Com. v. Hall, H. ( 2019 )

J-S43015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HOUSTON ROBERT HALL :
:
Appellant : No. 2052 MDA 2018
Appeal from the Judgment of Sentence Entered October 1, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001821-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 28, 2019
Appellant, Houston Robert Hall, appeals from the judgment of sentence
entered in the Lycoming County Court of Common Pleas, following his open
guilty plea to two counts of simple assault and harassment, and one count
each of terroristic threats and criminal mischief.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them. Procedurally, we add the court ordered Appellant on December
21, 2018, to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b); Appellant timely complied on January 2, 2019.
Appellant raises the following issue for our review:
____________________________________________
1 18 Pa.C.S.A. §§ 2701(a)(3), 2709(a)(3), 2706(a)(1), and 3304(a)(2),
respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43015-19
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
IMPOSING CONSECUTIVE SENTENCES WHICH
AGGREGATED TO A TERM OF STATE INCARCERATION
TOTALING TWO (2) TO FIVE (5) YEARS?
(Appellant’s Brief at 4).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[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 raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Our standard of review concerning the discretionary aspects of
sentencing 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
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J-S43015-19
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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005). Under Section 9721(b), “the
court shall follow the general principle that the sentence imposed should call
for confinement that is consistent with the protection of the public, the 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.A. §
9721(b). The record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). “In particular, the court should
refer to the defendant’s prior criminal record, his age, personal characteristics
and his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1,
10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert
denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L. Ed. 2d 902 (2005).
After a thorough review of the record, Appellant’s brief, the applicable
law, and the well-reasoned opinions of the Honorable Marc F. Lovecchio, we
conclude Appellant’s issue merits no relief. The trial court opinions
comprehensively discuss and properly dispose of the question presented.
(See Opinion and Order Denying Post-Sentence Motions, filed November 19,
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J-S43015-19
2018, at 2-7) (finding: court initially believed deadly weapon used
enhancement would apply; after taking testimony and discussing matter
further with parties, however, court concluded that pursuant to plea
agreement, court would use only deadly weapon possessed enhancement;
court did not impose de facto deadly weapon used enhancement; court
reviewed PSI report and all relevant factors and imposed standard range
sentence; sentence imposed was palpably reasonable and within court’s
discretion). (See also Trial Court Opinion, filed April 3, 2019, at 5-6) (finding:
court thoroughly addressed Appellant’s claims in its opinion and order denying
post-sentence motions; further, Appellant’s claim that court imposed de facto
deadly weapon used enhancement lacks any basis in record; court imposed
sentence based upon consideration of all relevant factors and consistent with
sentencing purposes; nothing in record supports Appellant’s claim that court
improperly relied upon negligent action of defense counsel which required
appearance of victims at more than one proceeding; court did consider
Appellant’s criminal history which included his failure to take advantage of
“breaks” court had given Appellant in past; sentence was not manifestly
excessive; court considered PSI, Appellant’s allocution, arguments of counsel,
and other sentencing factors, and imposed individualized sentence consistent
with protection of public, gravity of offense, and Appellant’s rehabilitative
needs). Accordingly, we affirm based on the trial court opinions.
Judgment of sentence affirmed.
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J-S43015-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2019
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IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMONWEALTH
vs. : No. CR-1821-2017 /
HOUSTON ROBERT HALL, Motion for Reconsideration ..
Defendant : of Sentence
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On July 30, 2018, Defendant pled guilty to count 1, terrorisfifthreais, a -<
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misdemeanor of the first degree, Counts 3 and 4, simple assault by physical menace,
misdemeanors of the second degree, Counts 5 and 6, harassment, misdemeanors of the third
degree and Count 7, criminal mischief, a misdemeanor of the third degree. Defendant was in
a confrontation with Jazmyn and Breanna Walburn on October 22, 2017. The two victims
were seated in a Honda sedan with Defendant's and Jazmyn's one-year old infant. While
Defendant punctured the front tires of the Honda with a knife and displayed an aggressive
physical demeanor, he screamed at the victims and threatened that a "9 mm" would come
next.
On October 1, 2018, the court sentenced the defendant on Count 1, terroristic
threats, to a term of state incarceration, the minimum of which was one ( 1) year and the
maximum of which was two and a half (2 V:i) years. With respect to Count 3 (incorrectly
referenced as Count 2), simple assault by physical menace, the court sentenced the defendant
to a consecutive period of state incarceration, the minimum of which was one (1) year and the
maximum of which was two and a half ( 2 V:i) years. The sentence of the court with respect to
1
Count 4 (incorrectly referenced as Count 3), simple assault by physical menace was a
concurrent sentence of one (1) to two and a half (2 �) years. Counts 5 and 6 merged with
Counts 3 and 4 for sentencing purposes and with respect to Count 7, the defendant was
ordered to pay a fine and restitution. The aggregate term of incarceration was a minimum of
two (2) years and a maximum of five (5) years.
On October 10, 2018, Defendant filed a motion to reconsider his sentence.
Argument was held before the court on November 5, 2018. This Opinion and Order shall
address Defendant's motion for sentence reconsideration.
Defendant first argued that the court imposed a "de facto" deadly weapons
used enhancement. Candidly, Defendant's argument is without any basis in fact or law
whatsoever. Defendant cannot point to any factual or legal support.
The offense gravity score for terroristic threats and simple assault was a three,
and Defendant's prior record score was a two. Therefore, the standard guideline range was
RS-9, the deadly weapon possessed guideline range was 3-12, and the deadly weapon used
guideline range was 6-15.
In the court's September 5, 2018 Order, it concluded after hearing argument
that the deadly weapon enhancement for a weapon used would apply. However, by Order
dated October 1, 2018, after taking testimony and discussing the matter further with the
parties, the court concluded that pursuant to the plea agreement, it would use the deadly
weapon possessed enhancement resulting in a standard range of three (3) to twelve (12)
months on Counts 1, 3 and 4. It was specifically noted in the Order that ''the court will be
2
utilizing a deadly weapon possessed enhancement and not a deadly weapon used
enhancement."
The standard range for a deadly weapon possessed enhancement was three (3)
to twelve (12) months for the terroristic threats and the simple assault convictions. The court
sentenced the defendant to the upper end of the standard range. This clearly was not a de
facto utilization of the deadly weapon used enhancement. Defendant also argues that the
court abused its discretion by imposing consecutive sentences "based upon the nature of the
interaction with the victims", improperly relying upon the negligent actions of the defense
which required the appearance of the victims at more than one proceeding, considering
improper factors, and imposing a manifestly excessive sentence.
Initially, because the court obtained and reviewed a Pre-Sentence Investigation
report, it is presumed that the court was aware of all the appropriate sentencing factors and
considerations. Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009). It is
presumed that the court properly considered and weighed all relevant factors and the court's
discretion should not be disturbed. Id.
"A sentencing judge has broad discretion in determining a reasonable
penalty ... as it is the sentencing court that is in the best position to 'view the defendant's
character, displays of remorse, defiance, or indifference and the overall effect and nature of
the crime."' Commonwealth v. Edwards, \ 9 '1 A.3� (9 2.5 , ui 3 t' (f-o . �Ufe<.
1.0li) ( quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
"Sentencing is a matter vested in the sound discretion of the sentencing judge and a sentence
3
will not be disturbed absent a manifest abuse of discretion." Commonwealth v. Zirkle, 107
A.3d 127, 132 (Pa. Super. 2015)(citation omitted). An abuse of discretion is established only
if the 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." Id.
When imposing a sentence, the sentencing court must consider the protection
of the public, the gravity of the offense as it relates to the impact on the victim and on the
community, and the rehabilitative needs of the defendant. Commonwealth v. Conte,
- · )(citation omitted); 42 Pa. C.S. § 9721
(b). "A court is required to consider the particular circumstances of the offense and the
character of the defendant." Edwards,�.(quoting Commonwealth v. Griffin, 804 A.2d 1,
10 (Pa. Super. 2002)). "In particular, the sentencing court should refer to the defendant's
prior criminal record, his age, personal characteristics and his potential for rehabilitation."
Id.
In this particular case, the court considered all of the relevant factors and did
not abuse its discretion. The sentence was within the standard guidelines. The court imposed
a concurrent sentence with respect to Count 4 and no incarceration with respect to Count 7.
For sentencing purposes, the court merged the harassment counts with the simple assault
counts. The defendant ended up with a two (2) to five (5) year sentence when a standard
range sentence could have resulted in a four and a half (4 Yz) to ten (10) year sentence. A
claim that it was excessive has no merit whatsoever.
Moreover, it was not improper for the court to consider Defendant's history.
4
That history included certain "breaks" which the court had given to the defendant with the
hope that defendant would have used the breaks as an opportunity to become a law abiding
citizen instead of continuing his criminal behaviors.
The defendant had a probation violation in July of 2016 for, among other
things, testing positive for THC, amphetamine and methamphetamine. He was sanctioned to
thirty (30) days in jail and as a condition of continuing supervision was ordered to attend
Lycoming County's Reentry Services program. He was doing very well in the program and
asked that the program be removed as a condition of supervision due to him working long
hours at his job and not having transportation to Williamsport. The court allowed the
defendant to be released from the program.
In October of 2017, the defendant was set to max off of his probation but still
owed 75 hours of court-ordered community service and was delinquent $200.00 on his costs
and fines. He was given another "break" by the court which permitted him to be released
from supervision and reset his fines as well as a reasonable payment schedule. The court
waived Defendant's community service.
He was released from supervision on October 12, 2017. This incident,
however, happened only ten days later on October 22, 2017.
Once these charges were filed, Defendant was incarcerated in lieu of bail. On
May 30, 2018, however, the court determined that the defendant was eligible for nominal bail
pursuant to Rule 600 (E). The court directed that the defendant not consume any alcohol or
controlled substances and comply with the conditions of supervised bail.
5
Only a few months later, however, the defendant's bail was revoked. He was
involuntarily removed from the American Rescue Workers, he did not obtain an assessment
as directed, he smoked marijuana on at least two occasions and drank alcohol on one
occasion. As the court noted in its July 18, 2018 order revoking bail, "the defendant was
given the opportunity to be released but chose to continue using and chose not to address his
substance abuse issues."
Finally, and as noted by the court during the sentencing, the sentence in the
court's opinion, was necessary to protect the public, reflect the seriousness of the offenses to
extent that they impacted the victims and to address Defendant's rehabilitative needs. The
defendant had prior contacts that were somewhat similar in nature including possession with
intent to deliver, possession of drug paraphernalia and defiant trespass. The escalating
sanctions that were imposed in the past failed to either motivate or cause the defendant to
change his behaviors. He had been on probation, had been jailed in a county facility and
placed on supervised bail. The defendant continued with behaviors attributable to substance
abuse and anger management problems which he previously failed to address. Finally, the
evidence based risk needs assessment provided in the Pre-Sentence Investigation report noted
that the defendant was at a high risk for recidivism.
While Defendant admitted in the Pre-Sentence Investigative report to "being
in the wrong", the court considered him to be a significant danger. He could not control
himself or address his issues. He threatened to kill the mother of his child and physically
menaced said mother and the grandmother of his child in the presence of his child because
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his child "was supposed to be at a birthday party and never showed until later in the evening."
Defendant admitted that he "was intoxicated and acted out of anger."
Defendant's sentence was palpably reasonable and clearly within the court's
discretion. While the court concedes that any state prison sentence may be unpleasant, it is
meant to be. This sentence in the aggregate was far from being unduly harsh or
unquestionably unreasonable. Cf., Commonwealth v. Sarvey, l't� A. 3d. 43lo (�a.Soper.
2.0( 8 ). The choice for Defendant to go to state prison was made by him and not the court. The
sentence was individualized, rational, and guided by sound judgment. It was proportional to
Defendant's conduct.
ORDER
AND NOW, this /q day of November 2018, following a hearing and
argument, Defendant's motion for reconsideration of sentence is DENIED.
By The Court,
Marc F. Lovecchio, Judge
cc: Aaron Gallogly, Esquire, ADA
Nicole Spring, Esquire, APD
Gary Weber, Lycoming Reporter
Work File
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HOUSTON HALL,
Appellant 1925(a) Opinion
OPINION IN SUPPORT OF ORDER IN
COMPLIANCE WITH RULE 192S(a) OF
THE RULES OF APPELLATE PROCEDURE
This opinion is written in support of this court's judgment of sentence dated
October 1, 2018 and docketed on October 5, 2018, which became final when the court denied
post-sentence motions on November 19, 2018. The relevant facts follow.
Appellant Houston Hall (hereinafter "Hall") was charged with terroristic
threats, endangering the welfare of children, two counts of simple assault, two counts of
harassment, and criminal mischief. These charges arose out of an incident on October 22,
2017, in which Hall screamed obscenities and threats and slashed the tires of a vehicle in
which his former girlfriend and her infant daughter were sitting. While visibly displaying the
knife, Hall threatened to shoot his former girlfriend.
On July 30, 2018, Hall pied guilty to Count 1, terroristic threats, a
misdemeanor of the first degree; Counts 3 and 4, simple assault by physical menace,
misdemeanors of the second degree; Counts 5 and 6, harassment, misdemeanors of the third
•'-·:·---- - 1
1
degree; and Count 7, criminal mischief, a misdemeanor of the third degree.
On October 1, 2018, the court sentenced Hall to one (1) year to two and one-
half (2 Y2 ) years on Count 1, terroristic threats and a consecutive one ( 1) year to two and one-
half (2 Yl) years on Count 3, simple assault by physical menace. The aggregate sentence was a
period of state incarceration the minimum of which was two (2) years and the maximum of
which was five (5) years. The sentences on the remaining counts either merged or were not
terms of incarceration. The court also made Hall eligible for the State Motivational Boot
Camp Program.
On October 10, 2018, Hall filed a motion to the reconsider sentence, which the
court denied in an Opinion and Order entered on November 19, 2018.
On December 18, 2018, Hall filed a notice of appeal. In Hall's concise
statement of errors complained of on appeal, Hall argues that the court abused its discretion
in imposing a state sentence "as specified in his motion to reconsider sentence and argued at
the time of argument on the motion." In Hall's motion for reconsideration of sentence, Hall
argues that the court abused its discretion by: (1) imposing consecutive sentences based upon
"the nature of the interaction with the victims;" (2) improperly imposing a de facto deadly
weapon used enhancement; (3) sentencing him to a state prison sentence; (4) improperly
relying on the negligent action of the defense with required the appearance of the victims at
more than one proceeding; ( 5) considering that it had cut Hall breaks in the past in that he
had been released early by the court from the Re-entry Services Program prior to actually
completing it, by granting Hall unsecured bail despite Hall violating bail conditions and
1
Upon agreement of the parties, the grading of Counts 5, 6, and 7 were lowered to summary offenses at the time
of sentencing.
2
releasing Hall early from supervision; and (6) imposing a manifestly excessive sentence.
Sentencing is a matter vested in the sound discretion of a sentencing judge.
Commonwealth v. Edwards, l 94 A.3d 625, 63 7 (Pa. Super. 2018); Commonwealth v. Derry,
150 A.3d 987, 991 (Pa. Super. 2016)(citing Commonwealth v. Hoch, 936 A.2d 515, 517 (Pa.
Super. 2007). Sentences must be consistent with the protection of the public, the 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. Commonwealth v. Ali, 197 A.3d 742, 765 (Pa. Super.
2018).
When imposing a sentence, the court is required to consider the particular
circumstances of the offense and character of the defendant. Edwards, 194 A.3d at 637. The
sentencing court "should refer to the defendant's criminal record, age, personal
characteristics and potential for rehabilitation." Id Moreover, where a court is informed by a
presentence report, it is presumed that the court is aware of all appropriate sentencing factors
and considerations. Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009). As
well, the sentencing court has discretion to impose a sentence concurrently or consecutively
to other sentences being imposed at the same time or to sentences already imposed.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013). Defendants are not entitled to
volume discounts for crimes and the imposition of consecutive rather than concurrent
sentences should not be disturbed except in only the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering the nature of the crimes and the
length of imprisonment. Id.; see also Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.
Super. 2012)(en banc);Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011).
3
A sentence will not be disturbed absent a manifest abuse of discretion.
Commonwealth v. Hoch, 936 A.2d 515, 517 (Pa. Super. 2007). An abuse of discretion is not
shown merely by an error in judgment; rather, the defendant 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. Id. at 517-518; Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super
2018)(quoting Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014)(citations
omitted)).
Pursuant to 42 Pa. C.S.A. §9781(a), the court must consider the nature of the
offense, the history and circumstances of the defendant, the advisory guidelines promulgated
by the sentencing commission, the pre-sentence report if any, as well as the court's
observations of the defendant.
The term "unreasonable" commonly connotes a decision that is "irrational" or
"not guided by sound judgment." Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
The sentencing judge has broad discretion in determining a reasonable sentence, as it is in the
best position to view the defendant's character, displays ofremorse, defiance or indifference,
and the overall effect and nature of the crime. Id. at 961. As well, when a court has been
informed by a pre-sentence report, its discretion should not be disturbed. Ventura, 975 A.2d
at 1135. Finally, the court enjoys an institutional advantage, bringing to its decisions an
expertise, experience and judgment that should not lightly be disturbed. Walls, 926 A.2d at
961.
At sentencing, the court shall make as part of the record and disclose in open
4
court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.
Commonwealth v. Cartrette, 83 A.3d 1030, 1041 (Pa. Super. 2013). The judge, however,
does not need to give a lengthy discourse explaining its reasons. Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa. Super. 2010). The record as a whole must reflect the court's
consideration of the facts of the crime and character of the defendant. Id.
The term "discretion" imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion, within the framework
of the law, and is not exercised for purposes of giving effect to the will of
the judge. Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary actions.
Commonwealth v. Soto, :--io2. A. 1d iO, <\1 (Pa. Super.
2018)(quoting Commonwealth v. Reese, 31 A.3d 708, 715-716 (Pa. Super. 201 l)(en
bane)( citations omitted)).
All of Hall's claims were thoroughly addressed by the court in its Opinion and
Order filed on November 19, 2018, which addressed Hall's motion for reconsideration of
sentence. By way of summary and addressing each of Hall's specified claims, there is
nothing in the record to support Hall's contention that the consecutive sentence was based
upon the "nature of the interaction with the victims."
Next, the standard guideline range for the deadly weapon possessed was 3-12
months. The sentence imposed on both Counts 1 and 3 was a minimum of 12 months. Hall's
claim that the court imposed a "de facto" deadly weapon used enhancement is without any
basis in the record whatsoever.
Although the court did, in fact, sentence Hall to a state prison sentence, that
sentence was based upon a consideration of all of the relevant factors and consistent with the
5
purposes of sentencing.
Next, there was no support in the record for Hall's claim that the court
improperly relied upon the negligent action of [defense counsel] which required the
appearance of the victims at more than one proceeding.
The court did consider Hall's history which included certain "breaks" which
the court had given to him with the hope that he would have used the breaks as an
opportunity to become a law abiding citizen, instead of continuing his criminal behaviors.
Considering Hall's history was not improper. To the contrary, it was required and
imperative.
Lastly, the court did not impose a manifestly excessive sentence. The record
clearly shows that the court took several factors into consideration when formulating the
sentence. The court considered the pre-sentence report, Hall's allocution, arguments of
counsel and the other sentencing factors and imposed an individualized sentence consistent
with the protection of the public, the gravity of the offense to the extent it impacted the
victims and Hall's rehabilitative needs. As noted above, the specifics with respect to such are
thoroughly set forth in the court's Opinion and Order filed on November 19, 2018.
DATE: _*_. ._�_q__ �Com,
Marc F. Lovecchio, Judge
r
cc: hicole Ippolito, Esquire (ADA)
cole Spring, Esquire (PD)
6
Work file
Gary Weber, Esquire (Lycoming Reporter)
Superior Court (original & 1)
7