Com. v. Fieni, K. ( 2021 )

J-S54045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELLY LYNN FIENI :
:
Appellant : No. 350 MDA 2020
Appeal from the Judgment of Sentence Entered January 8, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001071-2019
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 25, 2021
Kelly Lynn Fieni (“Fieni”) appeals from the judgment of sentence
imposed following her guilty plea to one count each of driving under the
influence (“DUI”) of a controlled substance – third offense, driving while
operating privilege is suspended, operation of a motor vehicle without
required financial responsibility, possession of a small amount of marihuana,
and possession of drug paraphernalia, and three counts of possession of a
controlled substance.1 We affirm.
On December 19, 2018, Manheim Borough Police Officer Kirk Colwell
(“Officer Colwell”) was on routine traffic patrol in Rapho Township, Lancaster
County, Pennsylvania. At 10:06 p.m., Officer Colwell observed Fieni’s
____________________________________________
1See 75 Pa.C.S.A. §§ 3802(d)(2), 1543(b)(1.1)(i), 1786(f); 35 P.S. § 780-
113(a)(31)(i), (32), (16).
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vehicle drift into the oncoming lane of travel, and abruptly jerk back into the
proper lane, on several occasions. Based on his observations, Officer Colwell
conducted a traffic stop of Fieni’s vehicle, approached Fieni’s driver-side
window, and observed Fieni exhibit multiple signs that she was intoxicated
by controlled substances. Officer Colwell asked Fieni to perform several field
sobriety tests, which she failed. Officer Colwell asked Fieni if she had
consumed any prescribed medication or controlled substances, and Fieni
admitted that she had taken non-prescribed Vicodin earlier that day. With
Fieni’s consent, Officer Colwell searched the interior of Fieni’s vehicle, and
discovered drug paraphernalia, marijuana, and numerous separately-
packaged substances that included pills, and powdery and crystal-rock like
substances. A lab test revealed that the packaged substances included
heroin, crystal meth, Adderall, Xanax and Vicodin. Officer Colwell arrested
Fieni, transported her to the police station, and conducted a consented-to
blood-draw. The blood-draw results revealed that Fieni’s blood contained
amphetamine, methamphetamine, morphine, fentanyl, norfentanyl and
acetyl fentanyl.
On October 18, 2019, Fieni pled guilty to the above-mentioned crimes.
The trial court deferred sentencing and ordered the preparation of a
presentence investigation report (“PSI”). On January 8, 2020, the trial court
sentenced Fieni to 18 months to 5 years in prison for DUI, a consecutive 90
days in prison for driving while operating privilege is suspended, and an
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aggregate term of 3 years of probation for the remaining charges. Fieni filed
a post-sentence Motion to modify her sentence, which the trial court denied.
Fieni filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
On appeal, Fieni raises the following questions for our review:
I. Did the trial court err in imposing a sentence in the
aggravated range for [DUI] – third offense without
acknowledging that it was imposing a sentence in the
aggravated range, and without stating the basis for the
aggravated range sentence on the record?
II. Was an aggregate sentence of twenty-one (21) to sixty (60)
months clearly unreasonable, and inconsistent with the
protection of the public, the gravity of the offenses, and [] Fieni’s
rehabilitative needs?
Brief for Appellant at 8.
We will consider Fieni’s claims together, as they are related. In her
first claim, Fieni argues that the trial court abused its discretion in
sentencing her in the aggravated range for her conviction of DUI, without
acknowledging that it was sentencing Fieni in the aggravated range, or
stating its reasons on the record for the aggravated-range sentence. Id. at
18-20. In her second claim, Fieni argues that the trial court abused its
discretion in sentencing her to an aggregate term of 21 to 60 months in
prison. Fieni claims that the trial court’s sentence was manifestly excessive,
and not consistent with the protection of the public, the gravity of Fieni’s
offenses and Fieni’s rehabilitative needs. Id. at 20-24.
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Fieni’s claims challenge the discretionary aspects of her sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] 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).
***
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Fieni filed a timely Notice of Appeal, raised her sentencing claim
in a post-sentence Motion, and included a Rule 2119(f) Statement in her
brief. Further, Fieni’s claims raise a substantial question. See
Commonwealth v. Booze, 853 A.2d 1263, 1278 (Pa. Super. 2008) (stating
that “an allegation that the court failed to state adequate reasons on the
record for imposing an aggravated-range sentence … raises a substantial
question for our review.”); Commonwealth v. Riggs, 63 A.3d 780, 786
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(Pa. Super. 2012) (stating that an appellant raises a substantial question
where she alleges that “the trial court failed to consider relevant sentencing
criteria, including the protection of the public, the gravity of the underlying
offense and the rehabilitative needs of [a]ppellant.”). Thus, we will review
Fieni’s claim.
Our standard of review is as follows:
Sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias,
or ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
The sentencing court is given broad discretion in
determining whether a sentence is manifestly excessive because
the sentencing judge is in the best position to measure factors
such as the nature of the crime, the defendant’s character and
the defendant’s display of remorse, defiance, or indifference. In
order to find that a trial court imposed an unreasonable
sentence, we must determine that the sentencing court imposed
the sentence irrationally and that the court was not guided by
sound judgment.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted).
When imposing a 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. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
sentencing guidelines. Additionally, the court must impose a
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sentence which 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 the community, and the rehabilitative needs of
the defendant.
Id. (quotation marks and citations omitted); see also 42 Pa.C.S.A.
§ 9721(b). Further, “where the trial court is informed by a [PSI], it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Downing, 990 A.2d at 794 (quotation marks and
citations omitted).
Here, the record reflects that the trial court considered the PSI, the
Sentencing Guidelines, the severity of Fieni’s crimes, the protection of the
public, and Fieni’s rehabilitative needs. See N.T., 1/8/20, at 12-14; Trial
Court Opinion, 5/18/20, at 5-6. Notably, the trial court stated its reasons
for sentencing Fieni in the aggravated range of the guidelines. The trial
court stated that Fieni has been struggling with drug addiction for a
significant period of time; she has been treated at drug rehabilitation
facilities twice; and she has an extensive criminal history, including two prior
DUI convictions. N.T., 1/8/20, at 13-14. The trial court also noted that on
this occasion, she was driving “while fully intoxicated with drugs to the level
of which, as counsel for the Commonwealth stated, should or could have
resulted in her death.” Id. at 14. We conclude that the trial court properly
considered all of the statutory factors before sentencing Fieni. See
McClendon, supra. Moreover, because the trial court had the benefit of a
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PSI, it is presumed that the court was aware of relevant information
regarding Fieni’s character, and weighed those considerations along with any
aggravating factors. See Downing, supra; see also Commonwealth v.
Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (rejecting the appellant’s
claim that the sentencing court had abused its discretion by imposing
sentence without stating adequate reasons on the record, and holding that
“[s]ince the sentencing court had and considered a [PSI], this fact alone was
adequate to support the sentence[.]”). Accordingly, Fieni’s discretionary
sentencing challenges fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2021
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