Com. v. Cousineau, C. ( 2014 )

J-S58025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER P. COUSINEAU,
Appellant No. 271 WDA 2014
Appeal from the Judgment of Sentence Entered on January 14, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006029-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 04, 2014
Appellant, Christopher P. Cousineau, appeals from the judgment of
sentence of 3-
sentence of probation was revoked. In this appeal, Appellant challenges the
discretionary aspects of his sentence. After careful review, we affirm.
On November 3, 2011, Appellant entered a guilty plea to five counts of
burglary (counts 1-5), 18 Pa.C.S. § 3502(c)(2), and one count of criminal
mischief (count 6), 18 Pa.C.S. § 3304(a)(5). He was sentenced the same
day. At count 1, the trial court sentenced him to 9-
The
trial court sentenced Appellant to no further penalty on all remaining counts.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S58025-14
On November 6, 2013, Appellant entered a negotiated guilty plea to nine
additional burglaries.1 For these new offenses, Appellant was sentenced to
an aggregate term of 2-4
The trial court then held a probation violation hearing on January 14,
CP-02-
CR-0006029-2011 and imposed a new sentence of 3-
The court ordered this sentence to run consecutively to the term of 2-4
Appellant filed a timely post-sentence motion requesting that the court
reconsider his sentence. The trial court denied that motion on January 31,
2014. Appellant then filed a timely notice of appeal on February 13, 2014.
On May 6, 2014, Appellant filed a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, in comp
that was issued on April 15, 2014. The trial court issued its Rule 1925(a)
opinion on June 2, 2014. Appellant now presents the following question for
our review:
Did the trial court abuse its discretion by sentencing [Appellant]
to three to six years of incarceration, when it failed to
____________________________________________
1
See CP-02-CR-0008704-2013, CP-02-CR-0008783-2013, CP-02-CR-
0008925-2013, CP-02-CR-0008926-2013, CP-02-CR-0008927-2013, CP-02-
CR-0008928-2013, CP-02-CR-0008942-2013, CP-02-CR-0009445-2013, and
CP-02-CR-0010658-2013.
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adequately consider and apply all the required sentencing factors
under 42 Pa.C.S.A. § 9721, specifically the character of
[Appellant] and his rehabilitative needs?
(unnecessary capitalization omitted).
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
A
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 t Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
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2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Appellant filed a timely notice of appeal and provided a Rule
2119(f) statement in his brief. The Commonwealth asserts, however, that
Appellant failed to adequately preserve his claim in his post-sentence motion
to reconsider his sentence. We disagree.
Although we acknowledge that the language used in the post-sentence
motion to reconsider does not precisely mirror the language used in
being raised is identical. Clearly the language used by appellate counsel in
requirement, as Appellant is not entitled as of right to challenge the
-sentence motion for
reconsideration of sentence, authored by probation violation counsel, reflects
a more informal linguistic approach to the same claim. However, all
recitations coalesce around the same substantive claim: that the trial court
that matter relates to his rehabilitative needs and character. Moreover, the
trial court did not express any concern that the manner in which the claim
-sentence motion differed significantly from the
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Accordingly, we decline to find waiver in this instance.
It only remains for us to consider whether Appellant presents a
substantial question for our review, and we conclude that he does.
Appellant claims his sentence was imposed without consideration of
statutory sentencing factors set forth in 42 Pa.C.S. § 9721(b) of the
Sentencing Code, particularly that the sentencing court failed to consider his
character and rehabilitative needs. A claim that a sentence is inconsistent
with a specific provision of the Sentencing Code presents a substantial
question for our review. See Commonwealth v. Downing, 990 A.2d 788,
substantial question).
sentence for an abuse of discretion:
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. Hoch, 936 A.2d 515, 517 18 (Pa. Super. 2007)
(citation omitted).
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undamental norms
cou Id. at 20-21.
indicated that he had made a serious effort at staying clean and maintaining
employment during his probation. However, he indicated that he retreated
back into heroin addiction after losing several jobs for reasons beyond his
control, during a time in which he was also struggling with the loss of his
children to CYF.2
At the time of the plea, this Court noted that the maximum
sentence for Burglary was ten (10) years. At the revocation
hearing, this Court imposed a term of imprisonment of three (3)
to six (6) years, which sentence was well below the maximum
sentence available.
Additionally, prior to imposing sentence, this Court placed its
reasons for doing so on the record. It stated:
THE COURT: Well, Mr. Cousineau, this case is not about
your sustained drug addiction, in my mind, so much as it is
about burglarizing a series of homes. Burglary is by
definition a crime of violence, a felony of the first degree.
____________________________________________
2
Department of Children, Youth and Families.
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And all that you say may be true. However, I have to
doubt it, because when you were out, you went and
committed additional burglaries, and that's how you dealt
with your problem. What caused you to do that is neither
here nor there to me, but I know that there are a series of
families that no longer feel safe in their house.
It's not as though this is the only time you've been in front
of this Court. In fact, you were before me for a series of
domestic violence cases when we first started the court.
You have not made any attempt at rehabilitation and no
effort to turn yourself around, evidenced by the fact that
as soon as you were out, practically, you started using
drugs and committing additional felonies.
This Court does not feel that you're a candidate for either
rehabilitation or county supervision.
(Probation Revocation Hearing Transcript, p. 11-12).
As demonstrated by the record, this Court clearly placed
ample reasons for its sentence on the record. The sentence
imposed was well beneath the maximum sentence available at
the time of the initial sentencing and therefore, was legal. The
sentence imposed was not in violation of the Sentencing
Guidelines, either due to its length or the reasons contained in
the record for its imposition. The sentence was legal and did not
constitute an abuse of discretion. Therefore, this claim must fail.
Trial Court Opinion, 5/29/14, at 3-4.
We discern no abuse of discretion in the
and rehabilitative needs was curt, the court did not appear to have
disregarded such considerations altogether. Rather, the court chose to
afford other statutory sentencing considerations more weight in the context
Appellant violated his probation, imposed after he committed five
burglaries, by committing an additional nine burglaries, all felony offenses in
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their own right. And whereas the first five burglaries involved a single
business, the new burglaries targeted multiple private residences. In light of
this escalation of criminal behavior, which occurred while Appellant was still
under supervision, the trial court understandably afforded more weight to
To the extent
Appellant contends that the trial court did not afford his rehabilitative needs
assertion that the trial court failed to give adequate weight to sentencing
factors will not r
Commonwealth v. Dalberto, 648 A.2d 16, 22 (Pa. Super. 1994).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
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