Com. v. Leach, J.

J-S35020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA C. LEACH :
:
Appellant : No. 497 MDA 2022
Appeal from the Judgment of Sentence Entered December 14, 2021
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000058-2021
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 28, 2022
Joshua C. Leach appeals from the judgment of sentence entered
following his guilty plea to fleeing/attempting to elude a police officer
(“fleeing/eluding”), a third-degree felony. 18 Pa.C.S.A. § 3733(a). Leach
argues his sentence amounts to cruel and unusual punishment due to his
medical conditions. We affirm.
Leach, whose driver’s license was suspended, drove at speeds
exceeding 100 miles per hour and against oncoming traffic for over four miles
as he fled from police officers to avoid apprehension due to an outstanding
arrest warrant. See Affidavit of Probable Cause, 2/21/21. Following arrest,
the Commonwealth charged him with nine offenses, including three felonies.
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* Former Justice specially assigned to the Superior Court.
J-S35020-22
Leach entered a negotiated guilty plea to one count of fleeing/eluding.
In exchange, the Commonwealth dismissed the other charges and agreed to
a minimum sentence of six months, which is at the bottom of the standard
range of the Sentencing Guidelines. See Trial Court Opinion, 4/25/22, at 1
(citing Guilty Plea Colloquy, 10/7/21). The plea agreement stated that the
court would set the maximum sentence, and that the Commonwealth would
oppose Leach’s request to serve his sentence in a county prison facility. Id.
Before sentencing, the court ordered a pre-sentence investigation report
(“PSI”). The PSI stated that Leach reported that he has degenerative disc
disease and a spinal cord injury, has had a stroke, and requires neck surgery.
PSI at 6. Leach also stated that he takes medication for bipolar disorder. Id.
Due to the gravity of Leach’s actions, his open warrant for domestic violence,
and his “history of violence, escape, and substance use,” the PSI
recommended the court impose a sentence to be served in state prison. Id.
at 7.
At sentencing, regarding his medical conditions, Leach told the court,
“I’m suffering a spinal cord injury, and I just tested positive for COVID today.
I’m having a lot of problems now real bad.” See N.T., 12/14/21, at 4. Defense
counsel stated that Leach “needs to have surgery on his neck” and that he’s
“had considerable other physical problems.” Id. at 5. Counsel argued that a
sentence in a state correctional institution is “not an ideal situation, not for
the state, to be blunt, not for the taxpayers of the Commonwealth of
Pennsylvania, for my purposes not – certainly not for Mr. Leach.” Id. Counsel
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also argued that because Leach had already served his minimum sentence,
the imposition of a county sentence would result in his extradition to Ohio on
his outstanding warrant. Id. at 5-6.
The court sentenced Leach to six months to two and a half years in state
prison. Leach filed a post-sentence motion challenging his sentence, which the
court denied.
Leach appealed. He presents the following issue: “[Leach] respectfully
avers error that occurred where he was sentenced to a state correctional
institution when less restrictive alternatives were available and he suffers from
serious negative medical conditions, which is tantamount to cruel and unusual
punishment.” Leach’s Br. at 4.
Leach includes a statement pursuant to Pa.R.A.P. 2119(f), contending
he “suffers from very serious physical ailments” and that sentencing him to
time in a state correctional institution, “where he could have been given a
county sentence, was unnecessary and arguably, cruel and unusual.” Id. at
7. In the argument section of his brief, Leach notes that “the Eighth
Amendment to the U.S. Constitution and Article 1 Section 13 of the
Pennsylvania Constitution both preclude the imposition of cruel and unusual
punishment.” Id. at 10. He claims that the PSI “comprehensively sets out the
medical dangers” he faces, including “degenerative disc disease, a bipolar
disorder, substance abuse dependence and a spinal cord injury.” Id. at 9. He
points out the PSI also states that he requires surgery. Leach argues that
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sentence requiring him to serve his sentence in a state prison “unnecessarily
and unconstitutionally exacerbated his existing plight.” Id. at 10.
To the extent Leach challenges his sentence as violating the federal and
state Cruel and Unusual Punishment Clauses, his claim implicates the legality
of his sentence. See Commonwealth v. Thorne, 276 A.3d 1192, 1196-97
(Pa. 2022). However, we find the issue waived as undeveloped. The only
authorities Leach cites are the state and federal constitutions, with no
discussion of relevant jurisprudence. See Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009).
Moreover, the claim fails on the merits. He has not shown that his
sentence, falling at the low end of the standard range of the Sentencing
Guidelines, is “wholly and irrationally disproportionate” to the dangerous crime
Leach committed. See Commonwealth v. Yasipour, 957 A.2d 734, 743
(Pa.Super. 2008) (explaining that protection from cruel and unusual
punishment “prohibits sentences which are wholly and irrationally
disproportionate to the crime”). Leach does not actually identify the medical
treatment he allegedly requires, other than “neck surgery.” More to the point,
he does not claim that medical treatment sufficient to meet Eighth
Amendment standards will be unavailable in state prison but could be obtained
in county lockup.
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To the extent Leach challenges the trial court’s decision to order him to
serve his sentence in state prison,1 his challenge goes to discretionary aspects
of sentencing. We will only review a discretionary sentencing claim if the
appellant (1) preserved the issue in the court below, (2) filed a timely notice
of appeal, (3) included in his brief a concise statement of the reasons for the
appeal, see Pa.R.A.P. 2119(f), and (4) has raised a substantial question
whether the sentence is appropriate under the Sentencing Code.
Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019), aff’d, 265
A.3d 541 (Pa. 2021).
It is undisputed that Leach has satisfied the first three of these
requirements. Leach also raised a substantial question by asserting that his
sentence is excessive and that the court failed to consider mitigating
circumstances. See Commonwealth v. White, 193 A.3d 977, 983-84
(Pa.Super. 2018).
We will not grant relief on a discretionary sentencing claim absent a
manifest abuse of discretion. Commonwealth v. Shull, 148 A.3d 820, 831
(Pa.Super. 2016) (quoting Commonwealth v. Antidormi, 84 A.3d 736, 760
(Pa.Super. 2014)). Such an abuse exists only where the court “ignored or
misapplied the law, exercised its judgment for reasons of partiality, prejudice,
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1 See 42 Pa.C.S. § 9762(a)(2) (“Maximum terms of two years or more but
less than five years may be committed to the Department of Corrections for
confinement or may be committed to a county prison within the jurisdiction of
the court.”).
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bias or ill will, or arrived at a manifestly unreasonable decision.” Id. (quoting
Antidormi, 84 A.3d at 760).
As stated above, Leach has failed to explain the way in which he
contends a state sentence affects his medical conditions or treatment.
Furthermore, we presume the sentencing court, which had a PSI, duly
considered Leach’s circumstances, including his medical conditions (which
Leach concedes were identified in the PSI). Commonwealth v. Watson, 228
A.3d 928, 936 (Pa.Super. 2020). We find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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