Com. v. McCausland, S. ( 2023 )

J-S25009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN P. MCCAUSLAND :
:
Appellant : No. 2414 EDA 2022
Appeal from the Judgment of Sentence Entered August 16, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001046-2016
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 11, 2023
Appellant Sean P. McCausland appeals from the judgment of sentence
imposed following the revocation of his probation. Appellant challenges the
discretionary aspects of his sentence and contends that the trial court abused
its discretion imposing a sentence of total confinement. Following our review,
we affirm.
The trial court set forth the relevant facts and procedural history of this
matter as follows:
On March 17, 2017, [Appellant] was found guilty of robbery,
conspiracy, possessing an instrument of crime [(PIC)], and
recklessly endangering another person [(REAP)] following a
waiver trial[.] On June 16, 2017, Appellant was sentenced to an
aggregate term of three (3) to six (6) years of state incarceration
followed by an aggregate term of nine (9) years of probation.[FN1]
No appeal was taken.
[FN1] On the robbery conviction, Appellant was sentenced to
three (3) to six (6) years of incarceration followed by four
(4) years of probation; on the conspiracy conviction, a
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concurrent sentence of three (3) to six (6) years of
incarceration followed by four (4) years of probation. A
consecutive term of five (5) years of probation was imposed
on the possessing an instrument of crime conviction and a
concurrent term of two (2) years on probation was imposed
on the recklessly endangering another person conviction.
On May 7, 2018, Appellant filed a pro se [PCRA petition] seeking
reinstatement of his appellate rights. Stephen A. Seidel, Esquire,
was appointed counsel on behalf of Appellant. On February 19,
2019, Appellant withdrew his petition for post-conviction relief and
Mr. Seidel was permitted to withdraw as counsel.
After completing his sentence of incarceration and while on
probation, on April 20, 2022, Appellant was arrested and was
charged with simple assault as a misdemeanor docketed under
MC-51-CR-0006406-2022. Shortly thereafter, [the trial] court
was notified of Appellant’s possible [probation] violations.
Following a hearing on June 7, 2022, [the trial court] found
Appellant to be in violation of probation.[1] Sentencing was
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1 In Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), our Supreme
Court examined the statutory framework governing probation revocations and
concluded that “a court may find a defendant in violation of probation only if
the defendant has violated one of the specific conditions of probation included
in the probation order or has committed a new crime.” Id. at 1250; see also
Commonwealth v. Koger, 295 A.3d 699 (Pa. 2023); 42 Pa.C.S. § 9754(b).
“To insure that general condition is met, or to assist the defendant in meeting
that general condition, the order must also include certain “specific conditions”
of probation. Foster, at 1250; see also Koger, 295 A.3d at 705; 42 Pa.C.S.
§ 9763.
Only upon the violation of any of the specified conditions in the
probation order (general or specific) may a court revoke the
defendant’s probation. In other words, a court may find a
defendant in violation of probation only if the defendant has
violated one of the specific conditions of probation included in the
probation order or has committed a new crime. The plain
language of the statute does not allow for any other result.
Foster, 214 A.3d at 1250 (citations and quotation marks omitted). Here,
however, Appellant does not challenge the finding of a probation violation or
(Footnote Continued Next Page)
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deferred pending the completion of a pre-sentence report and a
mental health evaluation. Appellant was given an aggregate
sentence of four (4) to eight (8) years of incarceration. All
previous sentencing conditions were again imposed. Appellant
filed a motion to reconsider sentencing, which was denied on
August 24, 2022. . . .
Trial Ct. Op., 1/25/23, at 2 (some formatting altered). Appellant filed a timely
appeal, and both Appellant and the trial court have complied with Pa.R.A.P.
1925.
On appeal, Appellant raises the following issue:
Whether the trial court erred by imposing an “excessive sentence”
violating the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et.
seq. by not following the general principle that the sentence
imposed should call for 1) confinement consistent with the
protection of the public, 2) the gravity of the offense as it relates
to the impact on the life of the victim; and 3) the rehabilitative
needs of the defendant, and amounted to a[n] abuse of discretion.
See 42 Pa.C.S. § 9721(B)?
Appellant’s Brief at 3.
Appellant challenges the discretionary aspects of his sentence.
Specifically, Appellant argues that he was amenable to treatment, and the
trial court failed to consider his rehabilitative needs. Id. at 9-10. Appellant
also contends that the trial court abused its discretion by imposing a
manifestly excessive sentence of four to eight years of incarceration rather
than rehabilitation in an in-patient drug abuse treatment facility. Id. at 7-11.
____________________________________________
the revocation of his probation, and the record reflects that Appellant
stipulated to violating the terms of his probation. See N.T., 6/7/22, at 14-18.
Appellant challenges only the sentence imposed following the revocation of
probation.
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The Commonwealth responds that Appellant has not identified a
substantial question for review. See Commonwealth’s Brief at 8. Further, the
Commonwealth contends that even if Appellant raised a substantial question,
he is not entitled to relief because the trial court did not abuse its discretion
in sentencing Appellant to total confinement as Appellant has failed at all prior
rehabilitative efforts. See id. at 9. The Commonwealth argues that the trial
court considered all relevant sentencing factors, including Appellant’s
rehabilitative needs, and was informed by a pre-sentence investigation (PSI)
report. Commonwealth’s Brief at 6-9.
As noted previously, Appellant’s issues implicate the discretionary
aspects of his sentence. This Court has held that “[t]he right to appellate
review of the discretionary aspects of a sentence is not absolute[.]”
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted). Rather, where an appellant challenges the discretionary aspects of
a sentence, the appeal should be considered a petition for allowance of appeal.
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007).
As this Court explained in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010), an appellant challenging the discretionary aspects of a
sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e 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. [708(E)]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
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question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S. § 9781(b).
Id. at 170 (formatting altered and citation omitted).
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will grant the appeal 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. Id. Further, this Court “cannot look beyond the statement of
questions presented and the prefatory Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Conklin, 275
A.3d 1087, 1094 (Pa. Super. 2022) (citation omitted).
In the instant case, Appellant filed a timely motion to reconsider his
sentence, a timely appeal, and has included a Rule 2119(f) statement in his
appellate brief. Accordingly, Appellant is in technical compliance with the
requirements to challenge the discretionary aspects of his sentence, therefore,
we will proceed to determine whether Appellant has raised a substantial
question. See id.In his brief, Appellant asserts:
The trial court erred by imposing an “excessive sentence” violating
the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et. seq. by
not following the general principle that the sentence imposed
should call for 1) confinement consistent with the protection of the
public, 2) the gravity of the offense as it relates to the impact on
the life of the victim; and 3) the rehabilitative needs of the
defendant, and amounted to a[n] abuse of discretion. See 42
Pa.C.S. § 9721(b). The sentence imposed was unreasonable and
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pursuant to the Pennsylvania Sentencing Code, in that total
confinement for a period of 4 years to 8 years is an excessive
sentence. [Appellant] is “amenable to drug treatment” and
vocational training, and rehabilitation.
Appellant’s Brief at 2 (Rule 2119(f) Statement) (some formatting altered).
“This Court has held on numerous occasions that a claim of inadequate
consideration of rehabilitative needs does not raise a substantial question for
our review.” Commonwealth v. Pacheco, 227 A.3d 358, 375 (Pa. Super.
2020) (citation omitted). “Similarly, an allegation that a sentencing court
failed to consider or did not adequately consider certain mitigating factors
does not raise a substantial question that the sentence was inappropriate.”
Id. (citation omitted). Moreover, “[a]n argument that the sentencing court
failed to consider mitigating factors in favor of a lesser sentence does not
present a substantial question appropriate for our review.” Commonwealth
v. Popielarcheck, 151 A.3d 1088, 1094 (Pa. Super. 2016) (citing
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc) (noting that an allegation that the sentencing court did not adequately
consider various factors is, in effect, a request that this court substitute its
judgment for that of the lower court in fashioning a defendant’s sentence)
(some citations omitted).
Here, Appellant argues that the trial court did not adequately consider
mitigating factors in favor of a lesser sentence. As such, Appellant has not
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raised a substantial question for our review.2 See Popielarcheck, 151 A.3d
at 1094; Moury, 992 A.2d at 170. Accordingly, Appellant is not entitled to
relief, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Date: October 11, 2023
____________________________________________
2 In any event, the trial court provided detailed reasoning for the sentence it
imposed. The trial court included a thorough discussion stating its rationale
for the revocation sentence, its consideration of the PSI report, and recitation
of its considerations from the sentencing hearing including Appellant’s
repeated failures at rehabilitation, and it concluded that Appellant was a high-
risk recidivist and danger to the community. See Trial Ct. Op., 1/25/23, at
6-17. Indeed, were we to reach the merits of Appellant’s challenge to the
discretionary aspects of his sentence, we would affirm on the basis of the trial
court opinion. See id.-7-