Com. v. Reitz, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
ROBERT ALAN REITZ
Appellee No. 154 MDA 2014
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001687-2013
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 09, 2014
The Commonwealth appeals the judgment of sentence entered in the
Court of Common Pleas of Centre County on November 26, 2013, after
Robert Alan Reitz tendered a guilty plea to one count of driving under the
influence (highest rate of alcohol – first offense) (“DUI”).1 The court
sentenced Reitz to a term of 30 days to six months of county imprisonment.
In its sole issue on appeal, the Commonwealth challenges the discretionary
aspects of Reitz’s sentence. For the reasons set forth below, we affirm.
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1
75 Pa.C.S. § 3802(c).
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The facts and procedural history are as follows. On March 10, 2013,
Reitz was arrested for DUI.2 On November 14, 2013, he entered an open
guilty plea to one count of DUI. He had previously executed a written guilty
plea colloquy. Therefore, on that day, the trial court conducted an on-the-
record oral waiver colloquy to supplement the written waiver.
On November 26, 2013, the trial court imposed a sentence of 30 days
to six months’ confinement. The Commonwealth filed a timely motion for
modification of sentence, claiming the sentence was “clearly unreasonable”
pursuant to 42 Pa.C.S. § 9781. A motions hearing was held on December
23, 2013. The court subsequently denied the Commonwealth’s post-
sentence motion on December 31, 2013. The Commonwealth then filed this
appeal.3
In the Commonwealth’s sole issue, it contends the court erred in
denying its motion to modify sentence because the sentence imposed on
Reitz was “grossly inadequate considering the circumstances of this case,
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2
It appears Reitz committed this offense while he was out on bail for a prior
arrest at Docket Number CP-14-CR-921-2013. With respect to that docket,
Reitz was charged with DUI, 75 Pa.C.S. §§ 3802(a)(1), (c), and restriction
on alcoholic beverages, 75 Pa.C.S. § 3809(a). He was subsequently found
guilty during a bench trial and sentenced to a period of 60 days’ to 6
months’ incarceration.
3
On January 22, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth filed a concise statement on February 12,
2014. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
March 21, 2014.
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[did] not adequately address [Reitz]’s criminal history, [did] not adequately
address the need to protect the community, and [did] not consider [Reitz]’s
numerous failed rehabilitative efforts.” Commonwealth’s Brief at 13.
Specifically, it states that although the court had the pre-sentence
investigative report before it, the court failed to consider and weigh all
relevant facts, including: (1) this was Reitz’s sixth lifetime DUI; (2) both of
his last DUIs had a blood alcohol content of .300% or greater; (3) he was
out on bail when he committed this new offense; (4) he failed to take
advantage of numerous prior rehabilitative measures; (5) he denied he has
an alcohol problem; and (6) he is unable to refrain from driving under the
influence, which creates a substantial danger to the community. Id. at 18-
19.
Before addressing the merits of this claim, we find the issue is waived
for several reasons. First, the Commonwealth framed this issue in its
concise statement as follows: “Did the Trial Court err in denying the
Commonwealth’s Motion for Modification of Sentence filed on November 27,
2013 and decided by the Court on December 23, 2013?” Statement of
Matters Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), 2/21/2012, at 1. As stated, the issue was too vague to
allow the trial court to identify the specific error raised on appeal. This Court
has previously explained:
An appellant’s concise statement must properly specify the error
to be addressed on appeal. Commonwealth v. Dowling, 778
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A.2d 683 (Pa.Super.2001). In other words, the Rule 1925(b)
statement must be “specific enough for the trial court to identify
and address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super.2006), appeal denied, 591 Pa. 712, 919 A.2d 956
(2007). “[A] [c]oncise [s]tatement which is too vague to allow
the court to identify the issues raised on appeal is the functional
equivalent of no [c]oncise [s]tatement at all.” Id. The court's
review and legal analysis can be fatally impaired when the court
has to guess at the issues raised. Id. Thus, if a concise
statement is too vague, the court may find waiver. Id.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011), appeal
denied, 32 A.3d 1275 (Pa. 2011).
Here, in its opinion, the trial court determined:
This Court is unable to address the issues presented by the
Commonwealth on appeal because the Statement filed is too
vague.… By simply saying the Commonwealth believes the
Court erred in denying the Commonwealth’s Motion for
Modification of Sentence, the Court is left guessing as to what
that error may be. The Commonwealth has made several
allegations of error, both in their Motion and in oral argument.
Without more, the Court is tasked with searching through the
record and speculating what the issue (or issues) is that the
Commonwealth will raise before this Honorable Court…. Because
of the press of business of this Court, and pursuant to the
requirements set forth in Rule 1925(b), the Court will not
venture guesses to determine the Commonwealth’s issues on
appeal.
Trial Court Opinion, 3/21/2014, at 3. Accordingly, we conclude that the
issue, as framed by the Commonwealth in its concise statement, was too
vague to provide the trial court with notice of the specific error it intended to
challenge on appeal, and therefore, is waived.
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Second, even if we were to conclude the issue was not waived for
vagueness, we would find that it was waived because the Commonwealth
failed to preserve its discretionary aspects of sentencing claim.
The standard of review for a claim challenging the discretionary
aspects of sentencing is well-established:
Sentencing is a matter vested in the sound discretion of the
judge, and will not be disturbed on appeal absent a manifest
abuse of discretion. An abuse of discretion is not shown merely
by an error in judgment. Rather, the appellant must establish,
by reference to the record, that then 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citation omitted). To reach the merits of a discretionary
issue, this Court must determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set
forth a concise statement of reasons relied upon for the
allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4)
the appellant raises a substantial question for our review.
Commonwealth v. Stein, 39 A.3d 365, 370 (Pa. Super. 2012) (citation
omitted). Moreover, we note that “[i]f a Rule 2119(f) statement is not
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included in the appellant’s brief and the appellee objects to the omission,
then this Court is precluded from reviewing the merits of the appellant’s
claim.” Commonwealth v. Faulk, 928 A.2d 1061, 1072 (Pa. Super.
2007).4
Here, the Commonwealth has not included a Rule 2119(f) statement in
its brief, and Reitz has objected to this deficiency. See Reitz’s Brief 10-12.
Therefore, we may not reach the merits of the Commonwealth’s sentencing
challenge as the issue was not properly preserved.
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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4
See also Commonwealth v. Eckles, 625 A.2d 1265, 1266 (Pa. Super.
1993) (appellate court was precluded from considering the Commonwealth’s
sentencing issue due to a lack of a Rule 2119(f) statement).
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