Com. v. Nyberg, K. ( 2015 )

J. S20008/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH NYBERG, : No. 317 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, February 4, 2014,
in the Court of Common Pleas of Erie County
Criminal Division at Nos. CP-25-CR-0002301-2001,
CP-25-CR-0002357-2001, CP-25-CR-0002507-2001,
CP-25-CR-0002508-2001, CP-25-CR-0002509-2001,
CP-25-CR-0002510-2001, CP-25-CR-0002511-2001,
CP-25-CR-0002512-2001, CP-25-CR-0002513-2001,
CP-25-CR-0002514-2001, CP-25-CR-0002515-2001,
CP-25-CR-0002516-2001, CP-25-CR-0002517-2001,
CP-25-CR-0002518-2001, CP-25-CR-0002519-2001,
CP-25-CR-0002520-2001, CP-25-CR-0002521-2001,
CP-25-CR-0002522-2001, CP-25-CR-0002523-2001,
CP-25-CR-0002524-2001, CP-25-CR-0002525-2001,
CP-25-CR-0002526-2001, CP-25-CR-0002527-2001,
CP-25-CR-0002528-2001, CP-25-CR-0002529-2001,
CP-25-CR-0002616-2001, CP-25-CR-0002815-2001,
CP-25-CR-0002816-2001, CP-25-CR-0002817-2001,
CP-25-CR-0002867-2001, CP-25-CR-0003118-2001,
CP-25-CR-0003297-2001,
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2015
Kenneth Nyberg appeals from the judgment of sentence of February 4,
2014, following revocation of his probation. We affirm.
On November 30, 2001, appellant pled guilty to numerous counts of
insurance fraud and bad checks and was placed on intermediate
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punishment. Appellant was accepted into the Erie County Treatment Court
program for rehabilitation from a cocaine addiction. After approximately
three months, appellant was discharged from the program for
non-compliance. On March 15, 2002, appellant was revoked from
intermediate punishment and sentenced to an aggregate of 6 to 12 years’
incarceration, followed by probation. This court affirmed the judgment of
sentence on January 28, 2003. Commonwealth v. Nyberg, No. 696 WDA
2002, unpublished memorandum (Pa.Super. filed January 28, 2003). We
found that the trial court put adequate reasons on the record to support its
sentence, including appellant’s lack of rehabilitative potential, his lack of
amenability to treatment or supervision, and his perpetual dishonesty and
abuse of the system. Id. at 9.
While on state and county community supervision, appellant continued
to abuse cocaine and failed to pay restitution to his victims. (Trial court
opinion, 4/22/14 at 2.) Appellant’s probation was revoked, and he was
re-sentenced to 11½ to 23 months, followed by a long probationary tail.
Appellant’s motion for reconsideration was denied, and this timely appeal
followed. Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,
and the trial court has filed a Rule 1925(a) opinion.
On appeal, appellant presents a challenge to the discretionary aspects
of his sentence, arguing that the sentence is manifestly excessive and that
the trial court failed to consider various mitigating factors in favor of a lesser
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sentence, including his age, employment history, and education. According
to appellant, he had obtained employment with DirectTV in order to pay
restitution, and he was enrolled full-time at Gannon University. (Appellant’s
brief at 20.) Appellant argues that the sentence of 30½ years’ probation is
essentially a lifetime supervision sentence. (Id.) Appellant also claims that
this is his first revocation, and he has not incurred any new criminal charges.
(Id.)1
Our standard of review is well-settled. We have
explained:
The imposition of sentence following the
revocation of probation is vested within
the sound discretion of the trial court,
which, absent an abuse of that
discretion, will not be disturbed on
appeal. An abuse of discretion is more
than an error in judgment—a sentencing
court has not abused its discretion unless
the record discloses that the judgment
exercised was manifestly unreasonable,
or the result of partiality, prejudice, bias
or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-
84 (Pa.Super.2012).
In determining whether a sentence is
manifestly excessive, the appellate court
must give great weight to the sentencing
court’s discretion, as he or she is in the
best position to measure factors such as
the nature of the crime, the defendant’s
character, and the defendant’s display of
remorse, defiance, or indifference.
1
Appellant has included the requisite Pa.R.A.P. 2119(f) statement in his
brief.
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Commonwealth v. Mouzon, 828 A.2d 1126, 1128
(Pa.Super.2003).
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014), appeal
denied, A.3d (Pa. Feb. 11, 2015).
Upon revoking probation, a sentencing court may
choose from any of the sentencing options that
existed at the time of the original sentencing,
including incarceration. 42 Pa.C.S.A. § 9771(b).
“[U]pon revocation [of probation] . . . the trial court
is limited only by the maximum sentence that it
could have imposed originally at the time of the
probationary sentence.” Commonwealth v.
Infante, 63 A.3d 358, 365 (Pa.Super.2013)
(internal quotation marks and citations omitted).
However, 42 Pa.C.S.A. § 9771(c) provides that once
probation has been revoked, a sentence of total
confinement may only be imposed if any of the
following conditions exist:
(1) the defendant has been convicted of
another crime; or
(2) the conduct of the defendant indicates
that it is likely that he will commit
another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate
the authority of the court.
42 Pa.C.S.A. § 9771(c).
Id. at 1044.
Instantly, we agree with the trial court that appellant fails to present a
substantial question for our review. An argument that the sentencing court
failed to adequately consider mitigating factors in favor of a lesser sentence
does not present a substantial question appropriate for our review.
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Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004),
citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003).
See also Commonwealth v. Williams, 562 A.2d 1385 (Pa.Super. 1989)
(en banc) (an allegation that the sentencing court did not adequately
consider various factors is, in effect, a request that this court substitute its
judgment for that of the lower court in fashioning a defendant’s sentence).
Furthermore, the trial court thoroughly explained its reasons for the
sentence on the record, including appellant’s lack of amenability to
treatment and the fact he had paid only $40 towards restitution. (Notes of
testimony, 2/4/14 at 9.) Colon, supra, quoting Commonwealth v.
Cartrette, 83 A.3d 1030, 1040-1041 (Pa.Super. 2013) (en banc) (“in all
cases where the court resentences an offender following revocation of
probation . . . the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed”).
In addition, appellant’s alleged mitigating factors are not supported by
the record. The record indicates that appellant has not been enrolled at
Gannon since 2010. (Notes of testimony, 2/3/14 at 6, 10-11.) In addition,
appellant was no longer working at DirectTV as of August 2013. (Id. at 29.)
The trial court found that appellant intentionally misrepresented his
educational and employment record. Regarding appellant’s claim that this is
his first revocation, as described above, his intermediate punishment was
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revoked in March 2002. We also note that appellant was charged in April
2014 with access device fraud, theft by unlawful taking, and theft by
receiving stolen property. The new charges relate to an incident on or about
December 17, 2013, wherein appellant fraudulently transferred money from
the victim’s credit card account to his Paypal account. (See supplemental
Rule 1925(a) opinion, 5/6/14, Exhibit A.)
As the trial court has filed a thorough, comprehensive, 17-page
opinion, with appropriate citation to the record and to relevant case law,
explaining why appellant does not raise a substantial question for our
review; or, in the alternative, why the trial court did not abuse its discretion
in fashioning appellant’s sentence upon revocation of his probation, we will
affirm on the basis of that opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2015
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