Com. v. Shaver, R., Jr.

J-S34010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY LEE SHAVER, JR. :
:
Appellant : No. 455 MDA 2020
Appeal from the Judgment of Sentence Entered June 13, 2019
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000516-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 08, 2020
Appellant, Ricky Lee Shaver, Jr., appeals nunc pro tunc from the
judgment of sentence imposed following the revocation of his probation.
Shaver was initially sentenced to six to twelve months’ incarceration followed
by six years’ probation for corruption of a minor and furnishing alcohol to a
minor. After admitting to violating his probation, Shaver’s probation was
revoked and he was resentenced to thirty to sixty months’ incarceration.
Shaver does not contest the revocation of his probation. He claims only that
the court abused its discretion in imposing sentence. We affirm.
On March 5, 2018, Shaver entered a nolo contendere plea to the above
listed charges, arising from an incident where he sexually assaulted a fifteen-
year-old female after providing her with alcohol. He was sentenced to six to
J-S34010-20
twelve months’ incarceration to be followed by six years’ probation. On June
13, 2018, Shaver was released on parole.
Approximately three months later, the probation department filed a
petition to revoke Shaver’s parole, alleging he had been having a romantic
relationship with a minor in violation of his parole. The court granted the
petition and remanded Shaver to county jail to serve the remainder of his
sentence.
In February 2019, a few months after Shaver was released on probation,
the probation department filed a petition to revoke Shaver’s probation,
alleging he had again formed a romantic relationship with a minor in violation
of his probation. Shaver admitted to the violation, and the court granted the
petition to revoke Shaver’s probation. A presentence investigation (“PSI”)
report was prepared.
On June 13, 2019, Shaver was resentenced on his original offenses,
corruption of a minor and furnishing alcohol to a minor, to thirty to sixty
months’ incarceration. His petition for modification of sentence was denied.
This appeal followed.1
____________________________________________
1 On November 7, 2019, Shaver filed a notice of appeal. This Court quashed
the appeal as untimely, noting the filing of a motion to modify sentence
imposed after the revocation of probation will not toll the thirty-day appeal
period. See Pa.R.Crim.P. 708(E). Shaver filed a petition for leave to appeal
nunc pro tunc, which was granted. This timely appeal followed.
-2-
J-S34010-20
On appeal, Shaver contends the court abused its discretion in imposing
his sentence. Specifically, he claims his sentence was “manifestly excessive,
given his stated remorse, acceptance of responsibility for his actions, and
rehabilitative needs”. Appellant’s Brief, at 3. Further, Shaver asserts the court
“clearly failed to weigh the mitigating factors” in his case. Id., at 9.
Shaver concedes this claim challenges the discretionary aspects of his
sentence. “A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
[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. [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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Shaver filed a post-sentence motion to modify sentence and a
timely appeal, and included the requisite Rule 2119(f) concise statement in
his appellate brief. However, due to the disparity between the claims in his
post-sentence motion and his appellate brief, we must determine which, if
-3-
J-S34010-20
any, of the challenges to the discretionary aspects of his sentence have been
preserved for our review.
A defendant can only preserve a claim to the discretionary aspects of a
court’s sentence if he notes a specific objection at the sentencing hearing or
in a post-sentence motion to modify. See id. Shaver did not object to any
aspects of his sentence at the resentencing hearing. Thus, to preserve his
challenges to the discretionary aspects of his sentence, he was required to
note specific challenges to the court’s discretion in his post-sentence motion.
In his motion to modify sentence, Shaver contended a lesser sentence
was appropriate due to his belief that the “substantial” term of incarceration
was based, at least in part, on “imprudent statements” made by Shaver at the
sentencing hearing. Post-Sentence Motion, 7/3/2019, at ¶ 4-5. He further
claimed he was “ill-prepared to speak” at the hearing. Id., at 5. However, in
his Rule 2119(f) statement, Shaver asserts the court “clearly failed to weigh
the mitigating factors” in his case, including his acceptance of responsibility
for his actions, his expression of remorse for his conduct, and his rehabilitative
needs. Appellant’s Brief, at 9. Notably, Shaver failed to reassert the claim from
his post-sentence motion. Because Shaver failed to raise the instant
discretionary sentencing issue in his post-sentence motion or at sentencing,
we find his issue waived. See Commonwealth v. Griffin, 65 A.3d 932, 935
(Pa. Super. 2013) (“Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or in a motion
-4-
J-S34010-20
to modify the sentence imposed”); see also Commonwealth v. Cartrette,
83 A.3d 1030, 1042-43 (Pa. Super. 2013) (en banc) (concluding substantial
question was waived for failing to raise it at sentencing or in post-sentence
motion).
Even if we had not found Shaver’s issue waived, we discern no abuse of
the court’s discretion in imposing sentence.
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. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)
(citation omitted). Here, in its opinion on appeal, the trial court stated:
Per [Shaver’s] Statement of Errors, he believes that his sentence
is “manifestly excessive, given [his] stated remorse, acceptance
of responsibility, and rehabilitative needs.” However, review of the
extensive record in this matter, along with the transcript of
[Shaver’s] resentencing hearing, shows that just the opposite is
true -- [Shaver] has not accepted responsibility for his actions,
and fails to grasp their wrongfulness and the harm they have
caused. In short, despite having been convicted of a third-degree
felony for engaging in a sexual relationship with a 14 year-old girl,
[Shaver] continues to pursue romantic relationships with
underage girls, and sees nothing wrong with it.
Trial Court Opinion, 3/9/2020, at 1. Further, in concluding its sentence was
appropriate, the trial court explained:
In the instant case, the Court had the benefit of not only one but
two presentence investigation reports, along with knowledge of
[Shaver’s] continued course of conduct in seeking romantic
relationships and otherwise inappropriate contacts with underage
-5-
J-S34010-20
girls (despite clear prohibitions on doing so), his complete lack of
remorse and failure to acknowledge the wrongfulness of his
actions, the extent of the harm caused to the 14 year-old girl he
sexually assaulted, and his rehabilitative needs (note that
treatment was ordered as part of the original sentence--treatment
that [Shaver] did not undertake, but which is available to him
during his incarceration at SCI Camp Hill). In light of these
considerations, the sentence imposed on [Shaver] is appropriate.
Id., at 7.
Contrary to Shaver’s assertions, the trial court considered the mitigating
circumstances Shaver claims it did not. Moreover, as the trial court specifically
noted, it had the benefit of two PSI reports. Where a trial court has a PSI, “it
is presumed that the sentencing court was aware of the relevant information
regarding defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa. Super. 2005) (citation and internal quotations marks omitted); see also
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted) (“It would be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at hand”). The
trial court explicitly addressed its review of the second PSI report as well as
the transcript from the resentencing hearing in its opinion. See Trial Court
Opinion, 3/9/2020, at 3-5.
As we find Shaver’s sole issue on appeal is waived, and otherwise
without merit, we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished
-6-
J-S34010-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/08/2020
-7-