Com. v. Miller, D.

J-S44010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLAS WILLIAM MILLER :
:
Appellant : No. 137 MDA 2022
Appeal from the Judgment of Sentence Entered December 21, 2021
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001175-2021,
CP-21-CR-0001566-2019, CP-21-CR-0002014-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 4, 2023
Douglas William Miller appeals the judgement of sentence entered by
the Cumberland County Court of Pleas on December 21, 2021. Specifically,
Miller claims the trial court abused its discretion in denying the request for
unsecured bail pending resolution of his post-sentence motions and appeal.
He maintains the trial court further abused its discretion by imposing excessive
and unduly harsh sentences rather than accepting the sentences
recommended by the Commonwealth. Additionally, Miller asserts that the trial
court imposed an unlawful sentence by failing to award him credit for 22 days
of time served. While we find that Miller’s first two claims are without merit,
we agree that he should be credited for his time served.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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For purposes of this appeal, the following factual and procedural history
is undisputed. The sentence at issue arises from three consolidated dockets:
CP-21-CR-1566-2019, CP-21-CR-1175-2021, and CP-21-CR-2014-2021.
At CP-21-CR-1566-2019, Miller pleaded guilty to a charge of third-
degree retail theft for stealing $74.06 worth of items from a Walmart in
Cumberland County, PA.1 On March 10, 2020, the trial court sentenced Miller
to pay court costs, make restitution to Walmart, and undergo a period of
supervised probation for 24 months on the conditions that he remain on good
behavior and comply with probation standards.
While on probation, Miller was arrested on July 27, 2021, for crimes
under the other two dockets. At docket number 1175-2021, Miller pleaded
guilty to one count of receiving stolen property for leaving a supermarket with
$99.96 worth of seafood from a Giant supermarket that he had not paid for.
Similarly, at docket number 2014-2021 Miller pled guilty to one count of
receiving stolen property for leaving a Walmart with $265.96 worth of meat
products that he had not paid for.
At a November 30, 2021 hearing, the trial court accepted Miller’s guilty
pleas at docket numbers 1175-2021 and 2014-2021. At the same hearing,
Miller also admitted to violating the conditions of his parole sentence at docket
____________________________________________
1Miller had three prior convictions for retail theft, elevating the grading of this
offense. See 18 Pa.C.S.A. § 3929(b)(1)(iv).
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number 1566-2019. As such, the trial court revoked his probation and ordered
that Miller appear for an omnibus sentencing hearing on December 21, 2021.
On December 21, 2021, the trial court resentenced Miller at docket
number 1566-2019 to 15 to 60 months’ imprisonment. The court awarded
Miller credit for the five and half months he had served since his July 27, 2021
arrest. At docket number 1175-2021, the court sentenced Miller to serve not
less than 6 months nor more than 2 years in prison, to be served consecutively
to his sentence at 1566-2019. Additionally, at docket number 2014-2021, the
court sentenced Miller to serve not less than 6 months nor more than 2 years
in prison, to be served concurrently with the sentence at 1175-2021.
On December 31, 2021, Miller’s counsel filed post-sentence motions
which included a request for unsecured bail pending resolution of his post-
sentence motion and expected appeal. See Post-Sentence Motions, 12/31/21,
at 7. On January 3, 2022, the trial court denied the post-sentence motions
and Miller’s request for unsecured bail, declaring Miller’s “extensive record and
inability to remain arrest free militates against any bail[.]” Order of Court,
1/3/22.
In his first argument on appeal, Miller claims the trial court abused its
discretion in denying his request for unsecured bail pending resolution of his
post-sentence motions and appeal. We begin our analysis of this claim by
observing that Miller was unable to post bail in the amount of $1,000 after his
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arrest on July 27, 2021. He therefore remained in jail throughout the
remainder of the proceedings in the trial court.
Under our Rules of Criminal Procedure, “when the sentence imposed
includes imprisonment of 2 years or more, the defendant shall not have the
same right to bail as before verdict, but bail may be allowed at the discretion
of the judge.” Pa.R.Crim.P. 521(B)(2). Moreover, “[w]henever bail is refused
or revoked under this rule, the judge shall state on the record the reasons for
this decision.” Id. Bail decisions are left to the discretion of the trial court.
Commonwealth v. Myers, 86 A.3d 286, 291-94 (Pa. Super. 2014). In
reviewing a trial court's order denying bail for an abuse of discretion, this court
“will only reverse where the trial court misapplies the law, or its judgment is
manifestly unreasonable, or the evidence of record show that its decision is a
result of partiality, prejudice, bias, or ill will." Commonwealth v. Bishop,
829 A.2d 1170, 1172 (Pa. Super. 2003) (citations and brackets omitted).
Here, the maximum aggregated sentence imposed by the trial court was
7 years. Therefore, under Rule 521, the trial court was not required to provide
the same right to bail which Miller had prior to his guilty plea. Rather, the trial
court was permitted to exercise its discretion in determining whether to offer
Miller an opportunity to post bail and under what circumstances.
Miller contends “[t]he trial court failed to give reasons on the record for
its denial of bail on appeal.” Appellant’s Brief, at 13. Miller also argues that
the trial court abused its discretion under these circumstances since the
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Commonwealth concurred with Miller’s bail request. Contrary to Miller’s first
argument, the trial court stated its reasoning for the decision explicitly: "The
defendant's extensive record and inability to remain arrest free militates
against any bail, especially in light of a sentence of incarceration of 21 months
to seven years." Order of Court, 1/3/22. Further, the ultimate decision on
whether to grant Miller’s request rested in the trial court, not with the
Commonwealth. See Pa.R.Crim.P. 521(D)(2) (“The decision whether to
change the type of release on bail or what conditions of release to impose
shall be based on the judge’s evaluation…”). Notably, the Commonwealth now
defends the court’s refusal of Miller’s bail request. See Commonwealth’s Brief,
at 10. In any event, we cannot conclude the trial court abused its discretion
here. Miller’s extensive criminal history and multiple recent thefts – while on
probation – certainly support the trial court’s evaluation. Miller’s first issue on
appeal merits no relief.
Next, Miller argues the court abused its discretion in imposing an
excessive sentence. Miller’s claim raises a challenge to the discretionary
aspects of his sentence. See Appellant’s Brief, at 17. We note that since Miller
entered an open plea, he is permitted to challenge the discretionary aspects of
his sentence. See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa. Super.
2020). “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
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170 (Pa. Super. 2010) (citation omitted). Prior to reaching the merits of a
discretionary sentencing issue, this Court conducts a four-part analysis:
(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).
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, Miller filed a timely appeal and preserved his claim in his post-
sentence motion. Miller also included a separate Rule 2119(f) Statement in
his brief; accordingly, we will review his Rule 2119(f) statement to determine
whether he has raised a substantial question. See Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating that “we cannot
look beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.” (citation
omitted)).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013). “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. (citation omitted).
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Miller asserts he has presented a substantial question because
the court imposed sentences without stating adequate reasons for
why it refused to follow the Commonwealth’s sentencing
recommendations, because it did not consider mitigating factors,
because the court imposed a sentence in the aggravated range
without stating sufficient reasons on the record, and failed to
consider the factors found in § 9721(b) of the Sentencing Code
including protection of the public, impact on the victims, and
impact on the community, which resulted in individual sentences
and an aggregate sentence that were excessive and harsh.
Appellant’s Brief, at 11-12. While Miller presents this as a singular argument,
we discern three distinct claims. First, Miller argues that the trial court erred
by failing to state the reason why it did not follow the Commonwealth’s
sentencing recommendation. This claim does not raise a substantial question
and we will not review it. See Commonwealth v. Sexton, 222 A.3d 405,
422 (Pa. Super. 2019) (“[T]he Commonwealth’s [sentencing]
recommendations … are not binding on the trial court’s exercise of discretion
at sentencing. Thus, this claim is frivolous.”) Second, Miller argues the trial
court abused its discretion by failing to consider mitigating factors while
imposing aggravated range sentences. This Court has held that an assertion
that a sentence was excessive and that the trial court failed to properly
consider the factors set forth in 42 Pa.C.S.A. § 9721(b) raises a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc). See also Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2014) (stating that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
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substantial question”) (internal citation omitted). Similarly, Miller’s third
argument is a claim that the trial court failed to consider the necessary factors
while imposing an excessive sentence. Pursuant to Caldwell, this claim also
raises a substantial question.
We therefore turn to a substantive review of Miller’s second and third
sentencing claims. The trial court’s sentence will not be disturbed on appeal
unless the court abused its discretion:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006)(citation
omitted).
Moreover, “Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed.” Commonwealth
v. Radecki, 180 A.3d 441, 470 (Pa.Super. 2018)(citations omitted). The
decision to impose consecutive, rather than concurrent, sentences only raises
a substantial question in “the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.” Id. Plea agreements are not binding upon the
court and a court may reject the Commonwealth’s sentencing
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recommendation if the court believes the terms do not serve justice. See
Commonwealth v. White, 787 A.2d 1088, 1091 (Pa. Super. 2001).
Here, Miller claims the trial court imposed an aggravated range sentence
at docket number 1566-2019 without stating reasons for the departure from
the standard range on the record. Both parties, as well as the trial court,
classify the sentence at docket number 1566-2019 as an aggravated range
sentence, and our review of the relevant sentencing guidelines confirms their
calculations. As the court imposed an aggravated range sentence, it was
required to “state the reasons on the record[.]” 204 Pa. Code § 303.13(c).
While the court was not loquacious, it did recognize the deviation and
stated its reasons on the record:
Well, Mr. Miller, I agree that insanity is doing the same thing
over and over and expecting a different result. Your record goes
back many, many, many years, and you have always gotten
county sentences. You have always gotten county probation. Try
as we might, we have not been able to give you the services
necessary to turn your life around.
…
These sentences are standard-range sentences, except for
the one that was imposed as a result of your probation revocation
[at 1566-2019.] Any lesser sentence would depreciate the
seriousness of the crimes. We have done all we can do for you at
the county level. Hopefully, there will be services you avail
yourself of at the state level.
N.T., 12/21/21, at 6-7. As such, the court set forth reasons, on the record,
for its decision to impose an aggravated range sentence. Miller’s claim that
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the court failed to state reasons on the record for an aggravated range
sentence merits no relief.
Next, Miller argues the court abused its discretion by failing to consider
mitigating factors when it imposed an “excessive” sentence. We disagree. As
set forth above, the transcript reveals that the court was well aware of Miller’s
criminal history. It was also aware that multiple attempts to provide services
offered by county probation had failed to rehabilitate Miller. Finally, the court
acknowledged that Miller had cooperated with the Commonwealth in another
case:
[Miller:] I thought I provided a service to the DA’s office.
THE COURT: You did. That’s why I didn’t make the sentences
much greater than I made them.
Id., at 8. The court considered the mitigating circumstances as well as Miller’s
rehabilitative needs. Miller’s claim to the contrary merits no relief.
Lastly, Miller claims that the trial court imposed an unlawful sentence at
docket CP-21-CR-1175-2021 by failing to award him credit for 22 days of time
served. A defendant must be credited “for all time spent in custody as a result
of the criminal charge for which a prison sentence is imposed.” 42 Pa. C.S.A.
§ 9760. “Credit shall include credit for time spent in custody prior to trial,
during trial, pending sentence, and pending the resolution of an appeal.” Id.
The Commonwealth does not dispute Miller’s claim:
[Miller] was incarcerated as a result of being unable to post bail for a
total of twenty-two (22) days from April 21, 2021, to May 12, 2021.
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[Miller] was not … serving time towards any other docket. As such,
pursuant to 42 Pa. C.S.A. § 9760, [Miller] is entitled to an award of
twenty-two (22) days of time served.
Commonwealth’s Brief, at 11. Moreover, in its opinion on appeal, the trial
court admits it erred and requests remand to amend the sentence to include
the credited time. See Trial Court Opinion, 6/29/22 at 6. We agree and
therefore vacate the sentence at docket number 1175-2021 and remand for
resentencing on that docket only.
Order denying post conviction bail affirmed. Judgment of sentence CP-
21-CR-0001566-2019, and CP-21-CR-0002014-2021 affirmed. Judgment of
sentence for docket number CP-21-CR-1175-2021 vacated and case
remanded for resentencing consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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