Com. v. Stroter, R ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENWICK EUGENE STOTER, A/K/A :
RENWICK STROTER :
: No. 3889 EDA 2017
Appellant :
Appeal from the Judgment of Sentence July 7, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001533-2015
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 06, 2018
Appellant, Renwick Eugene Stoter, also known as Renwick Stroter,
appeals from the judgment of sentence entered on July 7, 2017, in the Chester
County Court of Common Pleas. We affirm.
The trial court summarized the relevant facts and procedural history of
the case as follows:
[Appellant] was arrested and charged with theft by unlawful
taking, receiving stolen property, criminal mischief, recklessly
endangering another person, fleeing or attempting to elude police,
criminal trespass and criminal conspiracy to commit theft. On
March 11, 2015, [Appellant, and co-defendants, Robert McNamara
and Anne Bottorf,] removed $15,801.30 worth of tires from
vehicles belonging to Fred Beans Ford, West Goshen, Chester
County, Pennsylvania.
On January 23, 2017, [Appellant] entered an open guilty
plea to one count of theft by unlawful taking and one count of
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conspiracy to commit theft.[1] On July 7, 2017, [Appellant] was
sentenced to an aggregate sentence of 36 months to 72 months
incarceration,[2] given credit for time served from August 26, 2016
to February 17, 2017 and ordered to pay restitution in the amount
of $572.35, joint and several with the two co-defendants.
[Appellant] was deemed eligible for RRRI after serving 27 months.
On July 14, 2017, [Appellant] filed a Motion for
Reconsideration and Reduction of Sentence. Following a hearing
on October 31, 2017, [Appellant’s] motion was denied. [Appellant]
timely filed the instant appeal on November 15, 2017.
Trial Court Opinion, 1/12/18, at 1-2. Both the trial court and Appellant have
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues for this Court’s
consideration:
1. Whether the trial court’s sentence was excessive, given the
Sentencing Guideline ranges and the Appellant’s cooperation with
the prosecution?
2. Did the sentencing court abuse its discretion by failing to
adequately state, on the record, the reason for the lack of a large
disparity between the sentences imposed upon the cooperating
Appellant and the non-cooperating co-defendant, Robert
McNamara, who pled guilty to the same offenses, plus an
additional offense, and had a somewhat more serious criminal
history?
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1 18 Pa.C.S. §§ 3921(a) and 903(c), respectively.
2The trial court sentenced Appellant to a term of eighteen to thirty-six months
of incarceration for theft by unlawful taking and a consecutive sentence of
eighteen to thirty-six months of incarceration for conspiracy. N.T., 7/7/17, at
21. Both crimes were graded as felonies of the third degree with offense
gravity scores of five. Guilty Plea Colloquy, 1/23/17, at 1; 204 Pa.Code §
303.16. Additionally, Appellant had a prior record score of five. N.T., 7/7/17,
at 5. Accordingly, each of Appellant’s sentences was within the standard
range of the Sentencing Guidelines. 204 Pa.Code § 303.16.
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Appellant’s Brief at 7.
Appellant’s issues present challenges to the discretionary aspects of his
sentence. It is well settled that when an appellant challenges the discretionary
aspects of his sentence there is no automatic appeal; rather, the appeal will
be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,
932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether [the] 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 [the] 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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Appellant has satisfied the first and third elements of the four-part test
from Moury. Appellant filed a timely notice of appeal and provided a
statement of reasons for allowance of appeal from the discretionary aspects
of his sentence pursuant to Pa.R.A.P. 2119(f) in his brief. However, with
respect to the second prong, we are constrained to point out that Appellant
preserved only his first issue on appeal concerning the trial court’s alleged
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failure to consider Appellant’s cooperation with law enforcement after his
arrest. Appellant did not raise the disparity between his sentence and co-
defendant Robert McNamara’s sentence in his post-sentence motion or at
sentencing. Accordingly, Appellant’s second issue is waived. Moury, 992
A.2d at 170; Pa.R.Crim.P. 720.
Next, we must determine if Appellant has raised a substantial question
for our review. Moury, 992 A.2d at 170.
A substantial question requires a demonstration that “the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s inquiry “must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the
merits.” Id. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.
Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
In his Pa.R.A.P. 2119(f) statement, Appellant avers that his sentence
was unduly harsh, and the trial court failed to consider Appellant’s cooperation
with the authorities and his remorse. Appellant’s Brief at 11. While not artfully
drafted, we conclude that Appellant has raised a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (a claim
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that a sentence is excessive, in conjunction with an assertion that the trial
court did not consider mitigating factors, raises a substantial question).3
It should be noted that “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.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is
not merely an error in judgment; rather, an appellant must establish that the
trial court ignored or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable
decision. Id.
The trial court addressed this issue as follows:
[Appellant] first argues that the sentence imposed by the
Court was excessive in light of his cooperation with law
enforcement and the sentencing guidelines. [Appellant] pled
guilty to one count of theft by unlawful taking and one count of
criminal conspiracy to commit theft. A presentence investigation
report (PSI) was ordered by the Court to assist the court in
rendering a sentence. [Appellant] did not appear for the PSI
interview, despite phone calls from Chester County Adult
Probation to arrange an interview.
The PSI revealed [Appellant] has multiple convictions from
three different states as well as a federal conviction. These
convictions date back to 1988 and include convictions for theft by
deception, passing bad checks, fraud (checks), unauthorized use
of a credit card, false reports, attempted forgery, identity theft
and federal charge of credit card fraud. [Appellant] was also
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3 This Court has provided less than clear guidance as to what constitutes a
substantial question relative to claims of an excessive sentence and the
consideration that the sentencing courts give to mitigating factors. See
Dodge, 77 A.3d at 1272 n.8.
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convicted of possession of a controlled substance and possession
with intent to deliver a controlled substance. [Appellant] served
periods of incarceration ranging from one month to three years,
as well as being subject to periods of probation. [Appellant]
absconded from supervision in 1988, 1994 and 1997. [Appellant]
was on supervision when he committed the offenses in Chester
County and while on bail for these offenses, failed to report to the
Chester County Department of Pretrial Services on five separate
occasions between March 2016 and April 2017.
While on bail in Chester County, [Appellant] committed
another crime in Bucks County. [Appellant] pleaded guilty to
criminal solicitation-identity theft (3rd degree felony) on February
17, 2017. While incarcerated in Bucks County, [Appellant]
provided information to the FBI leading to the arrest of a suspect
in a bank robbery. (N.T. 7/7/2017, 6). Based upon this
information, the deputy district attorney agreed to lift the Chester
County detainer to allow [Appellant] to be released from Bucks
County Prison in order to assist law enforcement with obtaining
information regarding other crimes. (N.T. 7/7/2017, 6). On
February 13, 2017, [Appellant] was released in order to cooperate
with law enforcement. Once released from prison, [Appellant]
failed to provide any additional information about any other
crimes. (N.T. 7/7/20[1]7, 7). [Appellant] would not return the FBI
agent’s calls and would only contact the FBI on the agent’s desk
phone in the middle of the night when he knew the agent was not
there. (N.T. 7/7/2017, 7). [Appellant] was involved with one
controlled buy for the Bensalem Police Department, but did not
provide any other information to law enforcement. (N.T.
7/7/2017, 6-7).
During the hearing on post-sentence motions on October
31, 2017, Detective Jeff McGee, a Plymouth Township police
detective who was working with the FBI violent crimes task force
and has known [Appellant] since 2001, testified that he eventually
contacted the deputy district attorney on the instant matter and
informed her he could no longer work with [Appellant] because he
was untrustworthy. [Appellant] attempted to make a deal with law
enforcement while he was in Bucks County Prison before providing
the information regarding the robbery. While Detective McGee
attempted to arrange a meeting with [Appellant], he never met
with [Appellant] because [Appellant] was unavailable for various
reasons, including health problems.1 Although [Appellant]
testified he called Detective McGee five times during business
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hours to arrange a meeting and Detective McGee identified the
number called as being desk phone number, [Appellant] never
met with Detective McGee.
1 It was noted during sentencing that [Appellant] sent
correspondence to the Court seeking to be released
from prison in order to have a biopsy for prostate
cancer, which according to [Appellant] was an urgent
matter. (N.T. 7/7[/]2017, 24). [Appellant] had the
biopsy done, but did not have surgery. (N.T.
7/7/2017, 24-25).
Contrary to [Appellant’s] argument, [Appellant’s] sentence
was not excessive given the extent of [Appellant’s] actual
cooperation with law enforcement. [Appellant] did not provide any
additional information to law enforcement once he was released
from Bucks County Prison. [Appellant] attempted to use one law
enforcement group against another in order to further his own
agenda. (N.T. 7/7/2[0]17, 6-7). [Appellant] was free on bail for
five months prior to being sentenced, when he would have
otherwise been incarcerated pending sentencing on the charges in
Chester County. This was a consideration of the Court when
fashioning [Appellant’s] sentence.
[Appellant’s] lack of actual cooperation with law
enforcement was not the only factor considered by the Court in
rendering a sentence. [Appellant’s] prior lengthy criminal history
as well as commission of a new crime while on bail and the serious
nature of the crimes committed contributed to the formulation of
[Appellant’s] sentence. [Appellant’s] testimony during the post
sentence hearing, that he attempted to contact Detective McGee
five times during business hours in order to set up a time for an
interview, does not change the reality that [Appellant] never met
with Detective McGee and failed to provide any additional
information to law enforcement after he was released from Bucks
County Prison.
[Appellant] received a sentence within the standard range
of the sentencing guidelines. Given [Appellant’s] prior record
score of 5, the standard sentencing range for theft by unlawful
taking is 12 to 18 months [of] incarceration; the standard
sentencing range for criminal conspiracy to commit theft is also
12 to 18 months [of] incarceration. The maximum sentence on
each of these crimes is 7 years imprisonment. [Appellant] was
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given a sentence in the higher range of the guidelines due to his
lengthy criminal history, the serious nature of the crimes
committed and the fact that he committed another crime while
released on bail, thereby violating the terms of his bail.
[Appellant] was not given a sentence in the aggravated range due
to the information he provided to law enforcement while he was
in Bucks County Prison.
The reasons for the sentence are fully set forth by the Court
in the transcript of the sentencing on July 7, 2017. We hereby
incorporate the transcript as the Opinion of the Court for the
purposes of the appeal on this issue.
Trial Court Opinion, 1/12/18, at 3-6.
As noted, the trial court had the benefit of a pre-sentence investigation
report (“PSI”), which gives rise to a presumption that the trial court properly
considered and weighed all relevant factors. See Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (“[W]here the sentencing
judge had the benefit of a [PSI] report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”).
Moreover, the trial court was aware of Appellant’s assistance of law
enforcement and his cessation in assisting law enforcement. N.T., 7/7/17, at
6-7. The trial court stated that it considered Appellant’s recidivism and
repeated failures to avail himself of the opportunities to rehabilitate. Id. at
20-21. For these reasons, we conclude that the trial court considered all
relevant factors, and that his sentence was not excessive in light of those
factors, when imposing Appellant’s standard-range sentences. Accordingly,
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Appellant is entitled to no relief, and we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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