Com. v. Schock, R.

J-S28045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD WAYNE SCHOCK :
:
Appellant : No. 1675 MDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006658-2017
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: SEPTEMBER 29, 2022
Appellant, Richard Wayne Schock, appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following his
resentencing for one count each of drug delivery resulting in death and
delivery of a controlled substance.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
In the early hours of February 18, 2017, [Decedent] was
found dead in his bedroom in the basement of his parents’
home. Toxicology results revealed elevated levels of
fentanyl in [Decedent’s] blood, and [Decedent’s] cause of
death was determined to be mixed substance toxicity.
A short distance away from [Decedent’s] parents’ home
lived Appellant and his girlfriend, Tammy, at a location
referred to as “the farm.” Jennings Perrine (“Junior”), a
friend of [Decedent’s], ran into Tammy at a store earlier the
day before [Decedent’s] death, and Tammy told Junior that
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1 18 Pa.C.S.A. § 2506 and 35 P.S. § 780-113(a)(30), respectively.
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Appellant was in Baltimore getting heroin. Later that night,
Junior and [Decedent] had a text message conversation
about buying heroin, as they both were interested in
obtaining some. Junior informed [Decedent] he could get
the drugs from “the farm.” Around the time of [Decedent’s]
conversation with Junior, [Decedent] sent Appellant a text
saying, “Did Junior text you? It’s cool if we stop over?” To
Junior’s knowledge, [Decedent] contacted Appellant directly
because Appellant did not care to deal with Junior.
[Decedent’s] phone also made two outgoing calls to
Appellant at 10:05 and 10:17 p.m.
Junior subsequently arrived at [Decedent’s] parents’ house
around midnight to pick up [Decedent], and they went to
the farm, where they met Appellant outside of the farm. At
trial, Junior testified that he saw Appellant get out of his
vehicle and give [Decedent] “what they thought was heroin”
in exchange for $100. Appellant gave [Decedent] six
“footballs,” which were packages of heroin that Appellant
was known to fold up into paper that looked like footballs.
[Decedent] snorted one football in the car, gave another
football to Junior, and Junior dropped off [Decedent] at his
parents’ house. The following morning, Appellant sent
Junior a text which stated, “[Decedent] died, call now.”
Money found in [Decedent’s] wallet after his death was
consistent with testimony that he was paid that day at work,
purchased dinner, and then bought $100 worth of heroin.
Two pieces of paper, folded into a football-like shape, were
found on or inside [Decedent’s] dresser. A tan powdered
substance inside the packages was tested and confirmed to
be fentanyl.
* * *
After an investigation into the circumstances of [Decedent’s]
death, Appellant was arrested and charged as follows:
Count 1—Manufacture, Deliver or Possession with Intent to
Manufacture or Deliver; Count 2—Drug Delivery Resulting in
Death; Count 3—Involuntary Manslaughter; and Count 4—
Conspiracy to [Commit] Drug Delivery Resulting in Death.
On September 20, 2017, a Waiver of Arraignment was
entered….
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* * *
A jury trial began on January 14, 2019; on January 17,
2019, the jury was unable to reach a verdict, and the court
declared a mistrial. On September 19, 2019, the court
granted the Commonwealth’s motion to schedule a date
certain jury trial on November 4, 2019; this was later
continued….
* * *
On July 13, 2020, the case was called to trial…. On July 15,
2020, the jury reached a verdict of guilty as to Count 1—
Manufacture, Deliver or Possession with Intent to
Manufacture or Deliver; Count 2—Drug Delivery Resulting in
Death, and Count 4—Conspiracy to [Commit] Drug Delivery
Resulting in Death. Appellant was found not guilty of Count
3—Involuntary Manslaughter. On August 26, 2020,
Appellant was sentenced to 8½ to 17 years on the drug
delivery resulting in death conviction and a consecutive
sentence of 8 to 16 years on the criminal conspiracy
conviction for an aggregate term of 16½ to 33 years’
imprisonment. [The conviction at Count 1 merged for
sentencing purposes with Count 2.]
* * *
On September 22, 2021, the Superior Court of Pennsylvania
issued a Decision on Appellant’s Appeal and affirmed
Appellant’s Convictions at count 1 (delivery of a controlled
substance) and count 2 (drug delivery resulting in death),
but vacated Appellant’s conviction at count 4 (criminal
conspiracy to [commit] drug delivery resulting in death) and
remanded the case for resentencing as to not “upset the
sentencing scheme envisioned by the [sentencing] court.”
[See Commonwealth v. Schock, No. 1396 MDA 2020,
unpublished memorandum at 23 (Pa.Super. filed Sep. 22,
2021).] The Superior Court of Pennsylvania provided,
“[because] the trial court sentenced [Appellant] to a
consecutive 8 to 16 years’ imprisonment for conspiracy, our
vacation of that conviction upsets the trial court’s
sentencing scheme. Thus, [Appellant] must be resentenced
on the drug delivery resulting in death and delivery of a
controlled substance convictions that we have affirmed.”
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[Id.]
On November 23, 2021, Appellant [appeared] for
resentencing on the drug delivery resulting in death and
delivery of a controlled substance convictions. At the
November 23, 2021 sentencing hearing [the trial court]
merged the drug delivery resulting in death and delivery of
a controlled substance convictions and sentenced Appellant
to 16½ to 33 years to be served in the state correctional
facility. [The trial court] gave Appellant 1,497 days of time
served credit. Additionally, [the trial court] ordered
Appellant to pay restitution….
Appellant filed a Post-Sentence Motion on November 30,
2021, and [the trial court] denied that Motion on December
[3], 2021. On December 20, 2021, Appellant filed a Notice
of Appeal. Appellant was directed to file a Concise
Statement of Matters Complained of on Appeal by [the trial
court] on December 22, 2021. Appellant filed a Statement
of Matters Complained on January 10, 2022.
(Trial Court Opinion, filed 2/16/22, at 1-6) (internal footnotes omitted).
Appellant now raises one issue on appeal:
Whether the … trial court erred and abused its discretion in
re-sentencing [A]ppellant to 16½ to 33 years on the charge
of drug delivery resulting in death when the Superior Court
did not disturb the conviction or the sentence of 8½ to 17
years in the prior appeal for drug delivery resulting in death?
(Appellant’s Brief at 4).
Appellant argues that the court imposed a longer sentence for the drug
delivery resulting in death conviction upon remand. Although not expressly
stated in the brief, Appellant’s claim implies judicial vindictiveness at the
resentencing hearing. Appellant maintains that the court did not provide any
reasons for the increased sentence during the resentencing hearing. Further,
Appellant contends that the court violated his constitutional rights by imposing
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a longer sentence for the drug delivery resulting in death conviction where
this Court did not disturb that conviction in the prior appeal. Appellant also
alleges that his new sentence potentially violates the double jeopardy
provisions of the United States and Pennsylvania Constitutions. Appellant
concludes this Court must vacate the sentence and remand for resentencing.
We disagree.
As presented, Appellant’s claim challenges the discretionary aspects of
his sentence. See Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa.Super.
2017) (en banc) (stating that claim of judicial vindictiveness in resentencing
constitutes challenge to discretionary aspects of sentencing). “Challenges to
the discretionary aspects of sentencing do not entitle an appellant to an appeal
as of right.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super.
2008), cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174 L.Ed.2d 240 (2009).
Prior to reaching the merits of a discretionary aspects of sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 1410 [now Rule 720]; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
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When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112
(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “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. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.
2011)). A substantial question is raised when an appellant alleges that his
sentence on remand was a product of vindictiveness. See Barnes, supra at
123.
Instantly, Appellant timely filed his notice of appeal, he preserved his
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issue by including it in his post-sentence motion, and his appellate brief
includes a Rule 2119(f) statement. Appellant’s claim also raises a substantial
question as to the appropriateness of the sentence imposed. See id.
Accordingly, we proceed to address the merits of Appellant’s issue.
This Court reviews discretionary sentencing challenges based on 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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), cert. denied,
545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. When considering the
propriety of a sentence that falls above the guideline ranges, but below the
statutory maximum, this Court has noted:
Through the Sentencing Code, the General Assembly has
enacted a process by which defendants are to be sentenced.
As a threshold matter, a sentencing court may select one or
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more options with regard to determining the appropriate
sentence to be imposed upon a defendant. … In making
this selection, the Sentencing Code offers general standards
with respect to the imposition of sentence which require the
sentencing court to impose a sentence 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.” Thus, sentencing is individualized; yet, the
statute is clear that the court must also “consider” the
sentencing guidelines adopted by the Pennsylvania
Commission on Sentencing. If the court imposes a sentence
outside of the sentencing guidelines, it must provide a
written statement setting forth the reasons for the deviation
and the failure to do so is grounds for resentencing.
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa.Super. 2007) (internal
citations and footnote omitted).
Further, when evaluating claims of judicial vindictiveness:
Due process of law, then, requires that vindictiveness
against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives
after a new trial. And since the fear of such vindictiveness
may unconstitutionally deter a defendant’s exercise of the
right to appeal or collaterally attack his first conviction, due
process also requires that a defendant be freed of
apprehension of such a retaliatory motivation on the part of
the sentencing judge.
In order to assure the absence of such a motivation, we
have concluded that whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear. Those
reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased
sentence is based must be made part of the record, so that
the constitutional legitimacy of the increased sentence may
be fully reviewed on appeal.
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Barnes, supra at 123 (emphasis omitted). The aforementioned “rationale
for providing reasons on the record applies also when the original sentence is
vacated and a second sentence is imposed without an additional trial.” Id.
Here, the sentencing court provided the following on-the-record
statement of reasons to support the sentence imposed:
[T]he sentencing guidelines in this case reflect that
[Appellant’s] standard range is 96 months to 114.[2] I can
deviate upwards if I put [reasons] on the record for my
deviation or, quite frankly, the guidelines are simply that.
They are guidelines which I take into consideration when I
impose a sentence. But if I’m going to not follow the
guidelines, I’m required to put on record the reasons for
that. There are a series of factors that the sentencing code
takes into consideration and I’ll go through these factors as
reflected in the statute.
[Appellant’s] probationary status at the time of the offense,
[the] Commonwealth has advised that [Appellant] was not
on probation, but I do note, and I’m aware that [Appellant]
was out on bail for the charge of the DUI. That, of course,
bail conditions are you commit no violations of the law while
you’re in jail. There’s not much greater violations of the law
[than] in this case.
[Appellant] not cooperating with the police is the second
factor they list. In this case, the officer in the [pre-sentence
investigation (“PSI”) report] reflected that [Appellant] had
two opportunities to meet with the police and to give his
side of the story. He chose to do so and denied on both
occasions any involvement whatsoever in this case. The
jury did not bear out that.
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2 Appellant’s prior record score was five. (See N.T. Sentencing Hearing,
8/26/20, at 27). The offense gravity score for drug delivery resulting in death
is thirteen. See 204 Pa.Code § 303.15. Thus, the court correctly noted that
the standard range of the Sentencing Guidelines was 96 to 114 months. See
204 Pa.Code § 303.16(a).
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Employment record. I note that he has been employed but
if I quote him his work history, he worked on and off. That
was his definition. Those were his quotes, so it’s not a great
work employment record. A history of violence, his criminal
conviction history while he’s I think a five, does not reflect
crimes of violence. It does reflect his continued pattern of
drugs throughout his entire criminal history as well as
behavior which is occasioned by drugs which includes DUI.
So I take into consideration the very fact that his prior
record score is a five. I know we use that in calculating
guidelines but I use that in determining whether or not
[Appellant] has advanced beyond his normal behaviors
through any time since he started his original criminal
history. And, again, [Appellant’s] statements during the PSI
were that he had multiple treatments [at] White Deer Run,
Lancaster, Lebanon, York, Cove Forge, his self-report to
probation is, I’ve been in treatment 15 different times and
I’ve had no success in dealing with that.
He quit school in 10th grade. He never sought to get a GED.
He said, I don’t need a GED for what I do. Obviously, he
doesn’t need it to be a dope dealer. …
I note as well, and take into consideration, between the time
[Appellant] was originally arrested and while he was in the
York County Prison, he didn’t do very well there. On July
15th of 2020, that was just a couple of weeks before his
sentencing, he had three different offenses for possessing
drugs for which he received some kind of [punitive]
sanction.
Going backwards in time, May 25th he engaged in an act that
endangered other people. April 24th he engaged in an act
that endangers other people. March 6th engaged in an act
that endangers other people. January 3rd he refused an
Order, and that was in 2020. Back in 2019, conduct that
disrupts[,] … contraband … and lying. On July 28th, engaged
in fighting. August 12, 2018, he engaged in fighting. April
16, 2018, interference, disrespect, and abusive language.
And I note, as well as counsel has, there’s an intimidation
charge that was part of this case when he intimidated a
witness that was scheduled to appear and testify just
moments before he testified, moments in terms of hours.
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I believe that the sentence that I originally collectively
imposed is still an appropriate disposition in this case.
Accordingly, the sentence of the [c]ourt in Count 1,
possession with intent to deliver fentanyl, I agree and that
continues to merge with Count 2. We will not impose a
sentence on that. Drug delivery resulting in death, the
sentence of the [c]ourt is 16 and a half to 33 years to be
served in the state correctional facility.
(N.T. Resentencing Hearing, 11/23/21, at 6-9).
Contrary to Appellant’s assertions, the court provided an on-the-record
statement of its reasons for imposing a sentence above the guideline ranges.
The court simply chose to resentence Appellant to the same aggregate
sentence as originally imposed to preserve the integrity of the original
sentencing scheme. See Barnes, supra at 125 (explaining trial court’s
resentencing did not rise to vindictiveness because court sought to preserve
integrity of original sentencing scheme by imposing same aggregate
sentence). To the extent Appellant claims that his new sentence runs afoul of
double jeopardy principles, a trial court does not violate double jeopardy by
increasing a sentence on remand where the aggregate term is not increased.
See id.
Further, the court properly considered the particular circumstances of
the case and Appellant’s individual character. See Griffin, supra.Specifically, the court found that Appellant’s conduct warranted a lengthy
sentence due to Appellant’s lack of cooperation with police, spotty
employment record, educational background, conduct in prison, and
intimidation of a witness. Under these circumstances, we see no abuse of
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discretion. See McNabb, supra. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/29/2022
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