Com. v. Chilcote, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDY LEE CHILCOTE :
:
Appellant : No. 1520 MDA 2020
Appeal from the Judgment of Sentence Entered July 26, 2017,
in the Court of Common Pleas of Franklin County,
Criminal Division at No(s): CP-28-CR-0001147-2016.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 10, 2021
Andy Lee Chilcote appeals from the judgment of sentence imposed after
a jury convicted him of various offenses. Upon review, we affirm.
This matter arises from the following facts. On March 31, 2016, Chilcote
was driving on Race Track Road in Franklin County Pennsylvania. He pulled
up to Rodney Walls’ parked vehicle and started an argument with him.
Chilcote then got out of his car and walked over to Walls’ car where he reached
into the passenger side and grabbed Carl Biddle’s wrist. Chilcote got back in
his car, started driving, erratically, and entered the traffic way to St. Thomas
Towing. Chilcote then hit a moving vehicle, and traveled on across the truck
scales and hit a pole on the outside of a building. When Chilcote got out of
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* Retired Senior Judge assigned to the Superior Court.
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the car, he was acting aggressively and making comments about fighting.
Chilcote then grabbed the arm of a bystander, pulled out his genitals and
started urinating. Others observed his bizarre actions.
When Trooper Seth Sprague arrived, he saw Chilcote stumbling around
and having difficulty maintaining his balance. Chilcote was yelling obscenities
in front of a large group of people. Trooper Sprague observed that Chilcote’s
eyes were glassy and bloodshot. Chilcote told Trooper Sprague that he had
smoked a lot of marijuana earlier that day.
Trooper Benjamin Frantz indicated that Chilcote showed signs of
impairment and noted that his tongue was green and his breath smelled of
marijuana. Chilcote’s eyes had little to no reaction to light, and he was
sluggish. Chilcote told him that he uses cocaine and heroin. Chilcote was
arrested and charged with multiple offenses.
Following trial, a jury convicted Chilcote of one count of DUI, three
counts of recklessly endangering another person (REAP), one count of
indecent exposure, and one count of disorderly conduct obscene
language/gesture. 1 The trial court sentenced Chilcote to an aggregate term
of 57-114 months of incarceration. The sentences were imposed
consecutively. Chilcote filed a post-sentence motion, which the trial court
denied.
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1 75 Pa.C.S.A. §3802(d)(2), 18 Pa.C.S.A. § §2705, 3127(a), and 5503(a)(3).
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Chilcote appealed challenging the discretionary aspects of his sentence.
On appeal, this Court found that he waived this issue for failure to include the
sentencing transcript in the original record. Commonwealth v. Chilcote,
1619 MDA 2019, unpublished memorandum at 13 (May 22, 2020).
Subsequently, Chilcote filed a petition under the Post-Conviction Relief
Act2 seeking reinstatement of his direct appellate rights, which the court
granted. This timely appeal followed. Chilcote and the trial court complied
with Pa.R.A.P. 1925.
In this appeal, Chilcote raises a single issue for our consideration which
again challenges the discretionary aspects of his sentence. This Court has
stated that challenges to the discretionary aspects of sentencing do not entitle
an appellant to appellate review as of right. Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa. Super. 2000). Further, we have explained that, to reach
the merits of a discretionary sentencing issue, we must conduct a four-part
analysis to determine:
(1) whether the appeal is timely; (2) whether [Chilcote] preserved
his issue; (3) whether [Chilcote]’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence [in accordance
with 2119(f)]; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the
sentencing code. . . [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive
merits of the case.
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2 42 Pa. C.S.A. §§ 9541-46.
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Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Chilcote satisfied the first three requirements of Colon.3 Accordingly, we must
determine whether Chilcote raises a substantial question.
In his Rule 2119(f) statement, Chilcote claims that the trial court’s
imposition of consecutive, rather than concurrent, sentences was unduly
harsh, given the nature of the crimes and the length of imprisonment.
Chilcote’s Brief at 6. This is the only claim raised in his rule 2119(f)
statement.4
Regarding the imposition of consecutive sentences and whether a
substantial question has been raised, this Court has held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present a
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3 We note that, although Chilcote did not place this statement under the
heading “Statement of Reasons for Allowance of Appeal” or “Rule 2119(f)
Statement,” his statement fully satisfies the purpose of Rule 2119(f), which is
to inform the Court why review of the sentence is proper prior to consideration
of the merits and to limit sentencing challenges to exceptional cases. See,
e.g, Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc). Compliance with the substance of Rule 2119(f) despite failure to use
a separate label is not considered waiver. Commonwealth v. Pickering,
533 A.2d 735, 737-38 (Pa. Super. 1987).
4 In the body of his brief, Chilcote also claims that the trial court double-
counted factors already considered in the sentencing guidelines, particularly
his prior record. Id. at 8-9. While this raises a substantial question, Chilcote
failed to include it in his Rule 2119(f) statement, and therefore, we will not
consider it.
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substantial question in only “the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372
(Pa. Super. 2012)[(en banc)].
[An appellant] 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;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(quotations and citations omitted).
Because Chilcote claims that the consecutive sentences were unduly
harsh, in light of the nature of his crimes and length of his sentence, we
conclude that Chilcote has raised a substantial question. Therefore, we will
consider the merits of his sentencing claim.
Our standard of review of a sentencing claim 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
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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Additionally, we observe that the imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the sentencing court.
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005). The
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Sentencing Code 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. 42 Pa.C.S.A. § 9721; Commonwealth
v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).
Here, we first note that the trial court had the benefit of a pre-sentence
report when it sentenced Chilcote. “[W]here the trial court is informed by a
pre-sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). The trial
court remarked that it considered the pre-sentence report, along with
counsel’s statements to the court, and the evidence in this case to fashion
Chilcote’s sentence. N.T., 7/26/17, at 8.
Further, in explaining the basis for its sentence, the trial court
acknowledged that its sentence must be consistent with the protection of the
public, the gravity of the offense as it related to the impact on the life of the
victim and on the community, and Chilcote’s rehabilitative needs. The court
thoroughly weighed all of these factors. Id. at 9. The trial court remarked
that Chilcote had a long history of violating the law in varying degrees which
spanned 36 years. The trial court also noted that Chilcote was under
supervision for almost 16 years, and incarcerated for more than two and one-
half years. And, even while incarcerated during the past year, Chilcote
repeatedly violated the rules and was found guilty of 19 incidents of
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misconduct. Id. at 11. From these facts, the trial court concluded: “In short,
Mr. Chilcote, you have a complete and utter lack of respect for the laws that
govern all of us in our everyday lives.” Id. The trial court further observed,
given the opportunities Chilcote was previously afforded: “What is clearly
established before the [c]ourt today and that to the extent you had any
rehabilitative needs over the course of your life, you have completely chosen
to forfeit them in continuing to violate the law of this Commonwealth.” Id. at
13. The court stated that “the needs of the public to be free from you, vastly
outweigh any other considerations in this case.” Id.
Finally, before sentencing Chilcote, the trial court noted that the
particular offenses in this case were only misdemeanors and were not as
severe as others. However, it observed that Chilcote’s conduct, which led to
his charges, demonstrated extreme behavior. The court concluded that
“[Chilcote] is an ever present danger to the law-abiding citizens in the county”
and therefore the lengthier sentence it imposed was warranted. Id. at 14.
Based upon the deferential standard this Court must apply regarding
consecutive sentences and the trial court’s rationale for its sentence, we find
that the trial court did not abuse its discretion when it imposed consecutive
sentences for Chilcote’s convictions. Chilcote’s sentencing claim merits no
relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/10/2021
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