Com. v. Keiper, K.

J-S40036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KURT J. KEIPER
Appellant No. 2275 MDA 2013, 2276
MDA 2013, 2277 MDA 2013,
2278 MDA 2013, 2279 MDA
2013, 2280 MDA 2013, 2281
MDA 2013, 2282 MDA 2013,
2283 MDA 2013, 2284 MDA
2013, 2285 MDA 2013, 2286
MDA 2013, 2287 MDA 2013
Appeal from the Judgment of Sentence November 19, 2013
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000351-2010
CP-55-CR-0000352-2010
CP-55-CR-0000087-2011
CP-55-CR-0000088-2011
CP-55-CR-0000089-2011
CP-55-CR-0000090-2011
CP-55-CR-0000091-2011
CP-55-CR-0000092-2011
CP-51-CR-0000106-2011
CP-55-CR-0000347-2012
CP-55-CR-0000349-2012
CP-55-CR-0000350-2012
CP-51-CR-0000351-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 20, 2014
J-S40036-14
Appellant, Kurt James Keiper, appeals from the amended judgment of
sentence entered on November 19, 2013, by the Court of Common Pleas of
Snyder County. We affirm.
On January 31, 2012, Keiper pled guilty to 15 counts of theft by
deception1 (13 of those counts amount to third degree felonies and 2 of
those counts were first-degree misdemeanors) and one count for bad
checks2 (a first-degree misdemeanor). Keiper pled guilty to taking down
payments from individuals and businesses for their purchase of high-end
vehicles without ever providing the purchased vehicle to the customer and
issuing two checks for services provided to him which were subsequently not
y was not strictly limited to Synder County,
Pennsylvania. It reached for example, British Columbia and Massachusetts.
On November 14, 2012, the trial court sentenced Keiper to an
originally sentenced Keiper to a Recidivism Risk Reduction Incentive
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quarters of the minimum sentence. However, on March 15, 2013, the trial
court subsequently amended the RRRI minimum to 12.5 years, calculated by
taking five-sixths of the minimum sentence. The trial court amended the
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1
18 Pa.C.S.A. § 3922.
2
18 Pa.C.S.A. § 4015.
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sentence after receiving notice from the Pennsylvania Department of
Corrections that there could be a sentencing error. No appeal was filed after
the amended sentence.
Subsequently, Keiper filed two PCRA petitions and on October 4, 2013,
the PCRA court reinstated his appellate rights nunc pro tunc. Keiper then
filed a motion to modify his sentence. On November 19, 2013, the trial court
denied the motion in part and decided to strike the provision that the
restitution be paid in full before Keiper is eligible for parole. This timely
appeal now follows.
was manifestly excessive and that the trial court failed to consider all the
required sentencing factors within the sentencing code. As a general rule,
sentencing is a matter vested within the sound discretion of the trial court,
and this Court will not disturb the sentence on appeal absent manifest abuse
of discretion. See Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.
Super. 2011). An appeal challenging the discretionary aspects of a sentence
is not available as of right and we can only reach the merits where there is a
substantial question that the sentence imposed is not appropriate under the
sentencing code. See Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.
Super. 1995); 42 Pa.C.S. § 9781(b). Our review must solely focus on the
reasons for which the appeal is sought as opposed to the facts underlying
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the appeal. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.
Super. 2006).
In order to raise an appeal challenging the discretionary aspects of a
sentence the appellant must satisfy four requirements. First, the appellant
must file a timely appeal. See Commonwealth v. Malovich, 903 A.2d
1247, 1250 (Pa. Super. 2006). Second, the appellant must preserve his
objection in the trial court in order for it to be presented on appeal. See
Shugars, 895 A.2d at 1274. Third, pursuant to Pa.R.A.P. 2119(f), the
allowance of appeal. Lastly, pursuant to 42 Pa.C.S. § 9721(b), the appellant
must demonstrate that a substantial question exists as to whether the
sentence imposed is inappropriate under the Sentencing Code.
A substantial question exists when the appellant advances a colorable
with a specific provision of the Sentencing Code or 2) contrary to the
fundamental norms that underlie the sentencing process. See
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005).
Furthermore, we consider substantial questions on a case-by-case
basis. See Urrutia, 653 A.2d at 710. In determining whether a substantial
question exists, this court does not examine the merits of the questions
posed to us for our review. See Commonwealth v. Tuladziecki, 522 A.2d
17, 19 (Pa. 1987). A substantial question is not raised when the appellant
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contends that the trial court failed to c
See
Urrutia, 653 A.2d at 706.
We find that Keiper has satisfied the four above-mentioned
requirements. Further, we find that Keiper has raised two substantial
questions for our review. First, that the trial court failed to consider did not
analyze of the factors found within 42 Pa.C.S.A. § 9721(b), specifically his
rehabilitative needs. See Commonwealth v. Dodge, 77 A.3d 1263, 1272
the consecutive sentence is unreasonably excessive in light of the fact that it
is a virtual life-sentence for a non-violent property crime. See id., at 1273.
We begin with the argument that the trial court failed to consider the
factors in § 9721(b). In fashioning its sentence, a trial court must consider
the protection of the public, the gravity of the offense on the victim and
community, and the rehabilitative needs of the defendant. See 42 Pa.C.S.A.
§ 9721(b). Where the sentencing judge has the benefit of a pre-sentence
investigation report, a presumption exists that he was aware of and
mitigating factors. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988).
Instantly, when fashioning its sentence, the trial court had the benefit
of a pre-sentence report. See N.T., Sentencing, 11/14/12, at 8. As such,
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there is a strong presumption that the trial court considered all the factors
required by 42 Pa.C.S. § 9721. Indeed, a review of the sentencing
transcript reveals that the trial court considered all of the required
sentencing factors found within 42 Pa.C.S.A. § 9721. In particular, the
record indicates that the trial court considered the nature of his crime as well
See id. Furthermore, there is
of taking advant
he had committed. Id.
manifestly excessive as it is a virtual life sentence for non-violent property
crimes. First, we must note that Keiper does not have a virtual life sentence.
While it is true that Keiper has an aggregate sentence of 12.5 to 78 years,
Keiper will be eligible for parole at around age 54.3 As such, this does not
amount to a life sentence, especially when the trial court vacated the
requirement that Keiper is not eligible for parole until his restitution has
been paid in full. See
lifetime when he is first eligible for parole.
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3
Defendant was approximately 42 years old at the time of sentencing.
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Here, the trial court imposed a standard range sentence for each
offense, but ran them consecutively. A panel of this Court in Dodge
determined that it was not excessive or unreasonable for a defendant to
receive an aggregate sentence of 40 years, seven months to 81 years, two
months for multiple counts of stolen property. See 77 A.3d at 1275. Like in
Dodge, Keiper was charged with multiple counts of non-violent property
crimes. As such, we find that, just as the defendant in Dodge did not have
an excessive sentence, the sentence imposed upon Keiper by the trial court
is not an excessive or unreasonable sentence. Therefore, we find that the
trial court did not abuse its discretion in imposing the consecutive aggregate
sentence upon Keiper.
The second issue that Keiper raises on appeal is that the trial court did
not have the ability to amend his RRRI minimum sentence after 30 days
elapsed pursuant to 42 Pa.C.S.A. § 5505. The issue that Keiper raises on
appeal, challenging the power of courts to correct an allegedly illegal
sentence absent jurisdiction pursuant to 42 Pa.C.S.A. § 5505, is a question
of law for which our review is plenary. See Commonwealth v. Holmes,
933 A.2d 57, 65 (Pa. 2007).
The statute states in relevant part:
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.
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42 Pa.C.S.A. § 5505. Notwithstanding the tri
courts still have the inherent power to correct patent errors absent
traditional jurisdiction. See Holmes
has been upheld as an exception to section 5505 because section 5505 was
never intended to create a strict jurisdictional deadline for correcting orders
Commonwealth v.
Jackson, 30 A.3d 516, 522 (Pa. Super. 2011). As such, the jurisdiction
imposition of an obviously illegal sentence. See Holmes, 933 A.2d at 67.
We find that the above-mentioned exception applies here. In imposing
The statute, 61 Pa.C.S.A. § 4505(c)(2), requires the trial court to fashion a
-sixths of the minimum
4
sentence if the minimu However,
the trial court originally imposed a RRRI sentence that was three-quarters of
because the statute required the usage of the five-sixths formula. It was
during the November 19, 2013, hearing that the trial court amended the
original RRRI minimum sentence to a legal sentence using the five-sixths
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4
minimum sentence is based is greater than three years.
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formula. Although this amendment to sentencing occurred outside of the
30-day statutory time bar, we find that the trial court permissibly used its
inherent power to modify the patently erroneous illegal RRRI sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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