Com. v. Kolovich, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT ANTHONY KOLOVICH :
:
Appellant : No. 290 MDA 2017
Appeal from the Judgment of Sentence January 12, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002818-2014,
CP-22-CR-0004099-2014
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED MAY 03, 2018
Robert Anthony Kolovich appeals from the judgment of sentence
imposed on January 12, 2017, in the Court of Common Pleas of Dauphin
County, following his conviction by jury of two counts of theft by deception.1
He received an aggregate sentence of 48 to 96 months’ incarceration plus
$24,550.00 restitution. Kolovich is RRRI eligible, resulting in a possible
minimum time of incarceration of 36 months. In this timely appeal, Kolovich
raises a single claim that the trial court imposed a manifestly excessive
sentence, that was outside of guidelines ranges, and which was based solely
upon the nature of the crimes. After a thorough review of the submissions by
the parties, relevant law, and the certified record, we affirm.
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 Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3922(a)(1).
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Kolovich was a contractor who took substantial amounts of money from
two separate victims for home repairs, and then failed to fulfill his contractual
duties. See Trial Court Opinion, 5/8/2017, at 3-4. He had committed similar
crimes in several other counties,2 although he had not been convicted of those
crimes at the time of his arrest. He was apprehended in Dauphin County only
when one of his victims, the Verbecken family, told him they had an additional
$4,000 to pay him. When he arrived to collect that money, he was arrested
by the police, who were waiting for him. As noted above, he was convicted
by a jury of two counts of theft by deception, both third degree felonies, and
was sentenced to 24 to 48 months’ incarceration for each count, to run
consecutively. The standard range applicable to Kolovich was restorative
sanctions to 9 months’ incarceration. The aggravated range minimum
sentence provided for 12 months’ incarceration. Accordingly, the 24-month
minimum sentences imposed represent twice the minimum range aggravated
sentence.
Before we begin a substantive analysis of Kolovich’s claim, we note that
he has challenged the discretionary aspect of his sentence. Such a challenge
requires the appellant demonstrate his or her claim raises a substantial
question. In order to do so, “appellant need only make a plausible argument
that a sentence is contrary to the Sentencing Code or the fundamental norms
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2 By the time of sentencing in this matter, Kolovich had been convicted in
Snyder, Bradford and Mifflin Counties. He had similar charges pending in
several other counties. We are unaware of the resolution of those charges.
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underlying the sentencing process.” Commonwealth v. Mouzon, 812 A.2d
627-28 Pa. 2002) (quoting Commonwealth v. Goggins, 748 A.2d 721 (Pa.
Super. 2000).
Here, Kolovich raises two reasons why his sentence violates the
fundamental norms of the sentencing process. First, he claims the two to four
year sentences for each count are each double the aggravated range sentence
and are accordingly manifestly excessive.3 That the sentences are
consecutive to each other only serves to heighten the excessive nature of
them. Next, he claims the trial court focused solely on the nature of the crime,
rather than considering all the appropriate sentencing factors. Each of these
reasons provides a substantial reason,4 thereby allowing this Court to address
the substance of Kolovich’s claims.
Our standard of review is as follows:
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
____________________________________________
3 In his Pa.R.A.P. 2119(f) statement, Kolovich lists other reasons, however
they are essentially restatements of this first reason. See Appellant’s Brief,
Rule 2119(f) Statement at 15-19. Accordingly, we need not address them
separately.
4 See Commonwealth v. Gibson, 716 A.2d 1275 (Pa. Super. 1998)
(allegation sentence is outside of the guidelines and unreasonable is
reviewable); Commonwealth v. Wise, 848 A.2d 932 (Pa. Super. 2004)
(when a sentencing court makes the decision to deviate from the sentencing
guidelines, it is especially important that the court consider all factors relevant
to the determination of a proper sentence).
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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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005).
Further, pursuant to statute, upon review, our Court is required to
vacate a sentence and remand with instructions, if the trial court has imposed
a sentence “outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S. § 9781(c)(3).
Although Kolovich presents two arguments why his sentence is
improper, those arguments are intertwined. If the trial court considered the
proper factors in issuing the sentence, then it stands to reason that the
sentence is not, by itself, excessive to the point of requiring that it be vacated.
A review of the certified record belies Kolovich’s assertion that the trial
court based the sentence only on the nature of the crime. We begin by noting
that the trial court was supplied with and was familiar with a presentence
investigation report (PSI).
“Where [a PSI] exist[s], we [ ] presume that the [trial court] was
aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory
factors. A [PSI] constitutes the record and speaks for itself.”
Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016) quoting
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014). This
fact, alone, puts to rest Kolovich’s claim regarding the failure to consider
appropriate factors.
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However, the certified record further demonstrates the trial court’s
proper consideration of Kolovich’s circumstances. We note the trial court
heard from one victim in each case, who briefly described how Kolovich’s
crimes had adversely impacted their lives.5 Although the trial court noted
Kolovich’s modus operandi was to collect money from the elderly and then fail
to perform the home repairs,6 no sentencing enhancement regarding crimes
against the elderly was applied. Accordingly, it was proper for Judge Cherry
to consider the ages of the victims and the effect the crimes had upon their
quality of life. The trial court was aware Kolovich avoided his victims until one
of them lured Kolovich into responding. Further, the trial court knew and
properly considered the fact that Kolovich had been convicted of similar crimes
in three other counties. Because of the timing of the convictions, they did not
affect his prior record score, which was zero at sentencing. Accordingly,
consideration of those crimes does not represent a double counting of factors.
The trial court heard Kolovich’s statement made at sentencing (in which he
essentially blamed being prosecuted in other jurisdictions as the reason for
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5 Mr. Verbecken testified at sentencing that he was 71 years old, had been
retired for 23 years, and was forced to obtain part-time work to help make up
for the lost funds. He was also unable to take his grandchildren on a return
trip to Disney World. See N.T. Sentencing, 1/12/2017, at 3-4. Arlene
Stottlemeyer testified as to her anger at having been defrauded, but was
grateful he had only obtained a deposit from them. Nevertheless, she noted
the crimes had affected her plans, dreams and goals for herself, her children
and grandchildren. Id. at 4-5.
6 See Trial Court Opinion at 4.
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his failure to perform the contracts or return funds). See N.T. Sentencing,
1/12/2017 at 6-7. The trial court also noted a lack of remorse for his actions
and found nothing in the PSI to indicate any level of mitigation. Id. at 13.
Our review of the certified record demonstrates the trial court properly
considered relevant factors, not simply the nature of the crime, in imposing
sentence upon Kolovich. While the sentence is undisputedly well above the
aggravated range, the trial judge demonstrably weighed the relevant
information before him and issued a sentence that was supported by the
record. As such, Kolovich’s argument must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2018
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