Com. v. McGuire, M. ( 2020 )

J-S43012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL BRANDON MCGUIRE :
:
Appellant : No. 253 WDA 2020
Appeal from the Judgment of Sentence Entered November 18, 2019
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000522-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 11, 2020
Michael Brandon McGuire, Appellant, appeals from the judgment of
sentence entered on November 18, 2019.1 Following negotiations between
Appellant and the Warren County District Attorney, Appellant pled guilty to
one count of Strangulation–Applying Pressure to the Throat or Mouth and one
count of Simple Assault.2 After careful review, we affirm.
The trial court set forth the following factual and procedural background.
On December 10, 2018, [Appellant] questioned his pregnant
wife (“Victim”) about an alleged affair she was having with another
man. Upon Victim’s denial of the alleged affair, [Appellant]
repeatedly punched her in the head and face, choked her around
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1 Appellant incorrectly stated that he was appealing from the court’s denial of
his post-sentence motion, filed on January 24, 2020. Appellant is actually
taking his appeal from the amended judgment of sentence, filed on
November 18, 2019. The caption has been corrected accordingly.
2 18 Pa.C.S. §§ 2718(a)(1), 2701(a)(1), respectively.
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the neck, and attempted to tape her mouth shut. When the tape
would not stick to her face, he repeatedly kicked her in the
stomach, poured honey over her head, and cut her jacket with
scissors.
On December 18, 2018, the Commonwealth charged
[Appellant] with one (1) count of Strangulation–Applying Pressure
to the Throat or Neck, one (1) count Strangulation–Blocking the
Nose and Mouth of a Person, one (1) count Simple Assault, one
(1) count Harassment, and one (1) count Aggravated Assault of
an Unborn Child. The same day a Protection From Abuse (“PFA”)
was ordered against [Appellant]. On January 7, 2019, [Appellant]
posted bail and was released from Warren County Jail and within
two (2) hours of his release, [Appellant] contacted Victim, in
violation of the PFA [order]. [Appellant] was found in contempt
after a PFA violation hearing held on January 24, 2019.
On September 12, 2019, while represented by Brian D.
Arrowsmith, Esq., [Appellant] entered a plea of guilty to one (1)
count of Strangulation–Applying pressure to Throat or Neck and
one (1) count Simple Assault. The Commonwealth moved to nolle
prosqui the remaining three (3) charges. On November 8, 2019,
[Appellant] was sentenced in the aggregate for a minimum of forty
(40) months to a maximum of eighty (80) months in a State
Correctional Institution with two hundred and fifty-five (255) days
of credit for time served. The [c]ourt sentenced [Appellant] in the
aggravated range of the sentencing guidelines based upon the fact
that [Victim] was pregnant and [Appellant] kicked her repeatedly
in the stomach as well as the overall brutal nature of the assault.
At the time of sentencing, the [c]ourt indicated that [Appellant]
was Boot Camp eligible at the Counts with respect to the
aggregate sentence.
* * *
On November 15, 2019, [Appellant’s] counsel began to
correspond with Attorney Robert C. Greene and Judge Gregory
Hammond via e-mail by sending a proposed Post-Sentence Motion
regarding [Appellant’s] Boot Camp eligibility. District Attorney
Greene responded via e-mail that the Commonwealth had no
objection to the motion requesting that the statutory limit for Boot
Camp eligibility be waived. On November 18, 2019, the [c]ourt
filed an Amended Sentence waiving the three (3) year maximum
sentence statutory limit. District Attorney Greene contacted
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[Appellant’s] counsel, Judge Hammond, and Victim Witness
Coordinator, Jennifer Hannold, via e-mail advising that Victim was
opposed to [Appellant] being Boot Camp eligible. [Appellant’s]
Post-Sentence Motion for Clarification of Boot Camp Eligibility was
then filed. Later that day, the [c]ourt filed a Second Amended
Sentence indicating that [Appellant] was not Boot Camp eligible.
On December 2, 2019, [Appellant] filed a Motion for
Reconsideration/Motion for Hearing requesting argument to
perfect the record. On January 24, 2020, a hearing was held on
[Appellant’s] Motion and the Motion was denied with the [c]ourt
clarifying that [Appellant] was not Boot Camp eligible.
[Appellant’s] Notice of Appeal was filed in February 20, 2020 and
his Concise Statement of Matters Complained of on Appeal was
filed on March 17, 2020.
Trial Court Opinion, 4/6/20, at 1-3 (footnotes omitted).
Appellant presents the following questions for our review:
[1.] Whether the Sentencing Court relied upon impermissible
consideration in the imposition of sentence and in doing so violated
Appellant’s right to due process[?]
[2.] Whether the Trial Court abused its discretion in imposition of
sentence[?]
Appellant’s Brief at 4.
In support of his first issue, Appellant argues that the court erred when
it considered a piece of new information, namely an email from the District
Attorney, Rob Greene, Esquire, informing the court that Victim told a victim’s
advocate that she was opposed to Appellant attending boot camp.3
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3 Counsel for Appellant, Brian D. Arrowsmith, was also included in the email
from the District Attorney regarding Victim’s opposition to Appellant’s boot-
camp eligibility. As the trial court noted in its opinion, the parties had been
communicating about Appellant’s boot-camp eligibility prior to the email sent
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Appellant’s Brief at 17. Appellant acknowledges that a sentencing judge “may
appropriately conduct an inquiry broad in scope, largely unlimited either as to
the kind of information he may consider, or the source from which it may
come.” Id. at 16 (quoting Commonwealth v. Schwartz, 418 A.2d 637 (Pa.
Super. 1980)). Appellant argues, however, that the information relied upon
by the sentencing court was “ex parte communication containing
unsubstantiated hearsay upon hearsay upon hearsay from an
unknown/unnamed source that was made outside of the record.” Appellant’s
Brief at 18. Appellant further avers that the information contained in that
email was the only information the court relied upon when it found Appellant
was ineligible for boot camp. Id.Our standard of review in 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 of 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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009).
Further, to the extent Appellant is arguing that the sentencing court
improperly relied on hearsay, we note:
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by the District Attorney informing Appellant and the court that Victim opposed
boot camp. Trial Court Opinion, 4/6/20, at 3.
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Hearsay testimony is precisely the type of evidence which is the
right of a court in sentencing to consider even though such
information is obtained outside the courtroom from persons whom
the defendant has not been permitted to confront or cross-
examine. Significantly, the admission of hearsay in sentencing
proceedings, especially those which do not involve a capital crime,
is a common occurrence. In fact, sentencing courts as a matter
of course, consider hearsay in nearly every sentencing case since
pre-sentence investigations are routinely ordered and considered
by the court and a pre-sentence report is the very definition of
hearsay, i.e., the report is a report by a probation officer reciting
other person’s out-of-court statements offered for their truth.
Commonwealth v. Medley, 725 A.2d 1225, 1230 (Pa. Super. 1999).
Appellant cites several cases supporting his argument that the
sentencing court relied upon impermissible factors when it considered the
email sent by the district attorney. Appellant’s Brief at 16. The cases upon
which Appellant relies, however, are factually distinct and do not support his
argument. For example, Commonwealth v. Bethea, 379 A.2d 102 (Pa.
1977), provides no support for Appellant’s appeal because the improper
information upon which the court relied was the fact that the defendant chose
to go to trial instead of taking a plea. Appellant’s reliance upon
Commonwealth v. Karash, 452 A.2d 528 (Pa. Super. 1982), where the
sentencing court looked to television and newspaper stories about the
appellant’s attempted escape, although he had not been convicted, when it
determined appellant’s sentence, is similarly unpersuasive because it is so
factually distinct from the instant case. Finally, Commonwealth v.
Schwartz, 418 A.2d 637 (Pa. Super. 1980), does not provide support for
Appellant’s argument because in that case the sentencing court relied upon
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ex parte communications supplied by the Pennsylvania State Police stating
that the appellant was one of the largest narcotic dealers in State College.
In the instant case, after learning Victim was opposed to Appellant
entering boot camp, the Commonwealth sent an email to the court and
Appellant’s attorney, advising them of the same. Prior to learning that
information, the sentencing court believed Victim had agreed to boot camp for
Appellant. Trial Court Opinion, 4/6/20, at 8. After learning of Victim’s
opposition to Appellant’s boot-camp eligibility, the court entered a second
amended sentence, in which it found Appellant was not eligible for boot camp.
Second Amended Sentence, 11/18/19. Appellant then filed a motion for
reconsideration/rehearing on December 2, 2019.4
The court held a hearing on January 24, 2020, which it stated was the
full and final argument regarding Appellant’s boot-camp eligibility. Trial Court
Opinion, 4/6/20, at 9. At the hearing, the district attorney took full
responsibility for the Commonwealth’s error in failing to consult with Victim
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4 The sentencing court handed down its second amended sentencing order on
Monday, November 18, 2019. Appellant had 10 days to file a post-sentence
motion pursuant to Pa.R.Crim.P. 720 (A)(1). Thanksgiving, a legal holiday,
fell on November 28, 2019. Although the day following Thanksgiving is not a
legal holiday, our Supreme Court has regularly issued an order closing the
Pennsylvania courts the day following Thanksgiving. Such an order was issued
in 2019 and the Pennsylvania courts were closed on November 29, 2019; thus
Appellant’s motion was timely filed on December 2, 2019. While we will treat
the motion as timely filed, we note that this practice is not strictly compliant
with 1 Pa.C.S. § 1908, which states that “any day made a legal holiday by the
laws this Commonwealth or of the United States” shall be omitted from the
computation of time. 1 Pa.C.S. § 1908.
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regarding her position on Appellant’s eligibility for boot camp. N.T., 1/24/20,
at 11-12. The district attorney further stated that the victim’s advocate was
present at the hearing and “did everything right” and that she advised the
district attorney that Victim was opposed to Appellant attending boot camp.
Id. at 12. The district attorney further stated that before he learned of
Victim’s opposition to boot camp, he was not opposed to boot camp for
Appellant, but after learning of Victim’s opposition, the Commonwealth
changed its recommendation. Id. at 13.
At the conclusion of the hearing, the trial court reviewed its earlier
sentence and discussed its reasoning for sentencing Appellant to forty to
eighty months of incarceration for his crimes, including that Victim was
pregnant at the time of the assault, Appellant kicked her in the stomach,
attempted to humiliate her, and Appellant had contact with Victim in direct
violation of a PFA order.5 N.T., 1/24/20, at 19. The court also noted that it
was not the charges against Appellant that rendered him ineligible for boot
camp, but rather the length of his sentence.6 Id. Based upon all of the above
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5 23 Pa.C.S. § 6101, et seq.
6 An inmate is eligible for boot camp where “A person sentenced to a term of
confinement under the jurisdiction of the Department of Corrections who is
serving a term of confinement, the minimum of which is not more than two
years and the maximum of which is five years or less.” 61 Pa.C.S.§ 3903.
However, “[t]he prosecuting attorney, in the prosecuting attorney’s sole
discretion, may advise the court that the Commonwealth has elected to waive
the eligibility requirements of this chapter if the victim has been given
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and Victim’s input that she opposed boot camp, the court found that Appellant
was not eligible for boot camp. Id. at 21-22; Order, 1/24/20.
To the extent the court relied on Victim’s opposition to boot camp in
reaching its decisions, as this Court noted in Medley, the hearsay at issue in
the instant case is not the sort of “unsubstantiated hearsay” criticized in
previous cases. Medley, 725 A.2d at 1225. Indeed as discussed above, this
sort of information is precisely the type of information that a court would have
considered and “the [sentencing] court is not bound by the restrictive rules of
evidence properly applicable to trials.” Id. at 1229. Appellant has failed to
show that the sentencing court erred when it found he was not eligible for
boot camp based upon the length of his sentence and Victim’s opposition to
Appellant attending boot camp. Appellant is due no relief on this issue.
In support of his second issue, Appellant argues that the trial court
abused its discretion in the imposition of sentence because it sentenced him
to a sentence in the aggravated range. Appellant’s Brief at 19. Specifically,
Appellant avers that the court erred when it “purported to accept dismissal of
several charges,” however the court “ultimately reached a conclusion that
Appellant should be sentenced as if convicted of all charges.” Id. at 20. He
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notice of the prosecuting attorney’s intent to waive the eligibility
requirements and an opportunity to be heard on the issue.” 61 Pa.C.S. §
3904(d)(1). Finally, we note that the “court, after considering victim
input, may refuse to accept the prosecuting attorney’s waiver of the eligibility
requirements”. 61 Pa.C.S. § 3904(d)(2) (emphases added).
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also posits that the court dismissed the mitigating factors set forth in the
sentencing memorandum and paid no attention to the information that did not
support its narrative “that demanded an aggravated sentence.” Id.
With regard to the discretionary aspect of a sentence, there is no
automatic right to appeal. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013). Preliminarily, we must determine whether Appellant preserved
this issue for appeal and
we must engage in a four part analysis to 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. The third and fourth of
these requirements arise because Appellant’s attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the substantive
merits of the case.
Id. at 808 (quoting Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.
Super. 2006)).
Indeed, it is well established that “issues challenging the discretionary
aspects of a sentence must be raised in a post-sentence motion or by
presenting the claims to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of sentence is
waived.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.
2013). As the sentencing court properly noted, “[Appellant] made no motion
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on record after sentencing and his post-sentence motion only addressed Boot
Camp eligibility….” Trial Court Opinion, 4/6/20, at 6. Our independent review
of the record in this case also found no motion, oral or otherwise, advancing
the argument that the court erred when it sentenced Appellant in the
aggravated range or failed to consider mitigating factors, as he sets forth in
his brief discussing the discretionary aspect of his sentence. Thus, Appellant
has failed to preserve the issue, and we find it waived. Appellant is due no
relief on these grounds.
We also note that Appellant failed to satisfy Pa.R.A.P. 2119(f). Pursuant
to that rule,
An appellant who challenges the discretionary aspect of a
sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence. The statement
shall immediately precede the arguments on the merits with
respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f). Moreover,
The concise statement must specify ‘where the sentence falls in
relation to the sentencing guidelines and what particular provision
of the code it violates. Additionally, the statement must specify
‘what fundamental norm the sentence violates and the manner in
which is violates the norm.’
Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004) (quotations
omitted). Appellant failed to include a Rule 2119(f) statement in his brief on
appeal. The Commonwealth, however, did not object to that defect, so this
Court could have determined whether Appellant presented a substantial
question. Commonwealth v. Gambal, III, 561 A.2d 710, 713 (Pa. 1989).
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Given Appellant’s failure to preserve the issue, however, we need not proceed
further.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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