Com. v. Burk, I. ( 2019 )

J-S45038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISHMAEL ALI BURK :
:
Appellant : No. 1516 EDA 2018
Appeal from the Judgment of Sentence April 30, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0008580-2017
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019
Ishmael Ali Burk (Burk) appeals from the judgment of sentence imposed
by the Court of Common Pleas of Bucks County (trial court) after he pleaded
guilty in case numbers 4724-2017 and 8580-2017.1 Specifically, he
challenges the discretionary aspects of his sentence. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Burk also has filed an identical appeal of his judgment of sentence for case
number 4724-2017, at docket number 1522 EDA 2018. See Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) (Holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.”).
J-S45038-19
I.
A.
We take the following facts and procedural history from the trial court’s
February 15, 2019 opinion and our independent review of the record. On
February 16, 2018, Burk pleaded guilty in case number 8580-2017, the case
involved in this appeal, to Criminal Attempt-Theft by Deception, Theft by
Deception, Bad Checks, Insurance Fraud, and Criminal Use of a
Communication Facility. The charges related to Burk’s operation of a complex
criminal scheme to defraud auto insurance companies from June 31, 2014,
through September 3, 2015. (See N.T. Guilty Plea and Sentencing, 2/16/18,
at 16). In the course of the scheme’s operation, Burk filed 32 fraudulent
claims with ten different insurance companies, with each claim pertaining to
one of six cars. During the policy application and claim processes, Burk would
falsely deny previous coverage for the car, provide deceptive reports of vehicle
damage and about past claims (if discovered), and give and use false names,
birthdates, Social Security numbers and addresses. (See id. at 19-20). Burk
received $22,994.95 due to the fraudulent claims. (See id. at 21). He would
have realized another $85,000.00 if all of the claims he attempted had been
successful. (See id.).
B.
In an unrelated case, on October 30, 2017, Burk pled guilty at docket
number 4724-2017, before us in a companion appeal at docket number 1522,
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to two counts of Aggravated Assault, Fleeing or Attempting to Elude a Police
Officer, Recklessly Endangering Another Person, Resisting Arrest, False
Identification to Law Enforcement,2 and several summary traffic offenses. The
court deferred sentencing. The charges arose from a June 26, 2017 incident
in which Officer Thomas Leonhauser initiated the traffic stop of a vehicle driven
by Burk because it was going 62 miles per hour in a 40 mile per hour zone.
(See Guilty Plea, 10/30/17, at 4). When Officer Leonhauser stopped the
vehicle and asked Burk, who later was determined to be driving with a
suspended license, to provide his identifying information, he responded that
he had no identification on him and he provided an incorrect spelling of his
name (Shamael Burk) and wrong date of birth. (See id. at 4-5). The female
passenger in Burk’s car did not provide any identification either. (See id. at
5).
Officer Andrews arrived on scene as backup. A search on the car’s
license plate revealed the vehicle’s registration expired in 2008 and that there
was an active Bucks County arrest warrant for Burk, the vehicle owner. (See
id.). When the officers asked to Burk to exit the vehicle, he refused and
started it instead. The officers engaged in a physical struggle with Burk, who
put the car in reverse and hit both officers with his open drivers’ door, causing
____________________________________________
218 Pa.C.S. § 2702(a)(3), 75 Pa.C.S. § 3733(a), and 18 Pa.C.S. §§ 2705,
5104, and 4914(a), respectively.
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them to fall. (See id. at 5-6). They returned to their police vehicle and
pursued Burk, who was fleeing the scene in excess of speeds of 75 miles per
hour. (See id. at 6). With other vehicles on the road, Burk exited his moving
car, leaving it for his passenger to try to control, and began to flee on foot.
(See id.). The officers engaged in a foot pursuit of Burk through a residential
neighborhood and were required to tase him twice. When the officers finally
subdued him, they did so in spite of his consistent and aggressive attempts to
resist arrest. (See id.). The officers were transported to the hospital for their
injuries, which consisted of bruises and scrapes on their bodies. (See id. at
7).
C.
Burk was sentenced on the two unrelated criminal convictions at the
same time. In case number 8580-2017, the case involved in this appeal, the
trail court sentenced Burk to an aggregate term of not less than 67 nor more
than 134 months’ incarceration for one count each of Insurance Fraud, Dealing
in Proceeds of Unlawful Activity, and Identity Theft, but did not impose any
sentences on the remaining charges. (See id. at 42-44). The court ordered
the sentences to run consecutively, for a total aggregate term of not less than
118 nor more than 236 months’ incarceration. (See id. at 44). In case
number 4724-2017, the trial court sentenced Burk to an aggregate term of
incarceration of not less than 51 nor more than 102 months’ incarceration for
one count each of Aggravated Assault, False Information to Law Enforcement,
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and Fleeing or Attempting to Elude Police,. (See id. at 40-42). No further
sentence was imposed on the remaining charges.
Burk filed a motion for reconsideration of sentence on both cases that
the trial court granted. It held a hearing on April 30, 2018. After the hearing,
in case number 8580-2017, the court decreased each of the individual
sentences, leading to an aggregate sentence of not less than 54 nor more
than 108 months’ incarceration. (See id. at 30-31). The court ordered the
sentences to run consecutively, for a total aggregate sentence of not less than
90 nor more than 180 months’ (seven and one-half nor more than fifteen
years’) incarceration. (See id. at 31). In case number 4724-2017, the court
vacated the sentence for False Information to Law Enforcement and decreased
the remaining individual sentences, resulting in a modified aggregate sentence
of not less than 36 nor more than 72 months’ incarceration. (See
Reconsideration of Sentence, 4/30/18, at 29-30). Burk timely appealed. He
and the trial court complied with Rule 1925. See Pa.R.A.P. 1925.
II.
A.
On appeal, Burk contends that the trial court abused its discretion in
imposing his sentence because while the sentence is “purported to be within
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the guidelines, but upon the aggregation of the counts and cases is
unreasonable[.]” (Burk’s Brief, at 4).3
This issue challenges the discretionary aspects of sentence which “must
be considered a petition for permission to appeal.” Commonwealth v. Kelly,
33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted).
It is well-settled that:
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. Two requirements must
be met before we will review this challenge on its merits. First,
an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
[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. We
examine an appellant’s Pa.R.A.P. 2119(f) statement to determine
whether a substantial question exists. Our 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.
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3 “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.” Commonwealth v. Antidormi, 84 A.3d
736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation
omitted).
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Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations
omitted) (emphases in original).
Burk has met the procedural requirement of including a Rule 2119(f)
statement. (See Burk’s Brief, at 12-13). Further, his issue, that the sentence
is excessive for the protection of the public, the gravity of the offense, and his
rehabilitative needs, and is unreasonable “based on the consecutive nature of
each count and case,” raises a substantial question. (Burk’s Brief, at 12);
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015), appeal
denied, 126 A.3d 1282 (Pa. 2015) (“[C]hallenge to the imposition of his
consecutive sentences as unduly excessive, together with [] claim that the
court failed to consider [sentencing factors] upon fashioning its sentence,
presents a substantial question.”); Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014) (“[D]efendant
may raise a substantial question where he receives consecutive sentences
within the guideline ranges if the case involves circumstances where the
application of the guidelines would be clearly unreasonable, resulting in an
excessive sentence[.]”) (emphasis and citations omitted). Hence, we will
consider the merits of his claim.
B.
In imposing its sentence, the trial court explained its reasons stating:
Our sentence was necessary to protect the public from an
extreme recidivist who completely rejected the terms and
conditions of probation and parole supervision. Both cases had
significant impact on their specific victims as well as the
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surrounding community. We reached our sentencing decision only
after careful consideration of the Sentencing Code, the
circumstances of the offenses, and the character of the offender.
(Trial Court Opinion, 2/15/19, at 10); (see also id. at 13 (“[W]e considered
[Burk’s] conduct, his criminal history, his rehabilitative needs, the sentencing
guidelines, the impact of his crimes on the victims and community, and public
safety.”); (N.T. Reconsideration of Sentence, at 28-29).
Our independent review reveals that the court did not abuse its
discretion when fashioning Burk’s sentence. The court found that Burk had
an “absolute disregard for the rule of law” based on his criminal history, the
fact that he committed each new crime while on probation, parole, or bail, and
that there was an outstanding warrant for his arrest at the time of the
Aggravated Assault incident because he “was an absconder from parole
supervision at the time.” (Trial Ct. Op., at 7); (see N.T. Guilty Plea and
Sentencing, at 36-37, 39; Reconsideration of Sentence, at 29-30). The court
also considered Burk’s rehabilitative needs, finding that he “certainly [has not]
responded to probationary treatment[] [because he] still commit[s] crimes.”
(N.T. Sentencing, at 39); (see also Reconsideration of Sentence, at 29). The
court considered the “confusing and conflicting testimony from [Burk]
regarding his employment, mental health treatment and prescribed
medication” and the fact that treating physicians expressed concerns that
“[Burk] was attempting to manipulate his diagnosis by exaggerating
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symptoms or malingering.” (Trial Ct. Op., at 8); (see also N.T.
Reconsideration of Sentence, at 7, 29).
As for Burk’s claim that the individual standard range sentences were
excessive in the aggregate considering the sentence imposed with the fraud
charge, the court only imposed sentences on six of the fifteen counts available,
with no further penalties imposed on the other nine counts. (See Trial Ct.
Op., at 1, 5-6). Upon reconsideration, the court vacated a sentence on one
count and reduced the sentences on four of the remaining five counts. (See
N.T. Reconsideration of Sentence, at 30-31). In any event, “[L]ong standing
precedent of this Court recognizes that 42 Pa.C.S. section 9721 affords the
sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Johnson-Daniels, 167
A.3d 17, 28 (Pa. Super. 2017), appeal denied, 174 A.3d 1029 (Pa. 2017)
(citations omitted).
Based on all of the foregoing and our independent review of the certified
record, we discern no manifest abuse of discretion by the trial court in
sentencing Burk to consecutive terms of incarceration in this matter. See
Antidormi, supra at 760; see also Commonwealth v. Foust, 180 A.3d
416, 434 (Pa. Super. 2018) (“[D]efendants convicted of multiple offenses are
not entitled to a ‘volume discount’ on their aggregate sentence.”) (citations
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omitted). Therefore, his issue fails and we affirm the trial court’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/19
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