Com. v. Bilak, T. ( 2019 )


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  • J-S13042-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF                            : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              : PENNSYLVANIA
    :
    Appellee            :
    :
    v.                       :
    :
    TRENTON ROSS BILAK,                        :
    :
    Appellant           : No. 1456 WDA 2018
    Appeal from the Judgment of Sentence Entered September 11, 2018
    in the Court of Common Pleas of Blair County
    Criminal Division at No(s): CP-07-CR-0001191-2017
    BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
    MEMORANDUM BY STRASSBURGER, J.:                           FILED MAY 21, 2019
    Trenton Ross Bilak (Appellant) appeals from the September 11, 2018
    judgment of sentence of an aggregate term of eight and one-half to
    seventeen years of incarceration, to be followed by two years of probation,
    imposed after he pleaded guilty to accidents involving death or personal
    injury, homicide by vehicle, tampering with or fabricating physical evidence,
    and reckless driving. We affirm.
    We glean the following facts from the record.1 Appellant’s convictions
    stem from an incident that occurred in Greenfield Township, Pennsylvania on
    ____________________________________________
    1The convictions in the instant appeal resulted from Appellant’s guilty plea.
    The facts are derived from the transcripts of the preliminary and sentencing
    hearings, as well as Appellant’s pre-sentence memorandum.
    * Retired Senior Judge assigned to the Superior Court.
    J-S13042-19
    April 14, 2017, at about 4:00 a.m. Appellant, while operating an all-terrain
    vehicle (ATV), caused the death of 18 year-old Mikayla Focht. On the night
    of April 13, 2017, Appellant and a group of about 15-20 others, nearly all
    teenagers, gathered on a wooded property for a bonfire party, which had
    been arranged by Jacob Helsel. Alcohol was served and Appellant, who was
    21 years old at the time, was drinking beer. The property had a cabin within
    one-half mile of the bonfire. At some point in the early morning hours of
    April 14, about 10 of the attendees moved from the bonfire to the cabin,
    where many planned to spend the night.       Several people observed Helsel
    inappropriately touching Focht inside the cabin; they tried to separate Helsel
    from her.     One person left the cabin and went to the bonfire, where
    Appellant heard what was happening at the cabin.         Appellant, who had
    arrived at the party on his ATV, drove it to the cabin. When he arrived, he
    ordered everyone out of the cabin.     Appellant and Helsel talked alone for
    several minutes. Appellant said he was going to take Focht home, but when
    an attendee objected, Appellant threatened to pull a gun on anyone who had
    a problem with his taking Focht home. Appellant, Focht, and Helsel then left
    the property.
    Appellant drove his ATV with Focht on the back, while Helsel followed
    behind driving his Jeep, eventually making their way to Knob Road. Knob
    Road is a local highway with a speed limit of 45 miles per hour and ATVs are
    not permitted to operate on it.    Appellant was traveling at an excessive
    speed of at least 56 to 62 miles per hour. Shortly after 4:00 a.m., Appellant
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    struck two deer with his ATV, catapulting Focht more than 200 feet off of the
    vehicle and onto the roadway.2            Focht died instantly; Appellant was not
    seriously injured. Helsel, who was following behind in his Jeep, swerved to
    avoid hitting Appellant or Focht in the roadway, lost control, and ran over
    Focht’s body with his Jeep before crashing it into a pole.         Appellant and
    Helsel did not know whether Focht was still alive, did not render or call for
    aid, and left the scene driving their respective vehicles.
    At least two witnesses heard the crash from their homes, but they
    believed someone had struck a deer, which was common on that stretch of
    road.    When they saw vehicles leaving the scene, they returned to bed.
    Over two hours later, at about 6:10 a.m., a witness who was driving to work
    came upon Focht’s body in the roadway. She immediately called 911 from a
    neighboring house, and then returned to the roadway to position her vehicle
    in such a way that it would protect Focht’s body from oncoming traffic.
    Shortly after, Appellant and Helsel drove past the scene in Appellant’s red
    truck, but only after the witness flagged the truck down did Appellant stop.
    At some point, someone at the scene, presumably Appellant or Helsel,
    retrieved vehicle parts from where the Jeep had crashed into the pole earlier
    ____________________________________________
    2 Appellant did not take any evasive action, even though the moon was
    nearly full that night. N.T., 2/1/2018, at 89-90. An expert opined at the
    preliminary hearing that the deer should have been visible to Appellant, and
    Appellant should have been able to react by braking, counter-steering, or
    taking some other kind of evasive action. Id. 89-90, 100.
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    that morning, and put them in the back of Appellant’s truck. While at the
    scene, Appellant did not offer any information to emergency responders or
    others about his involvement in the accident.
    During the approximately two hours between the accident and 911
    call, Appellant and Helsel made several stops. First, they went to a friend’s
    house located nearby.    The friend and another individual who was at the
    home told Appellant and Helsel to call 911, but they never did. Appellant hid
    his ATV behind an out-building on the friend’s property.     At some point,
    Appellant changed his clothes and got his red truck.      Next, he drove to
    property owned by Helsel’s relatives, where Helsel had driven and concealed
    from view his Jeep.     At the time of the accident, Appellant had pending
    driving while intoxicated (DUI) charges and had been released on bail.
    After a police investigation, Appellant was charged with numerous
    offenses, and after a preliminary hearing on June 8, 2017, all charges were
    held over to court.   Appellant filed an omnibus pretrial motion on October
    25, 2017, which largely related to Appellant’s blood alcohol content test
    results.   At a pretrial hearing on February 1, 2018, the Commonwealth
    moved to withdraw three charges relating to DUI offenses, which the trial
    court granted.
    On June 15, 2018, Appellant entered into an open guilty plea to the
    aforementioned charges. Appellant was sentenced, inter alia, to five to ten
    years of incarceration on the accidents involving death or personal injury
    count, three and one-half to seven years of incarceration on the homicide by
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    vehicle count, and two years of probation on the tampering with or
    fabricating physical evidence count, with all sentences to run consecutively,
    and a $200 fine on the reckless driving count. Appellant timely filed a post-
    sentence motion, which the trial court denied on September 24, 2018. This
    timely-filed appeal followed.   Both Appellant and the trial court complied
    with Pa.R.A.P. 1925.
    On appeal, Appellant challenges the discretionary aspects of his
    sentence. Specifically, Appellant argues that the court erred in sentencing
    Appellant to the statutory maximum for his accidents involving death or
    personal injury and homicide by vehicle convictions without providing
    sufficient reasons for sentencing him outside the standard guideline range on
    each count. Appellant’s Brief at 10. We consider this issue mindful of the
    following.
    An appellant is not entitled to the review of challenges to the
    discretionary aspects of a sentence as of right. Rather, an
    appellant challenging the discretionary aspects of his sentence
    must invoke this Court’s jurisdiction. We determine whether the
    appellant has invoked our jurisdiction by considering the
    following four factors:
    (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.[] § 9781(b).
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    Commonwealth v. Samuel, 
    102 A.3d 1001
    , 1006-07 (Pa. Super. 2014)
    (some citations omitted).
    Here, Appellant timely filed a notice of appeal, sought reconsideration
    of his sentence in a post-sentence motion, and his brief contains a Pa.R.A.P.
    2119(f) statement.    We now consider whether Appellant has presented a
    substantial question for our review.
    The determination of what constitutes a substantial question must be
    evaluated on a case-by-case basis.       Commonwealth v. Paul, 
    925 A.2d 825
    , 828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 
    65 A.3d 932
    , 935 (Pa. Super. 2013)
    (citation and quotation marks omitted).
    Instantly, Appellant asserts in his 2119(f) statement that the court
    improperly considered the elements of the offenses to which Appellant
    pleaded guilty as aggravating factors to justify its imposing the statutory
    maximum sentences for the aforementioned convictions. Appellant’s Brief at
    16-18. We conclude that Appellant has raised a substantial question. See
    Commonwealth v. Fullin,         
    892 A.2d 843
    , 848   (Pa.   Super.   2006)
    (concluding Fullin raised a substantial question where he argued “that the
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    trial court improperly based his aggravated range sentence on a factor that
    constituted an element of the offense”).
    We address the merits of this claim mindful of the following.
    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.
    ***
    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.
    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 760-61 (Pa. Super. 2014)
    (internal citations and quotation marks omitted). Subsection 9721(b) of the
    Sentencing Code offers the following guidance to the trial court’s sentencing
    determination:
    [T]he 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. § 9721(b).
    As a general matter, Pennsylvania’s sentencing scheme, with its
    guidelines and suggested minimum sentences, is “indeterminate,
    advisory, and guided” in its nature. Pennsylvania judges retain
    broad discretion to sentence up to and including the maximum
    sentence authorized by statute; “the only line that a sentence
    may not cross is the statutory maximum sentence.”
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    Commonwealth v. Gordon, 
    942 A.2d 174
    , 182 (Pa. 2007) (citations
    omitted).   “A judge’s statement of the reasons for imposing a particular
    sentence must clearly show that he has given individualized consideration to
    the character of the defendant.”     Commonwealth v. Conte, 
    198 A.3d 1169
    , 1176 (Pa. Super. 2018) (citation and internal quotation marks
    omitted).   “Where the sentencing judge had the benefit of a pre-sentence
    report, it will be presumed that he was aware of relevant information
    regarding appellant’s character and weighed those considerations along with
    the mitigating statutory factors.” Id. at 1177.
    The sentencing court is in a superior position to review the
    defendant’s character, defiance or indifference, and the overall
    effect and nature of the crime. Simply stated, the sentencing
    court sentences flesh-and-blood defendants and the nuances of
    sentencing decisions are difficult to gauge from the cold
    transcript used upon appellate review. Moreover, the sentencing
    court enjoys an institutional advantage to appellate review,
    bringing to its decisions an expertise, experience, and judgment
    that should not be lightly disturbed.
    Under the Sentencing Code[,] an appellate court is to
    exercise its judgment in reviewing a sentence outside the
    sentencing guidelines to assess whether the sentencing court
    imposed a sentence that is “unreasonable.”         42 Pa.C.S.[]
    § 9781(c)(3).    There are no concrete rules as to the
    unreasonableness review for a sentence that falls outside of the
    guidelines.
    Id. “[O]ur Supreme Court has indicated that if the sentencing court proffers
    reasons indicating that its decision to depart from the guidelines is not
    unreasonable, we must affirm a sentence that falls outside those guidelines.”
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    J-S13042-19
    Commonwealth v. Bowen, 
    55 A.3d 1254
    , 1264 (Pa. Super. 2012)
    (citation, quotation marks, and emphasis omitted).
    At   the    sentencing       hearing,    the    Commonwealth       presented    the
    testimony of seven witnesses, including Focht’s mother, each of whom
    explained how Focht’s death has impacted him or her; photographs from the
    scene of the accident, which were admitted under seal; and a slideshow of
    Focht’s senior year of high school pictures. The court also heard testimony
    from Appellant.      The Commonwealth, referring to Appellant’s egregious
    conduct,   sought       the     imposition    of    consecutive   statutory     maximum
    sentences, while Appellant requested leniency.
    In its opinion, the trial court stated that it considered the victim impact
    statements, “the reasons set forth on-the-record by the Commonwealth
    during the sentencing hearing,” “the Commonwealth’s arguments in support
    of   imposition    of    the      statutory    maximum      sentences,     to    be   run
    consecutive[ly]”, and that “even though [] Appellant entered a guilty plea,
    he did not accept full responsibility for his actions.” Trial Court Opinion,
    11/7/2018, at 7-15.           The trial court explained its sentencing rationale as
    follows.
    Based    upon     our  knowledge     of   the   underlying
    circumstances of this case, including presiding over the pretrial
    hearing held February 1, 2018, we accept the Commonwealth’s
    version of the underlying circumstances as being truthful,
    credible[,] and supported by the evidence. In doing so, we
    accepted the Commonwealth’s argument that the actions of []
    Appellant on the night in question were egregious, callous,
    calculated, deliberate[,] and remorseless. This was not your
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    typical hit-and-run case…. The actions, or lack of action, by []
    Appellant in failing to render aid to [] Focht and in attempting to
    cover his tracks, distinguishes this case from your “normal” case
    and justifies a deviation from the sentencing guidelines.
    Before imposing our sentence upon [Appellant], we set
    forth in detail our factors for sentencing as follows:
    BY THE COURT: … I want to place this all on the
    record. These are the court’s factors for sentencing.
    We have considered all relevant factors for
    sentencing, including, but not limited to, the
    protection of the community, the gravity of the
    offenses in relation to the impact on the victim and
    community and the rehabilitative needs of
    [Appellant]. We have also considered the underlying
    factual circumstances, the information set forth in
    the pre-sentence investigation report, the sentencing
    guidelines, the pre-sentence memorand[a] that have
    been submitted by the Commonwealth and
    [Appellant] and the presentations [made today] on
    behalf of the Commonwealth and [Appellant, and
    Appellant’s] actions on the night in question resulting
    in [the] death of [] Focht.        What is especially
    troubling to us is that after the accident, both
    [Appellant] and [] Helsel fled the scene and allowed
    [] Focht to lay [sic] on the roadway for
    approximately two hours until another passing
    motorist [] called 911, protected her body[,] and
    reported the incident. At no time did [Appellant] or
    [] Helsel take any steps to protect [] Focht’s body or
    call 911 or make any effort to render aid or contact
    emergency personnel to render aid.             Instead,
    [Appellant and Helsel] went to a private residence to
    conceal the whereabouts of the ATV and traveled to
    another location to conceal the whereabouts of the
    Jeep and then returned to the scene of the accident,
    at which time they made an attempt to tamper with
    evidence and, in fact, did tamper with evidence.
    Relative to the pre-sentence investigation
    report, we note that [Appellant] is 24 years of age, a
    high school graduate and has prior convictions for
    disorderly conduct and criminal mischief from
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    January 31[,] 2013. He received ARD for purchase
    of alcohol by a minor in July of 2013 and a prior
    guilty plea for DUI, highest rate of alcohol, first
    offense on January 31[,] 2017. [Appellant], in the
    pre-sentence investigation, acknowledged a drinking
    problem[ and] has never sought any formal
    treatment to address his alcohol issue. Until his
    incarceration, he did maintain steady employment
    with Rockland Manufacturing in Bedford. We do
    believe that [Appellant’s] rehabilitative needs will be
    addressed by a drug and alcohol evaluation and
    following through with any recommended treatment,
    as well as successful completion of a cognitive
    behavioral therapy class, as well as community
    service.
    We have considered that [Appellant] has
    [pleaded] guilty to certain counts of the criminal
    information.    [Appellant] indicates that he has
    [pleaded] guilty to accept responsibility for his
    actions and to save the family and friends of [] Focht
    from proceeding through a trial. Even though[] we
    acknowledge that [Appellant] has entered a guilty
    plea, it does not negate the facts that [Appellant]
    engaged in a series of poor decisions and criminal
    behavior that directly resulted in the death of []
    Focht. [Appellant] made poor decisions in attending
    this underage drinking party[, ] drinking alcohol to
    the extent that he did, [] leav[ing] the scene with []
    Focht as a passenger on his ATV[,] and []
    operat[ing] his ATV in violation of the Vehicle Code
    and in a reckless and/or grossly negligent manner
    which directly resulted in [] Focht’s death. Again,
    after such accident, both [Appellant] and [] Helsel
    left the scene without making any effort to aid []
    Focht or call emergency personnel.
    We find no credibility in [Appellant’s] assertion
    that he was attempting to save [] Focht or trying to
    get [] Helsel back to the scene of the accident or
    that he somehow was acting in a heroic manner on
    the date in question.         We believe that such
    assertions are simply not credible and not supported
    by the evidence. Clearly, if [Appellant and Helsel]
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    were without cell phone service where the accident
    occurred, the right thing to do was for one of them
    to stay with [] Focht and the other to travel to a
    location where there was such cell phone service.
    There was nothing heroic about [Appellant’s] actions
    on the night in question, and in fact, we find his
    actions were selfish, calculating[,] and inhumane.
    As a result, we agree with the Commonwealth
    that the highly egregious and calculating conduct of
    [Appellant] exceeds that harm contemplated by the
    statute.    Thus, we believe that the statutory
    maximum sentence for both accidents involving
    death or personal injury and homicide by vehicle is
    appropriate.    We also believe that consecutive
    sentences are appropriate.
    Id. at 15-17 (quoting N.T., 9/11/2018, at 63-66) (some quotation marks
    omitted, capitalization altered, and paragraph breaks supplied).
    According to Appellant, the trial court based his statutory maximum
    sentences on the fact that “1) Appellant and [Helsel] left the scene and
    allowed the victim to lay [sic] on the road for almost two hours; that 2)
    Appellant and [Helsel] went to another location to conceal evidence; and 3)
    then only returned to the scene to tamper with evidence[; and] that 4)
    Appellant operated his ATV in a reckless manner which resulted in the death
    of the victim,” and thus based the sentences on essential elements of the
    crimes.     Appellant’s Brief at 22, 25-26 (citations to reproduced record
    omitted).    Appellant argues that leaving the scene is an element of the
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    offense of accidents involving death or personal injury;3 tampering with
    evidence is an offense to which he pleaded guilty and was sentenced
    separately; and operating his ATV in a reckless manner is an element of the
    offense of homicide by vehicle.4 Id. at 23, 26-27.
    Upon review, we find that Appellant has not shown any error on the
    part of the trial court in fashioning his sentence.     The trial court deviated
    from the sentencing guidelines after it stated that it was “especially
    ____________________________________________
    3 The crime of accidents involving death or personal injury is defined as
    follows.
    (a) General rule.--The driver of any vehicle involved in an
    accident resulting in injury or death of any person shall
    immediately stop the vehicle at the scene of the accident or as
    close thereto as possible but shall then forthwith return to and in
    every event shall remain at the scene of the accident until he
    has fulfilled the requirements of section 3744 (relating to duty to
    give information and render aid). Every stop shall be made
    without obstructing traffic more than is necessary.
    75 Pa.C.S. § 3742(a).
    4   The crime of homicide by vehicle is defined as follows.
    (a) Offense.--Any person who recklessly or with gross
    negligence causes the death of another person while engaged in
    the violation of any law of this Commonwealth or municipal
    ordinance applying to the operation or use of a vehicle or to the
    regulation of traffic except section 3802 (relating to driving
    under influence of alcohol or controlled substance) is guilty of
    homicide by vehicle, a felony of the third degree, when the
    violation is the cause of death.
    75 Pa.C.S. § 3732(a).
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    J-S13042-19
    troubl[ed]” by the fact that Appellant left Focht’s body unprotected from
    oncoming traffic on a state highway for over two hours, and found
    Appellant’s conduct was not that of a “typical hit-and-run case,” but was
    “highly egregious,” “selfish, calculating and inhumane;” the trial court stated
    that it also considered Appellant’s failure to aid Focht in any manner, his
    attempt to “cover his tracks,” his admission to having a drinking problem,
    his need for drug, alcohol, and behavioral evaluation and treatment, his age,
    his prior convictions, his employment history, his guilty plea, and his
    proffered explanation for why he acted the way he did on the night in
    question. Trial Court Opinion, 11/7/2018, at 15-16; N.T., 9/11/2018, at 63-
    66; see also Fullin, 
    892 A.2d at 849
     (finding the “trial court’s use of the
    words ‘seriously, seriously abrogated’ indicate that it was imposing a
    sentence based on the fact that Fullin had not merely violated a duty of
    care, but that Fullin’s behavior was a particularly egregious violation of that
    duty”). Moreover, Appellant offers no argument that the circumstances of
    this case are in any way typical of cases falling within the definition of the
    offenses of accidents involving death or personal injury and homicide by
    vehicle.
    We find that the factors which led to the court’s imposing statutory
    maximum sentences were legal considerations and the trial court’s reasons
    were aptly stated on the record.       See Conte, supra.       The trial court
    properly considered the nature and circumstances of the offenses to which
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    Appellant pleaded guilty, recognized the background that led to Appellant’s
    criminal conduct, and took into account the history and characteristics of
    Appellant, specifically noting that it did not find Appellant to be credible, that
    Appellant did not accept full responsibility for his behavior, and that
    Appellant had been released on bail for a separate DUI offense when the
    accident occurred.      See id.        In addition, the trial court gave due
    consideration to the information contained in the pre-sentence investigation
    report, the sentencing guidelines, the pre-sentence memoranda submitted
    by the parties, and the testimony of the witnesses and exhibits presented at
    the sentencing hearing. See id.; see also N.T., 9/11/2018, at 64. Because
    the trial court fashioned an individualized, reasonable sentence after taking
    into   account   multiple   factors,   we   discern   no   abuse   of   discretion.
    Accordingly, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/21/2019
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Document Info

Docket Number: 1456 WDA 2018

Filed Date: 5/21/2019

Precedential Status: Non-Precedential

Modified Date: 12/13/2024