Com. v. Schooley, R.

J-S36030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RUSSELL L. SCHOOLEY :
: No. 247 WDA 2020
Appellant
Appeal from the Judgment of Sentence Entered January 16, 2020
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000896-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RUSSELL L. SCHOOLEY :
:
Appellant : No. 248 WDA 2020
Appeal from the Judgment of Sentence Entered January 16, 2020
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0000953-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RUSSELL L. SCHOOLEY :
:
Appellant : No. 249 WDA 2020
Appeal from the Judgment of Sentence Entered January 16, 2020
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001053-2019
J-S36030-20
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 28, 2020
Appellant, Russell L. Schooley, appeals from the judgments of sentence
entered in the Blair County Court of Common Pleas, following his guilty pleas
to aggravated assault, retail theft, fleeing or attempting to elude police, and
driving under the influence of a controlled substance (“DUI”).1 We affirm.
The relevant facts and procedural history of this case are as follows:
[Appellant] was charged by the Altoona Police Department
on or about April 15, 2019 with the crimes of aggravated
assault, burglary, criminal trespass, simple assault,
recklessly endangering another person, tampering with or
fabricating physical evidence and harassment. [Appellant]
was also charged by the Altoona Police Department on or
about April 17, 2019 with the offense of fleeing or
attempting to elude police, [DUI], and related charges. He
was also charged by the Allegheny Township Police
Department on or about April 18, 2019 on a charge of retail
theft. These criminal prosecutions proceeded through the
Blair County Criminal Court process.
[Appellant] appeared before [the] [c]ourt on October 7,
2019 where he entered a guilty plea to Count 1 aggravated
assault, a felony of the first degree at 2019 CR 896, Count
1 retail theft as a felony of the third degree at 2019 CR 953
and Count 1 fleeing or attempting to elude police, felony of
the third degree and Count 4 [DUI], an ungraded
misdemeanor at 2019 CR 1053. At the time of the guilty
plea, the defense made a request for a presentence
investigation. [The] [c]ourt directed that a presentence
investigation be completed and that the investigation be
forwarded to the [c]ourt. [The court] also directed [c]ourt
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1), 3929(a)(1), 75 Pa.C.S.A. §§ 3733(a),
3802(d)(2), respectively.
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[a]dministration to schedule a sentencing hearing.
Subsequent to [Appellant’s] plea of guilty, he requested that
a mental health evaluation in aid of sentencing be
conducted. An Order was signed on November 26, 2019
directing the evaluation to occur. This evaluation was
admitted as part of the record at the sentencing hearing.
A sentencing hearing occurred on January 16, 2020. At the
conclusion of the sentencing hearing, [the] [c]ourt
sentenced [Appellant] to a period of incarceration of no less
than ninety (90) months to no more than one hundred
eighty (180) months on the charge of aggravated assault, a
minimum of six (6) months to no less than twenty-four (24)
months on the charge of retail theft, a sentence of no less
than one (1) month to a maximum of thirty-six (36) months
on the charge of fleeing or attempting to elude police and a
minimum of seventy-two (72) hours to a maximum of six
(6) months on the charge of [DUI]. [The] [c]ourt directed
that all the sentences with the exception of the [DUI] would
run consecutive. [The court] directed that the [DUI] offense
would run concurrent. [The] sentence order also directed
[the] sentence to run concurrent with an unrelated sentence
imposed by the Honorable Judge Timothy M. Sullivan on
January 2, 2020 at docket number 2018 CR 1837. …[T]he
aggregate sentence rendered by [the] [c]ourt was a
minimum of ninety-seven (97) months to a maximum of two
hundred forty (240) months.
[Appellant] filed a Motion for Modification of Sentence on
January 21, 2020 which was denied by [the] [c]ourt on
January 27, 2020. [Appellant] filed a timely Notice of
Appeal [at each trial court docket]. [The] [c]ourt directed
[Appellant] to file a Concise Statement of Matters
Complained of on Appeal. [Appellant] filed such a statement
on February 25, 2020.
(Trial Court Opinion, filed March 18, 2020, at 1-3). This Court consolidated
the appeals sua sponte on March 2, 2020.
Appellant raises two issues for our review:
Whether the sentencing court committed an abuse of
discretion by sentencing the [Appellant] at the top of the
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standard range on aggravated assault and by imposing
incarceration on retail theft and fleeing creating an
aggregate sentence that is manifestly unreasonable[?]
Whether the sentencing court committed an abuse of
discretion by only considering the nature of the offenses and
failing to consider mitigating factors[?]
(Appellant’s Brief at 2).
In his issues combined, Appellant argues the court abused its discretion
in imposing an aggregate sentence of 97 to 240 months. Specifically,
Appellant contends the sentence is excessive and unreasonable where the
court (1) sentenced Appellant to the top of the standard range for aggravated
assault; (2) sentenced Appellant to consecutive sentences of incarceration for
the retail theft and fleeing/eluding convictions, even though the
Commonwealth recommended probation for those offenses; and (3) failed to
consider the mitigating circumstances that Appellant committed the
aggravated assault in the “heat of passion” after discovering his girlfriend in
bed with another man, and that the stabbing of the man was accidental.
As presented, Appellant’s claims challenge the discretionary aspects of
his sentence. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.
2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (considering
challenge to imposition of consecutive sentences as claim involving
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
949, 964 (Pa.Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing); Commonwealth
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v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).2
Initially, as a general rule, “issues not raised in a [Rule] 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 585 Pa.
395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553
Pa. 415, 420, 719 A.2d 306, 309 (1998)). “Rule 1925(b) waivers may be
raised by the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa.
410, 427, 16 A.3d 484, 494 (2011).
Furthermore, challenges to the discretionary aspects of sentencing do
not entitle an appellant to an appeal as of right. Commonwealth v. Sierra,
752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
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. 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
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as
to sentencing, so he can challenge the discretionary aspects of his sentence.
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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) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a timely-filed post-
sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is 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.” 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) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks
omitted).
“The determination of what constitutes a substantial question must be
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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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. Bald allegations of excessiveness, however, do not raise a substantial
question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather,
a substantial question will be found “only where the appellant’s Rule 2119(f)
statement 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….”
Id. “An allegation that a sentencing court ‘failed to consider’ or ‘did not
adequately consider’ certain factors does not raise a substantial question that
the sentence was inappropriate.” Cruz-Centeno, supra at 545 (quoting
Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), appeal
denied, 541 Pa. 625, 661 A.2d 873 (1995)). As well, where the sentencing
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court had the benefit of a PSI report, we can presume the court was aware of
and weighed relevant information regarding a defendant’s character along
with mitigating statutory factors. Tirado, supra at 366 n.6.
Furthermore,
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact, this
Court has recognized the imposition of consecutive, rather
than concurrent, sentences may raise 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.
Austin, supra at 808 (internal citations and quotation marks omitted). See
also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(stating appellant is not entitled to “volume discount” for his crimes by having
all sentences run concurrently).
Instantly, Appellant did not object at sentencing, in his post-sentence
motion, or in his Rule 1925(b) statement on the ground that the court failed
to consider that Appellant committed the aggravated assault in the “heat of
passion” after discovering his girlfriend in bed with another man and that the
stabbing of the man was accidental. Thus, Appellant waived this sentencing
challenge for purposes of our review. See Castillo, supra; Mann, supra.3
____________________________________________
3In both his post-sentence motion and Rule 1925(b) statements, Appellant
does argue that his sentence was excessive because the court failed to
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Appellant properly preserved his remaining sentencing claims.
Nevertheless, Appellant’s bald allegation of excessiveness does not warrant
our review. See Mouzon, supra. Appellant’s complaint regarding the court’s
imposition of consecutive sentences of incarceration for the retail theft and
fleeing/eluding convictions also fails to raise a substantial question.4 See
Austin, supra. Thus, Appellant is not entitled to relief on these grounds.
Accordingly, we affirm the judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2020
____________________________________________
consider all the factors under 42 Pa.C.S.A. § 9721(b). Nevertheless, Appellant
failed to develop this issue in his brief. Therefore, it is waived. See Pa.R.A.P.
2119; Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924
(2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010)
(stating claim is waived where appellate brief does not include citation to
relevant authority or fails to develop issue in any meaningful fashion capable
of review).
4 Although the Commonwealth recommended probation on the retail theft and
fleeing/eluding convictions, that recommendation was not a specific term of
the plea agreement. (See N.T. Guilty Plea Hearing, 10/7/19, at 3-4).
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