Com. v. Vetetoe, M. ( 2014 )

J-S40042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL C. VETETOE
Appellant No. 183 MDA 2014
Appeal from the Judgment of Sentence January 9, 2014
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000225-2013
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 04, 2014
Appellant, Michael C. Vetetoe, appeals from the judgment of sentence
entered January 9, 2014, by the Honorable Jeffrey A. Smith, Court of
Common Pleas of Bradford County. We affirm.
In the afternoon on May 23, 2013, Vetetoe became involved in a
regarding household chores. When Amons took her pet pit bull for a walk,
Vetetoe came out of the residence with a rifle and shot the dog three times
died as a result of its injuries.
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On November 5, 2013, Vetetoe entered an open guilty plea to one
count of disorderly conduct, a misdemeanor of the third degree.1 On
imprisonment. This timely appeal followed.
On appeal, Vetetoe raises the following issue for our review:
The [c]ourt abused its discretion by sentencing the Appellant in
the aggravated range because there was not any aggravating
circumstances established from the factors addressed at the time
of the plea nor was there any aggravating circumstances
indicated in the pre-
Our standard when reviewing sentencing matters is as follows:
Sentencing is a matter vested in the sound discretion of the
Sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
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 partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted).
Vetetoe challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
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1
18 Pa.C.S. § 5503(a)(4).
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Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004) (citation omitted).
An appellant challenging the discretionary aspects of his
four-part test:
[We] 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,
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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
s aggravated range sentence at
appellate brief also contains the requisite 2119(f) concise statement, in
which he argues that the trial court incorrectly applied a deadly weapon
enhancement to his sentence for disorderly conduct. See
at 4. The application of a deadly weapon enhancement raises a substantial
question for our review. See Buterbaugh, 91 A.3d at 1266.
The deadly weapon enhancement provides, in part:
When the court determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
offender has used a deadly weapon if any of the following were
employed by the offender in a way that threatened or injured
another individual:
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(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or
(iii) Any device, implement, or instrumentality capable of
producing death or serious bodily injury.
204 Pa.Code § 303.10(a)(2)(i)-(iii).
As noted, Vetetoe objected to the application of a deadly weapon
enhancement at sentencing. See N.T., Sentencing, 1/9/2014 at 1.
Specifically, Vetetoe argued that the deadly weapon enhancement is
inapplicable in this instance because a weapon was not employed against an
See id. at 1-2.
placed Sheilla Amons in danger, and that [he] did shoot a dog three to four
Vetetoe fired his weapon at t
that his conduct endangered Amons sufficient proof that Vetetoe employed
required to support the application of the deadly weapon enhancement. Our
finding is further bolstered by the on-the-record explanation the trial court
gave for imposing the aggravated range sentence:
The reason for sentencing in the aggravated range, the [c]ourt is
satisfied that a firearm was used although not against an
individual, there were individuals in close proximity. The firearm
was fired in excess of two times, that there was an extreme
danger to others in the vicinity, and you killed a pet of an
individual in front of them.
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Id. at 4.
Based on the foregoing, we find no abuse of discretion in the trial
without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
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