Com. v. Cook, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES COOK :
:
Appellant : No. 396 WDA 2021
Appeal from the Judgment of Sentence Entered October 30, 2020
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000802-2019
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED: May 16, 2022
Charles Cook appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Indiana County, after he pled nolo contendere to
five counts of criminal use of a communication facility, 18 Pa.C.S.A. § 7512(a),
a felony of the third degree.1 After careful review, we affirm.
While incarcerated in Indiana County jail, Cook used the jail’s phones
on seven different occasions between October 12, 2018, and November 14,
2018, to arrange drug deliveries to his girlfriend. As a result, the Pennsylvania
State Police filed the instant charges against Cook.
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* Retired Senior Judge assigned to the Superior Court.
1 Cook was charged with seven counts of criminal use of a communication
facility, all felonies of the third degree. Cook pled nolo contendere to counts
one through five; counts six and seven were dismissed by the Commonwealth.
See N.T. Plea Hearing, 10/16/20, at 2-3.
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Prior to sentencing, the court ordered a presentence investigation report
(PSI). As a result of Cook’s criminal history, his prior record score was listed
as a repeat felony offender (RFEL). Moreover, under the Pennsylvania
Guideline Sentencing Matrix, the crime was determined to have an offense
gravity score of five (5). Accordingly, the standard range for each count was
24-36 months’ imprisonment.
Cook’s sentencing hearing took place on October 30, 2020. In
determining Cook’s sentence, the sentencing court considered the appropriate
guideline range, along with the other factors documented in Cook’s PSI,
including his ten prior criminal convictions. The sentencing court also
considered Cook’s poor health, his honorable discharge from the Marine Corps,
and the facts of the present case. The sentencing court explicitly stated that
it did not consider Cook’s recent parole violation committed shortly after Cook
was acquitted of homicide charges.
On counts one and two, Cook was sentenced to undergo incarceration
for consecutive periods of three to seven years. On counts three through five,
Cook was sentenced to a period of incarceration of three to seven years, with
the sentences running concurrently to the sentences on the prior counts,
resulting in an aggregate sentence of six to fourteen years in prison. Cook
was also ordered to pay the costs of prosecution in the amount of $706.78,
and $250.00 to have a DNA sample drawn.
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Cook filed a timely post-sentence motion to modify sentence alleging
that the sentencing court: (1) “imposed a six[-]year (72 month) minimum
sentence which falls outside of the minimum sentence of the guidelines and
just one year shy of the statutory maximum; [(2)] considered matters outside
the probation department’s [PSI], including information and matters learned
through the defendant's murder trial; [and (3)] failed to consider all relevant
factors, including [Cook’s] age, and relative health, the length of incarceration
prior to the charges being filed[,] and the staleness of [Cook’s] prior criminal
history.” See Motion to Modify Sentence, 11/6/20, at 2-3. The court denied
Cook’s post-sentence motion on March 5, 2021. In its decision to deny Cook’s
motion, the court stated, “[d]ue to [Cook’s] history of repeated offenses, [the
court’s] significant concerns about the protection of the public, and [Cook’s]
pattern of inability to be rehabilitated, the [c]ourt declined to modify [Cook’s]
sentence and believes that it has provided adequate support on the record for
this decision.” Trial Court Post-Sentence Motion Opinion, 3/17/2021, at 3;
Rule 1925(a) Opinion, 4/15/21 (adopting court’s post-sentence motion
opinion to fulfil Rule 1925(a) obligation).
On March 19, 2021, Cook filed a timely notice of appeal. On April 9,
2021, Cook filed a court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. On appeal, Cook claims that the sentencing
court “erred as a matter of law in denying [his] [p]ost-[s]entence [m]otion
seeking a modification of sentence as the [] [c]ourt improperly imposed
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consecutive sentences[.]” See Brief for Appellant, at 10. Specifically, Cook
claims that the court improperly imposed consecutive sentences where it: (1)
“imposed a sentence outside of the standard minimum range and just one
year short of the statutory maximum; [(2)] considered matters outside of the
[PSI], including information and matters learned through [Cook]’s prior
murder trial in which [Cook] was found [n]ot [g]uilty on all counts by a jury;
[and (3)] did not give due consideration to [Cook]’s ailing health or his
rehabilitative needs.” Id. at 10, 14. Cook’s claims implicate the discretionary
aspects of his sentence.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(citing Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)). “An
appellant must satisfy a four-part test to invoke this Court’s jurisdiction when
challenging the discretionary aspects of a sentence.” Id. Specifically, we
must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id. at 1265-66 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010)).
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First, we note that Cook has filed a timely notice of appeal. Second,
Cook preserved the issues he raises on appeal in his post-sentence motion to
modify sentence. Third, Cook’s brief contains a Pa.R.A.P. 2119(f) statement
of the reasons relied upon for appeal, and, thus, does not have a fatal defect.
See id. at 1266. However, we conclude that Cook fails to raise a substantial
question as to whether his sentence is appropriate under the Sentencing Code.
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the [] statement[,] [known as a Pa.R.A.P.
2119(f) statement,] must articulate what particular provision of
the [C]ode is violated, what fundamental norms the sentence
violates, and the manner in which it violates that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132-33 (Pa. Super. 2014) (quoting
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)).
A sentencing court has the discretion “‘to impose its sentence
concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed. Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question.’” Mastromarino,
2 A.3d at 586-87 (quoting Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.
Super. 2005)). “[T]he imposition of consecutive rather than concurrent
sentences will present a substantial question 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.’”
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (quoting
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Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012)). To be
clear,
a defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Id. (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013)). “‘In determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually excessive.
Rather, we look to whether the appellant has forwarded a plausible argument
that the sentence, when it is within the guideline ranges, is clearly
unreasonable.’” Id. at 770 (quoting Dodge, 77 A.3d at 1270).
In addition, “an allegation that a sentencing court ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate. Such a challenge goes to the
weight accorded the evidence and will not be considered absent extraordinary
circumstances.” Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.
Super. 2000) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.
Super. 1995)). However, “This Court has also held that ‘an excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.’” Caldwell, 117
A.3d at 770 (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014)).
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“When reviewing a challenge to the discretionary aspects of sentencing,
we determine whether the trial court has abused its discretion.” Id.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.
Id., quoting Raven, 97 A.3d at 1253.
Cook’s claim that the sentencing court improperly imposed consecutive
sentences, and, thereby, imposed a sentence outside of the standard
minimum range and just one year short of the statutory maximum, does not
raise a substantial question.2 Our case law is clear that imposing consecutive
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2 Additionally, Cook inaccurately classifies his sentences when he claims that
the two consecutive sentences effectively form a sentence for a period of six
(6) to fourteen (14) years, which is outside of the standard minimum range
and just one year short of the statutory maximum. See Brief for Appellant,
at 12-13. In fact, the sentencing court sentenced Cook to serve two
consecutive sentences, not one sentence outside the standard minimum range
and just short of the statutory maximum. Each sentence calls for Cook to
serve a period of three to seven years of incarceration. The three-year
minimum of each sentence is within the recommended minimum standard-
range of twenty-four (24) to thirty-six (36) months. Additionally, the
maximum of each sentence is not more than the statutory maximum for the
offense charged, which is seven (7) years. See 18 Pa.C.S. § 7512(b).
Moreover, the record refutes Cook’s allegation that the sentencing court
improperly considered matters outside of his PSI, including information
learned through Cook’s prior murder trial. See N.T. Sentencing, 10/30/20, at
8 (sentencing court explicitly stated, “I want to make it clear that you were
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sentences, rather than concurrent sentences, does not raise a substantial
question. See Mastromarino, 2 A.3d at 586-87.3
Finally, Cook’s claim that the sentencing court imposed a sentence
without consideration of his poor health and rehabilitative needs similarly fails
to raise a substantial question. Here, Cook claims that the sentencing court
failed to consider certain factors in imposing Cook’s sentence; however, our
case law is clear that a claim that the sentencing court failed to consider or
did not adequately consider certain factors does not raise a substantial
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acquitted of the homicide and this sentence has nothing to do with that
case.”).
3 If Cook’s claim regarding the sentencing court’s imposition of consecutive
sentences and failure to consider mitigating factors is construed to be an
excessiveness of sentence claim, and, thus, potentially raises a substantial
question, it is meritless. See Caldwell, 117 A.3d at 770. The sentencing
court did not manifestly abuse its discretion in sentencing Cook because the
sentencing court did not misapply the law, exercise its judgment for reasons
of partiality, prejudice, bias, or ill will, or arrive at a manifestly unreasonable
decision. Id. Cook’s sentence is not unreasonable in light of his ten prior
convictions, which include offenses such as burglary, assault, rape, and
domestic battery. Trial Court Post-Sentence Motion Opinion, 3/17/2021, at
3. Cook also failed to present evidence of rehabilitation, especially since the
offenses in this case occurred while Cook was incarcerated. Id. Finally,
Cook’s sentence does not violate the Sentencing Guidelines because the
minimum sentence for each offense falls within the recommended minimum
standard-range. See Commonwealth v. Moore, 617 A.2d 8, 12 (Pa. Super.
1992) (“‘In determining whether a particular sentence is clearly unreasonable
or unreasonable, the appellate court must consider the defendant’s
background and characteristics[,] as well as the particular circumstances of
the offense involved, the trial court’s opportunity to observe the defendant,
the [PSI], . . . the Sentencing Guidelines as promulgated by the Sentencing
Commission, and the ‘findings’ upon which the trial court based its
sentence.’”) (quotation omitted).
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question. Petaccio, 764 A.2d at 587. Moreover, since there was a PSI
available to the sentencing court in this case, we can “presume that the
sentencing judge was aware of relevant information regarding [Cook’s]
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Finally,
the sentencing court specifically stated that it referred to the PSI and
considered Cook’s poor health and rehabilitative needs in coming to its
sentencing decision. See N.T. Sentencing, 10/30/20, at 7-8; Devers, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2022
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