Com. v. Ostrander, R., Jr. ( 2016 )

J-S39037-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD L. OSTRANDER, JR., :
:
Appellant : No. 1432 MDA 2015
Appeal from the Judgment of Sentence July 15, 2015
in the Court of Common Pleas of Luzerne County
Criminal Division, at No(s): CP-40-CR-0001442-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 29, 2016
Richard L. Ostrander, Jr. (Appellant) appeals from the July 5, 2015
aggravated range judgment of sentence of 36 to 66 months incarceration
imposed following his conviction for driving under the influence,
unauthorized use of a motor vehicle, and driving with a suspended license.
We affirm.
The trial court set forth the relevant factual background of this case as
follows.
The facts that give rise to this action occurred on April 12,
2014. On that date, Colleen Shiloski called the police reporting
that [] Appellant [] had taken her Toyota Camry without her
permission. A short while later, [Appellant] was located driving
the Toyota Camry. Upon being approached by police officers,
they observed that he had a smell of alcohol on his breath as
well as slurred speech and glossy eyes. He was taken for a
blood test to determine his blood alcohol content (BAC), which
he agreed to. His BAC was .30 %. A check of his driving record
*Retired Senior Judge assigned to the Superior Court.
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indicated that this was his fourth (4th) DUI offense as well as
that his license was suspended, DUI-related, previously.
On February 23, 2015, Appellant entered a guilty plea to
count I, driving under the influence under § 3802(a)(1), count
II, driving under the influence § 3802(c); count III unauthorized
use of a motor vehicle, and count IV, driving while license is
suspended with a BAC of .02 or greater under § 1543(b)(1.1)(i).
Subsequent thereto, on July 15, 2015, [] Appellant was
sentenced as follows: count I merged with count II for the
purposes of sentencing, count II, DUI, 4th offense with an
offense gravity score of five (5) and a prior record score of five
(5), the standard range being twelve (12) to eighteen (18)
months and an aggravated range of [eighteen to ] twenty-one
(21) months. The [trial court] sentenced [] Appellant to a period
of incarceration of not less than twenty-one (21) months [to] no
more than forty-two (42) months in a State Correctional Facility.
As to count III, unauthorized use of a motor vehicle with an
offense gravity score of 2 and prior record score of 5, the
standard range of one (1) to nine (9) months with the
aggravated range [of nine to] twelve (12), [] Appellant was
sentenced to a period of incarceration of not less than twelve
(12) months [to] no more than twenty-four (24) months
consecutive to count II. Count IV, driving while operating license
is suspended or revoked had a mandatory minimum of ninety
(90) days of incarceration consecutive to count III. Thus, []
Appellant was sentenced to an aggregate sentence of thirty-nine
(39) to sixty-nine (69) months.[1]
Trial Court Opinion (TCO), 12/15/2015, at 1-2 (unnecessary capitalization
omitted).
1
At sentencing the trial court pronounced an aggregate sentence of 39 to 69
months of incarceration. This miscalculation of the sum of Appellant’s
sentence was later corrected on the written sentencing order to reflect the
correct aggregate sentence of 36 to 66 months.
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Appellant timely filed a motion to modify and/or reconsider his
sentence on July 16, 2015. Appellant’s motion was denied by the trial court
on July 21, 2015. This timely-filed appeal followed.2
Appellant states the following issue for this Court’s consideration:
“Was the [t]rial [c]ourt’s sentence of Appellant an abuse of discretion by
sentencing [Appellant] in the aggravated range of the sentencing
guidelines?” Appellant’s Brief at 2.
Appellant’s question challenges the discretionary aspects of his
sentence. Accordingly, we bear in mind the following.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely [filed]; (2) whether Appellant preserved
his issue; (3) whether Appellant’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 sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
The record reflects that Appellant timely filed a notice of appeal and
that Appellant preserved the issue by timely filing a motion for
2
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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reconsideration of his sentence. While Appellant has failed to include in his
brief a statement pursuant to Pa.R.A.P. 2119(f),3 the Commonwealth has
not objected to this omission, and therefore, we will not find waiver. See
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)
(quoting Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa. Super. 2005))
(“[I]n the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule
2119(f).”).
We now consider whether Appellant has presented substantial
questions for our review. The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). “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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
and quotation marks omitted).
3
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (Pa.
2002)) (“An appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate ‘the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.’”).
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A review of Appellant’s brief reveals an attempt to make an argument
that the trial court considered only Appellant’s prior record when
4
determining his sentence. See Appellant’s Brief at 6-7. A claim alleging
this error raises a substantial question. See Commonwealth v. Crork, 966
A.2d 585, 590 (Pa. Super. 2009) (holding a claim that a sentence is
excessive because trial court improperly relied only on prior record raised a
substantial question for review).
In addressing Appellant’s issue, the trial court offered the following:
In the instant matter, the [trial court] at the sentencing hearing,
indicated what the maximum sentence [was] for the offenses to
which the Appellant pled guilty. The record reflects the [trial
court] had the opportunity to accept [] Appellant’s guilty plea as
knowingly and voluntarily entered. In addition, the [trial court]
listened to arguments articulated by defense counsel and the
Commonwealth and reviewed the [p]re-[s]entencing
[i]nvestigation [r]eport.
Specifically, the [trial court] noted that [] Appellant’s
criminal history contained not just nine (9) DUI’s but various
other crimes dispersed throughout [] Appellant’s lifetime,
including forgeries, felony forgeries, and bad checks. His prior
DUI history involved harms to others, car chases, and accidents.
4
At the outset, we note that although Appellant acknowledges he was
sentenced in the aggravated range, he nonetheless refers to his sentence as
one that deviates from the prescribed sentencing guidelines. See
Appellant’s Brief at 6 (“Where an excessive sentence claim is based on
deviation from the sentencing guidelines…” and “In this case at hand, the
record is lacking the specific pronouncement in which the [trial court]
specifically states of record the factual basis and specific reasons which
compelled the [trial court] to deviate [from] the standard range.”).
Appellant’s reliance on case law discussing the deviation from the sentencing
guidelines and the requirements of the trial court when sentencing a
defendant as such is misplaced, since Appellant was sentenced within the
aggravated range prescribed by the guidelines. To the extent Appellant is
making a claim on this premise, it fails.
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The [trial court] also noted the numerous [c]ourt [o]rdered
rehabilitation opportunities, drug and alcohol counseling and
other services that were ordered through prior probation
periods- all of which failed to rehabilitate [] Appellant. The [trial
court] also opined [] that a lesser sentence would depreciate the
seriousness of this crime, specifically, his 4th DUI for sentencing
purposes and approximately 9th overall. In addition, the [trial
court] pointed out that this particular crime was committed while
he was released on bail in another matter. The [trial court]
additionally had concerns that many of the prior [DUIs] involved
[] Appellant speeding, hitting other cars and leaving the scene of
a crime(s), which shows that [] Appellant has a “mind that is
regardless of social consequence.” It is evident, the [trial court]
noted, that [] Appellant does not understand the nature of his
conduct, that his continuous abuse of alcohol, despite his
multiple arrests and multiple treatment opportunities, make him
a danger to society. Also, in the case at bar, [Appellant] was
driving another person’s automobile in the commission of this
crime.
TCO, 12/15/2015, at 3-4 (citations removed).
Contrary to Appellant’s assertion, this Court finds the trial court did not
rely solely on Appellant’s prior record score. Specifically, the trial court
noted at sentencing that “[a]fter [the trial court’s] review of the presentence
investigation, after [the trial court’s review] of [Appellant’s] extensive
criminal history, after [the trial court’s] review of [Appellant’s] continuous
abuse of alcohol, despite multiple arrests and multiple opportunities for
treatment, [the trial court] finds [Appellant] a danger to society. [The trial
court finds] that prior probation has failed to rehabilitate [Appellant] and
[the trial court believes a lesser] sentence would depreciate the seriousness
of this crime.” N.T., 7/15/2015, at 5. It is clear that the trial court
considered more than the mere fact that Appellant had a prior record. In
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fact, the record reflects that in addition to Appellant’s prior record, the trial
court considered other pertinent factors, such as the danger to the
community and the rehabilitative needs of Appellant. The trial court is
permitted to consider Appellant’s prior record as long as it is not the sole
reason for sentencing Appellant in the aggravated range. See Shugars,
895 A.2d at 1275 (quoting Commonwealth v. Simpson, 829 A.2d 334,
339 (Pa. Super. 2003)) (“It is impermissible for a court to consider factors
already included within the sentencing guidelines as the sole reason for
increasing or decreasing a sentence to the aggravated or mitigated range.
Trial courts are permitted to use prior conviction history and other factors
already included in the guidelines if, they are used to supplement other
extraneous sentencing information.”) (emphasis in original).5
We are not persuaded by Appellant’s argument that the trial court
relied solely on his prior record when imposing Appellant’s sentence, as the
record indicates otherwise. No relief is due.
Judgment of sentence affirmed.
5
Furthermore, we note that the trial court ordered and received a pre-
sentence report (PSI) prior to sentencing. “[W]here the sentencing judge
had the benefit of a PSI, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
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