Com. v. Raskowsky, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRITTANY ANN RASKOWSKY
Appellant No. 241 WDA 2015
Appeal from the Judgment of Sentence of January 9, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No.: CP-43-CR-0001680-2013
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 22, 2015
Brittany Ann Raskowsky appeals her January 9, 2015 judgment of
sentence. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On August 9, 2013, [Raskowsky] was operating a motor vehicle
on Old Ash Road in Springfield Township, Mercer County just
before midnight when she left the road. She went approximately
240 feet off the road, through [two] fences before striking
[three] people. Instead of stopping, she continued on until the
vehicle was stopped by witnesses.
Austin Rife, age [fifteen], died as a result of being struck by
[Raskowsky.] His mother, Stephanie Rife, sustained a broken
arm. The third victim, Aimee Dibbs, sustained minor injuries.
[Raskowsky’s blood alcohol content] was 0.212%.
[Raskowsky] was charged with homicide by vehicle-DUI related;
homicide by vehicle; involuntary manslaughter; DUI; aggravated
assault by vehicle-DUI related; aggravated assault by vehicle;
aggravated assault; aggravated assault involving death or
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personal injury; and [five] counts of recklessly endangering
another person.
[Raskowsky] was ordered held for trial on all counts on
November 21, 2013, following a preliminary hearing before
Magisterial District Judge Lorinda Hinch.
On October 31, 2014, [Raskowsky] pled guilty to homicide by
vehicle-DUI related; aggravated assault by vehicle-DUI related;
and a consolidated count of recklessly endangering another
person pursuant to an Alford plea.[1]
[Raskowsky] was sentenced on January 9, 2015 to not less than
[three] years’ imprisonment nor more than [eight] years on the
charge of homicide by vehicle-DUI related; a consecutive
sentence of not less than [two] years’ imprisonment nor more
than [eight] years on the charge of aggravated assault-DUI
related; and a concurrent sentence of not less than [six] months’
imprisonment nor more than [two] years on the charge of
recklessly endangering another person. All [three] sentences
were in the standard range of the sentencing guidelines.
Trial Court Opinion (“T.C.O.”), 3/10/2015, at 1-2 (minor grammatical
changes made for clarity).
On January 20, 2015, Raskowsky filed a post-sentence motion to
modify her sentence, which the trial court denied on the same day.2 On
February 5, 2015, Raskowsky filed a notice of appeal. On February 6, 2015,
the trial court ordered Raskowsky to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Raskowsky timely
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1
See North Carolina v. Alford, 400 U.S. 25 (1970).
2
Raskowsky’s post-sentence motion was timely, as January 19, 2015
was Martin Luther King Day.
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complied. On March 10, 2015, the trial court filed a Pa.R.A.P. 1925(a)
opinion.
Raskowsky raises one issue for our review: “Whether the trial court
abused its discretion in giving [Raskowsky] consecutive sentences?” Brief
for Raskowsky at 5 (capitalization modified for clarity).
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 judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007)
(citation omitted).
The right to challenge the discretionary aspects of sentencing is not
absolute. Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super.
2010).
An appellant challenging the discretionary aspects of his
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; (2)
whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence; (3)
whether appellant’s brief has a fatal defect; and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code.
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Id. at 170 (internal citations omitted).
Raskowsky has complied with the first two parts of the test by filing a
timely notice of appeal and preserving the issue in her post-sentence
motion. Raskowsky also has included a Pa.R.A.P. 2119(f) statement in her
brief. Therefore, we must determine whether Raskowsky has raised a
substantial question.
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the
sentencing process. At a minimum, the Rule 2119(f) statement
must articulate what particular provision of the code is violated,
what fundamental norms the sentence violates, and the manner
in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)
(citation omitted).
In her Rule 2119(f) statement, Raskowsky argues that her sentence is
contrary to fundamental norms that underlie the sentencing process because
the trial court imposed two of her sentences consecutively. She submits
that this constitutes an abuse of the court’s discretion. Therefore, she
maintains that she has raised a substantial question, sufficient to invoke our
jurisdiction. Brief for Raskowsky at 4.
[T]he 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
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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. Super. 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.” Hoag, 665 A.2d at 1214.
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may
create a substantial question. Commonwealth v. Moury, 992
A.2d 162, 171-72 (Pa. Super. 2010). 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.”
Commonwealth v. Mastromarino, 2 A.3d 581, 588 (quoting
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599
(Pa. Super. 2010)).
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (some
citations omitted; footnote omitted).
In Commonwealth v. Dodge (“Dodge I”), 859 A.2d 771, 778 (Pa.
Super. 2004),3 Dodge was sentenced to a minimum of fifty-eight and one-
half years’ imprisonment for “two counts of burglary (neither of which
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3
Although the Pennsylvania Supreme Court vacated our opinion in
Dodge I, see Commonwealth v. Dodge, 935 A.2d 1290 (Pa. 2007), we
conducted the same analysis and reached the same conclusion regarding the
substantial question inquiry in Commonwealth v. Dodge, 957 A.2d 1198
(Pa. Super. 2008), and again in Commonwealth v. Dodge, 77 A.3d 1263
(Pa. Super. 2013). In each instance, we concluded that Dodge’s consecutive
sentences were manifestly excessive, and, therefore, that he had raised a
substantial question sufficient to invoke our jurisdiction.
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involved violence toward a person), one count each of paraphernalia and
possession of a small amount of marijuana, and [thirty-seven] counts of
receiving stolen property.” The thirty-seven counts of receiving stolen
property accounted for fifty-two years, or eighty-eight percent, of the
aggregate sentencing total. Id. at 779. Dodge was forty-two years old at
the time of his sentencing. In concluding that his sentence raised a
substantial question, we reasoned that his sentence effectively was a life
sentence, as Dodge would be in prison until the age of 100. Id. When
compared to the nature of the non-violent, petty theft crimes, this Court
found Dodge’s aggregate sentence to be manifestly excessive. Having found
that Dodge raised a substantial question, we then reviewed the merits of his
appeal.
This case in no way resembles the extreme circumstances in Dodge.
Raskowsky’s sentence is not manifestly excessive given her criminal
conduct, which had fatal consequences. The trial court imposed consecutive
standard-range sentences for homicide by vehicle DUI-related and
aggravated assault by vehicle DUI-related. Based upon Raskowsky’s
aggregate sentence of five to sixteen years’ imprisonment, she will be thirty-
one years old when she is eligible for release. This does not equate to the
“life-sentence” that we found problematic in Dodge.
A trial court’s imposition of consecutive, rather than concurrent,
sentences may raise a substantial question “only [in] the most extreme
circumstances, such as where the aggregate sentence is unduly harsh
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considering the nature of the crimes and the length of imprisonment.”
Moury, 992 A.2d at 171-72. This case does not present such a
circumstance. Raskowsky has not raised a substantial question that her
sentence is contrary to the fundamental norms which underlie the
sentencing process, and we do not reach the merits of her appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2015
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