Com. v. Harvey, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON MICHAEL HARVEY :
:
Appellant : No. 1003 MDA 2021
Appeal from the Judgment of Sentence Entered June 9, 2021
In the Court of Common Pleas of Wyoming County
Criminal Division at CP-66-CR-0000160-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MARCH 31, 2022
Brandon Michael Harvey (Appellant) appeals from the judgment of
sentence entered after he pled guilty to six counts of endangering the welfare
of children (EWOC) and one count of driving under the influence—highest rate
of alcohol (DUI).1 After careful review, we affirm.
On December 13, 2019, a Wyalusing Area School bus, driven by
Appellant, crashed while transporting 13 children. N.T., 6/9/21, at 10. Three
children suffered minor injuries. Id. Pennsylvania State Troopers determined
Appellant had a blood alcohol rate (BAC) of .161 at the time of the accident.
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 4304(a)(1); 75 Pa.C.S.A. § 3802(c).
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Id. Consequently, the Commonwealth charged Appellant with multiple counts
of DUI, EWOC, recklessly endangering another person, and related offenses.
On May 7, 2021, Appellant tendered an open guilty plea to one count of
DUI and six counts of EWOC. On June 9, 2021, following the preparation of a
pre-sentence investigation report (PSI), the trial court held a hearing and
sentenced Appellant to an aggregate 32-76 months of incarceration.
Appellant filed a post-sentence motion, which the trial court denied. Appellant
timely appealed.2 Appellant and the trial court have complied with Pa.R.A.P.
1925(b).
Appellant presents a single issue for our review:
Whether the trial court abused its discretion by imposing a
sentence at the highest end of the aggravated range of the
Pennsylvania Sentencing Guidelines, by failing to consider the
relevant sentencing criteria of the Pennsylvania Sentencing Code
within 42 Pa.C.S.A. § 9721(b), failing to consider mitigating
circumstances, and by failing to state sufficient reasons on the
record for the sentence imposed?
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence. “A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right.” Commonwealth v. Grays, 167 A.3d 793,
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2 Appellant filed his notice of appeal from the trial court’s order denying his
post-sentence motion. However, Appellant’s appeal properly lies from the
judgment of sentence imposed on June 9, 2021. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc)
(recognizing an appeal properly lies from the judgment of sentence). The
caption has been corrected accordingly.
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815 (Pa. Super. 2017). 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 from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Grays, 167 A.3d at 815-16 (citation omitted).
As noted, Appellant timely filed a notice of appeal and preserved his
sentencing claim in a post-sentence motion. See Post Sentence Motion,
6/18/21. Appellant also included in his brief a concise statement of the
reasons relied upon for allowance of appeal, in accordance with Pa.R.A.P.
2119(f). Appellant’s Brief at 11. We therefore consider whether Appellant
raises a substantial question. See Grays, 167 A.3d at 816.
In his Rule 2119(f) statement, Appellant argues the trial court
improperly sentenced him “without considering all of the appropriate
mitigating circumstances and salient factors.” Appellant’s Brief at 11.
Appellant claims the court failed to consider his prior record score of zero, “his
amenability to treatment, and all other mitigating factors when it imposed top
of the aggravated range sentences and consecutive sentences.” Id. at 11-
12. Appellant raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (“Appellant’s
claim that the court erred by imposing an aggravated range sentence without
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consideration of mitigating circumstances raises a substantial question.”).
Accordingly, we address the merits of Appellant’s sentencing challenge.
Appellant argues the trial court improperly sentenced him at the highest
end of the aggravated sentencing range without considering,
the relevant sentencing criteria of the Sentencing Code, including
the personal history and characteristics of [] Appellant, his
rehabilitative needs, his amenability to treatment, the need for
protection of the public, and the presence of mitigating evidence.
Appellant’s Brief at 13. Appellant emphasizes his prior record score of zero.
Id. Appellant similarly challenges the court’s imposition of consecutive,
aggravated-range sentences despite Appellant’s lack of criminal history. Id.
at 14. According to Appellant, the court failed to adequately consider his age,
personal characteristics, background, need for rehabilitation, his extensive
efforts at drug and alcohol rehabilitation, and his sobriety. Id. at 16-17.
Appellant asserts:
In reviewing the trial court record and the trial court’s [Rule]
1925(a) Opinion, it appears as though the trial court failed to
consider any mitigating circumstances on the record before
imposing aggravated sentences in the top end of the range and
also running both counts consecutive to each other. In running
the sentences consecutively, the failure to adequately consider
mitigating circumstances was compounded.
Id. at 14.
“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.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super.
2018) (citation omitted). Appellate courts afford the sentencing court great
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deference, because the sentencing court is in the best position to “view the
defendant’s character, displays of remorse, defiance, or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Walls, 926 A.2d
957, 961 (Pa. 2007). We may not reweigh the sentencing factors and impose
our own judgment in place of that of the sentencing
court. See Commonwealth v. Peck, 202 A.3d 739, 747 (Pa. Super. 2019).
The Sentencing Code requires a sentencing court to consider “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.” 42 Pa.C.S.A. § 9721(b). Instantly, Appellant’s counsel
detailed Appellant’s acceptance of responsibility and expression of remorse.
N.T., 6/9/21, at 6. Appellant’s counsel stated:
Since that incident, [] [Appellant] has taken extreme steps and
extreme measures to make sure that this never happens again.
He’s worked very hard at rehabilitation. He’s been attending A
Better Today and an AA program since March of 2020. He started
attending Robinson Counseling to reengage with mental health
counseling in January of 2020. He’s been compliant with each
program ever since. He reports to me and he reports to the pre-
sentence investigator that he’s been sober since the date of this
incident. You know, Judge, in reviewing the pre-sentence report,
it appears as though he’s always maintained employment. You
know, it does note that he does jump from job to job and in
speaking with [Appellant], … I think that’s a byproduct of his
mental health. He goes into depressive states and manic states,
and you know, it’s led to problems throughout his life, but at this
point, he seems to be regulated on his medications. He’s
compliant with his treatment and he seems to be doing better than
he has in a very long time, Judge, so we’d ask the Court to
consider that. … I reviewed the [sentencing] recommendation
with [Appellant]. I think it is a fair recommendation. The only
exception I would have is I would ask the [c]ourt to consider
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instead of going into the aggravated range, to go on the high end
of the standard range and consider a nine month sentence on the
DUI, nine month minimum ….
Id. at 7-8. Appellant confirmed his successfully treatment for bipolar disorder.
Id. at 8.
Thereafter, the trial court, with respect to Appellant’s first-degree
misdemeanor conviction of DUI, sentenced Appellant in the aggravated range
to 12-36 months in prison. N.T., 6/9/21, at 11, 20. The trial court reasoned:
[T]his sentence is in the aggravated range due to the following
reasons: one, the defendant violated his responsibility and duty
of care for thirteen children under his supervision at the time of
the offense when he was a school bus driver. Any lesser of a
sentence in this matter would depreciate the seriousness of
[Appellant’s] actions ….
Id. at 12.
As to Appellant’s conviction of EWOC as a second-degree felony, the
court imposed an aggravated range, consecutive sentence of 20-40 months
in prison. Id. at 13. Again, the court explained:
[T]his sentence is in the aggravated range due to the following
reasons: one, the defendant violated his responsibility and duty
of care for thirteen children under his supervision at the time of
the offense when he was a school bus driver. Any lesser of a
sentence in this matter would depreciate the seriousness of
[Appellant’s] actions ….
Id. at 13-14.
For Appellant’s second conviction of EWOC as a second-degree felony,
the court imposed a standard-range sentence of 6-12 months in prison,
concurrent with the prior EWOC sentence. Id. at 14. The court reasoned that
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“any lesser of a sentence would depreciate the seriousness of [Appellant’s]
actions.” Id. at 14. For Appellant’s remaining EWOC convictions, graded as
third-degree felonies, the court imposed concurrent, standard-range
sentences of 6-12 months in prison, each time stating, “any lesser of a
sentence would depreciate the seriousness of the defendant’s actions.” Id. at
15-19.
Pertinently, the trial court had the benefit of a PSI. See N.T., 6/9/21,
at 5-6 (trial court referencing the PSI). “[W]here the trial court is informed
by a pre-sentence report, it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be
disturbed.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super.
2017) (citation omitted).
In sum, we discern no abuse of discretion by the trial court in
emphasizing Appellant’s duty of care and the seriousness of his actions. The
record demonstrates Appellant drove a school bus with a BAC of .161, and
crashed the bus, causing injuries to three of the 13 children entrusted to his
care. N.T., 6/9/21, at 10-11. Thus, the court did not err in sentencing
Appellant to consecutive sentences at the highest end of the aggravated range
for his second-degree felony convictions of DUI and EWOC.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2022
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