Com. v. Truver, B. ( 2022 )

J-A22030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAKE T. TRUVER :
:
Appellant : No. 871 WDA 2021
Appeal from the Judgment of Sentence Entered June 16, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000092-2021
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 27, 2022
Appellant, Blake T. Truver, challenges the Judgment of Sentence
entered by the Jefferson County Court of Common Pleas following his open
guilty plea to Recklessly Endangering Another Person (five counts), Burglary,
Conspiracy, Robbery, Simple Assault, Theft by Unlawful Taking (six counts),
Aggravated Assault by Vehicle, Fleeing or Attempting to Elude Officer,
Possession of a Controlled Substance (two counts), and Use or Possession of
Drug Paraphernalia.1 He challenges the discretionary aspects of his sentence.
After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2705, 3502(a)(1)(i), 903, 3701(a)(1)(i), 2701(a)(3), and
3921(a); 75 Pa.C.S. §§ 3732.1 and 3733(a); 35 P.S. §§ 780-113(a)(16) and
(a)(32), respectively.
J-A22030-22
On January 25, 2021, Appellant and another individual pushed their way
into a home, beat the resident who was present at the time, and stole
firearms, guitars, and amplifiers. The second resident arrived home during
the incident and recognized Appellant as a childhood friend. Appellant and
the other assailant, brandishing knives, chased the second resident from the
home before jumping in Appellant’s car and driving away. A high-speed,
seventeen-mile chase with police officers ensued. The chase ended when
Appellant lost control of the vehicle which caused it to rollover several times.
Appellant and his co-conspirator were airlifted to a hospital. Police officers
observed stolen property, drugs and drug paraphernalia, and cash strewn
inside and outside the crashed vehicle.
The Commonwealth charged Appellant with the above offenses in
addition to thirty-four traffic violations. On June 2, 2021, the court accepted
Appellant’s an open guilty plea to twenty criminal offenses and ordered a pre-
sentence investigation (“PSI”).
On June 16, 2021, the court held a sentencing hearing after which it
imposed an aggregate sentence of nineteen to fifty-eight years’ incarceration.
The individual sentences for each conviction fell within the mitigated and
standard ranges of the sentencing guidelines.2 Appellant filed a post-sentence
motion, which the court denied.
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2The court concluded that the six convictions for Theft by Unlawful Taking
merged with Burglary for sentencing purposes. The individual sentences
(Footnote Continued Next Page)
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Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following questions for our review:
1. Whether the trial court’s failure to adequately consider
the rehabilitation needs of Appellant, after finding him to
be youthful, drug addicted and, impliedly, directly and
negatively influenced by his much older and much more
criminally-experienced co-actor, resulted in a manifestly
excessive sentence?
2. Whether the trial court’s consideration of outstanding,
unresolved felony charges from other jurisdictions was
improper and resulted in a manifestly excessive 19-58
year aggregate sentence?
Appellant’s Br. at 10.3
In his first issue, Appellant contends that the sentencing court did not
properly consider mitigating factors. In so doing, Appellant challenges the
discretionary aspects of his sentence. An appellant raising such a challenge
to the discretionary aspects of a sentence is not entitled to review as of right;
rather, a challenge in this regard is properly viewed as a petition for allowance
of appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d
____________________________________________imposed for the Burglary, Conspiracy, and Robbery convictions fell within the
mitigated range; the sentences for the assault, fleeing, REAP, and possession
convictions fell within the standard ranges of the sentencing guidelines.
3 Appellant has not appended his Pa.R.A.P. 1925(b) Statement to his brief, as
required by Pa.R.A.P. 2111(a)(11). The Commonwealth argues that
Appellant’s second issue is waived as it was not raised in his Rule 1925(b)
Statement. Appellee’s Br. at 5. Our review of the certified record, which
includes Appellant’s Rule 1925(b) Statement, confirms that Appellant did not
include his second issue in his Rule 1925(b) Statement. This issue is, thus,
waived. Pa.R.A.P. 1925(b)(4)(vii).
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17, 18 (Pa. 1987); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265
(Pa. Super. 2014).
In order to obtain this Court’s review, an appellant challenging the
discretionary aspects of his sentence must comply with the following
requirements: (1) preserve the issue at sentencing or in a motion to
reconsider and modify sentence; (2) file a timely notice of appeal; (3) include
within his appellate brief a concise statement of the reasons relied upon for
allowance of appeal, pursuant to Pa.R.A.P. 2119(f); and (4) raise a substantial
question that the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).
Appellant preserved his challenge by filing a timely post-sentence
motion and notice of appeal, and by including a Rule 2119(f) statement in his
appellate brief. We, thus, proceed to consider whether Appellant has raised a
substantial question for our review.
Whether an appellant has raised a substantial question regarding a
discretionary aspect of the sentence is determined on a case-by-case basis.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A
substantial question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Id. (citation and
quotation marks omitted).
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Here, Appellant argues that the court erred in ordering some of his
sentences to run consecutively without due consideration of his youth and
rehabilitative needs. Appellant’s Br. at 24-25.
“[A] sentencing court generally has discretion to impose multiple
sentences concurrently or consecutively, and a challenge to the exercise of
that discretion does not ordinarily raise a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). However,
an appellant may raise a substantial question when a sentencing court
imposes consecutive sentences if the aggregate sentence of incarceration is
manifestly excessive, and the sentencing court failed to consider mitigating
factors. Commonwealth v. Horning, 193 A.3d 411, 418 (Pa. Super. 2018).
See also Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012)
(finding that the appellant raised a substantial question in claiming that the
sentencing court failed to consider rehabilitative needs before imposing
consecutive sentences that resulted in an excessive aggregate sentence).
Appellant argues that the aggregate sentence of nineteen to fifty-eight
years’ incarceration is manifestly excessive and the court abused its discretion
in entering consecutive sentences without considering, inter alia, his
rehabilitative needs, mental health, and substance abuse issues as required
under the sentencing code. Appellant’s Br. at 19. Appellant has raised a
substantial question and we, thus, address the merits of his claim.
Generally, “[s]entencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on appeal absent
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a manifest abuse of discretion.” Commonwealth v. Barnes, 167 A.3d 110,
122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). “A sentencing court
has broad discretion in choosing the range of permissible confinements that
best suits a particular defendant and the circumstances surrounding his
crime.” Commonwealth v. Celestin, 825 A.2d 670, 676 (Pa. Super. 2003)
(citation omitted).
When reviewing a challenge to the discretionary aspects of a sentence,
we will not disturb a sentence absent a manifest abuse of discretion.
Commonwealth v. Ali, 197 A.3d 742, 761 (Pa. Super. 2018). A sentencing
court abuses its discretion not through 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
impartiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Id. (citation omitted). “The rationale behind such broad discretion
and the concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.” Moury, 992 A.2d at 170 (citation omitted).
The sentencing code requires the court to consider certain factors,
including a defendant’s rehabilitative needs, when determining a sentence.
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42 Pa.C.S. § 9721(b).4 The court must also “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.” Id. The weighing of these factors,
however, is “exclusively for the sentencing court,” and an appellate court
cannot substitute its own judgment for the sentencing court’s on appeal.
Commonwealth v. Bowen, 975 A.2d 1120, 1123–24 (Pa. Super. 2009).
“Long standing precedent [] recognizes that the Sentencing Code
affords the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Brown, 249 A.3d 1206,
1212 (Pa. Super. 2021) (citation omitted). This Court has frequently held that
a court satisfies its obligations under the Sentencing Code when it sets forth
its general reasoning and consideration of the Section 9721(b) sentencing
factors before imposing several consecutive sentences. See, e.g., id. at 1217
(affirming sentence where “trial court fashioned an individualized sentence
[by] taking into account all of the statutory factors” before announcing series
of consecutive sentences), Horning, 193 A.3d at 419 (affirming sentence
where “sentencing transcript reflects the trial court’s consideration of the
[statutory] sentencing standards” before announcing series of consecutive
sentences).
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4 This statute also requires the sentencing court to consider the protection of
the public, the gravity of the offense in relation to its impact on the victim and
the community, and the sentencing guidelines. 42 Pa.C.S. § 9721(b).
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Significantly, where a PSI report exists, an appellate court presumes
that the sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
“Having been fully informed by the [PSI] report, the sentencing court’s
discretion should not be disturbed.” Id.
Moreover, “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Commonwealth v. Moury, 992 A.2d at 171. See also
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545-46 (Pa. Super. 1995)
(stating that the combination of a PSI report and a standard range sentence,
absent more, cannot be considered excessive or unreasonable).
In its Rule 1925(a) Opinion, the sentencing court noted that it
considered the PSI report, the sentencing guidelines, and the Section 9721
sentencing factors prior to imposing Appellant’s aggregate sentence.
The sentencing transcript shows unequivocally that the [c]ourt did
in fact consider the defendant’s youth, criminal history, and his
co-defendant’s negative influence when it sentenced him. (See
Sentencing Transcript, 06/16/2021, [at] 7-11). More specifically,
it classified each as a positive or mitigating factor. (See id.).
Weighing against them, however, were, inter alia, the additional
felony charges he was facing, that he was the one who selected
Jefferson County as the target for his and the co-defendant’s
criminal activities, and that he was the one driving at speeds that
were nothing less than reckless in a patently futile attempt to
avoid apprehension (Id. at 8-11).
Tr. Ct. Op., filed 12/23/21, at 1.
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Our review of the sentencing transcript reveals that the court properly
considered the sentencing factors prior to imposing consecutive sentences. In
addition to acknowledging its review of the PSI report, the court explicitly
noted its consideration of Appellant’s youth and his addiction to drugs. N.T.
Sentencing, 6/16/21, at 5, 8-10. The court further noted that Appellant would
be forty-seven years old when he is eligible for parole and, with respect to his
rehabilitative needs, the court acknowledged that Appellant would be able to
participate in programs while in prison to enable him to lead a “good and
productive” life upon his release. Id. at 16. The court also noted the violent
nature of the assault and robbery and the extreme recklessness Appellant
exhibited in fleeing from apprehension, all of which implicated the need to
protect the public. Id. at 8-11.
We conclude that Appellant’s sentence is not manifestly excessive in
light of the nature and number of crimes to which he pleaded guilty, and the
court did not abuse its discretion in imposing some of the mitigated or
standard range sentences to be served consecutively. We, thus, affirm the
judgment of sentence.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/27/2022
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