Com. v. Strowhouer, D. ( 2021 )

J-A04030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID STROWHOUER :
:
Appellant : No. 98 EDA 2020
Appeal from the Judgment of Sentence Entered November 14, 2019
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002024-2019
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: APRIL 5, 2021
Appellant, David Strowhouer, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his open
guilty plea convictions for one count each of aggravated assault by vehicle,
homicide by vehicle while driving under the influence (“DUI”), aggravated
assault by a vehicle while DUI, accidents involving death or injury while not
licensed, driving under the combined influence of alcohol and/or controlled
substance, driving while suspended for a DUI-related offense, and murder of
the third degree.1 We affirm Appellant’s convictions but vacate and remand
for resentencing.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3732.1(a); 3735(a)(1)(ii); 3735.1(a); 3742.1(a)(1);
3802(d)(3); 1543(b)(1)(iii); and 18 Pa.C.S.A. § 2502(c), respectively.
J-A04030-21
The relevant facts and procedural history of this case are as follows. On
August 15, 2019, Appellant entered an open guilty plea to the above-
mentioned crimes. Appellant’s offenses stemmed from an incident where he
drove under the influence of drugs and alcohol and struck another vehicle,
killing one of the passengers and seriously injuring the driver. In its opinion,
the trial court sets forth the relevant facts of this case as follows:
On Saturday, February 16, 2019, [Appellant] attended the
funeral of his mother. He had been drinking throughout the
day and became highly intoxicated. After the funeral
luncheon, [Appellant] continued drinking at his brother’s
residence in Willistown Township, Chester County. At
approximately 9pm, [Appellant] decided he wanted to go to
Chester, Delaware County to buy cocaine. Despite his
brother and sister-in-law’s impassioned attempt to stop
him, [Appellant] abruptly left their residence in a black
Dodge Ram pickup truck almost striking his brother. As
[Appellant] approached the Rt. 452 bridge over the CSI
railroad tracks in Upper Chichester Township, he illegally
passed a vehicle at a high rate of speed. [Appellant]
entered into the oncoming lane of traffic. While in the
oncoming lane of traffic, [Appellant] crashed head on into
the victim’s vehicle as they proceeded lawfully in the correct
lane of travel. The horrific impact killed the victim female
passenger and caused serious bodily injury to her husband,
the driver.
At the time of the crash, [Appellant] had alcohol and three
controlled substances in his system. [Appellant] had a blood
alcohol content of 0.199 percent and Cocaine, Valium, and
Marijuana were all detected in his blood. [Appellant is] a
repeat DUI offender. [Appellant] has five previous DUI
convictions between 2010 and 2017. At the time
[Appellant] committed the current offenses, he was on State
parole on three of his DUI cases.
(Trial Court Opinion, filed May 18, 2020, at 1-2).
On November 14, 2019, the court sentenced Appellant to an aggregate
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25½ to 51 years’ imprisonment. Appellant filed a timely post-sentence motion
on November 21, 2019. The court denied the post-sentence motion on
December 19, 2019. On December 23, 2019, Appellant timely filed a notice
of appeal.2 On December 27, 2019, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant filed a request for an extension of time to file his Rule 1925(b)
statement. The court granted the request for an extension, and Appellant
filed his Rule 1925(b) statement on May 11, 2020.
Appellant raises the following issues for our review:
Should not this Court grant discretionary review of the
sentence imposed, and thereupon vacate judgment of
sentence and remand for resentencing where the [trial]
court imposed a manifestly excessive and clearly
unreasonable total sentence of imprisonment of not less
than 25½ no more than 51 years without providing an
adequate, contemporaneous statement of reasons for the
sentence imposed?
Where the sentencing court purported to impose a sentence
for Aggravated Assault by Vehicle While DUI in the
aggravated range of the sentencing guidelines, but actually
imposed a sentence that was outside the guidelines without
setting forth the permissible range of sentences, should not
this Court vacate and remand for resentencing?
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2 Appellant purported to appeal from the court’s order denying his post-
sentence motion. However, “[i]n a criminal action, [the] appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa.Super. 2001) (en banc), appeal denied, 569 Pa. 681, 800 A.2d 932(2002). We have corrected the caption accordingly.
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(Appellant’s Brief at 8).
In his first issue, Appellant argues that his aggregate sentence of 25½
to 51 years’ incarceration is manifestly excessive and clearly unreasonable. 3
Appellant alleges that the court failed to reference the guideline range for each
offense.4 Appellant avers that the court failed to consider various factors
under the Sentencing Code, including, inter alia, Appellant’s rehabilitative
needs, his alcoholism, his youthful age, and his remorse in pleading guilty and
accepting responsibility. Appellant reasons that the court focused almost
exclusively on the three victims when it imposed consecutive sentences for
the crimes corresponding to each of the three victims. Appellant concludes
the court abused its sentencing discretion, and this Court should vacate and
remand for resentencing. We disagree.
As presented, Appellant’s claims challenge the discretionary aspects of
his sentence. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.
2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (considering
challenge to imposition of consecutive sentences as claim involving
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
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3Appellant admits that the sentences imposed for all but one of his convictions
are within the standard guideline range. The only conviction where the court
sentenced beyond the guideline range was for aggravated assault by vehicle
while DUI. Appellant challenges his sentence for that conviction under his
second issue, thus, we will address that issue separately.
4 We will address this argument below with Appellant’s second issue.
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949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).5
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,
912 (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).
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5 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis omitted). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as
to sentencing, so he can challenge the discretionary aspects of his sentence.
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Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a timely-filed post-
sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by, inter alia, including in
his brief a separate concise statement demonstrating that there is a
substantial question as to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812
A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis
omitted) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
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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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a substantial
question if the appellant’s Rule 2119(f) statement sufficiently articulates the
manner in which the sentence imposed violates a specific provision of the
Sentencing Code or the norms underlying the sentencing process. Mouzon,
supra at 435, 812 A.2d at 627. Bald allegations of excessiveness, however,
do not raise a substantial question to warrant appellate review. Id. at 435,
812 A.2d at 627. “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.” Commonwealth v. Cruz-
Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653,
676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706,
710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). As
well, where the sentencing court had the benefit of a pre-sentence (“PSI”)
report, we can presume the court was aware of and weighed relevant
information regarding a defendant’s character along with mitigating statutory
factors. Tirado, supra at 366 n.6.
Furthermore,
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Pennsylvania law affords the sentencing court discretion to
impose [a] 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 does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise 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.
Austin, supra at 808 (internal citations and quotation marks omitted). See
also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(stating appellant is not entitled to “volume discount” for his crimes by having
all sentences run concurrently).
Instantly, Appellant filed a timely notice of appeal, preserved his claim
in a timely post-sentence motion, and included in his brief a concise statement
of reasons relied upon for allowance of appeal pursuant to Rule 2119(f).
Nevertheless, Appellant’s general claims of excessiveness, failure to consider
mitigating factors, and imposition of consecutive sentences do not raise a
substantial question. See id. See also Mouzon, supra; Cruz-Centeno,
supra. Moreover, the court had the benefit of a PSI report. (See N.T.
Sentencing Hearing, 11/20/18, at 4). Thus, we can presume the court
considered the relevant mitigating factors. See Tirado, supra.Even if we could reach the merits of Appellant’s sentencing claim, the
court stated at sentencing:
THE COURT: ….All right. The way I see it is that there’s
three charges here. There’s three—there’s more than three
victims, but I’m just looking at the case victim, Deana
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Eckman, victim; Christopher Eckman, victim; the State, for
him driving when he was forbidden to drive, and those three
must be consecutive. So I’m going to go with the
consecutive sentences first, which would be Count #5.
Count #5 is Aggravated Assault by Vehicle While DUI, and
that victim is Christopher Eckman. I sentence you to a
minimum of 60 months to a maximum of 120 months. On
Count #15, Count #15 is Driving Under Suspension - DUI-
Related, convictions for DUIs in the past, and that—I’m
sentencing you to a minimum of 6 months to a maximum of
1 year, consecutive to Count #5. Count #18 is the Murder
in the third degree. I sentence you to a minimum of 240
months to a maximum of 480 months consecutive to Counts
5 and 15. So 5, 15, 18. Count #2 is the Aggravated Assault
by Vehicle. I sentence you to a minimum of 16 months to
a maximum of 84 months, concurrent to the other charges.
Count #4, Homicide by Vehicle While DUI-Prior DUI
Convictions, I sentence you to a minimum of 84 months to
a maximum of 180 months concurrent to the others. Finally
would be Count #8. Count #8 is Accidents Involving Death
or Personal Injury While Not Properly Licensed. I sentence
you to a minimum of 18 months to a maximum of 84
months. The effect of that sentence is 25.5 years as a
minimum to 51 years as a maximum, which you won’t even
serve for another 3 to 4 years while you’re serving your
State parole violation. All credit will be done by the
Department of Corrections because they will be the ones to
determine what he serves first. You’re not RRR-I eligible.
(N.T. Sentencing at 52-53).
The court elaborated on its sentencing decision as follows:
Here, the court was in possession of a pre-sentence
investigation and psychological analysis. The court was fully
informed about [Appellant’s] rehabilitative needs as well as
all other aspects of the case, through the pre-sentence
reports and testimony and the argument presented at the
sentencing hearing. In this case, a review of the record
establishes that the sentence imposed was neither irrational
nor unsound. The sentence imposed was reasonable,
considering the nature and circumstances of the offense, the
severity of the crimes, their impact on the victims, and the
history of [Appellant]. Since there were multiple victims,
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the court did not abuse its discretion by imposing
consecutive sentences. Furthermore, the court stated on
the record its reasons for [Appellant’s] sentences.
(Trial Court Opinion at 7) (internal citation and quotation marks omitted).
Here, the record confirms the court properly balanced Appellant’s
circumstances with the severity of the offenses and the need to protect the
public. Based upon the foregoing, Appellant is not entitled to relief on his
challenge to the discretionary aspects of sentencing.
In his second issue, Appellant argues the court’s imposition of a
sentence of not less than 60 months nor more than 120 months imprisonment
for his conviction of aggravated assault by vehicle while DUI exceeded the
sentencing guidelines. Appellant alleges that this offense has an offense
gravity score of 9, and Appellant had a prior record score of 3, thus, the
guidelines provide for 54 months as the maximum sentence in the aggravated
range.6 Appellant contends that the court misapplied the sentencing
guidelines by failing to set forth in Appellant’s presence the permissible range
of sentences under the guidelines and it failed to provide a contemporaneous
reason for such deviation. Appellant concludes this Court should vacate the
judgment of sentence and remand for resentencing.7 We agree.
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6 The Commonwealth agrees that this sentence exceeded the aggravated
range. (Commonwealth’s Brief at 19, 21).
7 The Commonwealth acknowledges that it might be appropriate to remand
for resentencing to clear up any confusion regarding the sentence imposed for
aggravated assault by vehicle while DUI. (Commonwealth’s Brief at 29).
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A claim that a trial court failed to state its reasons for deviating from
the guidelines and for imposing a sentence at or above the aggravated range
presents a substantial question for review. See Commonwealth v. Garcia-
Rivera, 983 A.2d 777, 780 (Pa.Super. 2009); Commonwealth v. Fullin, 892
A.2d 589, 592-93 (Pa.Super. 2005). Thus, this claim presents a substantial
question, and we will address the merits.
The Sentencing Code provides, in pertinent part:
§ 9721. Sentencing generally
* * *
(b) General standards.—In selecting from the
alternatives set forth in subsection (a), the court shall follow
the general principle that the sentence imposed should call
for total confinement that is consistent with section 9725
(relating to total confinement) and 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. The court shall also
consider any guidelines for sentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect
pursuant to section 2155…. … In every case where the
court imposes a sentence outside the sentencing
guidelines…, the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation
from the guidelines…. Failure to comply shall be grounds
for vacating the sentence and resentencing the defendant.
42 Pa.C.S.A. § 9721(b). A sentencing court is permitted to impose a sentence
outside the guidelines, but “must provide a written statement setting forth the
reasons for the deviation….” Commonwealth v. Walls, 592 Pa. 557, 567,
926 A.2d 957, 963 (2007). This Court has interpreted these provisions to
require, at minimum, that when a court deviates from the sentencing
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guidelines, it must indicate that it understands the suggested sentencing
range. Commonwealth v. Chesson, 509 A.2d 875, 876 (Pa.Super. 1986).
See also Commonwealth v. Rodda, 723 A.2d 212 (Pa.Super. 1999)
(concluding that where court imposes sentence outside sentencing guidelines,
it need not recite numeric range of sentences within guidelines so long as
record demonstrates court’s recognition of applicable sentencing range and
deviation of sentence from that range).
In Commonwealth v. Byrd, 657 A.2d 961 (Pa.Super. 1995), this Court
vacated a sentence where the trial court’s error in failing to recite the guideline
range was compounded by the court’s erroneous belief that the sentence it
imposed was in the “aggravated range,” though in fact the sentence exceeded
the guidelines. Id. at 964. This Court focused its decision on the confusion
apparent in the record, reasoning that “while the sentencing court did provide
reasons for the sentence imposed, these reasons were advanced to support a
sentence in the aggravated range. Nowhere did the court indicate that it was
in fact sentencing Appellant outside the guidelines….” Id. at 964. This Court
emphasized that “[a]t the minimum, the court must indicate that it
understands the sentencing guideline range, in those cases in which the court
deviates from the guidelines.” Id. at 963. See also Commonwealth v.
Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (remanding for resentencing
where trial court stated reasons for sentencing in “aggravated range” but
imposed sentence outside guidelines).
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Here, the court stated the following at sentencing:
Okay. Take your time and do the form. I do have to
mention that the one --Count 5 was an aggravated
range, and the reason I went in the aggravated range
was because he was already on parole from the State for
DUIs when he committed this; also, the aggravating nature
of the circumstances.
(N.T. Sentencing at 54) (emphasis added).
Although the trial court indicated that it was imposing a sentence in the
aggravated range of the guidelines, the court did not set forth the permissible
sentencing ranges under the guidelines, or indicate that it was actually
sentencing Appellant outside of the aggravated range. Under these
circumstances, we vacate the entire judgment of sentence and remand for
resentencing. See Wagner, supra; Byrd, supra. See also
Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal
denied, 561 Pa. 651, 747 A.2d 896 (1999) (explaining that where this Court’s
disposition upsets overall sentencing scheme of trial court, we must remand
so that court can restructure its sentencing plan). Accordingly, we affirm
Appellant’s convictions but vacate and remand for resentencing.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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