, he does know the difference between right
and wrong. It’s not a question that he can’t control his actions.
But with the letters that he sent to various individuals – and you
look at the [pre-sentence investigation (“PSI”) report], you can
see numerous, numerous other counties and other individuals
where letters [were] sent or threats [were] made [] in some sort
of way.
I know looking at the sentencing options and things I would
recommend, that there are various factors you look at. We are
looking at deterren[ce] and we’re looking at rehabilitation and
we’re looking [at] all these different things.
And I can understand that part of the thinking could be, well, a lot
of time he was in state prison for a sentence when he sent these
letters, so seemingly that’s not working.
We have also had [Appellant] in the county jail, and we’ve had
issues at the county jail with new criminal charges. And we’ve
had him on probation where there’s been [probation] violations.
So over and over again, it seems to be that nothing is working.
At this point[,] my hope would be that the sentence under guilty
but mentally ill does [require Appellant] to get treatment at some
point, but I also think there is a compelling reason for there to be
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a protection of the public here with the various amounts of threats
that are at issue.
So the sentences – I think there’s eight cases pending – I do not
represent him [sic] in all of those [cases], but each of those cases
all have the restorative sanctions to less than 12 months sentence
[option]. I do think it would be appropriate under this guilty but
mentally ill sentence to confine [Appellant] to additional time for
state incarceration[. ]I don’t believe that probation is appropriate
at this point – and that the sentences [should] run consecutively
to each other.
N.T., 2/7/22, at 5-7 (extraneous capitalization omitted). After explaining that
the sentences for the three cases he was prosecuting warranted confinement
in a state correctional institution coupled with the opportunity to receive
mental health treatment, District Attorney Welsh spoke about the personal
impact of the terroristic threats in the three cases where he was the victim
but that were being prosecuted by the Pennsylvania Office of Attorney General
as follows:
I will just speak for a second in the cases in which I don’t represent
the Commonwealth, but I will say, it’s easy to gloss
over – [Appellant] has so many letters that he sent, a number of
people that have been threatened, and it’s easy to say to kind of
roll with it.
But I will say when someone does threaten you with the specificity
that [Appellant] threatened me with [in] letters, it is concerning.
You have concerns for your safety [and] your family[’s safety.
Appellant] made threats towards [the District Attorney’s Office]
and questioned the office employees.
So while I understand that [Appellant] does have mental health
issues, I don’t think anything should diminish the seriousness of
the effect it does have on people when they are threatened in a
serious manner such as I have and such as many other people
have.
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So[,] I know the [trial] court has probably considered a lot of
factors and I will defer to your discretion as far as the sentence.
Thank you.
Id. at 7-8 (extraneous capitalization omitted).
Counsel for the Pennsylvania Office of Attorney General went on to make
the following statement regarding Appellant’s sentence:
Very briefly, Your Honor, and I just incorporate a lot of [District
Attorney] Welsh’s comments as far as sentencing goes. But as
the [trial] court may be aware, following [Appellant’s] crimes
across Western Pennsylvania has become sort of a full-time job
for me. I have cases before this [trial] court. I also have cases
with [Appellant] for the same type of behavior in Somerset
County, Forest County, and there’s an investigation into one in
Armstrong County. And they are – all the crimes are of [a] similar
nature, this letter-writing campaign in which [Appellant] terrorizes
people [while he is incarcerated]. And some of the victims in the
cases are [trial] court employees and district attorneys and [trial
court] judges and [magisterial district judges] and sheriffs, but
there are also civilian victims in some of his other cases. Clearly,
very clearly, a mental health component has to be a part of the
[trial] court’s sentence. I would defer to the [trial] court’s
discretion as it relates to the sentence that is imposed on
[Appellant] today. Thank you.
Id. at 8-9 (extraneous capitalization and paragraph formatting omitted).5
In fashioning Appellant’s sentence, the trial court was permitted to
consider any evidence it deemed relevant, including District Attorney Welsh’s
victim impact statement. Commonwealth v. King, 182 A.3d 449, 455
(Pa. Super. 2018) (stating, the “purpose of victim impact statements is to
personalize the crime and to illustrate the human effects of it”). Moreover,
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5Appellant’s counsel also made a statement regarding Appellant’s sentence.
See N.T., 2/7/22, at 9-15.
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Appellant was aware, pursuant to the trial court scheduling order, which listed
the eight trial court docket numbers, that he was being sentenced on eight
criminal convictions at a single sentencing hearing and that District Attorney
Welsh would be present at the sentencing hearing because he represented the
Commonwealth in three of the criminal cases. See Trial Court Order,
11/16/21.
Upon review, we concur with the trial court, and the record supports,
that Appellant failed to demonstrate prejudice on the order of a manifest
injustice.6 Appellant was aware throughout the eight criminal proceedings
that District Attorney Welsh represented the Commonwealth in three of the
cases while counsel from the Pennsylvania Office of Attorney General
represented the Commonwealth in the remaining five cases, including the
three cases in which District Attorney Welsh was a victim. After pleading guilty
but mentally ill in each criminal case, Appellant was aware that his sentencing
hearing would involve eight criminal cases at a single hearing and that District
Attorney Welsh would be at the sentencing hearing. At the sentencing
____________________________________________
6 There was no support in the certified record demonstrating a conflict of
interest claim in the three cases that District Attorney Welsh prosecuted.
These three cases (CR-297-2020, CR-298-2020, and CR-299-2020) involved
a detective from the District Attorney’s Office and a probation officer. District
Attorney Welsh did not have an economic or financial interest in the
prosecution or a personal, familial interest in the three cases. See Lutes,
supra. District Attorney Welsh was not the victim in the three cases, and the
victims were not members of his family. Therefore, pursuant to appliable
caselaw and statutory authority, there was no conflict of interest in his
prosecution of these cases and, thus, no basis to claim a manifest injustice.
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hearing, District Attorney Welsh offered argument, as the prosecuting
attorney in three of the cases, supporting consecutive sentences in a state
correctional institution coupled with the opportunity for Appellant to receive
mental health treatment while incarcerated. District Attorney Welsh also
offered a statement, distinct from his argument as prosecutor, as to the
impact Appellant’s threats had on District Attorney Welsh as the victim in three
of the cases. Although we can find no case on-point with this set of unique
circumstances, we concur with the trial court that District Attorney Welsh’s
argument as prosecutor and his victim impact statement “did not go beyond
typical comments made by a prosecutor at a sentenc[ing] hearing or those
offered by a victim of a crime.” Trial Court Opinion, 5/26/22, at 4. Therefore,
we discern no abuse of discretion in the trial court’s denial of Appellant’s
request to withdraw this guilty plea after sentencing.
Appellant’s second issue raises a challenge to the discretionary aspects
of his sentence, arguing that the trial court abused its discretion by making
“no findings on the record explicitly specifying the reasons for either the
consecutive sentences” or “why [each individual sentence] justified [an]
aggravated range sentence[.]” Appellant’s Brief at 19.
It is well-settled that “the right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
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An appellant challenging the discretionary aspects of his
sentence must invoke this Court's jurisdiction by satisfying
a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant [] 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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).
[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis
whether a particular issue constitutes a substantial question about
the appropriateness of sentence. Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). If an appellant fails to raise a challenge to the discretionary
aspects of a sentence either by presenting a claim to the trial court at the time
of sentencing or in a post-sentence motion, then the appellant’s challenge is
considered waived. Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281(Pa. 2013). A substantial question exists when the appellant presents a
colorable argument that the sentence imposed is either (1) inconsistent with
a specific provision of the Sentencing Code or (2) is “contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d
825 (Pa. 2011).
It is well-established that
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the imposition of consecutive rather than concurrent sentences
lies within the sound discretion of the sentencing court.
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super.
2005)[,] citing Commonwealth v. Hoag, [] 665 A.2d 1212, 1214
([Pa. Super.] 1995)). Long standing precedent of this Court
recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court
discretion to impose its sentence concurrently or consecutively to
other sentences being imposed at the same time or to sentences
already imposed. Commonwealth v. Marts, 889 A.2d 608, 612
(Pa. Super. 2005)[,] citing Commonwealth v. Graham, [] 661
A.2d 1367, 1373 ([Pa.] 1995)). A challenge to the imposition of
consecutive rather than concurrent sentences does not present a
substantial question regarding the discretionary aspects of
sentence. Lloyd, 878 A.2d at 873. We see no reason why a
defendant should be afforded a “volume discount” for his crimes
by having all sentences run concurrently.
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (quotation
marks and original brackets omitted), appeal denied, 117 A.3d 297 (Pa.
2015). “While a bald claim of excessiveness does not present a substantial
question for review, a claim that the sentence is manifestly excessive,
inflicting too severe a punishment, does present a substantial question.”
Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016), citing
Commonwealth v. Haynes, 125 A.3d 800, 807-808 (Pa. Super. 2015),
appeal denied, 167 A.3d 1287 (Pa. 2017). This Court has recognized that,
a sentence can be so manifestly excessive in extreme
circumstances that it may create a substantial question. When
determining whether a substantial question has been raised, we
have focused upon whether the decision to sentence consecutively
raises the aggregate sentence to, what appears upon its face to
be, an excessive level in light of the criminal conduct in this case.
Zirkle, 107 A.3d at 133-134 (citations omitted). An assertion of an excessive
sentence coupled with allegations that the trial court failed to consider
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mitigating factors and failed to state sufficient reasons on the record for
consecutive sentences raises a substantial question. Commonwealth v.
Brown, 249 A.3d 1206, 1211 (Pa. Super. 2021).
Here, the record reflects that Appellant filed a timely notice of appeal,
properly preserved challenges to the discretionary aspects of his sentence in
his post-sentence motion, and included a Rule 2119(f) statement in his brief.
Appellant’s Brief at 11-12. As such, Appellant complied with the technical
requirements to challenge the discretionary aspects of his sentence. Hill, 210
A.3d at 1116. Therefore, we review Appellant’s Rule 2119(f) statement to see
if he presents a substantial question.
In his Rule 2119(f) statement, Appellant argues that the trial court
provided an insufficient basis on the record for sentencing Appellant in the
aggravated sentencing range when it sentenced Appellant to one to two years’
incarceration at each of the eight criminal dockets. Appellant’s Brief at 11.
Appellant contends that his eight individual sentences of one to two years’
incarceration, five of which were set to run consecutively for an aggregate
sentence of five to ten years’ incarceration, were excessive considering the
significant role Appellant’s mental health contributed to his actions. Id. at 12.
In so arguing, we find that Appellant raises a substantial question regarding
the trial court’s alleged failure to consider his mental health needs prior to
imposing consecutive sentences and the alleged failure to state sufficient
reasons on the record for sentencing Appellant in the aggravated sentencing
range. Brown, 249 A.3d at 1211. Therefore, we will address Appellant’s
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claim challenging the discretionary aspects of his sentence based on the trial
court’s alleged failure to consider the impact of his mental health needs and
to state sufficient reasons on the record for imposing consecutive sentences
in the aggravated sentencing range.
Appellant asserts that the trial court “made no findings on the record
explicitly specifying the reasons for either the consecutive sentences on five
[] of the [trial court] dockets or why [each individual sentence] justified [an]
aggravated range sentence[.]” Appellant’s Brief at 19. Appellant submits that
“his mental health diagnosis played an extensive role in contributing to his
criminal conduct” but that the trial court failed to consider his mental health
needs “when crafting an appropriate sentence.” Id.
It is well-established that “[w]hen imposing a sentence, a [trial] court
must consider the factors set forth in 42 Pa.C.S.A. § 9721(b).”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal
denied, 963 A.2d 467 (Pa. 2008). Section 9721(b) of the Sentencing Code,
in pertinent part, states,
the [trial] court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with
[S]ection 9725 (relating to total confinement) and 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 [trial] court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing and taking effect
under [S]ection 2155 (relating to publication of guidelines for
sentencing, resentencing and parole, risk assessment instrument
and recommitment ranges following revocation).
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42 Pa.C.S.A. § 9721(b) (footnote omitted). “The [trial] court is not required
to parrot the words of the Sentencing Code, stating every factor that must be
considered under Section 9721(b). However, the record as a whole must
reflect due consideration by the [trial] court of the statutory considerations.”
Feucht, 955 A.2d at 383 (citations omitted).
Additionally,
[i]n 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 [trial court] had the benefit of
a [PSI] report, it will be presumed that [the trial court] was aware
of the relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory
factors. Additionally, the [trial] court must state its reasons for
the sentence on the record. 42 Pa.C.S.A. § 9721(b). 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] report; thus properly
considering and weighing all relevant factors.
Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa. Super. 2022) (case
citation omitted), appeal denied, 285 A.3d 883 (Pa. 2022).
Appellate review of a trial court’s sentencing determination is governed
by Section 9781(c) of the Sentencing Code.
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the
[trial] court applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly unreasonable” based on
the circumstances of the case; and (3) the sentence falls outside
of the guidelines and is “unreasonable.”
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Commonwealth v. Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009), citing
42 Pa.C.S.A. § 9781(c).
At the sentencing hearing, prior to imposing the aforementioned
sentence on Appellant, the trial court stated the following reasons for its
sentence:
I [(trial court)] have reviewed the facts and circumstances of all
of your cases. I’ve also reviewed your [PSI] report, and I’ve also
reviewed the [psychological] assessment[.] I have taken into
consideration that your plea in this case is to eight counts of
terroristic threats and is an open plea. The guidelines for your
offenses provide for a sentence anywhere in the range of
probation, standard guidelines, to less than one year with an
aggravated range of less than 15 months.
I think obviously what stands out to me is that you have continued
to engage in a course of conduct where you have threatened
several members of the justice system in Clarion County, a
[magisterial district] judge, our district attorney, correction
officers, probation – people affiliated with the probation
department. And not only did you do it once, but you did it eight
times. And also, your threats were of a very specific nature,
indicating the actions that you wanted to carry out to harm these
people – that’s very concerning – and the specifics that you went
to as to how you intended to harm these people. It’s certainly
concerning for those individuals. It’s scary for them to receive
information, knowing someone is having these thoughts about
them.
Obviously, I have taken into consideration that information
that’s been provided to me that you are suffering from
mental illness. From the information that’s been provided, it
doesn’t look like you’ve received any treatment to help you deal
with that. So, I do think based on the information that has been
provided to me, that you are in need of treatment that can be
provided by a mental health facility. So[,] I am willing to accept
your plea of guilty but mentally ill, because I do think your
mental health has played a significant role in the crimes
you have committed. Apparently not only here, but throughout
the Commonwealth.
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Having said that, I think you understand, as [District] Attorney
Welsh pointed out, right from wrong, and I think that you know
what you did was wrong. The concern to me, and its something I
have taken into consideration to determine what your appropriate
sentence is, is whether [] you have the propensity or desire to
actually carry out any of these threats that you’ve made. That’s
certainly concerning. I don’t know if they are empty threats or if
they’re something you would intend to do if you were released
from incarceration and had the ability to carry these things out.
So[,] I have certainly taken that into consideration, protection to
the public, in addition with your need for rehabilitative services.
So having said that, I want your sentence to reflect the
seriousness of the threats that you have made. I want it to be
extensive enough that you have sufficient time under the
authority of the Department of Corrections to receive whatever
mental health services you need to make sure that you get your
mental health under control, and that if you do have any thoughts
or continued thoughts about causing harm to any of these
individuals, that that is substantially addressed by mental health
providers to make sure that when you are released from
incarceration and when you are released from a treatment facility,
that you have been able to significantly address your mental
health needs and that you will not carry out these threats against
these individuals. And I want the individuals threatened to be able
to feel safe in knowing that you received that treatment and have
been incarcerated long enough that you have been able to address
these issues that you are having. Because certainly, their state
of mind when you are released at some point in the future is to
be important, as well.
N.T., 2/7/22, at 15-18 (extraneous capitalization omitted, paragraph
formatting modified, emphasis added).
The record indicates that, prior to sentencing Appellant, the trial court
was in receipt of, and considered, Appellant’s PSI report, as well as the
psychological assessment detailing Appellant’s mental health needs. The trial
court acknowledged the seriousness of Appellant’s terroristic threats, noting
the specificity contained within the threats, and the need to protect the public
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from Appellant carrying out those threats. The trial court also considered
Appellant’s history of making these types of terroristic threats against persons
involved in the judicial system. The trial court further acknowledged that
Appellant needed mental health treatment in order to rehabilitate himself and
to prevent him from carrying out his threats. Finally, the trial court noted the
standard sentencing guidelines of restorative sanctions to less than 12
months’ incarceration and the aggravated sentencing range of restorative
sanctions to less than 15 months’ incarceration. In fashioning Appellant’s
individual sentences in the aggravated sentencing range, and running five of
those sentences consecutively, the trial court explained the need to provide
Appellant sufficient time to obtain treatment for his mental health needs in
order to rehabilitate Appellant and provide protection to the public.
Upon consideration of the record, as a whole, and based upon the trial
court’s consideration of the PSI report and psychological assessment, we
discern no abuse of discretion or error of law in Appellant’s sentence. As such,
Appellant’s claim challenging the discretionary aspects of his sentence is
without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2023
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