Com. v. Simola, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDON SIMOLA
Appellant No. 214 WDA 2014
Appeal from the Judgment of Sentence August 14, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002515-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 7, 2014
Brandon Simola appeals from his judgment of sentence imposed in the
Court of Common Pleas of Allegheny County following his convictions for one
count each of: retail theft (F3),1 simple assault (M2),2 possession of a
controlled substance,3 and possession of drug paraphernalia.4 Upon review,
we affirm.
On May 23, 2013, Simola pled guilty to the above-listed offenses. The
court sentenced Simola to an aggregate term of 18 to 36 months’
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1
18 Pa.C.S. § 3929(a)(1).
2
18 Pa.C.S. § 2701 (a)(1).
3
35 Pa.S. § 780-113(a)(16).
4
35 Pa.S. § 780-113 (a)(32).
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imprisonment, followed by two years of probation. Following the trial court’s
denial of his post-sentence motion on January 3, 2014, Simola filed a timely
notice of appeal.5
On appeal, Simola contends that the court abused its discretion by
failing to consider his rehabilitative needs and imposing a manifestly
excessive and unreasonable sentence. Simola’s claim implicates the
discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. 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 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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
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5
On February 13, 2014, the trial court ordered a statement of errors
complained of on appeal, to which Simola timely responded, claiming the
court imposed an illegal sentence at count one and that the court abused its
discretion. Simola’s first claim was based on a scrivener’s error, which
resulted in the docket reflecting a different sentence from that imposed at
the time of sentencing. On June 23, 2014, the trial court submitted its Rule
1925(a) opinion and corrected the scrivener’s error on the docket to reflect
the correct sentence.
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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. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013)
(citations and quotations omitted).
Here, Simola has met the first three requirements of the four-part
test. However, as this Court recently noted in Griffin, there is ample
precedent to support a determination that Simola’s allegation fails to raise a
substantial question. Griffin, 65 A.3d at 936-37 (citing Commonwealth v.
Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (claim that trial court
failed to consider defendant’s rehabilitative needs, age, and educational
background did not present substantial question); Commonwealth v.
Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that sentence failed to
take into consideration defendant’s rehabilitative needs and was manifestly
excessive did not raise substantial question where sentence was within
statutory guidelines and within sentencing guidelines); Commonwealth v.
Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that trial court
failed to appropriately consider appellant’s rehabilitative needs does not
present substantial question); Commonwealth v. Lawson, 650 A.2d 876,
881 (Pa. Super. 1994) (claim of error for failing to consider rehabilitative
needs does not present substantial question)).
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Even if we were to find that Simola’s claim did raise a substantial
question, the underlying allegation is meritless.
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.
***
When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation. Where the
sentencing court had the benefit of a presentence investigation
report (“PSI”), we can assume the sentencing court was aware
of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Further, where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.
Griffin, 65 A.3d at 937-38 (citations omitted).
The record belies Simola’s claim that the court failed to acknowledge
his “dire need to be rehabilitated given the serious drug-addiction that has
plagued him for the majority of his adult life.” Appellant’s Brief, at 11. As
the trial court explained,
[Simola’s] drug problem was addressed in the presentence
report and discussed at the sentencing hearing. The [c]ourt,
responding to [Simola’s] statement that he had entered a
methadone treatment program shortly before the sentencing
hearing, noted that he had been arrested on June 13, three
weeks after he entered his plea in this case, and charged
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with possession of heroin. [We] explained the reasons for the
sentenced imposed:
The [c]ourt’s reviewed the pre-sentence report for a
second time. Keep coming up with the same conclusion.
You have been going in and out of this court system since
1998. Doing the math, that’s 15 years. 15 years of using
drugs, retail theft, sexual assault, simple assault, theft by
deception, criminal conspiracy, and now all of a sudden --
after you enter a plea of guilty to retail theft in May, you
get arrested again for possession. Now all of a sudden
you’re in a methadone maintenance program. Possession,
by the way, of heroin. I think it has been 15 years of
judges trying to reach you and haven’t been successful.
Trial Court Opinion, 6/23/14, at 3-4 (emphasis in original). Thus, the court
considered Simola’s drug addiction and weighed his rehabilitative needs
against his fifteen years of criminal activity and concluded that incarceration
would both prevent him from using drugs and preying on others to support
that addiction.
Based on our review of the record, Simola has failed to establish 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. Griffin, supra. Thus, for all of the foregoing
reasons, we decline to disturb Simola’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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