Com. v. Greene, S. ( 2020 )

J-S49013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN MICHAEL GREENE :
:
Appellant : No. 850 WDA 2019
Appeal from the Judgment of Sentence Entered January 26, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000250-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN MICHAEL GREENE :
:
Appellant : No. 851 WDA 2019
Appeal from the Judgment of Sentence Entered January 26, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001536-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN MICHAEL GREENE :
:
Appellant : No. 917 WDA 2019
Appeal from the Judgment of Sentence Entered January 26, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001186-2016
J-S49013-20
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 23, 2020
Appellant, Sean Michael Greene, appeals from the judgment of sentence
entered on January 26, 2017, as made final by the denial of his post-sentence
motion on February 6, 2017,1 following his guilty pleas to various offenses.
We affirm.
The facts and procedural history of this case are as follows. In late
2015, the Commonwealth charged Appellant with multiple offenses after he
committed three separate robberies. On September 22, 2016, Appellant pled
guilty to the following offenses. At docket number CP-02-CR-0000250-2016
(hereinafter, “Docket Number 250-2016”), Appellant pled guilty to robbery of
a financial institution;2 two counts of robbery-threat of serious bodily injury,3
fleeing or attempting to elude a police officer (“fleeing or eluding”);4 resisting
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* Former Justice specially assigned to the Superior Court.
1 As detailed below, on May 1, 2019, Appellant filed a petition for collateral
relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. In his PCRA petition, Appellant alleged that his trial counsel,
despite Appellant’s request, failed to appeal his judgment of sentence
following the denial of his post-sentence motion. Appellant’s Amended PCRA
Petition, 5/1/19, at 3. The PCRA court granted Appellant’s petition and
reinstated his right to file this direct appeal. PCRA Court Order, 6/10/19, at
1.
2 18 Pa.C.S.A. § 3701(a)(1)(vi).
3 18 Pa.C.S.A. § 3701(a)(1)(ii).
4 75 Pa.C.S.A. § 3733(a).
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arrest;5 and conspiracy to commit robbery.6 At docket number
CP-02-CR-0001536-2016 (hereinafter, “Docket Number 1536-2016”),
Appellant pled guilty to conspiracy to commit robbery.7 Lastly, at docket
number CP-02-CR-0001186-2016 (hereinafter, “Docket Number
1186-2016”), Appellant pled guilty to attempt to commit theft by unlawful
taking.8
The trial court sentenced Appellant on January 26, 2017. At Docket
Number 250-2016, the trial court sentenced Appellant to two to four years’
imprisonment for robbery of a financial institution; four to eight years’
imprisonment for both counts of robbery-threat of serious bodily injury; one
to two years’ imprisonment for fleeing or eluding; and six to 12 months’
imprisonment for conspiracy to commit robbery. The trial court ordered the
aforementioned sentences to run consecutively to each other. At Docket
Number 1536-2016, the trial court sentenced Appellant to one to two years’
imprisonment. The trial court ordered the sentences imposed at Docket
Numbers 250-2016 and 1536-2016 to run consecutively. Finally, at Docket
Number 1186-2016, the trial court sentenced Appellant to six to 12 months’
imprisonment. The court ordered the sentence imposed at Docket Number
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5 18 Pa.C.S.A. § 5104.
6 18 Pa.C.S.A. § 903 and 3701(a)(1)(vi).
7 18 Pa.C.S.A. § 903 and 3701(a)(1)(vi).
8 18 Pa.C.S.A. § 901 and 3921(a).
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1186-2016 to run consecutively to Appellant’s other sentences. Thus, the trial
court sentenced Appellant to an aggregate term of nine to 18 years’
incarceration.
Appellant filed a motion to modify his sentence on February 6, 2017.
The trial court denied Appellant’s motion on February 13, 2017. Appellant did
not appeal. Thereafter, on February 28, 2018, Appellant filed a pro se PCRA
petition. The PCRA court subsequently appointed counsel and, on May 1,
2019, court-appointed counsel filed an amended PCRA petition on Appellant’s
behalf. In his petition, Appellant sought reinstatement of his appellate rights
and claimed that, despite his request, trial counsel failed to appeal the
discretionary aspects of his sentence. Appellant’s Amended PCRA Petition,
5/1/19, at 1-4. The court granted Appellant’s petition on June 10, 2019, and
reinstated his appellate rights. Trial Court Order, 6/10/19, at 1.
Appellant filed separate notices of appeal at each docket on June 18,
2019.9 See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). On July
15, 2019, the trial court entered an order at Docket Number 1186-2016
directing Appellant to file a concise statement of errors complained of on
appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Trial Court Order,
7/15/19, at 1; see also Pa.R.A.P. 1925(b). Appellant, however, did not file
his concise statement until March 4, 2020. On March 4, 2020, Appellant filed
identical concise statements at Docket Number 1536-2016 and Docket
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9This Court consolidated Appellant’s appeals sua sponte by order dated July
24, 2019.
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Number 250-2016 but, failed to file a concise statement at Docket Number
1186-2016. The “issue Appellant [] set forth [in his concise statements]
required almost an entire page of [the trial court’s Rule 1925(a) opinion] to
restate . . . in its entirety.” Trial Court Opinion, 6/9/20, at 11. Thus, the trial
court, in its 1925(a) opinion, stated that Appellant waived his claim on appeal
because he failed to file a Rule 1925(b) statement at each docket and because
Appellant’s Rule 1925(b) statement was not “'concise' and coherent [so] as to
permit the trial court to understand the specific issues being raised on appeal.”
Id. at 10-11 and 12 (citation omitted).
In view of the circumstances surrounding Appellant’s response to the
trial court’s Rule 1925(b) order, we must “determine whether [Appellant]
properly preserved [his] issues for appellate review.” Kanter v. Epstien, 866
A.2d 394, 400 (Pa. Super. 2005), appeal denied, 880 A.2d 1239 (Pa. 2005).
We first address Appellant’s failure to file a timely10 concise statement at each
docket.
It is well-settled that an appellant's failure to comply with a trial
court's Rule 1925(b) [o]rder results in a waiver of all issues on
appeal. See Commonwealth v. Castillo, 888 A.2d 775, 780
(Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii). Rule 1925(b)(2)
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10 The trial court does not address the timeliness of Appellant’s Rule 1925(b)
concise statements filed at Docket Number 250-2016 and Docket Number
1536-2016. There is no mention and no indication in the record that Appellant
requested and received an extension of time to file his concise statements.
“It is well settled that, ‘[f]or purposes of appellate review, what is not of record
does not exist.’” Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super.
2008) (citation omitted). In view of these circumstances, it appears that
Appellant did not file an extension request and, as such, did not timely comply
with the court’s Rule 1925(b) order.
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provides that “[t]he judge shall allow the appellant at least 21
days from the date of the order's entry on the docket for the filing
and service of the [s]tatement.” Pa.R.A.P. 1925(b)(2); see also
Pa.R.A.P. 108(a) (noting that the date of entry of an order “shall
be the day the clerk of the court ... mails or delivers copies of the
order to the parties[.]”). Further, when a Rule 1925(b) order is
entered, the clerk of courts must furnish copies of the order to the
parties and record the date of service of the order in the docket
pursuant to Pa.R.Crim.P. 114.
Commonwealth v. Chester, 163 A.3d 470, 472 (Pa. Super. 2017).
Pa.R.Crim.P. 114 states, in relevant part, as follows:
(C) Docket Entries
(1) Docket entries promptly shall be made.
(2) The docket entries shall contain:
(a) the date of receipt in the clerk's office of the order or
court notice;
(b) the date appearing on the order or court notice; and
(c) the date of service of the order or court notice.
Pa. R. Crim. P. 114(C).
In the case sub judice, the trial court issued its Rule 1925(b) order on
July 15, 2019. The order, however, only appears on Docket Number
1186-2016. There is no entry reflecting the court’s Rule 1925(b) order on
either Docket Number 250-2016 or Docket Number 1536-2016. Further, upon
review of the docket entry on Docket Number 1186-2016, there is no notation
that the order was forwarded to Appellant’s counsel, nor any indication of the
date upon which service supposedly occurred. See Pa.R.Crim.P. 114(C)(2).
“Based upon the lack of recordation in the docket, we are unable to determine
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the date of service of the [o]rder, as required under Criminal Rule 114, and
cannot conclude that [Appellant] failed to comply with the [] court's directive
to file a concise statement.” Chester, 163 A.3d at 472. As such, we decline
to find Appellant’s claim waived on this basis.11
We next address whether, as the trial court suggests, Appellant’s failure
to file a “concise and coherent” Rule 1925(b) statement results in waiver. Trial
Court Opinion, 6/9/20, at 10-11. This Court previously explained:
Rule 1925(b) authorizes a trial court to order an appellant to file
a “concise statement of matters complained of on appeal.”
Pa.R.A.P. 1925(b). Failure to comply with a Rule 1925(b) order
may be considered by the appellate court as a waiver of all
objections to the order, ruling or other matter complained of.
Regarding vague or overly broad statements, this Court has also
stated:
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When
an appellant fails adequately to identify in a concise manner
the issues sought to be pursued on appeal, the trial court is
impeded in its preparation of a legal analysis which is
pertinent to those issues.
In other words, a [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no [c]oncise [s]tatement at all.
While [Lord] and its progeny have generally involved
situations where an appellant completely fails to mention an
issue in his [c]oncise [s]tatement, for the reasons set forth
above we conclude that Lord should also apply to [c]oncise
[s]tatements which are so vague as to prevent the court
from identifying the issue to be raised on appeal. [Thus, if
a vague or overly broad concise statement hampers
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11 Pursuant to Rule 1925(c)(1), we “may” remand to determine “whether [the
s]tatement [was] filed and/or served or timely filed and/or served.” Pa.R.A.P.
1925(c)(1). We decline to do so in the interest of judicial economy.
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appellate review, no issues are presented for purposes of
appeal. Commonwealth v. Dowling, 778 A.2d 683,
686-687 (Pa. Super. 2001)].
Karn v. Quick & Reilly Inc., 912 A.2d 329, 335 (Pa. Super. 2006).
The issue contained within Appellant’s Rule 1925(b) statement is not
exactly precise. See Appellant’s Rule 1925(b) Statement, 3/4/20, at 3.
Indeed, it is a paragraph long and arguably raises multiple issues. Id. The
trial court, however, “filed an opinion which meaningfully addressed
[Appellant’s] argument[].” Commonwealth v. Smith, 955 A.2d 391, 393
(Pa. Super. 2008) (en banc). Accordingly, “our review has not been hindered,
and we will therefore turn to the merits.” Id.; see also Commonwealth v.
Laboy, 936 A.2d 1058, 1060 (Pa. 2017) (holding that a vague Rule 1925(b)
concise statement does not preclude appellate review when “the [trial] court
readily apprehended [the a]ppellant’s claim and addressed it in substantial
detail”).
Appellant raises the following issue on appeal:12
Did the trial court abuse its discretion in imposing a sentence that
was manifestly excessive, unreasonable, and contrary to the
dictates of the Sentencing Code when the trial court overlooked
and/or failed to carefully consider relevant factors when
sentencing [Appellant], including the unique facts and
circumstances of the crimes, [] his background, and rehabilitative
needs?
Appellant’s Brief at 5.
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12 The remaining issues presented by Appellant relate to his 1925(a)
statement. See Appellant’s Brief at 5. We have already addressed these
issues above.
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Herein, Appellant argues that the trial court abused its discretion in
fashioning his sentence. Appellant claims that the trial court issued his
sentence without considering all of the “relevant factors” of 42 Pa.C.S.A.
§ 9721(b). Appellant’s Brief at 21. In particular, Appellant argues that the
trial court “ignored the unique circumstances of the case,” and mitigating
factors such as his “background and rehabilitative needs.” Id.
Appellant’s issue therefore implicates the discretionary aspects of
sentencing. As this Court previously explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. 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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted).
Appellant has fulfilled the first, second, and third requirements of the
above-mentioned four-part test. Appellant, however, failed to raise a
substantial question. As this Court has explained, to establish a substantial
question, an “appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the fundamental norms
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underlying the sentencing process.” Commonwealth v. Cannon, 954 A.2d
1222, 1229 (Pa. Super. 2008). Appellant failed to make such a showing.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.”13 Id. (citation omitted). Because Appellant failed to raise a
substantial question, “a review of the merits of the discretionary aspects of
his sentence is not warranted.” Id.
Even if a substantial question were raised, we would conclude that
Appellant is not entitled to relief. Our standard of review of a challenge to the
discretionary aspects of sentencing is well-settled:
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.
In every case in which the court imposes a sentence for a felony
or a misdemeanor, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.
***
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13“This Court has held that a substantial question exists when a sentencing
court imposed a sentence in the aggravated range without considering
mitigating factors.” Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12 (Pa.
Super. 2010) (emphasis in original), citing Commonwealth v. Felmlee, 828
A.2d 1105, 1107 (Pa. Super. 2003). Because Appellant’s sentences fell within
the mitigated and standard ranges, we conclude that he failed to raise a
substantial question. See Rhoades, 8 A.3d at 919, n.12.
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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
[(“PSI report”)] 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, 760-761 (Pa. Super. 2014)
(internal citations, quotations, original brackets and ellipsis omitted).
Moreover, when sentencing a defendant to total confinement, a trial must
impose a punishment consistent with 42 Pa.C.S.A. § 9721(b). Thus, the trial
court “shall follow the general principle that the sentence imposed should call
for confinement that 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 on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A.
§ 9721(b). “The court shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania Commission on Sentencing and
taking effect under [S]ection 2155 (relating to publication of guidelines for
sentencing, resentencing and parole, risk assessment instrument and
recommitment ranges following revocation).” Id.
Upon review of the sentencing hearing transcripts, we conclude that the
trial court considered the relevant factors and did not abuse its discretion in
imposing Appellant’s sentence. At the outset of the sentencing hearing, the
trial court noted that it “ordered a [PSI] report” and it was “reviewed by the
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[c]ourt.” N.T. Sentencing Hearing, 1/26/17, at 3. The court then outlined the
sentencing guidelines for each of the various crimes. Id. at 4-5. Thereafter,
Appellant’s counsel gave the court “a packet of letters” from various family
members and neighbors of Appellant’s parents which, inter alia, detailed
Appellant’s extensive history of substance abuse. Id. at 5-6. Appellant’s
counsel also provided a lengthy statement and discussed various factors,
including Appellant’s rehabilitative needs, as well as his compliance with police
officers after arrest and good behavior while incarcerated. Id. at 5-13. In
addition, Heather Groelsena from Justice Related Services testified during the
sentencing hearing and remarked on Appellant’s need for rehabilitation. Id.
at 13-14. Further, Appellant provided a statement in which he apologized for
his actions. Id. at 18. Lastly, the prosecutor for the Commonwealth
commented on the impact Appellant’s actions had on the various victims and
made a recommendation to the trial court regarding the length of Appellant’s
sentence. Id. at 18-19.
The trial court then provided the following statement.
As to [Appellant], the [c]ourt is, consistent with the provisions of
the [S]entencing [C]ode[,] the [c]ourt has considered the
protection of the public, the gravity of the offense as it relates to
the impact on the victims in these matters, and on the punitive
and the rehabilitative needs of [Appellant].
[The c]ourt notes that the evaluative summary stated in the [PSI]
report stated that [Appellant’s] convictions dating back to 1990
for burglary, theft, robbery, criminal conspiracy, and drug related
offenses, [Appellant] having been incarcerated at both the state
and local levels in two states, having been granted
community[-]based supervision and has incurred attributable
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offenses and technical violations that have resulted in additional
sanctions.
The [c]ourt also notes that the [PSI] report details his history,
social history, much of which he has commented on, or has been
commented on in the letters provided to the [c]ourt from the
various family members, neighbors and concerned persons in
regard to his history, as well as [sentencing counsel] on
[Appellant’s] behalf.
The [c]ourt notes the input of Ms. Groelsena and the mental health
histories, such as it is, and as it intertwines with the substance
abuse history detailed by [Appellant], himself.
[The c]ourt notes the statements made by [the Commonwealth]
at this time. The [c]ourt notes the understanding, if not
agreement [that] the sentence would be capped at a certain
number, and the guidelines, of course, in separate instances and
most times in these courtrooms requires, at least from my
perception, especially when they are separate crimes, requires
separate sentences in terms of a consecutive nature.
The [c]ourt also notes the request by [Appellant’s counsel] to
lower the cap, so to speak. The [c]ourt has taken into account
the fact [that] there were no weapons involved. However, the
[c]ourt in conjunction [with] that . . . notes regardless of that, the
victims were profoundly affected. One had to be removed from
her job as a bank teller, the other indicated that her life has been
altered in a traumatic way, she had to take time off and had to
change jobs entirely because of the incident.
The [c]ourt will sentence [Appellant] in light of all those
considerations – again[,] the [c]ourt notes the letters which I have
reviewed which detail in a different way [Appellant’s] history with
drug addiction and his family life over the years.
N.T. Sentencing Hearing, 1/26/17, at 22-24. The trial court’s statement
during sentencing demonstrates that, contrary to Appellant’s assertion, it
carefully considered the circumstances of the case, Appellant’s background,
and Appellant’s rehabilitative needs. See Appellant’s Brief at 21. Even
without such a statement, the trial court had the benefit of the PSI report, and
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therefore, “we shall presume” that the court “consider[ed] the particular
circumstances of the offense[,] the character of the defendant,” and other,
relevant factors, when issuing Appellant’s sentence. Antidormi, 84 A.3d at
760-761. Accordingly, we discern no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2020
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