Commonwealth v. Swope

J-S44007-15
2015 Pa. Super. 196
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER MICHAEL SWOPE
Appellant No. 1115 WDA 2014
Appeal from the Judgment of Sentence June 11, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011431-2006
CP-02-CR-0014506-2006
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED SEPTEMBER 16, 2015
Appellant Peter Michael Swope appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following the
revocation of his probation. Upon review, we affirm.
The relevant facts and procedural history of this appeal are as follows.
On July 22, 2006, Appellant entered the home of Missy Hodgson while she
was not present. After Miss Hodgson returned home and fell asleep in her
bed, Appellant awakened her by touching her buttocks. Miss Hodgson
screamed and woke her police officer boyfriend, David Pisani. Appellant ran
out of the home, and Mr. Pisani called the police and noticed that his wallet
and police badge were missing.
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The next day, Appellant entered a room of the Hilton Hotel in
Pittsburgh and hid in the armoire until three people returned to their room.
Upon discovering him and noting that he was visibly intoxicated, the hotel
room occupants alerted security guards, who detained Appellant until police
arrived. While he was being detained, Appellant threatened and fought with
the security guards. Police arrested and searched Appellant, revealing Mr.
Pisani’s police badge and other items, including credit cards from other
victims.
On June 5, 2007, Appellant entered a plea of nolo contendere to
burglary1 and indecent assault without consent of other2 relating to his July
22, 2006 offense (“home offense”).3 He also pled nolo contendere to
burglary, terroristic threats with intention to terrorize another,4 simple
assault,5 three counts of receiving stolen property,6 public drunkenness,7
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1
18 Pa.C.S. § 3502(a).
2
18 Pa.C.S. § 3126(a)(1).
3
This was docketed at CP-02-CR-0014506-2006.
4
18 Pa.C.S. § 2706(a)(1).
5
18 Pa.C.S. § 2701(a)(1).
6
18 Pa.C.S. § 3925(a).
7
18 Pa.C.S. § 5505.
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and disorderly conduct,8 relating to the hotel room offense (“first hotel room
offense”).9 For the home offense, the court sentenced Appellant to 18-36
months’ incarceration, followed by 10 years’ probation for the burglary
conviction and 12-24 months’ incarceration, concurrent, for the indecent
assault conviction. For the first hotel offense, the court sentenced Appellant
to 18-36 months’ incarceration, followed by 10 years’ probation for the
burglary conviction, and concurrent two-year periods of probation for each of
the terroristic threats with intent to terrorize another and simple assault
convictions.10 The court imposed the first hotel offense sentence
concurrently with the home offense sentence.
While he was on probation, Appellant was convicted of burglary,
simple assault, theft by unlawful taking,11 and access device fraud12 for an
incident in which he snuck into a Hilton hotel room, tried to get into bed with
a female victim, and stole and used the victim’s credit card. He was also
convicted of corruption of minors13 for having indecent contact with his
____________________________________________
8
18 Pa.C.S. § 5503(a).
9
This was docketed at CP-02-CR-0011431-2006.
10
The trial court imposed no additional sentence for Appellant’s other
convictions.
11
18 Pa.C.S. § 3921(a).
12
18 Pa.C.S. § 4106.
13
18 Pa.C.S. § 6301.
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seventeen-year-old daughter while she was unconscious. Appellant was
sentenced to an aggregate of 7-15 years’ incarceration for these crimes.14
In light of these other convictions, the trial court revoked Appellant’s
probation for the home offense and the first hotel room offense. On June
11, 2014, the court sentenced Appellant to consecutive sentences of 5-10
years’ incarceration for the home offense burglary and 1-10 years’
incarceration for the first hotel room offense burglary.15 This aggregate
sentence of 6-20 years’ incarceration was to be served consecutively to the
7-15 year sentence for the crimes committed while on probation.
On June 16, 2014, Appellant filed a timely motion for reconsideration
of sentence. On July 11, 2014, Appellant filed a timely notice of appeal.16
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14
The court sentenced Appellant on CP-25-CR-0001763-2013 to 60-120
months’ incarceration for the burglary conviction, 12-24 months’
incarceration for the simple assault conviction, and 12-24 months’
incarceration for the access device fraud conviction. The court sentenced
Appellant on CP-25-CR-0002649-2013 to 12-36 months’ incarceration for
the corruption of minors conviction. The sentences were imposed
consecutively, except for the access device fraud conviction, which was
imposed concurrently with the simple assault conviction.
15
The court imposed no additional sentences on Appellant’s other
convictions. The court gave Appellant credit for time served.
16
Although the court did not rule on Appellant’s motion to reconsider
sentence, this appeal is properly before this Court. “The filing of a motion to
modify sentence will not toll the 30-day appeal period.” Pa.R.Crim.P.
708(E). “Any appeal must be filed within the 30-day appeal period unless
the sentencing judge within 30 days of the imposition of sentence expressly
grants reconsideration or vacates the sentence.” Pa.R.Crim.P. 708(E),
Comment. After the 30 days have passed, the trial court is divested of
jurisdiction to rule on the motion to reconsider sentence. See
(Footnote Continued Next Page)
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On August 19, 2014, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he
timely complied on September 9, 2014.
Appellant raises the following issue for our review:
WAS THE SENTENCE OF SIX TO TWENTY YEARS OF
INCARCERATION MANIFESTLY EXCESSIVE, WHERE THE
COURT DID NOT CONSIDER [APPELLANT’S] SERIOUS
REHABILITATIVE NEEDS?
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence
following the revocation of his probation. Specifically, Appellant argues his
sentence of 6-20 years was manifestly excessive, especially because it was
imposed consecutively to his other sentence, resulting in what could be a life
sentence for Appellant. He further avers the trial court failed to consider
Appellant’s rehabilitative needs or mitigating factors and concludes the court
abused its discretion upon fashioning his sentence. We disagree.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
challenge, an appellant must comply with the following requirements:
_______________________
(Footnote Continued)
Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa.Super.1998).
Because Appellant filed a notice of appeal within 30 days of his judgment of
sentence, the appeal is timely, and the trial court lacks jurisdiction to rule on
his motion for reconsideration.
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An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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. [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.
Id.
Presently, Appellant filed a timely notice of appeal and preserved his
issues in a post-sentence motion. Further, Appellant’s brief includes a
concise statement of reasons relied upon for allowance of appeal with
respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.
2119(f). See Appellant’s Brief at 10-12. We now must determine whether
Appellant presents a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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.
Id. (internal citations omitted).
Upon revoking probation, a sentencing court may choose from any of
the sentencing options that existed at the time of the original sentencing,
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including incarceration. 42 Pa.C.S. § 9771(b). However, the imposition of
total confinement upon revocation requires a finding that either “(1) the
defendant has been convicted of another crime; or (2) the conduct of the
defendant indicates that it is likely that he will commit another crime if he is
not imprisoned, or (3) such a sentence is essential to vindicate the authority
of the court.” 42 Pa.C.S. § 9771(c).17
“An appellant making an excessiveness claim raises a substantial
question when he sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations
omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on victim and community, and
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17
We note that an appellant presents a substantial question “when a
sentence of total confinement, in excess of the original sentence, is imposed
as a result of a technical violation of parole or probation.” Commonwealth
v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). Here, the court imposed a
sentence of total confinement in excess of his original sentence based on
two crimes Appellant committed while on probation. Thus, the imposition of
total confinement after the revocation of Appellant’s probation alone does
not raise a substantial question.
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rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa.Super.2006) (internal citations omitted).
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),
appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of
consecutive rather than concurrent sentences will present a substantial
question in only “the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).
To make it clear, a defendant may raise a substantial
question where he receives consecutive sentences within
the guideline ranges if the case involves circumstances
where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a
substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(emphasis in original).
Further, “ordinarily, a claim that the sentencing court failed to consider
or accord proper weight to a specific sentencing factor does not raise a
substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97
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(Pa.Super.2001) (internal citation omitted) (emphasis in original).
Specifically,
[t]here is ample precedent to support a determination that
[a claim that the trial court failed to consider an appellant’s
rehabilitative needs] fails to raise a substantial question….
See Commonwealth v. Cannon, 954 A.2d 1222, 1228–
29 (Pa.Super.2008), appeal denied, 964 A.2d 893
([Pa.]2009) (claim that the trial court failed to consider the
defendant’s rehabilitative needs, age, and educational
background did not present a substantial question);
Commonwealth v. Coolbaugh, 770 A.2d 788, 793
(Pa.Super.2001) (citing Commonwealth v. Mobley, 581
A.2d 949, 952 ([Pa.Super.]1990)) (claim that sentence
failed to take into consideration the defendant’s
rehabilitative needs and was manifestly excessive did not
raise a substantial question where sentence was within
statutory guidelines and within sentencing guidelines);
Commonwealth v. Coss, 695 A.2d 831, 833
(Pa.Super.1997) (when the sentence imposed falls within
the statutory limits, an appellant’s claim that a sentence is
manifestly excessive fails to raise a substantial question);
Commonwealth v. Bershad, 693 A.2d 1303, 1309
(Pa.Super.1997) (a claim that a trial court failed to
appropriately consider an appellant’s rehabilitative needs
does not present a substantial question); Commonwealth
v. Lawson, 650 A.2d 876, 881 ([Pa.Super.]1994) (claim
of error for failing to consider rehabilitative needs does not
present substantial question).
Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013), appeal
denied, 76 A.3d 538 (Pa.2013). Similarly, “this Court has held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (internal citation omitted).
However, “prior decisions from this Court involving whether a
substantial question has been raised by claims that the sentencing court
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‘failed to consider’ or ‘failed to adequately consider’ sentencing factors has
been less than a model of clarity and consistency.” Commonwealth v.
Seagraves, 103 A.3d 839, 842 (Pa.Super.2014) (citing Dodge, supra). In
Commonwealth v. Dodge, this Court determined an appellant’s claim that
the sentencing court “disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence” presented a
substantial question. Dodge, 77 A.3d at 1273.
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.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)
(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).
Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Dodge, supra at 1270 (internal citations omitted).
Based on our review of the foregoing precedents, we conclude that
Appellant’s challenge to the imposition of his consecutive sentences as
unduly excessive, together with his claim that the court failed to consider his
rehabilitative needs and mitigating factors upon fashioning its sentence,
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presents a substantial question. Thus, we grant his petition for allowance of
appeal and address the merits of his claim.
Our standard of review is well-settled:
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be
disturbed on appeal. An abuse of discretion is more than
an error in judgment—a sentencing court has not abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super.2014) appeal
denied, 109 A.3d 678 (Pa.2015).
Here, Appellant waived his right to have a pre-sentence report. See
N.T., 6/11/2014, at 8. Appellant’s counsel asked the court to consider
Appellant’s age, his admission of responsibility for his crimes as well as the
sentence that was already in place. N.T., at 15. In fashioning his sentence,
the court reasoned:
So while on probation for, among other things, burglarizing
the Hilton Hotel here in Pittsburgh, you went and
burglarized a hotel in Erie and you tried to have sex with a
woman while she was asleep. Don’t you think she has the
right to come in here and say Judge, how many chances
are you going to give this guy?
* *
This is [Appellant’s] MO. This is what he does. It has
nothing to do with his mother dying. Nobody’s happy to
hear that. This is what he does. He represents a very
serious threat to the safety of any community which he is
released into after custody.
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* * *
We want to parole people…. We don’t want to keep them
in jail, we want to facilitate their getting out of jail…. But
you’re dangerous when you’re paroled. You’re dangerous
when you’re given freedom. You do the same thing over
and over, and you go after females. This can’t happen…
Here’s what I’m going to do. I’m going to give the
Pennsylvania Board of Parole control of you for a long
time. I’m going to give the department of corrections
control of you for some time, too.
N.T., 6/11/14 at 10-19.
The court explained its decision for imposing Appellant’s consecutive
sentences. After considering mitigating factors and Appellant’ rehabilitative
needs, it found Appellant was dangerous when paroled and needed to spend
a significant amount of time incarcerated. Thus, his claim that the court
failed to consider his rehabilitative needs or mitigating factors is meritless.
Further, Appellant’s aggregate sentence of 6-20 years’ incarceration is not
manifestly excessive for his two burglary offenses, and the court was free to
impose the sentence consecutively to his other sentences for the crimes he
committed while on probation. Appellant is not entitled to a volume discount
for his crimes. See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595,
598 (Pa.Super.2010). We see no abuse of discretion in the trial court’s
sentence.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
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