Com. v. Luse, S.

J-S47042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN JOSEPH LUSE, :
:
Appellant : No. 184 MDA 2019
Appeal from the Judgment of Sentence Entered December 19, 2018
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004275-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN JOSEPH LUSE, :
:
Appellant : No. 185 MDA 2019
Appeal from the Judgment of Sentence Entered December 19, 2018
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003255-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: SEPTEMBER 20, 2019
In these consolidated appeals, Sean Joseph Luse (“Luse”) appeals from
the judgment of sentence imposed following his guilty pleas to one count each
of terroristic threats,1 at CP-67-CR-3255-2018 (“No. 3255”), and burglary,2
at CP-67-CR-4275-2018 (“No. 4275”). We affirm.
____________________________________________
1 18 Pa.C.S.A. § 2706(a)(1).
2 Id. § 3502(a)(2).
J-S47042-19
Concerning the guilty plea at No. 3255, Luse admitted that, in January
2018, he communicated several threats of physical harm to the female victim
via phone calls and text messages. Four months later, regarding No. 4275,
Luse broke into the residence of the mother of his son, while the residence
was vacant, and caused extensive damage to the residence and contents
therein.3
Following the entry of Luse’s open guilty pleas, the trial court ordered
the preparation of a pre-sentence investigation report (“PSI”). On December
19, 2018, the trial court sentenced Luse, at No. 3255, to 9 to 18 months in
prison. At No. 4275, the court sentenced Luse to 36 to 72 months in prison,
and ordered this sentence to run consecutively to the sentence at No. 3255.
Notably to the instant appeal, the sentence at No. 4275 was in the aggravated
range of the sentencing guidelines.
On December 26, 2018, Luse filed a post-sentence Motion for
reconsideration of sentence, asserting that it was excessive, where the trial
court had failed to appropriately consider certain mitigating factors. After a
hearing, the trial court denied Luse’s Motion. Luse timely filed
____________________________________________
3 Both instances involved Luse’s acting in retaliation to perceived wrongs that
the victims committed against Luse.
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Notices of Appeal,4 followed by court-ordered Pa.R.A.P. 1925(b) Concise
Statements of errors complained of on appeal. The trial court then issued a
Rule 1925(a) Opinion.
Luse presents the following question for our review:
Did the sentencing court abuse its discretion in imposing an
aggravated-range term of incarceration after not only failing to
consider strong mitigation—[]Luse’s employment and lack of
infractions during presentence incarceration, as well as his
addiction and mental health problems—but even using this as
aggravation?
Brief for Appellant at 4.
Luse challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal.5 See Commonwealth v. Sunealitis,
153 A.3d 414, 420 (Pa. Super. 2016). Rather, where, as here, the appellant
has preserved the sentencing challenge for appellate review, by raising it in a
timely post-sentence motion, he must (1) include in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
____________________________________________
4 Luse complied with the dictates of our Supreme Court in Commonwealth
v. Walker, 185 A.3d 969, 971, 977 (Pa. June 1, 2018) (holding that,
prospectively from the date of the Walker decision, “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case[,]” and that a failure to do so will result in quashal).
See also Pa.R.A.P. 341, note.
5 The open guilty pleas Luse entered permit him to challenge his sentence.
See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005)
(explaining that, when the plea agreement is open, containing no bargain for
a specific or stated term of sentence, the defendant will not be precluded from
appealing the discretionary aspects of his sentence).
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the discretionary aspects of his sentence, pursuant to Pa.R.A.P. 2119(f); and
(2) demonstrate that there is a substantial question that the sentence imposed
is not appropriate under the Sentencing Code. Id.Here, Luse included a Rule 2119(f) Statement in his brief. See Brief for
Appellant at 16. Accordingly, we will examine the Rule 2119(f) Statement to
determine whether a substantial question exists. Luse asserts as follows:
In sentencing [] Luse to an aggravated-range term of
incarceration, the court cited Luse’s employment and lack of
infractions in presentence incarceration as evidence that he only
functioned in a controlled environment, and similarly cited his
mental health and addiction struggles as aggravation instead of
mitigation. But employment and a lack of infractions while
incarcerated show rehabilitative potential, and mental health and
addiction struggles are properly viewed as mitigation as opposed
to aggravation.
Brief for Appellant at 16.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
omitted); see also 42 Pa.C.S.A. § 9781(b).
Luse’s claim presents a substantial question for our review. See
Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (stating
that a claim that the sentencing court considered improper factors in placing
a sentence in the aggravated range presents a substantial question on
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appeal); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (noting that although an allegation that the sentencing court failed to
consider certain mitigating factors generally does not necessarily raise a
substantial question, a substantial question is raised where an appellant
alleges that the sentencing court imposed sentence in the aggravated range
without adequately considering mitigating circumstances). Accordingly, we
will address the merits of Luse’s claims.
We review discretionary aspects of sentence claims under the following
standard: “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.” Commonwealth v. Barnes, 167 A.3d 110,
122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court
has broad discretion in choosing the range of permissible confinement that
best suits a particular defendant and the circumstances surrounding his or her
crime. Commonwealth v. Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004).
The Sentencing Code sets forth the considerations a sentencing court
must take into account when formulating a sentence, stating that
the court shall follow the general principle that the 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.A. § 9721(b).
Moreover, this Court has observed that
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although the sentencing guidelines are an important factor in
sentencing, they are but only one factor when determining an
individualized sentence: The guidelines have no binding effect,
create no presumption in sentencing, and do not predominate
over other sentencing factors – they are advisory guideposts that
are valuable, may provide an essential starting point, and that
must be respected and considered; they recommend, however,
rather than require a particular sentence.
Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (citation,
paragraph break, and brackets omitted).
Finally, where, as here, the sentencing court had the benefit of a PSI,
“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); see also id. (stating that
“[t]he sentencing judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has been
informed by the [PSI]; thus properly considering and weighing all relevant
factors.”).
Here, Luse argues that the trial court considered certain factors as
aggravating factors, which the court should have viewed as mitigating factors.
See Brief for Appellant at 18-20. Specifically, Luse points to his (1) lack of
infractions while confined prior to sentencing; (2) mental health issues and
drug/alcohol addiction; and (3) employment while in prison. See id.; see
also id. at 18, 19 (asserting that these considerations “plainly showed
rehabilitative potential, and thus should have been viewed as mitigation
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J-S47042-19
warranting a lesser sentence[,]” but the trial court instead “gave Luse a longer
sentence … because of this good behavior.”).
In its Opinion, the trial court stated its reasons for imposing an
aggravated-range sentence, elaborated upon the nature of the crimes and
Luse’s history, and opined that the sentence was appropriate under the
circumstances. See Trial Court Opinion, 5/2/19, at 2-6. Briefly, the trial court
emphasized the following sentencing considerations:
 Luse’s history reveals an inability to conform to society in an
unstructured environment;
 Luse has mental health issues and refuses to take prescribed
psychiatric medications, which compounds these issues;
 The trial court did not, in fact, consider Luse’s lack of infractions
in prison and mental health issues as aggravating factors;
 Even though Luse had remained crime-free for a period of ten
years, he otherwise had an extensive criminal history, and
other factors outweighed the crime-free mitigating factor;
 The consequences of the crimes upon the victims were severe,
and caused one of the victims to become homeless;
 Luse showed no remorse for the crimes;
 Luse’s extreme actions in preying upon two female victims
shows his vindictiveness and desire to inflict extreme harm;
 The sentence recommended by the probation department was
merely a recommendation, and was insufficient under the
circumstances.
Id. at 3-6; see also N.T. (sentencing), 12/19/18, at 22, 23 (wherein the trial
court stated as follows: “[t]he [c]ourt can deduce from the pattern of [Luse’s]
prior [criminal] conduct[,] and the conduct in this case[,] that when [Luse] is
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J-S47042-19
using substances[, i.e., alcohol and/or drugs], when [he] is off his
[psychiatric] medication, and because of his behavioral health issues, [he] is
a threat to public safety and he’s a threat to people with whom he has a
grudge[,]” and “[Luse’s] desire to intimidate others[] and his preying upon
females is also a relevant consideration[.]”). The trial court’s sound analysis
is supported by the record, and we thus adopt it for the purposes of this
appeal, see Trial Court Opinion, 5/2/19, at 2-6, and conclude that the court
did not abuse its discretion in imposing an aggravated-range sentence at No.
4275. Accordingly, Luse’s challenge to the discretionary aspects of his
sentence entitles him to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2019
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Circulated 08/21/2019 02:41 PM
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..f�;'.t r:,? rn·�752 A.2d 921, 923 (Pa.Super. 2000). A sentencing court will
not have abused its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, or ill will. Commonwealth v.
Moury, 992 A.2d 162 (Pa.Super. 2010). Under this standard, there is no basis to disturb the
Defendant's sentences.
With respect to the Defendant's conduct in these cases, his sentences are appropriate
for his actions and the harm they caused. In CR-3255-2018, the terroristic threats he
2
expressed to the victim were 'in a series of threating text messages over a couple days.
Among the various messages where he called the victim various derogatory names, he stated
to the victim: "Your fucking days are numbered. Your days are numbered. I know where you
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,,.. f-·" live." (Notes of Testimony 12/19/18 at 11 ). In case CRA275-2018, at the Defendant's
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sentencing hearing, the Commonwealth presented to the court photographs of the damage he
caused to the residence of the burglary victim. (Commonwealth's Exhibits 1-8). The
pictures showed the extensive damage that the Defendant caused to multiple rooms of the
victim's residence. The Defendant ransacked her bedroom, kitchen, living room, and
bathroom. Among the damage, the Defendant flipped over the victim's bed, knocked a
television to the ground, destroyed a toilet, and ripped numerous items from cabinets and
threw them to the ground. (Id).
The Court expressly stated on the record its reasons for sentencing the Defendant.
The Defendant's history reveals an inability to conform to society in an unstructured
environment. The Defendant raises issue with the Court citing his addiction and mental
health issues as aggravating factors. Issues such as these when examined individually and in
the abstract could potentially be seen as mitigating factors. However, when examining them
together within the context of the Defendant's history, they reflect on his lack of
rehabilitative potential. With respect to his mental health issues, the Defendant compounds
the effect they have on him, as he wilfully disregards taking the medication he is prescribed
to control them.
3
The Defendant misstates that the court cited his lack of write ups while incarcerated
as an aggravating factor. The Court did not cite his lack of write ups as an aggravating factor.
The Court noted the Defendant's lack of write ups as they showed that when he is in a
controlled environment, the Defendant is able to control himself. The Defendant's lack of
write ups while incarcerated taken in context with his extensive criminal history reveal his
inability to function outside of a rigid, structured environment that one finds in prison.
The Defendant argues that while the Court claimed to recognize the large gap from
the Defendant's prior convictions to the cases at hand as mitigation, it was not reflected in
the sentences imposed. However, while acknowledging that this nearly ten year gap in
crimes reflects positively on the Defendant, it is outweighed by the other factors the Court
considered in crafting an appropriate sentence. What this ten year gap suggests is that the
Defendant was able to control his behavior when he was either on his mental health
medication or not abusing drugs. When he wilfully decided to stop taking his medication or
abuse drugs, he becomes a threat to society and a danger to those against whom he holds a
grudge.
The Defendant further argues that his sentences reflect no consideration for the
Defendant pleading guilty and cooperating with authorities. Much like his ten year gap in
offenses, while accepting responsibility for his actions is a positive for sentencing
consideration, those positives were outweighed by the substance abuse, neglect of his
medications, and the consequences suffered by his victims.
4
The Defendant also raises issue with the fact that the Court's sentence greatly exceed
the recommendation of the probation department. This argument is unpersuasive. While the
recommendation from the probation department can certainly aid the Court in determining an
,1
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appropriate sentence, by no means is the Court bound by what the recommendation may be.
While the Pre-Sentence Investigation is very thorough, taking into account interviews with
the Defendant and other actors in the case, the recommendation is made prior to the
sentencing hearing, and thus does not take into consideration potential arguments and facts
presented at the hearing. The recommendation does not take into consideration the photos
presented by the Commonwealth at the sentencing hearing, which reflect the extreme level of
vindictiveness and cruelty of the Defendant's conduct to his victims.
As presented by the Commonwealth at the sentencing hearing, the harm caused by the
Defendant's actions was sufficient to make one of the victim's become homeless. Severity of
the harm to a victim is relevant for the consideration of a Court in sentencing. The
Defendant's extreme actions reflect his cruelty and vindictiveness and a desire to inflict
extreme harm and intimidation upon his victims. In both of his cases, the Defendant preyed
upon female victims, and reflected an attitude that his victims got what they deserved, as he
was merely reacting to perceived wrongs they committed against him. For these and his lack
of genuine remorse, it was appropriate for the Court to sentence the Defendant in the
aggravated range.
With respect to the Court's decision to run the Defendant's sentences consecutively,
this is appropriate as the Defendant continued his destructive behavior between the two
5
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separate incidents. The Defendant had an opportunity to correct his behavior and to seek
help and treatment for his substance abuse and mental health issues after committing his first
crime. Rather, he made the wilful decision to continue his cruel and vindictive behavior and
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t·,.!.r'· cause harm to another victim.
In light of the Defendant's criminal character, lack of remorse, and lack of
rehabilitative potential, and in light of the devastating effect of the crime on his victims, the
Defendant's sentence was not manifestly unreasonable.
IV. Conclusion
For the reasons stated above, this Court respectfully urges affirmance of the
Defendant's conviction and judgment of sentence.
BY THE COURT,
'I yr'
DATED: May _,_, 2019 C:A�lLCOCK, JUD:E
6