Com. v. Grossnickle, A., II

J-S41023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AUSTIN EUGENE GROSSNICKLE, II :
:
Appellant : No. 2040 MDA 2018
Appeal from the Judgment of Sentence Entered November 13, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001759-2017
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2019
Austin Eugene Grossnickle, II (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to fleeing or attempting to elude a police
officer, possession of a small amount of marijuana, possession of drug
paraphernalia, driving under the influence of a controlled substance (DUI),
recklessly endangering another person (REAP), tampering with or fabricating
physical evidence, resisting arrest, disorderly conduct,1 and other related
summary offenses. Upon review, we affirm.
Appellant’s charges arose from an incident that occurred on October 17,
2017, when Appellant fled from Pennsylvania state troopers in his vehicle at
speeds in excess of 110 miles per hour while under the influence of a
____________________________________________
1 75 Pa.C.S.A. § 3733(a), 35 P.S. § 780-113(a)(31)(i), 35 P.S. § 780-
113(a)(32), 75 Pa.C.S.A. § 3802(d)(1)(i), 18 Pa.C.S.A. § 2705, 18 Pa.C.S.A.
§ 4910(1), 18 Pa.C.S.A. § 5104, and 18 Pa.C.S.A. § 5503(a)(4).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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controlled substance. See Trial Court Opinion, 4/11/19, at 1. When
apprehended, Appellant admitted to troopers “that he ate a marijuana roach
during the chase.” Id.
On September 28, 2018, Appellant appeared before the trial court and
entered his guilty plea. The trial court sentenced Appellant to two-and-a-half
to eight years of incarceration on November 13, 2018.2 Appellant filed a
timely post-sentence motion, which the trial court denied on November 27,
2018. Appellant filed this appeal on December 14, 2018.
Appellant presents the following issue on appeal:
I. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
IMPOSING CONSECUTIVE SENTENCES AGGREGATING TO
TWO AND ONE HALF (2 1/2) TO EIGHT (8) YEARS IN A
STATE CORRECTIONAL INSTITUTION FOR FLEEING, DUI (A
FIRST OFFENSE), POSSESSION OF A SMALL AMOUNT OF
MARIJUANA AND PARAPHERNALIA, RECKLESSLY
ENDANGERING [ANOTHER PERSON], RESISTING ARREST,
AND TAMPERING WITH EVIDENCE BASED UPON THE
APPELLANT’S HISTORY AND CHARACTERISTICS,
EXTENSIVE TIME SERVED, AND THE NATURE OF THE
OFFENSES?
Appellant’s Brief at 4.
____________________________________________
2 The original November 13, 2018 sentencing order accurately reflected
Appellant’s individual sentences, but erroneously calculated Appellant’s
aggregate minimum sentence as 3 years. See Order, 11/13/18, at 3. The
Supreme Court has held that “under limited circumstances, even where the
court would normally be divested of jurisdiction, a court may have the power
to correct patent and obvious mistakes.” Commonwealth v. Klein, 781 A.2d
1133, 1135 (Pa. 2001). During the pendency of this appeal, the trial court
recognized its mathematical error and on March 12, 2019, issued an order
reflecting that Appellant’s “aggregate period of state incarceration is two and
a half (2½) years and the maximum is eight (8) years.” Order, 3/12/19.
Neither Appellant nor the Commonwealth take issue with the corrected order.
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Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Here, Appellant has complied with the first three prongs of the test by
raising his discretionary sentencing claim in a timely post-sentence motion,
filing a timely notice of appeal, and including in his brief a Rule 2119(f) concise
statement. See Appellant’s Brief at 7-8. Therefore, we examine whether
Appellant presents a substantial question for review.
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Appellant argues that his sentence is excessive. He claims that the court
“improperly afforded no more than a perfunctory consideration to the
Appellant’s history, characteristics, and rehabilitative needs,” and that it
“failed to properly consider the Appellant’s struggles with substance abuse as
part of a self-medicating regiment [sic] for adverse mental conditions.”
Appellant’s Brief at 11-12. This argument raises a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This
Court has also held that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.”) (citations omitted). Appellant also argues that the trial
court failed to cite “legitimate factors” in imposing an aggravated-range
sentence at his REAP conviction. Appellant’s Brief at 12. This claim likewise
raises a substantial question. See Commonwealth v. Booze, 953 A.2d
1263, 1278 (Pa. Super. 2008) (“[A]n allegation that the court failed to state
adequate reasons on the record for imposing an aggravated-range sentence .
. . raises a substantial question for our review.”) (citations omitted).
We review Appellant’s claims mindful of the following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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
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arrived at a manifestly unreasonable decision. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
The relevant portion of the Pennsylvania Sentencing Code states:
In selecting from the alternatives set forth in subsection (a), 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. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
The Sentencing Code directs that when a trial court imposes an
aggravated range sentence, “it shall state the reasons on the record.” 204
Pa. Code § 303.13. We have explained:
The [trial] court is not required to parrot the words of the
Sentencing Code, stating every factor that must be considered
under Section 9721(b). However, the record as a whole must
reflect due consideration by the court of the statutory
considerations enunciated in that section.
Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)
(citations omitted). Further, “[w]hen a sentencing court has reviewed a pre-
sentence investigation report, we presume that the court properly considered
and weighed all relevant factors in fashioning the defendant’s sentence.”
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Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 A.2d 758, 767
(Pa. Super. 2006)). We instructed:
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. Additionally, the sentencing
court must state its reasons for the sentence on the record. 42
Pa.C.S.A. § 9721(b). The 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 pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004)) (citations omitted).
At sentencing, the trial court stated that it had reviewed the entirety of
Appellant’s pre-sentence investigation report. N.T., 11/13/18, at 4. Before
imposing Appellant’s sentence, the trial court commented at length:
I did receive a pre-sentence report and I reviewed the entire
report. I’ll note, [Appellant has] been committed for over a year
at the Lycoming County Prison. He’s 30 years old, he has no
dependents, he has a GED education, he’s single. A Risk Needs
Assessment was done. He is a maximum risk. 44 percent. I
really don’t know what the percentages mean or what the
numbers mean. I know what maximum and minimum and
medium mean and I’ll talk about that a little bit later.
He did say that he got into a fight with his girlfriend and left
the house. He didn’t pull over. He went on a high speed chase,
he had THC and cocaine in his system, maybe alcohol.
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His prior record includes a conspiracy to commit robbery by
a threat of serious bodily injury, a felony one offense. That was
back in 2007. He did time at -- if I remember correctly, three
separate state correctional facilities and we’ll get to that as -- as
well. He did indicate that he has alcohol problems, narcotics
problems, and psychiatric indicating he was diagnosed at
Rockview -- SCI Rockview with bi-polar, manic depression, and
ADHD.
He’s -- he’s got an employment history, which isn’t
necessarily bad. He worked three years in the landscaping
business and then, if I remember correctly, he got some
automobile skills or mechanic skills in prison and he was working
as a mechanic. He indicated that he had a normal childhood
growing up. He doesn’t remember his parents abusing any
controlled substances or alcohol.
In 2001 he was charged with criminal trespass and was
placed on juvenile probation. He began using marijuana at the
age of 12 and then progressed to alcohol and cocaine when he
was 25. In 2007, that was when he was sent to SCI Pine Grove
for the robbery, conspiracy, and possession with an instrument of
crime. He did three years and then was released to state parole.
He started using drugs and alcohol daily. Violated after
being out for only five months. Then he was sent to Rockview
where he was given the diagnosis of bi-polar, manic-depressive,
and ADHD. He spent some time in their mental health unit and
then was transferred to Waymart where he was receiving mental
health treatment. He was prescribed some medications two
months prior to him maxing out his five year sentence, but
according to the pre-sentence report, he stated, after I maxed
out, I stopped taking my meds because nobody was supervising
me. That’s when I started medicating with alcohol and marijuana.
I weaned myself off of alcohol by switching to cocaine.
He did receive vocational training at Pine Grove as a
mechanic. While he’s been incarcerated, he attends AA/NA, he
completed anger management and some drug and alcohol
treatment that the prison offers. The recommendation is that he
be placed in some sort of dual diagnosis treatment.
Looking at the LSI-R, it has the risk as a maximum, the
possibility of recidivism as a maximum, and he’s got needs with
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alcohol and controlled substances, financial education, and
employment. Criminal history, medium. With a prior record score
of three, the offense gravity score of a five on the fleeing, it’s a
six to 16 month standard range; 15 days on a small amount, that’s
really an RS; paraphernalia is RS to three; DUI controlled
substance is RS to three; recklessly endangering another person
is RS to less than 12; tampering with evidence, RS to four;
resisting arrest, RS to four; disorderly conduct, RS to three. And
it’s an open plea.
The CRN and assessment indicate that he has a problem
drinking and a problem -- elicit [sic] controlled substance problem.
Serious evidence that the controlled substances -- his use was a
pattern that affected his mental health. He was smoking
marijuana every day, using LSD one to two days a week, once or
twice a month using oxycodone, cocaine every day.
As I said, he’s presently 30 years old. Looks like he’s been
using controlled substances since -- for 18 years, although it
progressed.
* * *
[Appellant], this is -- well, all sentences are -- are difficult,
but there are a couple things here that -- that concern me and
that I can’t ignore. I can’t ignore the fact that when you went to
jail and you were released, you went back to controlled substances
and -- and alcohol. When you went to jail the second time and
they gave you your diagnosis and they put you on medications,
you eventually maxed out and then you stopped taking them
because nobody was supervising you, and then you went back to
self-medicating.
And that was over a -- a period of time. If -- if I look at
this, 2007 -- let me see when [you] were sentenced. Sentenced
on -- on October 17th of 2007, so even if I went five years from
there, that takes us to 2012, so this happens in 2017, almost five
years later, and during that -- I’m assuming during that five year
period of time, you didn’t do anything to address your substance
abuse, which you admitted you went to almost immediately, nor
did you do anything to address any mental health issues.
The other thing that I can’t ignore is the fact that I don’t --
don’t have anything that says your mental health issues
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contributed or somehow caused you to act a certain way. Dr.
Calvert has testified in court for me on a [handful] of occasions
and she differentiates mental health issues, some which she calls
serious mental health issues which cause a person to act a certain
way, and others that would not necessarily cause somebody to act
a certain way, but might give them some -- some issues. There’s
no evidence here that you were in some bi-polar manic phase or
some bi-polar incident that then caused you to do this. As your
mom said, you know, you just -- it’s almost this impulse that you
can’t control. And sometimes that’s associated with Bi-polar
Disorder, but -- so that -- that concerns me significantly.
I can’t ignore the facts of this incident. I mean, I can’t
ignore that, you know, on a Tuesday at 9:00 in October, where
people are going to be out, people might be riding their bikes,
people use that bike path all the time. You know, I’m not a
fisherman so I don’t know if people are down there fishing. But
you’re going over 100 miles an hour up on, you know, 180, and
then you’re flying through down in that area and then you actually
go on the bike path. I mean, we’re really lucky. When I say we,
I mean you, me, the community. We’re lucky you didn’t kill, you
know, a bunch of people.
I mean, this type of behavior is very, very, very serious.
And it’s very, very, very dangerous. It’s -- it’s not something in
which I am willing or do I think I should give you a time served
county sentence. I do agree with [defense counsel] that you
might be better served having county resources available to you,
but it’s not like I have an option where I can give you Drug Court,
it’s not like I have an option where you apply or I can give you
DUI Treatment Court, something along those lines. But at this
point, I have to be concerned about protecting the public and I
have to be concerned about the nature of this offense.
* * *
In addressing the purposes of sentencing, the [c]ourt is
primarily concerned with the nature of this offense and protecting
the public. In addressing [Appellant’s] rehabilitation needs, the
[c]ourt notes that [Appellant] has had a substantial period of time
to address his rehabilitation needs, but chose not to address such.
He had opportunities while on state parole, he had opportunities
when he was released after maxing out his state prison sentence,
and he had opportunities continuing through the date of the
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offense. [Appellant] has shown through his prison conduct that
he can participate in treatment successfully. Unfortunately, when
[Appellant] is left to his own devices, he choose not to participate
in treatment. As he admitted, he stopped taking his medications
because nobody was supervising him and he started to self-
medicate. [Appellant’s] choice not to address his substance abuse
issues and his mental health issues creates a huge dilemma to the
[c]ourt -- I mean, for the [c]ourt. Because of [Appellant’s]
choices, he is a clear danger to the public. In this particular case,
the dangers were of a significant extent and degree. The [c]ourt
is greatly concerned that if the proposed treatment and if prior
sanctioning did not work to change [Appellant’s] behaviors and
choices, there’s no reason to think that they would work at this
time. The [c]ourt is hopeful that the minimum sentence with
credit for time served would be sufficient and that [Appellant]
could successfully “walk off” his parole, but is still concerned given
[Appellant’s] history. Finally, offenses of this magnitude are of
such a significant impact on the community that a lesser sentence
would diminish the seriousness of the offense.
N.T., 11/13/18, at 4-7, 13-16, 18-19.
Our review of the record — including the trial court’s detailed remarks
— leads us to conclude that the court considered the appropriate factors when
imposing Appellant’s sentence. In addition to stating it had reviewed
Appellant’s pre-sentence investigation report, the court specifically discussed
Appellant’s age, education, criminal history, mental health and substance
abuse problems, employment history, high recidivism risk, and rehabilitative
needs. The court further noted the applicable standard range sentences, and
discussed the facts attendant to Appellant’s underlying convictions and the
serious nature of Appellant’s crimes, concluding that Appellant posed a danger
to the community.
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In sum, the record belies Appellant’s contention that the court’s
consideration was “perfunctory.” Rather, the record reflects that the trial
court weighed the appropriate factors and provided adequate reasons for
Appellant’s sentence. We discern no error or abuse of discretion by the trial
court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2019
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