Com. v. Ciner, T. ( 2015 )

J-S36002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS ALEX CINER
Appellant No. 1780 WDA 2013
Appeal from the Judgment of Sentence May 22, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004443-2012
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 08, 2015
Appellant, Thomas Alex Ciner, appeals from the judgment of sentence
entered May 22, 2013, by the Honorable Kathleen A. Durkin, Court of
Common Pleas of Allegheny County. Ciner alleges that the six to twelve
month sentence imposed by the trial court is manifestly excessive. We
affirm.
Ciner entered an open guilty plea to one count of simple assault of a
child.1 The Commonwealth described the facts underlying the plea as
follows.
Had the Commonwealth proceeded to trial, it would have
presented the testimony of several witnesses, including North
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2701(b)(2).
J-S36002-15
Versailles police officer Kimberly Silvis…. She would testify that
she responded to an address in her jurisdiction in North
Versailles on February 4th of 2012 at approximately 11:20. She
would testify that she was responding to a call by a neighbor
who simply informed the dispatcher that she observed a white
male in his twenties to be chasing a juvenile African-American
male throughout her yard and the yard next door, and
eventually had to enter the house. It was unknown at that point
whether the defendant had broken into the house or not. Officer
Silvis responded, made contact with several occupants of that
address, most notably the defendant who opened the door. She
would testify that he opened the door a small ways, informed
her that it was nothing, it was just a disciplinary matter and that
everything was under control.
She would testify that the amount of distance that the
door was open she was able to observe the victim in this case,
[Z.P.], who was seated on a couch in the living room of the
residence. She would testify that at the time she observed [the
victim], she recognized that he was holding a – what appeared
to be a tissue or paper towel to his face area. She observed
what she would describe to be fresh blood that is red in color. At
that point, she would have considered her investigation to have
turned to a welfare check on the individual in the house. She
then entered the house, began speaking with several individuals.
She asked for medics to be dispatched to the area.
[The victim] would have been called to testify. He would
have testified that that morning he was talking to the defendant,
that the defendant woke him up insisting that he leave with – or
get ready to leave with him to go to a location outside of the
house. [The victim] would testify that he did not get changed
right away, that this appeared to anger Mr. Ciner. From there,
he would testify that an altercation ensued, culminating in Mr.
Ciner at some point hitting him and placing him in a headlock.
Additionally, he would testify that there was a broom used in this
altercation.[2] The medics … would testify that they responded
and treated [the victim] for some injuries and swelling to his
____________________________________________
2
Defense counsel conceded at sentencing that, as a result of the assault,
“there [were broom] bristles embedded in the child’s gums that day.” N.T.,
Sentencing, 5/22/13 at 5.
-2-
J-S36002-15
face as well as … swelling to the back of his head. He was
transported to UPMC McKeesport where he was treated. He was
eventually discharged with instructions for a concussion
aftercare treatment.
N.T., Plea Hearing, 2/25/13 at 8-11.
On May 22, 2013, after reviewing a pre-sentence investigation report,
the trial court sentenced Ciner to six to twelve months’ incarceration, to be
followed by two years’ probation. Ciner filed post-sentence motions for
reconsideration of sentence on May 31, 2013, and June 17, 2013,
respectively, which were denied by operation of law. This timely appeal
followed.
On appeal, Ciner argues that the sentencing court imposed a
manifestly excessive sentence. This claim challenges the discretionary
aspects of sentence. 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.” See Commonwealth v. McAfee, 849
A.2d 270, 274 (Pa. Super. 2004).
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).
-3-
J-S36002-15
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Ciner challenged his sentence in a post-sentence motion and
filed a timely appeal. Ciner’s appellate brief also contains the requisite Rule
2119(f) concise statement. We must now determine whether Ciner’s
challenge to the discretionary aspects of his sentence raises a substantial
question.
“A substantial question will be found where an appellant 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. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation
omitted).
Ciner claims in his Rule 2119(f) statement that “in his case the
circumstances were such that any sentence of confinement was and is
manifestly excessive and inappropriate in view of the criteria specified in
three provisions of the sentencing code, i.e., those found in 42 Pa.C.S. §§
9722, 9724, 9725 [regarding the imposition of an order of probation versus
total confinement].” Appellant’s Brief at 12. In the argument section of
Ciner’s brief, he develops this claim by asserting that his sentence of
-4-
J-S36002-15
confinement is excessive due to the trial court’s failure to consider what
essentially amounts to mitigating circumstances of record. See Appellant’s
Brief at 29-34.
“We note that a generic claim that a sentence is excessive does not
raise a substantial question for our review.” Christine, 78 A.3d at 10(citation omitted). “Additionally, this Court has repeatedly held that an
allegation that the trial court failed to consider particular circumstances or
factors in an appellant’s case go[es] to the weight accorded to various
sentencing factors and do[es] not raise a substantial question.” Id., at 10-
11 (citation omitted). We further note that “[t]his Court has held on
numerous occasions that a claim of inadequate consideration of mitigating
factors does not raise a substantial question for our review.”
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
omitted).
While Ciner argues that the sentencing court imposed a sentence of
confinement without due consideration of relevant sentencing factors, we
note in this regard that the sentencing court reviewed a pre-sentence report.
See N.T., Sentencing, 5/22/13 at 5. Where the sentencing court had the
benefit of reviewing a pre-sentence report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
-5-
J-S36002-15
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
As the sentencing court in this case did have the benefit of a pre-sentence
report, we must presume that she considered all relevant sentencing factors
and fashioned an individualize sentence.
Based on the foregoing, we are constrained to find that Ciner’s claim
that the sentencing court did not adequately consider relevant factors of
record fails to raise a substantial question. We note that even if we were to
find that Ciner raised a substantial question for our review, we would still not
afford relief. As Ciner repeatedly acknowledges, the trial court’s sentence of
six to twelve months constituted a standard range sentence. “[W]here a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.” Moury, 992
A.2d at 171 (internal citations omitted). Ciner has not articulated any
-6-
J-S36002-15
extraordinary circumstances in this case that would necessitate we
reconsider the application of this well-accepted precept to the instant case.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
____________________________________________
3
We note with great concern, and no small amount of reprehension, that the
core of Ciner’s argument on appeal amounts to a thinly veiled effort to place
the blame for this incident on the ten-year-old victim.
Ciner repeatedly references the fact that the victim suffered from
“attention deficit/hyperactivity disorder and oppositional defiance disorder”
and notes his belief that the victim was a “problem child” who “had caused
difficulties at his school due to his being ‘aggressive, fight, [and] taking
knives to school.’” Appellant’s Brief at 6, 8. Ciner also informs this Court
that “there had been no difficulties at all, i.e., no violence or other
inappropriate behavior, in Appellant’s interaction with his biological
children.” Id., at 8 (emphasis added). While insisting that his assault of the
minor child was an “isolated incident,” id., at 33, Ciner seemingly glosses
over the fact that, because of this incident, the child suffered injuries and
swelling to his face and back of his head that required treatment and
discharge with instructions for concussion aftercare treatment, see N.T.,
Plea Hearing, 2/25/13 at 10-11. Ciner’s attempt to shift the blame for his
assault to the ten-year-old victim is patently outrageous and epitomizes
Ciner’s inability to take responsibility for his actions.
-7-