Com. v. Mandic, D. ( 2019 )

J-A21024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL MANDIC :
:
Appellant : No. 485 EDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000224-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL MANDIC :
:
Appellant : No. 487 EDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000288-2018
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 06, 2019
Appellant, Daniel Mandic, appeals from the judgment of sentence
entered on December 20, 2018, as made final by the denial of Appellant’s
post-sentence motion on January 2, 2019. We affirm.
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On November 1, 2018, Appellant entered an open guilty plea to five
counts of simple assault and one count of persons not to possess firearms.1
During the colloquy, Appellant agreed to the following, underlying facts:
With regard to [Docket Number CP-64-CR-0000288-2018
(hereinafter “Docket Number 288-2018”), Appellant] is the
father of [five] minor children, ages 11, [ten, nine, and
eight-year-old] twins. During [the] 2017 calendar year, on
more than one occasion, [Appellant] did hit [and/or] kick
[and/or] punch [and/or] choke each of the [aforementioned]
children which did cause bodily injury to each child.
...
With regard[] to [Docket Number CP-64-CR-0000224-2018
(hereinafter “Docket Number 224-2018”),] on or about
November 10th of 2017, [Appellant] did possess a [Stevens
30-30 bolt-action] rifle . . . and also two [shotguns] when he
was not a person allowed to do so because of a prior
conviction.
N.T. Guilty Plea Hearing, 11/1/18, at 5.
The trial court accepted Appellant’s guilty plea and scheduled the
sentencing hearing for a later date. Id. at 8.
At the December 20, 2018 sentencing hearing, the trial court explained
the basis for its aggregate sentence of 93 ½ to 192 months’ imprisonment:
[T]hank you[, Appellant]. I’ve read every page of your
pre-sentence report. It was a lengthy report. It was 15
pages. Narrative pages, computation of sentencing
guidelines, recommendation of the court. And a letter from
your good friend and I believe she’s sitting out there today....
You’re 38 years old. You’re a young individual. You have an
associate’s degree, which I commend you for, that’s very
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1 18 Pa.C.S.A. §§ 2701(a)(1) and 6105(a)(1), respectively.
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good. You got your high school degree and then went on to
get an associate’s degree. You battle substance abuse issues
not only until the point in time you were incarcerated but also
before then. . . .
Your first offense listed on the PSI is the persons not to
possess or use firearms, a felony of the second degree. None
of the time attributed to your stay in the Wayne County
Correctional Facility [is] attributable to that. That’ll be
attributable to the other information. You pled guilty, I take
that to your credit. You admitted [your] responsibility and
moved on. . . .
As to [Docket Number 288-2018], you pled guilty to [five]
counts of misdemeanors in the first degree simple assaults.
You have 217 days of credit time towards whatever sentence
I do impose. And once again, you plead guilty, and I take
that to your credit. . . .
This was a case where the probation officer was at your home
and contacted authorities and the like and they found a gun
safe located in the bedroom closet. You not only had one
gun, you had three guns. They found two plastic bags
containing marijuana, a glass pipe, glass marijuana [bowl],
and purple grinder. The long guns included a [Stevens 30-30
bolt-action] rifle, a Mossberg 12[-gauge] shotgun, and a
[Stevens 12-]gauge shotgun. . . .
You said that the three guns were left at your residence by
Andy Hornun[,] a friend of yours[,] who had used them to
hunt. The police took it upon themselves to call Mr. Hornun
and he said the guns were not his and he would not attempt
to lie for you. . . .
So, you’re on parole at the time. Probation officer[s]
throughout your home, they find not one but three long guns.
And instead of admitting it and accepting your responsibility,
you tried to minimize your conduct by blaming it on Andy
Hornun and to his credit, he wasn’t going to go along with
you. . . .
You said you take full responsibility for this offense and
accept the consequence. Two months later, I think it was
two months later, in January 2018, Pennsylvania State Police
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were assigned a criminal investigation that had begun on
January 10th, 2018. Based upon an allegation of child abuse.
The victims are an [11-year-old female, a ten-year-old
female, a ten-year-old male, an eight-year-old female, and
another eight-year-old female]. The alleged abuses ran from
January through December of 2017. 12 months of nightmare
for these children. And the District Attorney, I guess, stole
my intended references, so I’m not going to repeat them
here. But to threaten to cut off a child’s fingers with a knife
because you say he stole gum. He stole a piece of gum,
that’s all it was. And that as soon as he stole it. And if he
stole it it’s probably because he was starving. You pushed
R.C.M.’s head through a wall. And J.J.M. the one you held up
by the throat, told the officials that she thought she was going
to die. A.M.M. disclosed that one time you had a gun in your
hand and you threatened to shoot her with it. My goodness.
There are literally millions of couples out there that would
sacrifice their right arm to have a child. And you, for at least
12 months, repeatedly[] victimized these children. . . .
I don’t think you have any idea how trauma, trauma such as
you subjected your children to, how it can ruin their lives.
Ruin them, through no fault of their own. When I read the
account of this incident, I really got sick. I got sick to my
stomach. What in the world are you thinking? . . .
In regards to calling your children derogatory names, you
admit it that you did that and stated it occurred often. These,
a child is a gift. A child is a gift to the parents. Why, why
would you ever want to do this to the gifts you received?...
And I emphatically dispute your statement that you were
under the impression this is a form of discipline and not
abuse. Sir, you went through supervision with Wayne County
Children and Youth Services and I presided over that. And
your physical abuse of the children was a matter that was
brought to light during those proceedings. And that predated
this by years. You knew what you were doing was abusing
those children. You said to the officer I love my children. I
love my children. I love my children. I love my child so much
I’m going to threaten to cut her finger off. I love my children
so much I’m going to hold her up and shake her until she
stops squirming. I love my children so much I’m going to
threaten her with a gun. There’s something very sick in your
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head. Very sick. And you said you love your children but
they’re going to be in trouble one day. Well that last part of
your statement is certainly true. I haven’t followed the recent
case and I don’t know how much trouble they’re in. But
having been exposed to children who are suffering this kind
of trauma in other cases, I’m sure these children are an
absolute mess because of you. You’ve robbed them of so
much that they could have had in life. . . .
You have a prior offense for pleading guilty to manufacture
of a controlled substance in 2003[. Y]ou did [four] to 23 ½
months in jail. You have a summary offense and you have
another charge, possession of controlled substance in 2016.
And you said, or your attorney said, done good[,] you’ve
behaved in prison. I hope you would. I’d hope you’d behave
in prison. This, the period of time you spent at Just Believe,
wasn’t the first time that you got drug and alcohol treatment.
You went to PATH in 2007, I believe it was, 2017. Of 16. Let
me just, be sure what happened here. Outpatient, yeah, was
treated with outpatient treatment at PA Treatment and
Health in 2016. So, you knew what drugs would do to you.
You completed an anger management course. That was a
fleeting learning moment in your life. You attended parenting
classes, they sure didn’t tell you to parent in this way. You
knew full well what you were doing. Doctor Stefanov gave
you the anger management course. You completed them in
January 2017 and starting that very same month, you began
victimizing your gifts of children in this way. . . .
I appreciate the thoughts by Ms. Henningson. I took, I read
the letter. I take it into account. But sir, you had every
opportunity to learn, and you didn’t. . . .
N.T. Sentencing Hearing, 12/20/18, at 12-16 (signals and some capitalization
omitted).
The trial court sentenced Appellant to serve a term of 36 to 72 months
in prison for the persons not to possess firearms conviction and to serve five
terms of 11½ to 24 months in prison for the simple assault convictions, with
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each sentence to be served consecutively to one another, for an aggregate
term of 93½ to 192 months’ imprisonment. Id. at 16-17.
Appellant filed a timely post-sentence motion on December 24, 2018.
Within this motion, Appellant declared:
The [trial] court imposed a high-end standard range sentence
of 36 months on the persons not to possess [firearms] charge
as well as a high-end standard range [sentence] for the
individual simple assault charges.
[Appellant] believes that the minimum sentence imposed on
both cases was unduly harsh and requests that [the trial
court] reconsider the following, particularly but not limited to,
how they apply to the rehabilitative needs of [Appellant] and
the needs for the protection of the public:
a. These two criminal events occurred in 2017 while
[Appellant] was struggling with issues of controlled
substances and alcohol.
b. Subsequent to these events, [Appellant] successfully
sought treatment in multiple treatment centers as an
inpatient.
c. Subsequent or at the time of his completion of the
treatment, he was arrested and charged with the
aforesaid events and incarcerated in the Wayne County
Correctional Facility where he abided by all terms and
conditions of the prison and maintained and conducted
himself as a model prisoner.
d. [Appellant] pled guilty and accepted responsibility for
his conduct and in doing so, also avoided the necessity of
a trial which would have subjected his children to testify
in court subjecting them to further anxiety and
discomfort.
e. [Appellant] is a resident of Wayne County.
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f. [Appellant] took responsibility for all of the crimes of
which he was accused and expressed remorse, by
pleading guilty at the time of sentencing.
g. Pursuant to a pre-sentence investigation report by the
Wayne County Probation Office, a detailed report was
submitted to the court wherein the Probation Office
recommended an aggregate sentence of 50 months to
120 months.
WHEREFORE, [Appellant] requests that [the trial court]
reconsider his sentence and reduce the sentence to an
aggregate total 36 month minimum [sic].
Appellant’s Post-Sentence Motion, 12/24/18, at 2-3 (some paragraph
numbering and capitalization omitted).
The trial court denied Appellant’s post-sentence motion on January 2,
2019 and Appellant filed a timely notice of appeal. Appellant raises four claims
in his appellate brief:
[1.] The [trial] court abused its discretion by sentencing
[Appellant] in the top of the standard range in both [Docket
Number 224-2018 and Docket Number 288-2018] and by
imposing consecutive sentences in [Docket Number
288-2018].
[2.] The [trial] court gave undue weight to retribution over
rehabilitation in the imposition of its sentence. Thus the
sentence imposed is disproportionate and unduly excessive.
There is a substantial question that the sentence imposed is
not appropriate because the [trial] court’s actions were
contrary to fundamental norms underlying the sentencing
process.
[3.] The [trial] court abused its discretion by considering
content contained in the affidavits of probable cause which
were not stipulated to as constituting a factual basis of
[Appellant’s] plea.
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[4.] The [trial] court imposed a sentence which far exceeded
the sentence as recommended by the Wayne County Adult
Probation Department’s pre-sentence investigation and also
considered acts in imposing sentence which [Appellant] did
not plead guilty to.
Appellant’s Brief at 8 (some capitalization omitted).
Appellant’s claims attack the discretionary aspects of his sentence.
“[S]entencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
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).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. However, Appellant’s post-sentence motion only preserved
the following claim: that the trial court abused its discretion when it sentenced
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Appellant at the high-end of the standard range on all charges, and that the
trial court abused its discretion when it imposed an aggregate, minimum
sentencing term of 93½ months’ imprisonment, because several, specific
mitigating factors weighed in favor of a lesser minimum sentencing term. See
Appellant’s Post-Sentence Motion, 12/24/18, at 2-3. Thus, in this appeal, we
will only consider the claim that Appellant preserved in his post-sentence
motion. All other claims are waived. See Commonwealth v. Cartrette, 83
A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived”).
We will now determine whether Appellant’s preserved claim presents a
“substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. McKiel,
629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). Additionally, in determining whether an appellant has raised a
substantial question, we must limit our review to Appellant’s Rule 2119(f)
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statement. Goggins, 748 A.2d at 726. This limitation ensures that our
inquiry remains “focus[ed] on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary only to decide
the appeal on the merits.” Id. at 727 (emphasis omitted).
Appellant’s claim on appeal contends that the trial court either failed to
consider or failed to give sufficient weight to several, specific mitigating factors
and, as a result, abused its discretion by sentencing him to an unduly harsh
minimum sentencing term. This Court has “held that an excessive sentence
claim – in conjunction with an assertion that the court failed to consider
mitigating factors – raises a substantial question.” Commonwealth v.
Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quotations and citations
omitted).2 Therefore, we conclude that Appellant has presented a substantial
claim allowing for our review.
Nevertheless, Appellant’s claim that the trial court abused its discretion
in failing to consider certain mitigating factors immediately fails because,
during Appellant’s sentencing hearing, the trial court expressly stated that it
considered the pre-sentence investigation report. N.T. Sentencing Hearing,
12/20/18, at 12. Given this fact, we must “presume that the sentencing judge
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2 We note that we have also “held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (quotations, citations, and corrections omitted); see also
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)
(collecting cases). Nevertheless, in light of our conflicting precedent, we will
review the merits of Appellant’s discretionary aspects of sentencing claim.
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was aware of relevant information regarding [Appellant’s] character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
We further note that, during the sentencing hearing, the trial court
expressly stated that it did consider the various mitigating evidence that
Appellant cited – but that it concluded a term of 93½ to 192 months in prison
was warranted under the facts of the case. N.T. Sentencing Hearing,
12/20/18, at 12-16. Hence, as is apparent from the record, the trial court
considered and weighed the mitigating evidence in this case. Appellant’s claim
to the contrary is belied by the record and, thus, fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/19
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