Com. v. Gillespie, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWIGHT GILLESPIE
Appellant No. 290 WDA 2016
Appeal from the Judgment of Sentence January 26, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000918-2013
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 14, 2017
Dwight Gillespie appeals from the January 26, 2016 judgment of
sentence entered in the Erie County Court of Common Pleas following his
convictions for receiving stolen property.1 We affirm.
On March 13, 2014, following a jury trial, Gillespie was convicted of
two counts of receiving stolen property. On May 27, 2014, the trial court
sentenced Gillespie to 48 to 120 months’ incarceration at Count 11, to be
served consecutively to a prior state sentence for which Gillespie was on
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3925(a).
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parole.2 At Count 13, the trial court sentenced Gillespie to a concurrent
term of 48 to 120 months’ incarceration. The trial court further directed
Gillespie to pay restitution in the amount of $11,313.44. Gillespie filed a
post-sentence motion, which the trial court denied on June 10, 2014.
Gillespie did not file a direct appeal. Following a petition pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, the trial court
reinstated Gillespie’s appeal rights nunc pro tunc, and Gillespie appealed.
On December 10, 2015, we affirmed Gillespie’s conviction but vacated
his judgment of sentence and remanded for a new sentence that would:
award Gillespie credit for time served at CP-25-CR-0000918-2013, properly
grade Gillespie’s offenses at Counts 11 and 13, and clarify the individuals
and/or entities to whom restitution was payable and the amounts payable to
each.
On January 26, 2016, the trial court re-sentenced Gillespie within the
Sentencing Guidelines to 30 to 60 months’ incarceration at Count 11, with
546 days credit for time served, and a consecutive 15 to 30 months’
incarceration at Count 13. The trial court further clarified that $499.99 of
the total restitution amount was owed to Erie Insurance and $1,700.01 was
owed to the victims.
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2
On July 8, 2009, the trial court had sentenced Gillespie to 21 to 240
months’ incarceration following a conviction for criminal conspiracy—
burglary, 18 Pa.C.S. § 3502.
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Gillespie filed a post-sentence motion arguing the sentences should
have been imposed concurrently rather than consecutively, which the trial
court denied on February 2, 2016. On February 19, 2016, Gillespie timely
filed a notice of appeal.
Gillespie’s sole issue on appeal is whether the sentence imposed by
the trial court was “manifestly excessive, clearly unreasonable and
inconsistent with the objectives of the Sentencing Code after the trial court
considered and relied on impermissible factors.” Gillespie’s Br. at 3.
Gillespie challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address such a challenge, we first
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 discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));
see also Allen, 24 A.3d at 1064.
Gillespie filed a timely notice of appeal, preserved his claim in a timely
post-sentence motion, and included in his brief a concise statement of
reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of
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Appellate Procedure 2119(f). We must now determine whether he has
raised a substantial question that the sentence is inappropriate under the
Sentencing Code.
We evaluate whether a particular sentencing issue raises a substantial
question on a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa.Super. 2011). A substantial question exists where a
defendant raises a “plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super. 2013) (citation and internal quotation marks omitted). Where a
defendant receives consecutive sentences within the Guideline’s ranges, but
application of the Guidelines would be clearly unreasonable, resulting in an
excessive sentence, he may raise a substantial question. Id. at 1270. A
bald claim of excessiveness due to the imposition of consecutive sentences,
however, does not raise a substantial question. Id.
Here, Gillespie argues that the trial court’s imposition of consecutive
sentences resulted in an excessive period of incarceration.3 Gillespie does
not address why his aggregate sentence, which is within the Guideline’s
ranges, is clearly unreasonable; nor does he specify the allegedly
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3
In Gillespie’s Rule 2119(f) statement, he argues that the trial court
failed to consider the factors set out in 42 Pa.C.S. §9721(b). However, the
only claim in the argument section of his brief is that the trial court abused
its discretion in imposing consecutive, instead of concurrent, sentences.
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impermissible factors on which the trial court relied. His bald claim of
excessiveness due to the consecutive nature of his sentence does not raise a
substantial question. Id. (“[A] bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial question.”).
Even if Gillespie had raised a substantial question, however, we would
conclude that his claim is meritless. “Sentencing is a matter vested within
the discretion of the trial court and will not be disturbed absent a manifest
abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282
(Pa.Super. 2010). “An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.” Id. “A
sentencing court need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question, but the
record as a whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.” Id. at 1283.
At the re-sentencing hearing, the trial court explained:
The Court has considered the Pennsylvania Sentencing
Code, the pre-sentence report and the Pennsylvania
guidelines on sentencing. The court has also considered
the statements of defense counsel, the defendant and the
attorney for the Commonwealth. The Court has
considered Mr. Gillespie’s age, his background, his
character and rehabilitative needs, the nature,
circumstances and seriousness of the offenses and the
protection of the community. Mr. Gillespie, it does not
appear here that you’ve used your time in prison to
achieve some things that are of some benefit to you and
will aid you when you are released back into society. The
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re-sentencing places you before the Court with a different
set of guidelines and the chance of a lesser sentence than
was originally imposed. I have no problem with that. I
am concerned, however, because you come before the
Court as a repeat felony offender and you do have a long
prior criminal history that goes back to 2001 when you
were a juvenile -- excuse me 2000, which is 15 years.
And they were mostly theft offenses but there are some
assaults and burglary, and these charges involve theft as
well. So it is pretty obvious that up to this point nothing
that has been done by the juvenile court or by the adult
courts have [sic] been able to rehabilitate or deter you. I
hope this time is the final time that you come before this
or any other court, but that’s up to you. Your track record
does not bode well for the future, but you can change all of
that this time around, if you want to. I don’t know if you
will or not, but I do know that you need to serve the time
for the crimes you’ve committed and for the actions that
you’ve taken in violation of the law.
N.T., 1/26/16, at 11-12.
It is clear from the record that the trial court considered the section
9721(b) factors – “protection of the public, gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. §9721(b). The trial court
also considered Gillespie’s pre-sentence report4 and the applicable
Sentencing Guidelines. After taking this all into consideration, the trial court
imposed consecutive sentences. See Commonwealth v. Hoag, 665 A.2d
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4
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
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1212, 1214 (Pa.Super. 1995) (quoting Commonwealth v. Graham, 661
A.2d 1367, 1373 (Pa. 1995) (“The general rule in Pennsylvania is that in
imposing a sentence the court has discretion to determine whether to make
it concurrent with or consecutive to other sentences then being imposed or
other sentences previously imposed.”). We find the trial court has not
abused its discretion. See id. (stating appellant should not be entitled to “a
volume discount for his crimes by having all sentences run concurrently”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2017
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