Com. v. Haluck, T. ( 2019 )

J-S58001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY HALUCK :
:
Appellant : No. 749 WDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008030-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JANUARY 11, 2019
Appellant, Timothy Haluck, appeals from the judgment of sentence
entered on April 24, 20171 in the Criminal Division of the Court of Common
Pleas of Allegheny County. We affirm.
The trial court has aptly summarized the relevant facts and procedural
history in this case as follows:
[Appellant] was originally charged with [drug-]related offenses
that occurred on three separate occasions, on February 22, 2016,
March 2, 2016, and March 20, 2016. He was charged with
identical offenses relative to each [episode, including] three
counts [each] of delivery of heroin [(35 P.S. § 780-113(a)(30))],
possession of heroin with intent to distribute [(PWID) (35 P.S.
§ 780-113(a)(30))], possession of heroin [(35 P.S.
§ 780-113(a)(16))], and criminal use of a communication facility
[(18 Pa.C.S.A. § 7512(a))]. On November 27, 2016, [Appellant]
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1Appellant’s judgment of sentence was entered by the court on April 13, 2017.
Said judgment of sentence became final on April 24, 2017 with the denial of
his post-sentence motions. We have amended the caption accordingly.
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attempted to plead guilty pursuant to a negotiated plea
agreement the terms of which required him to plead guilty to all
drug charges. The three counts of criminal use of a
communication facility would be withdrawn. The Commonwealth
agreed to withdraw those charges. The parties agreed that
[Appellant] would serve an aggregate county sentence set by th[e
trial c]ourt.
[The trial c]ourt rejected that plea agreement. Th[e trial c]ourt’s
reasoning was that [Appellant] was 54 years old and that he had
been involved in the distribution of heroin, or as th[e trial court
has frequently noted], “peddling poison” in the community on
three different occasions. [The trial court believed that the
negotiated county sentence did not consider the true nature of
Appellant’s crimes and did not serve justice.] After th[e trial
c]ourt rejected the plea agreement, [it] advised the parties to
proceed with jury selection. Immediately thereafter, [Appellant]
moved for th[e trial c]ourt to recuse itself because it had rejected
the plea agreement. Th[e trial c]ourt rejected that motion.
The parties returned to th[e trial c]ourt on January 17, 2017. The
parties advised the [c]ourt that they had [reached] a plea
agreement. [Appellant] agreed to plead guilty to the same
offenses contemplated by the previous plea agreement but the
new plea agreement did not contain an agreement as to the
appropriate sentence. The determination of sentence was left to
the [c]ourt’s discretion. A pre-sentence investigation report was
ordered and the sentencing was scheduled for April 13, 2017. On
that date, the [c]ourt indicated that it had read the pre-sentence
investigation report and also confirmed that the Commonwealth’s
attorney and [Appellant] and his attorney had reviewed the report
and offered no additions or corrections to the report. With respect
to [the heroin delivery charge on February 22, 2016], the [c]ourt
sentenced [Appellant] to a term of imprisonment of not less than
one nor more than two years. With respect to [the heroin delivery
charge on March 2, 2016], the [c]ourt sentenced [Appellant] to a
term of imprisonment of not less than one nor more than two
years. With respect to [the heroin delivery charge on March 20,
2016], the [c]ourt sentenced [Appellant] to a term of probation of
[five] years. All sentences were imposed consecutively for an
aggregate sentence of not less than two nor more than four years’
imprisonment followed by five years’ probation. The other counts
of conviction merged with the offenses for which [Appellant] was
sentenced. []
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Trial Court Opinion, 1/22/18, at 1-3.
On April 21, 2017, Appellant filed a post-sentence motion seeking
modification of his sentence on grounds that the court based its decision on
impermissible factors and failed to consider Appellant’s character and
rehabilitative needs. The trial court denied Appellant’s motion on April 24,
2017.
Appellant filed a timely notice of appeal on May 24, 2017. On May 25,
2017, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an
extension, Appellant filed a timely concise statement on August 1, 2017. The
trial court issued its Rule 1925(a) opinion on January 22, 2017.
In his brief, Appellant raises the following claims for our review:
Whether the trial court abused its discretion by denying a motion
to recuse after hearing highly prejudicial information regarding
[Appellant’s] intent to plead guilty, and when there was an
appearance of bias against a class of defendants?
Whether the trial court abused its discretion in sentencing
[Appellant] based upon facts not in the record and irrelevant to
[Appellant’s] case, and without considering, as required under 42
Pa.C.S.A. § 9721(b), [Appellant’s] character and rehabilitative
needs?
Appellant’s Brief at 6.
In his first issue, Appellant claims the trial court abused its discretion
when it denied his motion for recusal after rejecting the parties’ original
negotiated plea agreement. Appellant’s second claim asserts that the trial
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court abused its discretion in fashioning a sentence based upon impermissible
factors and without considering Appellant’s character and rehabilitative needs.
Before we address the substance of these contentions, we consider whether
appellate review of Appellant’s claims is precluded by the entry of his guilty
plea.
“Generally, a [guilty plea] amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa. Super. 2017), quoting Commonwealth v.
Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) (citations omitted). An
exception to this rule arises, however, where a defendant enters an “open”
plea agreement;2 in such cases, the defendant is permitted to appeal the
discretionary aspects of his sentence. See Commonwealth v. Guth, 735
A.2d 709, 711 n.3 (Pa. Super. 1999), appeal denied, 743 A.2d 915 (Pa. 1999);
Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994) (when plea
is open, containing no agreement to a specific sentence, defendant may
appeal discretionary aspects of his sentence), appeal denied, 655 A.2d 983
(Pa. 1995), cert. denied, 516 U.S. 818 (1995). Since Appellant entered an
open guilty plea to his drug-related charges, we conclude that, although he
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2An “open” plea agreement is one in which there is no negotiated sentence.
See Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
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may challenge the discretionary aspects of his sentence, he has surrendered
his right to appellate review of the denial of his recusal motion.3
We turn now to Appellant’s challenge to the discretionary aspects of his
sentence. To review, Appellant received separate, consecutive sentences for
each of three criminal episodes involving his delivery of heroin. For the first
two offenses, the trial court ordered Appellant to serve not less than one nor
more than two years’ incarceration. Appellant concedes that these sentences
fall within the standard range of the sentencing guidelines. See Appellant’s
Brief at 30. For the third offense, Appellant received five years’ probation,
which constitutes a mitigated sentence. See id.
Appellant raises two objections in support of his discretionary sentencing
challenge. First, Appellant claims that the trial court impermissibly overlooked
several mitigating factors in violation of 42 Pa.C.S.A. § 9721(b). Specifically,
Appellant contends the trial court disregarded “substantial mitigating evidence
[presented] through [his] pre-sentencing [m]emorandum and testimony at
the sentencing hearing,” including his completion of multiple rehabilitation
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3 In his reply brief, Appellant relies upon the opinion of our Supreme Court in
Commonwealth v. Druce, 848 A.2d 104 (Pa. 2004) to overcome the
preclusive effect of his guilty plea. In that case, the Court reviewed the merits
of a challenge to the denial of a recusal motion where the defendant entered
a guilty plea to various vehicular charges that arose out of a hit-and-run
accident. The Druce Court, however, never addressed whether the entry of
a guilty plea impacted its authority to reach the merits of the defendant’s
claims. In the absence of more concrete guidance concerning the precise
issues before us, we are reluctant to disregard the well settled principles set
forth in Morrison, Guth, and related cases cited above.
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programs while in jail, his long-term addiction to heroin, the minor nature of
his “middle-man” role in the subject transactions, his acceptance of
responsibility, and his development of a treatment plan following his release
from incarceration. See id. at 35-39. Next, Appellant claims the trial court
imposed its sentence based upon impermissible factors such as overdose
deaths and collateral crimes, which were not established through evidence or
were unrelated to Appellant’s case. See id. at 40-41.
Our review of discretionary aspects of sentencing claims is governed by
the following principles:
[T]he proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of
discretion. [A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our [Supreme] Court
recently offered: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
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.
Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010), quoting
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal citations
omitted).
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Appellants do not enjoy an automatic right to appellate review of
discretionary sentencing claims. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa. Super. 2000). Four criteria must be met to invoke this Court's
jurisdiction:
[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.A. § 9781(b).
Moury, 992 A.2d at 170, quoting Commonwealth v. Evans, 901 A.2d 528,
533 (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006) (internal
citations omitted). In Moury, we explained:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (internal citations omitted).
Appellant satisfied the procedural requirements for presenting his
discretionary sentencing challenges in that he filed a timely notice of appeal,
raised his claims in a post-sentence motion to reconsider his sentence, and
included a Rule 2119(f) statement in his brief. Thus, we consider whether
Appellant’s claims present a substantial question for our review.
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An allegation that the sentencing court failed to consider certain
mitigating factors generally does not raise a substantial question.4 Moury,
992 A.2d at 170, citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003); Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super.
1999) (allegation that sentencing court “failed to consider” or “did not
adequately consider” certain factors generally does not raise substantial
question). Nevertheless, Appellant’s claim that his sentence is excessive
because the trial court relied on impermissible factors raises a substantial
question. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.
Super. 2006). Hence, we review this claim.
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant[.]” Shugars, 895 A.2d at 1274, quoting
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4 Even if we were to reach the merits of Appellant’s claim that the trial court
failed to consider mitigating factors, we would not conclude that Appellant is
entitled to relief. Our review of the sentencing transcript confirms that the
trial court received and reviewed a pre-sentence investigation report
regarding Appellant and listened to lengthy testimony concerning Appellant’s
rehabilitative needs and character. See N.T. Sentencing, 4/13/17, at 3-7,
and 15. Under these circumstances, Appellant’s claim premised on the court’s
alleged failure to consider mitigating factors does not establish grounds for
relief. “Where the sentencing court had the benefit of a pre-sentence
investigation report, [we] assume the sentencing court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Moury, 992 A.2d at
171, quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988); see
also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005)
(same).
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Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
Our role in reviewing a trial court’s sentencing determination is
governed by the following principles:
Section 9781(c) [of the Sentencing Code] specifically defines
three instances in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court applied the
guidelines erroneously; (2) the sentence falls within the
guidelines, but is “clearly unreasonable” based on the
circumstances of the case; and (3) the sentence falls outside of
the guidelines and is “unreasonable.” 42 Pa.C.S. § 9781(c). Under
42 Pa.C.S. § 9781(d), the appellate courts must review the record
and consider the nature and circumstances of the offense, the
sentencing court's observations of the defendant, the findings that
formed the basis of the sentence, and the sentencing guidelines.
Commonwealth v. Bowen, 975 A.2d 1120, 1123-1124 (Pa. Super. 2009).
Here, the trial court considered evidence relevant to the factors set
forth in 42 Pa.C.S.A. § 9721(b), including the pre-sentence report, the
sentencing memorandum filed by defense counsel, the nature of Appellant’s
crimes, the impact of Appellant’s crimes on the community, and Appellant’s
criminal history and personal characteristics. See N.T. Sentencing, 4/13/17,
at 3-15; see also Trial Court Opinion, 1/22/18, at 6-7. The findings of the
court were well-supported by the record and the court demonstrated
substantial awareness of the applicable guidelines.5 In view of these
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5 Appellant’s position in this appeal seems to be that the trial court
impermissibly referred to drug overdoses and collateral criminal activity
because there was never an allegation that Appellant’s buyers overdosed on
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circumstances, we cannot conclude that the court’s imposition of a mix of
standard and mitigated range sentences was clearly unreasonable. See
Moury, 992 A.2d at 171 (where a sentence is within the standard range of
the guidelines, Pennsylvania law views the sentence as appropriate under the
sentencing code). For these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2019
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heroin or committed crimes to finance their purchases. See Appellant’s Brief
at 41. This position is spurious. As Appellant concedes, he served as a
middle-man in transactions between his drug supplier and a confidential
informant. In point of fact, then, there were no “buyers” in the conventional
sense since the drugs conveyed by Appellant never reached a community
member who intended to consume them. Moreover, to suggest, as Appellant
does, that the link between heroin sales, overdoses, and collateral criminal
activity is “conjectural” is to suggest a speculative relationship between
sunshine and daylight. The trial court acted well within its discretion in
considering the negative consequences arising from drug sales when
fashioning Appellant’s sentence.
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