Com. v. Trentini, B.

J-S16044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN M. TRENTINI :
:
Appellant : No. 2471 EDA 2022
Appeal from the Judgment of Sentence Entered July 19, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006187-2021
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 29, 2023
Bryan M. Trentini (Appellant) appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas, following his open guilty
plea on charges of stalking, terroristic threats, theft by unlawful taking,
criminal mischief, loitering and prowling, and harassment.1 The trial court
sentenced Appellant to a term of 30 to 60 months’ incarceration in a state
correctional institution. On appeal, Appellant claims the court abused its
discretion by imposing a sentence that was manifestly excessive and failed to
consider his rehabilitative needs, history, and character. Based on the
following, we affirm.
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1 18 §§ 2709.1(a)(2), 2706(a)(3), 3921(a), 3304(a)(2), 5506, and
2709(a)(3), respectively.
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Appellant’s convictions stem from an incident on November 22, 2021,
when his on-again/off-again girlfriend (the Victim) reported that Appellant was
trespassing at her residence on Lakeside Drive in Levittown, Bucks County.
See N.T., 7/19/22, at 9. Appellant was under the influence of
methamphetamine at the time of the trespass. See id. at 20.
At this juncture, it merits mention that Appellant had four previous
domestic assault cases involving the Victim. See N.T., 7/19/22, at 6-7. In
2013, Appellant pled guilty to harassment, a third-degree misdemeanor, and
received one-year probation. See id. at 7. In 2015, Appellant pled guilty to
simple assault and received a sentence of four to 23 months’ incarceration.
See id. In 2018, Appellant again pled guilty to simple assault and received a
sentence of time served to 23 months. See id. In 2019, Appellant pled guilty
to simple assault and received a six-to-23-month sentence. See id. At the
time of his present sentencing proceeding, Appellant also had an open case in
New Jersey for possession with intent to deliver and unlawful possession of a
handgun. See id. at 7.
Leading up to the incident on November 22nd, the Victim reported
several instances of concern involving Appellant. See N.T., 7/19/22, at 9-11.
On November 11, 2021, Appellant and the Victim got into a verbal argument
where Appellant threatened to “choke the life out of” the Victim, after which
she told him not to return to their residence. See id. at 9-10. The Victim
reported that during the following days, Appellant repeatedly called and texted
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her, was at her front door, and drove by her house. See id. at 10. She
suspected Appellant would “stay in the shed in her backyard [because] food
and a music player were found in that shed.” See id. The Victim made
additional reports via email to the police regarding Appellant’s “escalating
concerning contacts.” See id. at 9-10. The Victim indicated Appellant also
accessed her email and changed her passwords. Id. at 10-11. Moreover,
Appellant accused the Victim of having an affair with the “affiant” police
officer2 and threatened to harm that individual. See id. at 11.
At the time of the November 22nd incident, Appellant was on
“supervision.” See N.T., 7/19/22, at 7. Melanie Webb, a probation and parole
officer, indicated Appellant violated his parole on four prior occasions. See
id. at 12-19. While in custody for current case, Appellant had two misconducts
for: 1) contacting the Victim despite parole and bail conditions of no contact,
and 2) misuse of medication in January of 2022. See id. at 21-22.
On April 11, 2022, Appellant entered an open guilty plea on charges of
stalking, terroristic threat, theft by unlawful taking, criminal mischief, loitering
and prowling, and harassment. On July 19, 2022, the trial court sentenced
Appellant to a term of 30 to 60 months’ imprisonment for the stalking. The
court imposed no further penalty regarding the remaining five convictions.
____________________________________________
2 A review of the record does not reveal the identity of the affiant officer.
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Appellant filed a motion to reconsider sentence on July 29, 2022. The
trial court denied his motion without a hearing on August 26, 2022.
On September 2, 2022, Appellant filed a notice of appeal. On
September 29, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days. Following an extension of time, Appellant filed concise
statement on October 18, 2022. The trial court issued a Pa.R.A.P. 1925(a)
opinion on January 30, 2023.
Appellant raises one issue on appeal:
A. Did the trial court err in imposing a sentence that: (a)
exceeded the sentence guidelines, (b) failed to give adequate
reasons to justify a sentence in excess of the aggravated range of
the sentencing guidelines, and (c) failed to take into account
Appellant’s age, maturity, circumstances of the case, and
Appellant’s personal circumstances and rehabilitative needs[?]
See Appellant’s Brief at 7 (some capitalization omitted).
Appellant challenges the discretionary aspects of his sentence.
Appellant claims his sentence is manifestly excessive and the trial court
committed an abuse of discretion because it “ignored” evidence concerning
Appellant’s character and rehabilitative needs. Appellant’s Brief at 12. He
points out that he has been sober since November 23, 2021, and has taken
“significant strides to rehabilitate himself during his period of incarceration
prior to sentencing.” Id. at 13. Additionally, he contends the court failed to
consider the fact that he accepted responsibility for his actions and was
committed to his recovery. Id. at 15. Furthermore, Appellant alleges the
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court “did not mention” the Pennsylvania Sentencing Guidelines and did not
“give any indication that the guidelines were even considered.” Id. at 15-16.
Appellant also states “the trial court failed to adequately state its reasons for
deviating” from the guidelines. Id. at 16. Appellant concludes “the trial court
imposed an aggregate sentence that is manifestly excessive and unreasonable
and constitutes too severe a punishment.” Id.
As mentioned above, the trial court sentenced Appellant for the stalking
offense to a term of 30 to 60 months’ incarceration. He had a prior record
score of two and the offense gravity score for stalking is five. See N.T.,
4/11/22, at 15. The sentencing guidelines provide the following ranges: (1)
restorative sanctions or probation for the mitigated range; (2) three to 14
months’ incarceration for the standard range; and (3) at least 17 months’
imprisonment for the aggravated range. Id. at 15-16. The statutory
maximum for stalking, a first-degree misdemeanor, is five years’
incarceration. Id. at 15. Accordingly, Appellant’s sentence fell outside the
sentencing guidelines but did not exceed the statutory maximum.
There is no automatic right to review of a challenge to the discretionary
aspects of sentencing. Commonwealth v. Bankes, 286 A.3d 1302, 1306
(Pa. Super. 2022) (citation omitted).
Before [this Court may] reach the merits of [a challenge to the
discretionary aspects of a sentence], we must engage in a four
part analysis to determine: (1) whether the appeal [was timely-
filed]; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
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aspects of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
whether the concise statement raises a substantial question that
the sentence is appropriate under the sentencing code. [I]f the
appeal satisfies each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Id. (citation omitted).
Appellant has satisfied the first three prongs of this analysis, where he
raised this challenge in a post-sentence motion, filed a timely appeal, and
included in his brief a Rule 2119(f) statement. See Appellant’s Brief at 9-10.
Therefore, we now consider whether Appellant has raised a substantial
question:
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.
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (citation
omitted).
This Court has previously determined a “contention that the sentencing
court exceeded the recommended range in the [s]entencing [g]uidelines
without an adequate basis raises a substantial question for this Court to
review.” Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Furthermore, a claim that a court imposed an excessive sentence after not
considering mitigating evidence and rehabilitative needs raises a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
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2015) (en banc) (stating that an excessive sentence claim, that encompasses
the court’s failure to consider mitigating factors, raises a substantial
question); see also Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super.
2013) (citation omitted) (concluding a challenge that the trial court imposed
a sentence that was “unreasonable and contrary to the fundamental norms of
the Sentencing Code” and did not consider the appellant’s rehabilitative needs
raised a substantial question) (citation omitted).3 We interpret Appellant’s
claims to fall under these types of substantial questions. Therefore, we may
proceed to consider the merits of his argument.
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3 To the extent that Appellant argues the trial court “did not mention” the
sentencing guidelines, this Court previously has determined that kind of
argument does not raise a substantial question. See Commonwealth v.
Rush, 162 A.3d 530, 543 (Pa. Super. 2017).
Moreover, the Pennsylvania Supreme Court previously has stated that
“guidelines have no binding effect . . . they are advisory guideposts that are
valuable, may provide an essential starting point, and that must be respected
and considered; they recommend, however, rather than require a particular
sentence.” Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa. 2007).
This Court has previously held that “[w]hen the record demonstrates that the
sentencing court was aware of the guideline ranges and contains no indication
that incorrect guideline ranges were applied or that the court misapplied the
applicable ranges, we will not reverse merely because the specific ranges were
not recited at the sentencing hearing.” Commonwealth v. Griffin, 804 A.2d
1, 8 (Pa. Super. 2002).
Here, the trial court set forth the guideline ranges at Appellant’s April
11, 2022, guilty plea proceeding, and Appellant does not argue that they are
incorrect. See N.T., 4/11/22, at 15-16. Accordingly, we may presume the
court was aware of the specific ranges at issue. Therefore, Appellant’s claim
has no merit.
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The relevant standard of review is well-settled:
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. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019) (citation
omitted). “[W]hen imposing sentence, the trial court is granted broad
discretion, as it is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020).
This Court has also stated:
[W]hen imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
the victim and community, and rehabilitative needs of the
defendant. . . .
Furthermore, [a] trial court judge has wide discretion in
sentencing and can, on the appropriate record and for the
appropriate reasons, consider any legal factor in imposing a
sentence[.] The sentencing court, however, must also consider
the sentencing guidelines.
Clemat, 218 A.3d at 960 (citation omitted). Moreover, the sentencing
guidelines are advisory as they “have no binding effect, create no presumption
in sentencing, and do not predominate over other sentencing factors.”
Commonwealth v. Glass, 50 A.3d 720, 727-28 (Pa. Super. 2012) (citation
omitted).
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When imposing [a] sentence, the trial court is required to
consider the particular circumstances of the offense and the
character of the defendant. The trial court should refer to the
defendant’s prior criminal record, age, personal characteristics,
and potential for rehabilitation.
Clemat at 959-60 (citations omitted).
We are also guided by the following:
When reviewing a sentence outside of the guideline range,
the essential question is whether the sentence imposed was
reasonable. Commonwealth v. Walls, 926 A.2d 957, 567 (Pa.
2007). An appellate court must vacate and remand a case where
it finds that “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S.A. § 9781(c)(3). In making a reasonableness
determination, a court should consider four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable
if it fails to properly account for these four statutory factors. A
sentence may also be found unreasonable if the “sentence was
imposed without express or implicit consideration by the
sentencing court of the general standards applicable to sentencing
[as found in Section 9721].” Walls, [926 A.2d at 964].
Commonwealth v. Sheller, 961 A.2d 187, 190-91 (Pa. Super. 2008). “A
sentencing court, therefore, in carrying out its duty to impose an individualized
sentence, may depart from the guidelines when it properly identifies a
particular factual basis and specific reasons which compelled [it] to deviate
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from the guideline range.” Commonwealth v. Shull, 148 A.3d 820, 836 Pa.
Super. 2016) (citation and quotation marks omitted). Moreover, “in every
case where a sentencing court imposes a sentence outside of the sentencing
guidelines, the court must provide in open court a contemporaneous
statement of reasons in support of its sentence.” Shull, 148 A.3d at 835-36.
The court can “meet the requirement of a contemporaneous written statement
by placing its reasons for departure on the record during sentencing.”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008) (citation
omitted). Additionally, the on-the-record disclosure requirement does not
require the trial court to make “a detailed, highly technical statement.”
Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation
omitted).
A review of the record reveals the following. At Appellant’s July 19,
2022, sentencing proceeding, there is no indication whether the trial court had
the benefit of a pre-sentence investigation (PSI) but it merits mention that
this case was Appellant’s fifth appearance before the court system for crimes
committed against the Victim. Moreover, the Commonwealth did present
several domestic violence investigation (DVI) reports from prior years. See
N.T., 7/19/22, at 5-6. The Commonwealth also recited Appellant’s prior
criminal history with respect to the Victim and pointed out the following: (1)
he was unsuccessfully discharged from “batterer’s intervention for continuous
issues with either missing or being late for group and admitting to having
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ongoing contact with the [V]ictim[;”], (2) he continued to test positive for
drugs, including multiple times for methamphetamine; and (3) while in
custody for the present crimes, he had two misconducts (one for contacting
the victim and the second for misuse of medication). Id. at 6-8. The
Commonwealth further stated: "Your Honor, the [V]ictim . . . lives in fear and
terror of [Appellant]. She feels that she’s only safe from [him] when he’s in
custody, and she . . . is concerned . . . for herself and their shared son[.]” Id.
at 11. In recommending a state sentence, the Commonwealth emphasized
the following:
We’ve seen it, now this is the fifth time [Appellant] has been in
front of th[e trial c]ourt or a court in this county for the same type
of behavior, escalating behavior. . . .
Your Honor, I think [Appellant] has shown through his
actions over at least the last nine years that he is unsafe to the
[V]ictim, he is unsafe to the community, and the only place where
he seems to do relatively okay is when he’s incarcerated.
Id. at 35-36.
The trial court also heard from Probation and Parole Officer Webb
regarding Appellant’s history of parole and probation violations. See N.T.,
7/19/22, at 14-19. Officer Webb did not provide the trial court with a sentence
recommendation but stated the court should determine whether Appellant
receive concurrent or consecutive sentences. See id. at 19.
Appellant also invoked his right to allocution, admitting his guilt and that
he was under the influence of drugs at the time. See N.T., 7/19/22, at 20.
Appellant explained his reasons for the violations while in custody, stating that
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he had written a letter to the Victim to discuss their child in December 2021,
and the misuse of medication misconduct was for not taking his medication.
See id. at 21-22. Appellant testified that he has made efforts to rehabilitate
himself while incarcerated prior to sentencing, including the completion of six
programs at Bucks County Jail. See id. at 22-23. Appellant also completed
the H.O.P.E. program for drug and alcohol treatment. See id. at 23.
Appellant stated that after completing the H.O.P.E. program, he became a
leader in the organization and created materials for it. See id. at 24. He
provided the trial court with a letter of recommendation from his program
supervisor and certificates of recognition in personal accountability and
responsibility, good work ethic, and community involvement. See id. He also
participated in a course to address substance abuse and mental health
disorders. See id. Appellant testified that he had been diagnosed with Post-
Traumatic Stress Disorder, Attention-Deficit/Hyperactivity Disorder, and
Obsessive-Compulsive Disorder. See id. Lastly, he expressed remorse for
his actions, and read a letter to the court which highlighted accomplishments
and lessons from the H.O.P.E. program and expressed a commitment to
improving himself. See id. at 26, 28-29.
At the conclusion of the proceeding, the trial court set forth its reasons
for Appellant’s sentence, stating:
[Appellant] has been the example of I’m not doing what anybody
tells me to do. He just has not done anything. He refuses to
comply with terms of supervision. He refuses to follow the orders
of the Court when they tell him not to have contact with people or
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they must – he must do this, and he doesn’t, and he’s refused,
and that’s why we’re here.
But we put him in Bucks County, and I appreciate the fact
that he has completed the H.O.P.E. program which is a significant
program there. It’s a difficult program to compete. And for the
first time he has completed it, and I will give him credit for that,
significant credit. But [Appellant does not] get to do one thing
right and think that that fixes everything. It just doesn’t.
I’m proud of [Appellant], and . . . I was going to send [him]
to a [SCI] for a significant period of time, and I’ve changed my
mind as to the length of the time, but [Appellant has] burned
every bridge in Bucks County and Bucks County Adult Probation
and Parole. [Appellant has] just done that. So I think that it’s
appropriate for a state sentence, but I’m going to give [Appellant]
the credit for the H.O.P.E program and the fact that the prison
considers that [he is] a leader there, that [he has] changed.
N.T., 7/19/22, at 36-38.
In its Pa.R.A.P. 1925(a) opinion, the trial court supplemented its
statements at sentencing with the following:
This sentence does not follow a first-time offense, nor a
second, third or fourth, but rather a fifth offense with the same
victim. We considered the conduct, character, criminal history,
and impact of Appellant’s actions on the community and found
that Appellant . . . has a lack of respect for authority, as he
continues to accrue misconducts and violations of his parole.
Appellant . . . was advised of the maximum penalties and
the sentencing guidelines during the guilty plea proceeding on
April 11, 2022. While Appellant was sentenced to the statutory
maximum on Count III, Stalking — Repeatedly Communicating to
Cause Fear, no further penalty was given on any of the other
counts. The sentence imposed falls within the total number of
months that could have been imposed if each count was sentenced
in the aggravated range of the sentencing guidelines and were to
run consecutively. If each count was sentenced in the aggravated
range and ran consecutively, Appellant would be facing [42]
months, at the minimum. We implicitly understand the benefit of
a sentence on one count versus multiple; Appellant remains tied
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to the system, yet this ultimately avoids inconsistency in violations
and parole.
Admittedly we did not issue a contemporaneous written
statement detailing our reasoning for a sentence outside the
sentencing guidelines, however, one was not necessary under
Pennsylvania law. As indicated by the Pennsylvania Superior
Court in Commonwealth v. Feucht, [supra,] the written
component was satisfied by our express reasoning given on the
record during sentencing. Appellant . . . has exhausted the
treatment options available to him in Bucks County. He refused
to comply with the rules and regulations of probation and parole
supervision in Bucks County. He has been unsuccessfully
discharged from a required treatment program, namely batterer’s
intervention. Appellant continues to use drugs while on
supervision. He has incurred misconducts while in Bucks County
Correctional Facility for this case for contact with the victim, and
misuse of medication. . . .
We felt strongly that it was appropriate to end his
supervision by Bucks County and begin anew with state
supervision. Appellant’s completion of the H.O.P.E. program is
significant but does not absolve Appellant from the behavior he
has consistently exhibited.
Trial Ct. Op. at 7-8.
Under our standard of review, we find the trial court did not abuse its
discretion with regard to Appellant’s sentence. Contrary to his arguments, it
is evident from the July 19th sentencing hearing, and the Rule 1925(a) opinion
that the court considered the mitigating evidence, Appellant’s acceptance of
responsibility and his rehabilitative needs, in addition to the required factors
under Section 9721(b). However, the court emphasized the gravity of offense
in relation to impact on the Victim and Appellant’s lack of potential for
rehabilitation based on his numerous encounters with the court system.
Moreover, the court acknowledged its understanding of the sentencing
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guidelines at the April 11th guilty plea proceeding and its Rule 1925(a)
opinion, and articulated a sufficient statement of reasons for the sentence
imposed. Lastly, to the extent Appellant complains the trial court did not
provide a contemporaneous written statement regarding its reason for a
deviation, the court did “place[ ] its reasons for departure on the record during
sentencing.” Feucht, 955 A.2d at 383.4
Accordingly, we find Appellant has failed to demonstrate the sentence
imposed was unreasonable and that the trial 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.
Johnson, 125 A.3d 822, 826 (Pa. Super. 2015).
For the foregoing reasons, Appellant’s challenge to the discretionary
aspects of his sentence fails.
Judgment of sentence affirmed.
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4 It merits mention that Appellant did receive the benefit of a “volume
discount” at the time of sentencing where he pled guilty to six crimes but was
sentenced only for one crime.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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