Com. v. Graeff, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER ZANE GRAEFF
Appellant No. 1784 WDA 2013
Appeal from the Judgment of Sentence October 17, 2013
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000404-2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 04, 2014
Appellant Christopher Graeff (“Appellant”) challenges as excessive the
trial court’s judgment of sentence following his guilty plea to one count of
simple assault,1 a misdemeanor of the second degree. After careful review,
we affirm.
On September 16, 2013, Appellant pled guilty to a simple assault that
he perpetrated while intoxicated on August 12, 2013. See generally N.T.
9/9/2013. On October 15, 2013, the trial court imposed a five (5) to
twenty-three (23) month sentence of incarceration, and a $2,000.00 fine.2
N.T. 10/15/2013, p. 22. This sentence represented an upward deviation
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1
18 Pa.C.S. § 2701(a).
2
Misdemeanors of the second degree are punishable by up to two years of
imprisonment and fines of up to $5,000.00. See 18 Pa.C.S. §§ 1101, 1104.
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from Appellant’s sentencing guidelines, which gave a standard range of RS-
1, plus or minus 3. The trial court further imposed intensive alcohol
supervision during Appellant’s parole period, including a requirement that
Appellant wear an alcohol-detection anklet. Id.
On appeal, Appellant presents the following issues for our review:
I. WHETHER THE COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT IMPOSED AN EXCESSIVE
SENTENCE OF NOT LESS THAN FIVE (5) MONTHS NOR
MORE THAN TWENTY-THREE (23) MONTHS AS THE
APPELLANT’S PRIOR RECORD SCORE WAS ZERO (0)
MAKING THE STANDARD RANGE RS TO ONE (1) PLUS OR
MINUS THREE (3)?
II. WHETHER THE COURT ERRED AND ABUSED ITS
DISCRETION WHEN IT REQUIRED APPELLANT TO WEAR A
SCRAM BRACELET FOR THE ENTIRE PAROLE PERIOD AND
PAY THE COST OF SAME?
Appellant’s Brief at 7.
These claims raise challenges to the discretionary aspects of
Appellant’s sentence. “Challenges to the discretionary aspects of sentencing
do not entitle a petitioner to review as of right.” Commonwealth v. Allen,
24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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)
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whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Allen, 24 A.3d at 1064.
Appellant in the present case filed a timely notice of appeal, and
preserved his issues in a post-sentence motion. Further, Appellant’s brief
includes a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). See Appellant Brief, p. 11.
Accordingly, we now determine whether Appellant has raised substantial
questions for review and, if so, proceed to a discussion of the merits of the
claims. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17
(Pa.1987).
“A substantial question will be found where the defendant 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.” Commonwealth v.
Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see
also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a
substantial question on a case-by-case basis.” Id. A bald or generic
assertion that a sentence is excessive does not, by itself, raise a substantial
question justifying this Court’s review of the merits of the underlying claim.
Id.; see also Commonwealth v. Harvard, 64 A.3d 690, 701
(Pa.Super.2013). Additionally, “an allegation that the sentencing court
failed to consider mitigating factors generally does not raise a substantial
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question for [appellate] review.” Commonwealth v. Rhoades, 8 A.3d 912,
918-919 (Pa.Super.2010); see also Commonwealth v. Moury, 992 A.2d
162 (Pa.Super.2010); Commonwealth v. Hanson, 856 A.2d 1254, 1257-
58 (Pa.Super.2004) (defendant’s contention that sentencing court failed to
consider mitigating factors in favor of lesser sentence did not present a
substantial question that the sentence was not appropriate under the
Sentencing Code); Commonwealth v. Urrutia, 653 A.2d 706, 710
(Pa.Super.1995) (“An allegation that a sentencing court ‘failed to consider’
or ‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.”). However, “a substantial
question exists when a sentencing court imposed a sentence in the
aggravated range without considering mitigating factors.” Rhoades, 8 A.3d
at 919 n.12 (citing Commonwealth v. Felmlee, 828 A.2d 1105, 1107
(Pa.Super.2003) (emphasis in original).
In his Pa.R.A.P. 2119(f) statement (“Rule 2119(f) statement”),
Appellant alleges that the sentence imposed for simple assault “was so
manifestly excessive as to constitute too severe a punishment.” Appellant’s
Brief, p. 11. In support of this claim, the Rule 2119(f) statement asserts:
1. Appellant’s conduct did not demonstrate that he was likely to
commit a new offense if not incarcerated;
2. A sentence of total confinement was not appropriate given the
facts of the instant matters;
3. A sentence of total confinement was not necessary to
vindicate the court’s authority;
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4. Appellant cooperated with the Commonwealth as stated in
testimony presented before the [c]ourt;
5. Appellant complied with the conditions of his bail
demonstrating a modification of his past behavior; and
6. Appellant demonstrated a reduced need for rehabilitation as
he has been in recovery in a longstanding issue with
controlled substances.
Appellant’s Brief, p. 11. These assertions effectively allege that the
sentencing court erred by failing to properly consider alleged mitigating
factors and Appellant’s rehabilitative needs in fashioning a sentence that
deviated upward from the standard range of sentencing guidelines. As such,
the Rule 2119(f) statement raises a substantial question for our review.3
See Rhoades, supra.
Our standard of review for discretionary aspects of sentencing claims
is as follows:
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
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3
We further note that Appellant’s Brief makes the additional, separate
argument that the trial court failed to adequately explain its upward
deviation from the standard range of the sentencing guidelines. See
Appellant’s Brief, pp. 12-16. While not expressly included in the Rule
2119(f) statement, we note that this separate claim is interrelated with the
mitigating factors issue contained in the statement, and could have provided
an independent substantial question for our review. See Commonwealth
v. Monohan, 860 A.2d 180, 182 (Pa.Super.2004) (a substantial question
exists where the sentencing court failed to provide sufficient reasons for
imposing a sentence outside of the guidelines).
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which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the record reveals that the lower court did not abuse its
discretion. Instead, the trial court imposed a sentence that was consistent
with the protection of the public, took into account the gravity of the offense
as it related to the impact on the life of the victim and on the community,
and considered the Appellant’s rehabilitative needs, as required by 42
Pa.C.S. § 9721(b). See 1925(a) Opinion, pp. 1-2; N.T. 10/15/2013, pp. 18-
23.
Appellant’s claim that the trial court improperly and excessively
sentenced him beyond the sentencing guidelines’ standard range fails on the
merits. In deviating upward from the sentencing guidelines, the trial court
reviewed a pre-sentence investigation report, the sentencing guidelines, and
listened to the victim’s statement, Appellant’s statement, and the
statements of counsel. See N.T. 10/15/2013, pp. 2-18. The court
explained its upward deviation by stating that it considered Appellant’s
several recent alcohol-related convictions and domestic abuse incidents that
did not otherwise factor into Appellant’s prior record score and which created
recidivism concerns, the court’s serious concern with Appellant’s conduct in
staring down the victim during the plea hearing, the extent of the victim’s
injuries, and Appellant’s failure to take genuine responsibility for his actions.
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Id. at 20-22. These reasons adequately explained the trial court’s upward
deviation from the sentencing guidelines.
Appellant’s second claim, that the trial court abused its discretion in
ordering that the Appellant must wear an alcohol-detecting anklet
throughout his parole period, also lacks merit. Initially, the Rule 2119()
statement did not include this claim, expressly or otherwise, and we can find
it waived for this reason. See Commonwealth v. Gibbs, 981 A.2d 274,
283 (Pa.Super.2009) (an inadequate Rule 2119(f) statement may constitute
waiver of claims). Further, the claim fails on the merits. When imposing
sentence, the Sentencing Code allows trial courts to include release
conditions “as may be reasonably related to the sentence.” 42 Pa.C.S. §
9755(d). In addition to multiple specific enumerated conditions, the
Sentencing Code allows the court to impose “any other conditions
reasonably related to the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom of conscience.” 42
Pa.C.S. § 9754(c)(13).
Here, the trial court coupled its requirement that Appellant wear an
alcohol-detecting anklet throughout the parole period with the requirement
that he complete out-patient drug and alcohol counseling. N.T. 10/15/2013.
P. 22. While conceding that the requirement that he wear an alcohol-
detection anklet during the period of his parole does not restrict his liberty,
Appellant argues that the imposition of such a condition is an excessive
aspect of his sentence because it is not reasonably related to his
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rehabilitation and would cause undue financial hardship. See Appellant’s
Brief, pp. 17-18. Appellant’s argument is unconvincing. Given Appellant’s
consistent involvement with alcohol and controlled substances, the alcohol-
detection anklet requirement, like the required drug and alcohol counseling,4
is reasonably related to Appellant’s rehabilitation.
Given the foregoing, Appellant’s claims regarding the discretionary
aspects of his sentence fail on the merits. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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4
We note Appellant has not challenged the requirement that he attend a
program of drug and alcohol counseling.
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