Com. v. Fetterolf, J. ( 2017 )

J-S41012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA BRIAN FETTEROLF,
Appellant No. 45 MDA 2017
Appeal from the Judgment of Sentence December 5, 2016
in the Court of Common Pleas of Union County
Criminal Division at No.: CP-60-MD-0000145-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 27, 2017
Appellant, Joshua Brian Fetterolf, appeals from the judgment of
sentence imposed following remand to the trial court for re-sentencing on
his conviction of indirect criminal contempt (ICC)1 at Docket No. CP-60-MD-
0000145-2015. We affirm.
A previous panel of this Court, in a consolidated appeal, set forth the
background of this matter as follows:
On October 9, 2014, the trial court entered an Order
pursuant to the Protection from Abuse Act (“PFA”) Act[, 23
Pa.C.S.A. §§ 6101-6122,] in favor of Delann Fetterolf,
Appellant’s wife (“Wife”). The Order prohibited Appellant from
having “any contact with [Wife], either directly or indirectly . . .
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*
Retired Senior Judge assigned to the Superior Court.
1
23 Pa.C.S.A. § 6114(a).
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.” It also directed that, “[Appellant] shall not contact [Wife] . . .
by telephone or by any other means, including through third
persons.”
On November 21, 2014, the Commonwealth filed an ICC
complaint against Appellant at CP-60-MD-0000340-2014 alleging
[eighteen] counts of violating the October 9, 2014 PFA Order.
On April 27, 2015, the Commonwealth filed a second ICC
complaint against Appellant at CP-60-MD-0000109-2015 alleging
two additional violations of the same PFA order.
* * *
Following [a May 8, 2015] hearing, the trial court found
Appellant guilty of ICC on four counts of the complaint at CP-60-
MD-0000340-2014[.] . . . On May 13, 2015, the court sentenced
Appellant to an aggregate term of 12 to 48 months’
incarceration.
With respect to the complaint at CP-60-MD-0000109-2015,
the trial court found Appellant guilty on one count[.] . . . On May
13, 2015, the court sentenced Appellant to a term of 3 to 6
months’ incarceration, to be served consecutively with the term
imposed at 340-2014.
Appellant timely filed a notice of appeal from each of the
court’s judgments of sentence. . . .
Meanwhile, during the pendency of Appellant’s appeals, on
July 7, 2015, the Commonwealth filed another ICC complaint
against Appellant at [the instant docket number,] CP-60-MD-
0000145-2015 alleging two additional violations of the same PFA
order. The trial court held a hearing on the complaint on July
20, 2015. Corrections Officer Pamela Klinger testified that on
May 15, 2015, Appellant asked her if she would give Wife a
message from him. She reported that she told Appellant, “no,
that [she] couldn’t, wasn’t able to do that.” She also testified
that since that time he “would ask occasionally in passing if
[she] had seen her, heard from her.”
Wife also testified at this hearing. She testified that she
received a letter from Appellant dated April 22, 2015, in which
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Appellant wrote, among other things, that he had seen
Corrections Officer Klinger.
Following the hearing, the trial court found Appellant guilty
of both counts of ICC. The court sentenced Appellant to two
consecutive terms of [three] to [six] months’ incarceration, to be
served consecutively with the terms imposed at 109-2015 and
340-2014. . . .
(Commonwealth v. Fetterolf, Nos. 1016 MDA 2015, 1017 MDA 2015,
1645 MDA 2015, unpublished memorandum at *2-3, *5-6 (Pa. Super. filed
May 19, 2016)) (record citations, footnote, and some capitalization omitted).
On appeal, this Court concluded that the evidence was insufficient to sustain
Appellant’s conviction of one of the two counts of ICC at CP-60-MD-
0000145-2015. We affirmed the judgment of sentence in part and vacated
it in part, and remanded CP-60-MD-0000145-2015 for resentencing. (See
id. at *2, *11).
On December 5, 2016, the trial court held a resentencing hearing and
sentenced Appellant to a term of not less than three nor more than six
months’ incarceration, to be served consecutive to his other sentences.
(See N.T. Resentencing, 12/05/16, at 4). Appellant filed a timely motion to
modify sentence on December 14, 2016, requesting that the court modify
the sentence to run concurrent to his existing sentences. The trial court
denied the motion on December 16, 2016. This timely appeal followed. 2
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2
Appellant filed a concise statement of errors complained of on appeal
contemporaneous with his notice of appeal. See Pa.R.A.P. 1925(b). The
trial court did not file an opinion. See Pa.R.A.P. 1925(a).
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Appellant raises one issue for our review: “Whether the [trial] [c]ourt
abused its discretion and failed in sentencing the Appellant to three to six
months consecutive to CP-60-CR-0000045-1999,[3] CP-60-MD-0000340-
2014, and CP-60-MD-0000109-2015, instead of granting him a concurrent
sentence[?]” (Appellant’s Brief, at 7). Appellant argues that the court “did
not take into account the fact that a concurrent sentence would serve the
requirements of sentencing for deterrents, incapacitation, retribution and
rehabilitation.” (Id. at 12).
Appellant challenges the discretionary aspects of his sentence. “It is
well settled that a challenge to the discretionary aspects of a sentence is a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super.
2016) (citation omitted). Before this Court may review the merits of such
claim,
[w]e 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. § 9781(b).
Id. (case citations omitted).
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3
Information relating to Appellant’s conviction at CP-60-CR-0000045-1999
is not apparent from his brief or the record.
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Here, Appellant filed a timely appeal, preserved his issue in motion to
modify sentence, and included a generic statement pursuant to Pa.R.A.P.
2119(f) in his brief. However, we agree with the position taken by the
Commonwealth that Appellant’s Rule 2119(f) statement is deficient, and that
he failed to raise a substantial question for our review. (See
Commonwealth’s Brief, at 1-4).
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. At a minimum, the Rule
2119(f) statement must articulate what particular
provision of the code is violated, what fundamental
norms the sentence violates, and the manner in
which it violates that norm.
* * *
We have stated that the imposition of
consecutive rather than concurrent sentences lies
within the sound discretion of the sentencing court.
Long standing precedent of this Court recognizes
that 42 Pa.C.S.A. § 9721 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. A
challenge to the imposition of consecutive rather
than concurrent sentences does not present a
substantial question regarding the discretionary
aspects of sentence. We see no reason why [a
defendant] should be afforded a “volume discount”
for his crimes by having all sentences run
concurrently.
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may
create a substantial question. When determining whether a
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substantial question has been raised, we have focused upon
whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct in this case.
Commonwealth v. Zirkle, 107 A.3d 127, 132–34 (Pa. Super. 2014),
appeal denied, 117 A.3d 297 (Pa. 2015) (case citations, footnote, and most
quotation marks omitted).
Here, Appellant’s single-paragraph Rule 2119(f) statement consists of
boilerplate law setting forth the above-mentioned four part test, and fails to
even attempt to “articulate what particular provision of the [sentencing]
code is violated, what fundamental norms the sentence violates, and the
manner in which it violates that norm.” Id. at 132 (citation omitted); (see
also Appellant’s Brief, at 10). Thus, Appellant’s Rule 2119(f) statement fails
to comply with minimum requirements. See Zirkle, supra at 132.
Furthermore, Appellant’s criminal conduct involved his repeated violation of
the same PFA order and continued threatening behavior towards the victim,
despite the Commonwealth’s earlier ICC complaints. (See N.T. Sentencing,
7/20/15, at 25). Given the charges and pattern of behavior involved, the
sentence was not so manifestly excessive on its face as to raise a substantial
question. See Zirkle, supra at 134. Because Appellant has not raised a
substantial question, we do not reach the merits of his appeal.4
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4
Moreover, we note for the sake of completeness that the court emphasized
Appellant’s lack of remorse, his threats toward the victim and the court, his
display of “out-of-control” rage, and its finding that he posed an obvious
threat to society, in directing that the sentence run consecutively. (N.T.
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
_______________________
(Footnote Continued)
Sentencing, 7/20/15, at 28; see id. at 23, 25); (N.T. Resentencing,
12/05/16, at 2, 4). Even if we were to address the merits of Appellant’s
claim, we would discern no abuse of discretion. See Zirkle, supra at 132.
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