Com. v. Parkhurst, J. ( 2021 )

J-S04003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH A. PARKHURST :
:
Appellant : No. 924 MDA 2020
Appeal from the Judgment of Sentence Entered September 13, 2017
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000172-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH A. PARKHURST :
:
Appellant : No. 925 MDA 2020
Appeal from the Judgment of Sentence Entered September 13, 2017
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000173-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ALAN PARKHURST :
:
Appellant : No. 926 MDA 2020
Appeal from the Judgment of Sentence Entered September 13, 2017
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000190-2017
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
J-S04003-21
MEMORANDUM BY OLSON, J.: FEBRUARY 24, 2021
Appellant, Joseph Alan Parkhurst, appeals from the judgment of
sentence entered on September 13, 2017, as made final by the denial of his
reinstated post-sentence motion on June 16, 2020. We affirm.
On July 7, 2017, Appellant entered guilty pleas at each of three trial
court dockets. Specifically, he pleaded guilty to robbery,1 graded as a felony
of the first degree, at docket number CP-66-CR-0000172-2017 (“172-2017”),
criminal attempt to commit robbery,2 graded as a felony of the first degree,
at docket number CP-66-CR-0000173-2017 (“173-2017”), and theft by
unlawful taking,3 graded as a felony of the third degree, at docket number
CP-66-CR-0000190-2017 (“190-2017”). At the plea hearing, the
Commonwealth made the following offer of proof:
[At docket number 172-2017, the evidence would show that, on
April 27, 2017], in Wyoming County, Pennsylvania, [Appellant],
during the course of committing a theft at Bowman’s Creek
Service Center, he had intention to place the store clerk in fear of
immediate serious bodily injury by brandishing a knife and
demanding money from the store clerk and received
approximately $400.000 in US currency. The next case,
[173-2017, the evidence would show that, on April 28, 2017], in
Wyoming County, Pennsylvania, [Appellant], with the intent to
commit the crime of [r]obbery, did enter the Dollar General Store
with his face concealed, brandished a knife, and demanded money
from the store clerk, which constituted a substantial step towards
the commission of said crime, that being [r]obbery. And then the
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1. 18 Pa.C.S.A. § 3701(a)(1)(ii).
2. 18 Pa.C.S.A. § 901(a).
3. 18 Pa.C.S.A. §3921(a).
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third case, [190-2017, the evidence would show that, on April 29,
2017], in Wyoming County, Pennsylvania, [Appellant] did
unlawfully take or exercise unlawful control over a 1997 Toyota
4Runner belonging to Robert Ruppert with the intent to deprive
the owner thereof.
N.T. Plea Hearing, 7/7/17, at 14-15.
Thereafter, on September 13, 2017, the trial court sentenced Appellant
as follows: 36 to 72 months’ incarceration at docket number 172-2017, 24 to
48 months’ incarceration at docket number 173-2017, and 12 to 24 months’
incarceration at docket number 190-2017. N.T. Sentencing Hearing,
9/13/2017, at 9-11. The court directed that Appellant serve each sentence
on a consecutive basis; hence, Appellant’s aggregate sentence totaled 72
months to 144 months’ imprisonment. Id. The trial court further ordered
Appellant to pay restitution and obtain a drug and alcohol evaluation with
follow through for any recommended treatment. Id. at 9-11. After the trial
court reinstated Appellant’s post-sentence rights, Appellant filed a post-
sentence motion for reconsideration of sentence, which the trial court denied.
See Order of Court, 6/16/2020. This appeal followed.4
Appellant raises the following issue on appeal:
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4. Appellant timely filed separate notices of appeal at each trial court docket
to which his judgment of sentence pertained. See Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018). This Court then consolidated Appellant’s
separate appeals. On July 14, 2020, the trial court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b)(1). Appellant timely complied. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 1, 2020.
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Did the trial court abuse its discretion or err as a matter of law
when it failed to consider [Appellant’s] background, was
improperly guided solely by the egregiousness of the crimes [for]
which [Appellant] was convicted, and, singularly and in the
aggregate, imposed a manifestly excessive sentence by running
each sentence consecutive?
Appellant’s Brief at 4.
Appellant takes issue with the trial court’s decision to impose his
sentences consecutively, as opposed to concurrently, and argues that the trial
court sentenced Appellant “at the highest end of the standard range of the
guidelines” by “focusing solely on what [the trial court] perceived to be the
seriousness of the offenses negating any mitigating information.” Appellant’s
Brief at 21. Appellant’s issue therefore implicates the discretionary aspects of
sentencing.
When an appellant challenges the discretionary aspects of a sentence,
the right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Instead, the appellant must petition this Court
for review. See 42 Pa.C.S.A. § 9781(b). An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test:
We 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).
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted). An appellate court will not review the merits of an
appeal unless the appellant meets all four criteria. Commonwealth v.
Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (“Only if the appeal
satisfies these requirements may we proceed to decide the substantive merits
of Appellant’s claim.”).
Appellant filed timely notices of appeal, properly preserved his claims,
and filed an appropriate 2119(f) statement in his brief. Thus, we turn to
whether he raised a substantial question. A substantial question is raised by
demonstrating that the trial court’s actions were inconsistent with the
Sentencing Code or contrary to a fundamental norm underlying the sentencing
process. Commonwealth v. Bonner, 135 A.3d 592, 603 (Pa. Super. 2016).
This issue is evaluated on a case-by-case basis. Id. This Court will not look
beyond the statement of questions presented and the prefatory Rule 2119(f)
statement to determine whether a substantial question exists.
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (citation
omitted).
Appellant argues within his Rule 2119(f) statement that this appeal
presents a substantial question because the trial court erred in focusing only
on the egregiousness of the crime without consideration of mitigating
circumstances, which resulted in a failure to evaluate Appellant’s rehabilitative
needs. Appellant also claims that the consecutive nature of his separate
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sentences produced a manifestly excessive punishment. See Appellant’s
Brief, at 12-13.
Standing separately, claims asserting a failure to consider mitigating
factors and claims challenging the imposition of consecutive sentences do not
raise a substantial question. See, e.g., Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010) (mitigating factors); Commonwealth v.
Gonzalez–Dejesus, 994 A.2d 595, 598 (Pa. Super. 2010) (consecutive
sentences). When brought together, however, a “challenge to the imposition
of consecutive sentences as unduly excessive, together with a claim that the
trial court failed to consider the defendant’s rehabilitative needs upon
fashioning its sentence, presents a substantial question.” Bonner, 135 A.3d,
at 603-604, citing Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015). As
Appellant raises such a combined claim, we shall proceed to the merits of his
discretionary sentencing challenge.
As we previously stated:
Sentencing is a matter vested in the sound discretion of the [trial
court], 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
[trial] 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. Blount, 207 A.3d 925, 934-935 (Pa. Super. 2019)
(citation omitted), appeal denied, 218 A.3d 1198 (Pa. 2019).
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When this Court reviews the discretionary aspects of a sentence, its
analysis is governed by Sections 9781(c) and (d) of the Pennsylvania
Sentencing Code. Section 9781, in pertinent part, states,
§ 9781. Appellate review of sentence
...
(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c) and (d). Throughout his brief, Appellant concedes that
his sentences fall within the standard range of the sentencing guidelines. E.g.,
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Appellant’s Brief at 11, 21. Therefore, we may vacate and remand only if the
sentence is clearly unreasonable.
The trial court has the power to impose sentences consecutively or
concurrently, in its discretion. See 42 Pa.C.S.A. § 9721(a). Moreover, as we
have previously stated, “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Moury, 992 A.2d, at 171. Therefore, the trial court’s
discretion in “imposing a sentence on each offense at the highest end of the
standard range of the guidelines,” Appellant’s Brief, at 21 (emphasis
added), is not clearly unreasonable. Indeed, Appellant’s sentence, both
separately and in the aggregate, falls within the standard range of the
Sentencing Code. See N.T. Sentencing Hearing, 9/13/17, at 10-12.
Appellant’s challenge to the consecutive nature of his sentence is without
merit.
Appellant next argues that the trial court solely relied on the
egregiousness of the offenses in imposing its sentence and failed to consider
mitigating circumstances, including Appellant’s background, his addiction, and
“his lack of a criminal record, employment history, and the rehabilitative needs
of the [a]ppellant[.]” Appellant’s Brief, at 12. The trial court must consider
the factors of 42 Pa.C.S.A. § 9721(b) in fashioning its sentence, namely, “the
protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant[.]” Commonwealth
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v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006) (citation omitted). We
have stated:
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation. Where pre-sentence reports exist,
we shall ... presume that the sentencing judge was aware of
relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory
factors. A pre-sentence report constitutes the record and speaks
for itself.
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014).
Appellant contends that the trial court solely focused on the seriousness
of the offense in imposing its sentence. Paraphrasing the trial court, Appellant
argues, “[a]s the trial court stated at sentencing, the reason for the hefty
sentence imposed was based upon the seriousness of the offenses and any
lesser sentence would depreciate their seriousness.” Appellant’s Brief at 18,
citing N.T. Sentencing Hearing, 9/13/17, at 10-12. Significantly, Appellant’s
quote omits the trial court’s emphasis on Appellant’s actions. Specifically, the
trial court stated:
Reasons for sentence, the serious nature of the offense. Any
lesser of a sentence would depreciate the serious nature of the
[Appellant’s] actions and the sentence is within the standard
range guidelines.
...
Total aggregate sentence, seventy-two months to one hundred
and forty-four months in a state correctional facility. Reasons for
sentence, the serious nature of the offense, the totality of the
[Appellant’s] actions warrant consecutive sentences and
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the sentence is within the standard range guidelines and there is
no reason for the [c]ourt to deviate from the same.
N.T. Sentencing Hearing, 9/13/17, at 10-12 (emphasis added). The trial
court’s emphasis on Appellant’s actions demonstrates its consideration of the
impact of Appellant’s actions on the victims and community as well as
Appellant’s rehabilitative needs as required by Section 9721(b). Additionally,
the trial court ordered a drug and alcohol evaluation from which Appellant was
to follow any recommended treatment plan. N.T. Sentencing Hearing,
9/13/17, at 10. This rebuts Appellant’s assertion that the trial court did not
consider Appellant’s addiction and his rehabilitative needs in fixing the
challenged sentence.
Furthermore, prior to sentencing, the trial court reviewed a presentence
investigation report (“PSI report”). See N.T. Sentencing Hearing, 9/13/17, at
6.5 Appellant’s counsel had no additions or corrections for the report. Id.Because the trial court had the benefit of a PSI report, we presume it was
aware of and considered the relevant information as part of its sentencing
determination. Antidormi, 84 A.3d at 761. The trial court also had the
benefit of comments from Appellant’s counsel at sentencing. See N.T.
Sentencing Hearing, 9/13/17, at 6-7. Based on the foregoing, it is clear that
the trial court was aware of and considered mitigating factors when imposing
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5. The trial court, in asking defense counsel whether he was in receipt of the
PSI report and whether he had any additions or corrections to make,
demonstrated its awareness and possession of the PSI report. See N.T.
Sentencing Hearing, 9/13/17, at 6.
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Appellant’s sentence. The trial court adequately evaluated the factors outlined
in Section 9721(b). Therefore, Appellant’s contrary argument is meritless.
For these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2021
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