Com. v. Strine, D.

J-S35023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUSTIN JAMES STRINE :
:
Appellant : No. 573 MDA 2021
Appeal from the Judgment of Sentence Entered March 30, 2021,
in the Court of Common Pleas of York County,
Criminal Division at No(s): CP-67-CR-0000394-2018.
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: FEBRUARY 22, 2022
Dustin James Strine appeals from the judgment of sentence imposed
following his guilty plea to two counts of burglary and other related offenses.
Upon review, we affirm and remand with instructions.
On December 15, 2017, Strine broke into the business of his former
employer, Beecher and Myers Co., Inc. He stole a router key and extensively
damaged the garage door and equipment inside. On December 26, 2017,
Strine broke in a second time and was caught on camera entering the garage.
Strine was charged with two counts of burglary, two counts of criminal
trespass, and one count each of theft by unlawful taking—movable property,
and receiving stolen property.1
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), 3921(a), and 3925(a).
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Thereafter, on May 8, 2018, Strine pled guilty to all charges, and the
trial court admitted him to the York County's Veterans' Wellness Court
Program. However, the court removed him from it when Strine failed to
comply with its requirements.
On June 27, 2019, the trial court sentenced Strine to the state
intermediate punishment program (“SIP”). Again, Strine failed to comply with
program requirements by using drugs and committing an assault and was
expelled.
On March 30, 2021, the trial court resentenced Strine to 18 to 36
months of incarceration in a state correctional institution for each burglary to
run consecutively.2 The court gave Strine some credit for time served. Strine
filed a post-sentence motion, which the court denied.
Strine filed this timely appeal. The trial court and Strine complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Strine raises the following single issue:
1) Whether the trial court abused its discretion when sentencing
[Strine] to two aggravated range sentences to be served
consecutively in light of [Strine's] need for rehabilitation and
[by] considering [Strine's] personal relationships and reason
for SIP expulsion?
Strine’s Brief, at 3 (excess capitalization omitted).
Strine challenges the discretionary aspects of his sentence “Challenges
to the discretionary aspects of sentencing do not entitle an appellant to review
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2 The other charges merged for sentencing purposes.
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as of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). This Court has 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 [a]ppellant
preserved his issue; (3) whether [a]pellant'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.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Strine satisfied the first three requirements under Colon.3
Accordingly, we must consider whether Strine’s claim raises a substantial
question. 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.”
____________________________________________
3 The Commonwealth claims that Strine referenced Rule 2111 rather than
2119(f), and therefore waived his sentencing claim. Commonwealth Brief, at
10 n. 1. We note that, although Strine did not cite Rule 2119(f), his statement
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).
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Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013) (citations
and quotations omitted). The existence of a substantial question must be
determined on a case-by-case basis. Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
In his statement of reasons why he should be allowed to appeal the
discretionary aspects of his sentence, Strine claims that his sentence was
manifestly excessive because the trial court imposed two consecutive
sentences in the aggravated range. Strine’s Brief, at 13-14. This is
particularly so given Strine’s ongoing rehabilitative needs and that the two
burglaries were closely related. Additionally, Strine claims that the court erred
in considering Strine’s “romantic choices” when it structured his sentence. Id.
at 15.
First, the imposition of consecutive sentences rather than concurrent
sentences may raise a substantial question in some cases. 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
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;
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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).
A general allegation that the sentencing court failed to consider certain
mitigating factors does not raise a substantial question. Commonwealth v.
McNabb, 819 A.2d 54, 57 (Pa. Super. 2003); accord Commonwealth v.
Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
sentencing court “failed to consider” or “did not adequately consider” certain
factors generally does not raise substantial question). However, where an
appellant alleged that the sentencing court imposed a sentence in the
aggravated range without adequately considering mitigating circumstances,
we have found a substantial question existed. Commonwealth v. Felmlee,
828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc ). Likewise, we have found
that a substantial question existed where the appellant claimed that the court
considered improper factors in sentencing him in the aggravated range.
Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2004).
Because Strine’s claim related to his aggravated sentences, we conclude
that he has raised a substantial question. Therefore, we will consider the
merits of it.
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,
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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
Sentencing Code affords the 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).
Furthermore, where it reasonably appears from the record that the trial
court relied in whole or in part upon such an impermissible factor, a sentence
may be rendered invalid. See Commonwealth v. Bethea, 379 A.2d 102(Pa. 1977).
In reviewing Strine’s sentencing claim, we first note that the trial court
had the benefit of a pre-sentence report when it sentenced Strine. “[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 Strine’s
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statement to fashion his sentence. N.T., 3/30/21, at 14. We further observe
that the trial court had dealt with Strine for years. Thus, the trial court was
well familiar with Strine’s particular circumstances.
In explaining the basis for its sentence, the trial court recognized 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 victim and the community,
and Strine's rehabilitative needs. Id. at 9. It is evident that the court
thoroughly weighed all of these factors.
In particular, and contrary to Strine’s claim, the trial court fully
recognized Strine’s rehabilitative needs. The court acknowledged the trauma
he sustained as a result of his military service and the rehabilitation that this
necessitated. However, to the court’s great disappointment, Strine failed to
take advantage of the services and treatment afforded to him previously. The
court placed him in the Veteran’s Wellness Court Program, thereby avoiding a
much harsher sentence. When he was unsuccessful there, Strine was placed
in SIP, but, again, was unable to successfully complete the program. Both
programs offered him intensive treatment opportunities. However, Strine
failed to take advantage of them and instead chose to engage in conduct that
demonstrated an inability to be rehabilitated. The court acknowledged that,
while some of those services may have been limited due to COVID, which
Strine complained of, Strine lost those opportunities because he got himself
removed from the programs. Id. at 15.
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In further addressing Strine’s failure to avail himself of the opportunity
to rehabilitate himself, the court noted Strine’s romantic relationship with his
counselor. The court observed that, rather than taking advantage of her
professional services, he chose to become her boyfriend and cohabitate with
her. However, contrary to Strine’s claim, we observe that the court did not
base his sentence on this factor. Instead, the court merely referenced it as
another example of how Strine failed to avail himself of the rehabilitative
services provided to him. Id. Therefore, we conclude that the trial court did
not consider an impermissible factor when it sentenced Strine.
In the end, although Strine expressed his desire to continue to try to
rehabilitate himself, the trial court concluded that Strine lacked rehabilitative
potential. Id. at 18. With this being Strine’s third sentencing, the trial court
found it necessary to utilize other legitimate bases of sentencing—punishment
and deterrence. Consequently, the trial court concluded that Strine’s conduct
warranted a sentence in the aggravated range for the first burglary. Id. at
19.
The trial court further found that Strine had a criminal mindset and an
intent to victimize. Strine revictimized his employer and damaged its property
out of spite because his employer fired him. Consequently, the court imposed
the same sentence for the second burglary, to run consecutive to the first
sentence. The court was not willing to give him a volume discount. Id. at
20.
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Based upon our review, it is evident that the trial court considered all of
the relevant sentencing factors. Further, given the deferential standard this
Court must apply on appeal and the trial court’s rationale for its sentence, we
find that the trial court did not abuse its discretion when it sentenced Strine.
This claim merits no relief.
However, we observe that, at the end of his brief, Strine requested that
he be granted additional credit for time served. Strine’s Brief at 25. Although
the trial court credited him for some time served, he claims:
Not included in this time is entrance into the SIP program, which
lasted from 18 April 2019 to 31 December 2019. Furthermore,
[Strine’s] time at CCC Center Keystone was not credited nor his
time at SCI Retreat and SCI Smithfield, lasting from 5 April 2020
to 30 October 2020 collectively. Lastly, [Strine’s] time in SCI
Mahanoy from 16 January 2021 to 30 March 2021 is not credited
where he awaited removal from SIP.
Appellant’s Brief at 25.
We observe that this is the first time Strine raised this issue.
Nevertheless, a claim based upon a trial court's failure to give full credit for
time served implicates the legality of one's sentence. Commonwealth v.
Dixon, 161 A.3d 949, 951 (Pa. Super. 2017). Inquiry into the legality of a
sentence is non-waivable. Commonwealth v. Tout-Puissant, 823 A.2d
186, 188 (Pa. Super. 2003); Commonwealth v. Dinoia, 801 A.2d 1254,
1257 (Pa. Super. 2002). Thus, we will review his claim.
“Issues relating to the legality of a sentence are questions of law.”
Commonwealth v. Furness, 153 A.3d 397, 405 (Pa. Super. 2016) (citation
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omitted). Thus, our standard of review is de novo, and our scope of review is
plenary. Id.The Sentencing Code provides, in pertinent part, that a defendant is
entitled to credit “for all time spent in custody as a result of the criminal charge
for which a prison sentence is imposed.” 42 Pa.C.S.A § 9760(1). With regard
to “custody,” this Court has explained:
The easiest application of 42 Pa.C.S. § 9760(1) is when an
individual is held in prison pending trial, or pending appeal, and
faces a sentence of incarceration: in such a case, credit clearly
would be awarded. However, the statute provides little explicit
guidance in resolving the issue before us now, where the
defendant spent time somewhere other than in prison. This
difficulty results in part from the fact that neither Section 9760,
nor any other provision of the Sentencing Code, defines the
phrase “time spent in custody.” The difficulty is also a function of
the fact that there are many forms of sentence, and many forms
of pre-sentencing release, which involve restrictions far short of
incarceration in a prison.
***
The plain and ordinary meaning of imprisonment is confinement
in a correctional or similar rehabilitative institution[.] Courts have
interpreted the word ‘custody,’ as used in Section 9760, to mean
time spent in an institutional setting such as, at a minimum, an
inpatient alcohol treatment facility.
Commonwealth v. Fowler, 930 A.2d 586, 596–97 (Pa. Super. 2007)
(internal citations, brackets, and quotation marks omitted, and last alteration
supplied). Additionally, “the Legislature intended imprisonment and
intermediate punishment to be mutually exclusive and to be treated
differently.” Id. at 596. “Generally, it is within the trial court's discretion
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whether to credit time spent in an institutionalized rehabilitation and
treatment program as time served ‘in custody.’” Id.Based upon the foregoing authority, it appears that Strine may be
entitled to additional credit for time he spent at some of the facilities
referenced. First, we observe that Strine claims he did not receive credit for
time spent at several correctional facilities. A defendant should be credited
for time spent while incarcerated, even when he is so incarcerated as part of
an intermediate punishment sentence. See Tout-Puissant supra.
Additionally, we note that Strine claims he was under “lock and key” when he
was at the Keystone CCC suggesting that he may be entitled to some credit.
N.T., 3/30/21, at 22. Thus, he may be entitled to some credit for time served
there.
This Court is not able to discern all circumstances surrounding Strine’s
time spent at these various facilities or whether this time was credited against
another sentence. Out of caution, we remand for the trial court to re-examine
the award of credit time.
Judgment of sentence affirmed. Case remanded for calculation of time
served. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/22/2022
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