Com. v. Baun, R. ( 2014 )

J-S50038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD LEE BAUN,
Appellant No. 449 WDA 2014
Appeal from the Judgment of Sentence entered January 28, 2014,
in the Court of Common Pleas of Mercer County,
Criminal Division, at No(s): CP-43-CR-0001010-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
offense within ten years, with a BAC of .188%; resisting arrest; and driving
during suspension/DUI-related.1
On July 4, 2013, Officer Jack Taggart of the Grove City Police
Department observed Appellant driving his vehicle, and from the sound the
vehicle was making, and Officer Ta
Officer Taggart followed the vehicle, which stopped at a stop sign and then
turned right onto Stewart Avenue. Id. Officer Taggart then observed the
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1
75 Pa.C.S.A. § 3802(c); 18 Pa.C.S.A. § 5104 and 75 Pa.C.S.A. § 1543(b).
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vehicle turn left onto West Main Street, where the officer activated his
emergency overhead lights. Id. Appellant did not stop but continued to
travel approximately 20 feet without slowing, and turned right on Kinder
Avenue, at which point Officer Taggart activated his siren. Id. The vehicle
continued to travel away from the officer until it reached a dead end, where
Appellant exited and fled on foot. Id. Officer Taggart pursued Appellant on
foot, identifying himself as a police officer and directing Appellant to stop.
Id. When Officer Taggart caught up with Appellant after a chase of several
hundred yards, the officer tasered Appellant and took him into custody. Id.
The officer immediately detected the odor of alcohol on Appellant, and saw
that Appellant was unsteady on his feet. Appellant was transported to Grove
City Medical Center where his blood was drawn. Id.
Appellant was subsequently charged with driving under the influence
of alcohol (75 Pa.C.S.A. § 3802); fleeing or attempting to elude a police
officer (75 Pa.C.S.A. § 3733)(a)); resisting arrest (18 Pa.C.S.A § 5104);
driving while his operating privileges were suspended or revoked (75
Pa.C.S.A § 1543(b)(1.1)); operating a vehicle with unsafe tires (75
Pa.C.S.A. § 4525(a); and unauthorized use of an automobile (18 Pa.C.S.A. §
3928(a)).
On November 14, 2013, Appellant pled guilty to driving under the
influence, resisting arrest, and driving with a suspended license. Following a
hearing on January 28, 2014, the trial court sentenced Appellant to a term
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of imprisonment of 18 months to five years for DUI, and a concurrent six to
12 months for resisting arrest, and 90 days for driving during suspension.
Appellant filed a motion to modify sentence nunc pro tunc on February
14, 2014, which the trial court denied that same day. This appeal followed.
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
I. DID THE SENTENCE COURT ABUSE ITS DISCRETION BY
IMPOSING A SENTENCE OF INCARCERATION IN A STATE
CORRECTIONAL FACILITY FOR A PERIOD OF NOT LESS
THAN EIGHTEEN MONTHS NOR MORE THAN FIVE YEARS
FOR THE OFFENSE OF DRIVING UNDER THE INFLUENCE
OF ALCOHOL, A SECOND OFFENSE, WITH A BLOOD
ALCOHOL LEVEL OF 0.188%, ALONG WITH THE
CONCURRENT SENTENCES OF INCARCERATION FOR NOT
LESS THAN SIX NOR MORE THAN TWELVE MONTHS FOR
THE OFFENSE OF RESISTING ARREST AND NINETY DAYS
FOR THE OFFENSE OF DRIVING DURING SUSPENSION-DUI
RELATED IN THAT SAID SENTENCES ARE MANIFESTLY
EXCESSIVE IN LENGTH AND NOT SPECIFICALLY TAILORED
TO THE REHABILITATIVE NEEDS TO THE APPELLANT OR
THE ENDS OF JUSTICE AND SOCIETY?
II. DID THE SENTENCE COURT ERR IN IMPOSING
RESTITUTION IN THE AMOUNT OF $570.26 IN THAT SAID
RESTITUTION WAS NOT SUPPORTED BY THE RECORD?
Appellant challenges the discretionary aspects of his sentence. In our
analysis, we must first determine whether Appellant has the right to seek
In
Commonwealth v.
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Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994). However, we noted in
Dalberto cretionary aspects of
sentencing may be challenged after a guilty plea is entered depends upon
the actual terms of the plea bargain, specifically, to what degree a sentence
Id. at 18.
are specific penalties outlined in the plea agreement, [i.e. negotiated plea]
Id. at
20.
agreement [i.e., an open plea,] the entry of a guilty plea will not preclude a
Id. Where the plea
our task is to determine the effect of this hybrid plea agreement on the right
Id. at 21. In such
aspects of sentencing which have not been agreed upon during the
Id.Trial Court Opinion, 4/17/14, at 1. However, the Commonwealth
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Appellant does not specify whether his plea was negotiated or open. See
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We discern from our review of the certified record that Appellant
agreed upon, but restitution was. At the November 14, 2013 plea hearing,
will nol-
Commonwealth did not recommend a sentence. However, within the
certified record is a document dated November 14, 2013, signed by both
2
It
reads:
PLEA OF GUILT
I, Ronald Lee Baun, defendant named in the within Information
in the above-captioned case, hereby enter a plea of Guilty to the
charges of
Ct 1: DUI (2nd offense) 75 Pa.C.S.A. § 3802(c) M-1
Ct 3: Resisting Arrest 18 Pa.C.S.A. § 5104 M-2
Ct 4: DDS (DUI) 75 Pa.C.S.A. § 1543 (b)(1.1)(i) Summ
Restitution $570.26
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2
was represented by Dana Flick, Esquire, while the notes of testimony from
sentencing on January 28, 2014 indicate that Appellant was represented by
Ted Isoldi, Esquire.
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Plea of Guilt, 11/14/13.
Furthermore, our review of the sentencing transcript indicates that although
the Commonwealth was silent regarding the length of Appell
it was unequivocal on the amount of restitution. The following discussion
occurred:
Assistant District Attorney: I [forgot] to request restitution in the
amount of $570.26
Trial Court:
Assistant District Attorney:
Trial Court: Do you object to the restitution,
[Appellant]?
Appellant: The amount I do.
Trial Court: How much do you think you owe?
Appellant: I would have to have estimates on it, but
I believe --
the other $265 is.
Assistant District Attorney: Actually, Your Honor, I believe as part
of the plea, we agreed the
restitution would be $570.26.
Trial Court: Is that on your plea sheet?
Assistant District Attorney: It is, Your Honor.
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Trial Court:
Counsel]?
have a copy of the plea sheet, but
I see [Appellant] and [his] attorney
[at the plea] signed that on the plea
sheet, so it was apparently agreed of
$570.26.
Trial Court: [Appellant] shall make restitution to
$570.26.
N.T, 1/28/14, at 23-24 (emphasis supplied).
Based on the foregoing, and in accordance with Dalberto, supra, we
restitution was negotiated, but the length of the sentence was left to the
challenge his restitution, he is precluded from doing so because that portion
of his sentence was negotiated. Id. at 20. However, because the length of
ntence was not negotiated, Appellant may raise a discretionary
challenge with respect to the length of his sentence.
A discretionary challenge is not appealable as of right. Rather,
Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §
9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
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discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Here, Appellant preserved his discretionary claim in a post-sentence
motion, and filed a timely notice of appeal. In addition, Appellant has
included a concise statement in his brief. See Brief at 9-10. We
therefore proceed to determine whether Appellant has raised a substantial
question for our review.
that the sentence imposed was an abuse of discretion because it was
excessive in length and not tail
Appellant essentially claims that his sentence was too harsh. Id. at 11-14.
constitutes too
Commonwealth v.
Kelly, 33 A.3d 638, 640 (Pa. Super. 2011). We will address the merits of
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with mandatory rehabilitation would more appropriately meet both the needs
testimony from the sentencing hearing. N.T., 1/28/14, at 14-22. In
which explained:
day minimum term of incarceration for the DUI-related driving
during suspension offense as well as a term of incarceration of
not less than 18 months nor more than five years in a state
correctional facility for the DUI offense, and a term of
incarceration of not less than six months nor more than 12
months for the resisting arrest offense, all of which were to be
served concurrent with each other and concurrent with any other
ccordingly directed the Department of
Corrections to place [A]ppellant in a therapeutic community.
Appellant was also given credit time served of 209 days in the
Mercer County Jail.
***
Appellant [asserts] that the sentence was manifestly
excessive in length because it was not specifically tailored to the
nature of the offense, the ends of justice and society and the
rehabilitative needs of [A]ppellant. It is submitted, however,
that the minimum sentence of 18 months of incarceration in a
state correctional facility was appropriate and was not excessive
in length for various reasons. First, [A]ppellant was on parole
for DUI at the time of this offense and had no legal right to be
behind the wheel of a car in the first instance because he was
was .188%, which demonstrated a high level of intoxication and
his actions that night of operating a vehicle that he was not
permitted to use and driving it on the rim with a flat tire was an
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additional egregious act. To top it all off, when he was
confronted by police, he was combative and fled on foot
resulting in the need to be tased by the police which resulted in
him being charged with resisting arrest. Guilty Plea Tr. at p. 7
(Nov. 14, 2013).
The record further establishes that while this was
conviction for DUI before his 39th birthday. Obviously, he is a
chronic alcoholic as indicated by the Mortimer Filkins score on his
offense and second resisting arrest conviction. Sentence Tr. at
p. 15. Appellant admitted that he was in a blackout when this
DUI occurred. Id. at 19.
Appellant had a prior record score of 5 and an offense
gravity score of 5 for the DUI, resulting in standard range
guidelines of 12 to 18 months. The aggregate minimum
sentence on all three charges was at the top of the standard
range, which will be reduced under the Recidivism Risk
Reduction Incentive Program (RRRI). 61 Pa. C.S.A. §§ 4501 et
months and fifteen days. Moreover, the Sentence Court took
into consideration that his criminal activity was a result of his
alcoholism and therefore did not impose any consecutive
sentence for the resisting arrest and DUI-related suspension
treatment and directed the Department of Corrections to place
him into a therapeutic community.
Simply stated, the sentence was designed to protect the
public from a chronic alcoholic with multiple DUIs who drove a
motor vehicle even though he had no driving privileges. It was
also designed to factor in his disease as the root cause of his
criminal offenses by keeping his sentence in the standard range,
giving him a RRRI reduction and not imposing consecutive
sentences.
Trial Court Opinion, 4/17/14, at 1-4. Given the foregoing, we reject
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s
restitution on the record at the time of app
Id. at 16-17. As explained above, we
disagree with this claim. Our review of the record reveals that on the guilty
confirmed that agreement at the sentencing hearing. See Plea of Guilt,
11/14/13; N.T., 1/28/14, at 24.3 Therefore, Appellant is precluded from
raising a discretionary challenge to this portion of his sentence.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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3
Again, the record indicates that Attorney Flick represented Appellant at his
plea, while Attorney Isoldi represented Appellant at sentencing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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