Com. v. Bilak, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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
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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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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
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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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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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