Com. v. Oliynyk, O. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
OLEKSANDER V. OLIYNYK, : No. 1325 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, February 25, 2014,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0004068-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2015
Oleksander V. Oliynyk appeals from the judgment of sentence of
February 25, 2014, following his conviction of theft. We affirm.
The trial court has summarized the underlying facts of this case as
follows:
The victims, Irina Faymleyb and
Boris Ovrutsky, owned a number of real properties
that they leased to multiple tenants. [Appellant] was
employed by the victims. At various times during
the course of that employment, [appellant] was
responsible for collecting, logging and depositing the
rent checks. The evidence presented at trial
established that [appellant] stole $431,796.36 from
his employers, by diverting rent payments into his
private bank account. Testimony of the tenants
established that [appellant] altered the rent checks.
Bank records demonstrated that those checks were
deposited into [appellant]’s bank account.
[Appellant] used the stolen funds for his own private
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use. He used some of the funds to purchase luxury
items including three high-priced vehicles.
Trial court opinion, 5/14/14 at 1 (footnotes omitted).
On February 25, 2014, following a jury trial, appellant was found guilty
of one count of theft by deception, a felony of the third degree. Appellant
was sentenced to the statutory maximum sentence of 3½ to 7 years’
imprisonment. No post-sentence motions were filed. This timely pro se
appeal followed.1 Appellant complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and the trial court has filed an opinion.
Appellant has raised the following issue for this court’s review:
A. Did the trial court impose an unreasonable and
illegal sentence upon appellant where (1) the
court sentenced him to the maximum sentence
allowable by law which greatly exceeded the
aggravated range of the sentencing guidelines
for a defendant with no criminal record
convicted of a non-violent offense and (2) the
trial court improperly took into account
appellant’s immigration status and nationality
in imposing a maximum sentence?
Appellant’s brief at 4 (capitalization omitted).
In his first issue on appeal, appellant challenges the discretionary
aspects of sentencing. Appellant argues that imposition of the statutory
maximum sentence of 3½ to 7 years was unreasonable where the guidelines
called for a standard range sentence of 9 to 16 months. (Appellant’s brief at
1
Despite having privately retained counsel, appellant filed his appeal notice
and Rule 1925(b) statement pro se. Subsequently, counsel was permitted
to withdraw, and new counsel was appointed.
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13.) According to appellant, the trial court focused exclusively on his
unlawful immigration status. (Id. at 18.)2
“Challenges to the discretionary aspects of a sentence must be raised
first in the trial court, either in a post-sentence motion or by presenting
them during the sentencing proceedings. The failure to do so results in a
waiver of all such claims.” Commonwealth v. Felder, 75 A.3d 513, 515
(Pa.Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014) (citations
omitted). As stated above, appellant did not file any post-sentence motions,
nor did he raise any claims related to the discretionary aspects of his
sentence at the sentencing hearing. Accordingly, appellant has not
preserved any challenges to the discretionary aspects of his sentence for
appellate review. Id.
Appellant claims counsel was ineffective for failing to file a
post-sentence motion. However, the general rule as stated in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), is that defendants
should wait until the collateral review phase to raise claims of ineffective
assistance of counsel. Appellant argues trial counsel’s ineffectiveness is
clear from the existing record; however, the trial court disagreed. (Trial
court opinion, 5/14/14 at 2.) Therefore, the “extraordinary circumstances”
exception to the Grant rule, as outlined in Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013), where a claim of ineffective assistance of trial counsel
2
Appellant is a Ukrainian national.
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is apparent from the record and meritorious to the extent that immediate
consideration of the claim best serves the interest of justice, does not apply.
Appellant also argues that his sentence is “illegal” because the trial
court focused on his status as an illegal alien. According to appellant, the
trial court made his immigration status the centerpiece of the sentencing
decision. (Appellant’s brief at 20.) Appellant claims that this violated his
constitutional right to due process and equal protection. (Id. at 18-19.)
First, we disagree with appellant’s argument that the claim implicates
the legality of his sentence. Appellant’s sentence was within the statutory
limits and it is well settled that even issues of a constitutional dimension are
subject to waiver. As this court stated in Commonwealth v. Robinson,
931 A.2d 15, 21 (Pa.Super. 2007) (en banc):
[W]e have established the principle that “the term
‘illegal sentence’ is a term of art that our Courts
apply narrowly, to a relatively small class of cases.”
[Commonwealth v.] Berry, 877 A.2d [479,] at 483
[(Pa.Super. 2005) (en banc), appeal denied, 917
A.2d 844 (Pa. 2007)]. This class of cases includes:
(1) claims that the sentence fell “outside of the legal
parameters prescribed by the applicable statute”;
(2) claims involving merger/double jeopardy; and
(3) claims implicating the rule in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). See [Commonwealth v.] Jacobs, 900
A.2d [368] at 372-373 [(Pa.Super. 2006) (en banc),
appeal denied, 917 A.2d 313 (Pa. 2007)] (citations
omitted). These claims implicate the fundamental
legal authority of the court to impose the sentence
that it did. Id.
Most other challenges to a sentence implicate the
discretionary aspects of the sentence.
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[Commonwealth v.] Archer, 722 A.2d [203,] at
209-210 [(Pa.Super. 1998) (en banc)]. This is true
even though the claim may involve a legal question,
a patently obvious mathematical error, or an issue of
constitutional dimension. Id.; Jacobs, 900 A.2d at
373-374.[Footnote 5]
[Footnote 5] Even ten years before
Archer, this Court issued an en banc
opinion advising that “if a sentencing
court considers improper factors in
imposing sentence upon a defendant, the
court thereby abuses its discretion, but
the sentence imposed is not rendered
illegal. Otherwise, every erroneous
consideration by a sentencing court will
render the sentence illegal in a manner
which cannot be waived by a defendant.
This is not the law. Indeed, even issues
of constitutional dimensions can be
waived.” Commonwealth v. Krum,
367 Pa.Super. 511, 533 A.2d 134, 136
(1987) (en banc) (citations omitted).
Therefore, appellant’s claim must be viewed as one implicating the
discretionary aspects of the sentence. As such, it is deemed waived for
failure to raise it in the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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