Com. v. Durrett King, C.. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
COREY M. DURRETT KING, :
:
Appellant : No. 1909 WDA 2014
Appeal from the Judgment of Sentence October 17, 2014,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0010053-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JULY 8, 2015
Corey M. Durrett King (“King”) appeals from the October 17, 2014
judgment of sentence entered by the Allegheny County Court of Common
Pleas following his convictions of accidents involving death or personal
injury, accidents involving serious bodily injury while not properly licensed,
accidents involving damage to attended vehicle or property, fleeing or
attempting to elude police, driving an unregistered vehicle, driving while
operating privileges are suspended or revoked, turning without required
signal, reckless driving, and operating a vehicle without required financial
responsibility.1 Upon review, we affirm.
The trial court summarized the relevant facts of the case as follows:
1
75 Pa.C.S.A. §§ 3742(a), 3742.1(a), (b)(2), 3743(a), 3733(a), 1301(a),
1543(a), 3334(a), 3736(a), 1786(f).
*Retired Senior Judge assigned to the Superior Court.
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[O]n June 21, 2013, officers from the City of
Pittsburgh, Bureau of Police were on routine patrol in
the South Side section of the City of Pittsburgh. The
officers observed a maroon Lincoln Town Car
operated by [King] travelling on South 18th Street.
The officers observed the vehicle turn into a
motorcycle causing a collision with the motorcycle.
The officers activated lights and sirens. [King]
attempted to flee the scene in his vehicle. Without
signaling, [King] turned into and sped through the
parking lot of a convenience store. He continued to
operate his vehicle at a high rate of speed through
residential streets. During the police chase, [King]
failed to negotiate a turn in the road and his vehicle
came to a rest in a yard. [King] refused to comply
with police commands to exit his vehicle. As a result,
[King] was forcibly removed from the vehicle and
taken into custody.
The driver of the motorcycle was seriously injured
at the scene. He was transported by medics to the
hospital in serious, but stable, condition. As a result
of the accident, the victim suffered three fractured
ribs, a concussion, a punctured lung and a back
injury. He lost substantial time from work.
Trial Court Opinion, 3/9/15, at 2.
A jury convicted King of the aforementioned crimes. On October 17,
2014, the trial court sentenced King, in relevant part, to eighteen to thirty-
six months of incarceration for fleeing and eluding; six to twelve months of
incarceration for accidents involving serious personal injury while not
properly licensed; and six to twelve months of incarceration for accidents
involving death or personal injury. It imposed no further sentence on the
remaining convictions. The trial court ordered the sentences to run
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consecutively for an aggregate sentence of two and a half to five years of
imprisonment.
On October 27, 2014, King filed a timely post-sentence motion seeking
reconsideration of his sentence. The trial court denied the motion on
October 28, 2014. Thereafter, King filed a timely notice of appeal and
complied with the trial court’s order for the filing of a concise statement of
errors complained of on appeal. The trial court issued a responsive opinion
on March 9, 2015.
On appeal, King raises one issue for our review:
Did the trial court err in denying [King]’s motion to
modify sentence since [King]’s aggregate sentence
was manifestly excessive since the three counts
could have been run concurrently with each other,
rather than consecutively, especially since [King] had
little prior criminal history and had shown exemplary
behavior while awaiting trial, and the trial court
failed to consider all of the factors contained at 42
Pa.C.S. §§ 9721(b) & 9781(d)?
King’s Brief at 3.
This issue challenges the discretionary aspects of King’s sentence,
which, as King recognizes, is not subject to our review as a matter of right.
Rather, “[a]n appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence.”
Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015) (citation
omitted). This requires the appellant to satisfy all of the following:
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(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.
Id. (citation omitted).
Our review of the record reveals that King adequately preserved the
issues he now seeks to raise on appeal in his post-sentence motion,2 timely
filed his notice of appeal, and included a statement pursuant to Pa.R.A.P.
2119(f) in his brief on appeal, purporting to raise two substantial questions
for our review. We review the claims seriatim.
First, King asserts that the trial court abused its discretion by running
his sentences consecutively rather than concurrently, resulting in a
manifestly excessive sentence. See King’s Brief at 10-11. Recently, in
Commonwealth v. Caldwell, __ A.3d __, 2015 WL 3444594 (Pa. Super.
May 29, 2015), an en banc panel of this Court addressed whether this raises
a substantial question:
2
The Commonwealth contends that King failed to preserve his claim that
the trial court did not consider the factors of section 9721(b) in his post-
sentence motion. Commonwealth’s Brief at 13-14. Although the
Commonwealth is correct that King did not cite to section 9721(b) in his
post-sentence motion, our review of the motion reveals that he sufficiently
raised a claim that the trial court did not consider the factors required by
that section in fashioning his sentence. See Motion to Reconsider Sentence,
10/27/14, ¶¶ 5-9.
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A court’s exercise of discretion in imposing a
sentence concurrently or consecutively does not
ordinarily raise a substantial question. Rather, the
imposition of consecutive rather than concurrent
sentences will present a substantial question in only
“the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the
nature of the crimes and the length of
imprisonment.”
To make it clear, a defendant may raise a
substantial question where he receives consecutive
sentences within the guideline ranges if the case
involves circumstances where the application of the
guidelines would be clearly unreasonable, resulting
in an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.
Id. at *3 (internal citations omitted, emphasis in the original).
In his Rule 2119(f) statement, King claims error in the trial court’s
imposition of consecutive sentences because King “had little prior criminal
history and had shown exemplary behavior while awaiting trial[,] … admitted
responsibility for his crimes and expressed remorse at the injuries to the
victim, … and [] was working two jobs to support his son.” King’s Brief at
12. As King couches his claim of an excessive sentence in terms of the trial
court’s failure to consider mitigating factors, he raises a substantial question.
See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014),
appeal denied, 105 A.3d 736 (Pa. 2014). We therefore proceed to review
this issue on the merits.
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Initially, we observe that contrary to King’s representations, the trial
court found that King’s prior criminal history was not “little” and that King
did not accept responsibility for his actions, and instead attempted to
“minimiz[e] [his] conduct[.]” N.T., 10/17/14, at 39-42. These findings have
ample support in the record. See id. at 6 (Commonwealth indicating that
King has a prior record score of five “because it stops at five, it doesn’t go
higher than that on the guidelines”), 36 (King stating that he and the victim
were “both at fault”). Furthermore, prior to announcing the sentence, the
trial court provided the following explanation for imposing consecutive,
rather than concurrent, sentences for the three convictions:
This case is a state sentence all the way. You had
so many prior chances to conform your conduct to
armaments of the law that I cannot issue a county
sentence in this case, and I’m not. But I’m also not
going to issue the fairly harsh sentence, I should
say, that [the Commonwealth] asks for, fairly harsh
in relation to all the factors of this case, including
[the victim]’s point of view.
Many of these cases, Mr. King, have charges that
run together. And you’ve had prior cases where
charges run together. Possession with intent to
deliver, deliver, possession as a misdemeanor, all
those charges run together. They’re all basically the
same act.
But in this case, the charges don’t really run
together that way. Fleeing and eluding is after the
fact of crashing head-on into a guy on a motorcycle.
That’s a separate decision you had to make; as you
said, a poor decision. Being involved in the accident
and not stopping to render aid is a separate act from
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driving while you had no license to do so and being
involved.
So you’re driving with no license. You’re in an
accident. Stop. No. Now you don’t render aid.
That’s a second, separate event. Then you take off
at a high speed. The police have to chase you.
That’s yet another separate event. They don’t –
while they’re all connected, they are different
decisions you made.
You continue to violate the law for your own
personal interests, to the exclusion not only of the
community in general, but of a member of the
community specifically and in particular, [the victim],
who’s laying on the ground dying. And I’m not
overstating the case. He’d be dead if it weren’t for
other people who showed up and took care of him.
Accordingly, you have to answer for those
separately.
N.T., 10/17/14, at 41-43.
We will not reverse a trial court’s sentencing decision absent a
manifest abuse of its discretion. Raven, 97 A.3d at 1253. This is more than
a mere error in judgment. Id. “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.” Id.
The trial court provided a well-reasoned and sound explanation for
imposing consecutive sentences in this case. King’s good behavior while
incarcerated leading up to sentencing does not translate into an abuse of
discretion by the trial court. See King’s Brief at 20. As has often been
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repeated by this Court, King “is not entitled to a ‘volume discount’ because
the various crimes occurred in one continuous spree.” Commonwealth v.
Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014) (quoting Commonwealth v.
Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010)). As such, he is
due no relief on this claim.
King further asserts that the trial court failed to consider the factors
contained in section 9721(b)3 and King’s nature and characteristics when
fashioning his sentence. King’s Brief at 12. This also raises a substantial
question for our review. See Commonwealth v. Coulverson, 34 A.3d
135, 143 (Pa. Super. 2011). It does not, however, entitle King to relief, as
the record reflects that the trial court stated on the record at sentencing that
it had reviewed the presentence investigation report prepared regarding
King. N.T., 10/17/14, at 3. It is settled law that in such circumstances, we
presume that the court properly considered and weighed all relevant factors
in fashioning the defendant’s sentence. Commonwealth v. Fowler, 893
A.2d 758, 767 (Pa. Super. 2006). King presents no argument to rebut this
presumption. Therefore, his argument fails.
Judgment of sentence affirmed.
3
“[T]he sentence imposed should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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