Com. v. Roeting, D.

J-S35010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL HERBERT ROETING :
:
Appellant : No. 424 MDA 2023
Appeal from the Judgment of Sentence Entered February 1, 2023
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005187-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 20, 2023
Daniel Herbert Roeting appeals from the judgment of sentence imposed
following his conviction of theft by unlawful taking. Roeting argues that the
trial court imposed an excessive sentence. We affirm.
Given that Roeting does not challenge his conviction on appeal, only a
brief factual summary is necessary. On September 27, 2021, Roeting stole his
father’s firearm. The Commonwealth charged Roeting with theft by unlawful
taking. The case proceeded to a jury trial, after which Roeting was found
guilty. Thereafter, the trial court deferred sentencing pending the preparation
of a presentence investigation report. Ultimately, after considering the
presentence investigation report, Roeting’s rehabilitative needs, Roeting’s
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S35010-23
prior criminal history, the fact he has received multiple treatment services,
and the protection of the community, the trial court sentenced Roeting to 33
months to 6 years in prison. The trial court specifically noted that Roeting was
ineligible to participate in the Recidivism Risk Reduction Incentive. Moreover,
the trial court did not make Roeting eligible for the boot camp program.
Roeting filed a post-sentence motion to reconsider his sentence, which the
trial court denied. This timely appeal followed.
On appeal, Roeting raises the following question for our review:
Was the trial court’s sentence of 33 months to 6 years of
incarceration so manifestly excessive as to constitute too severe
a punishment and clearly unreasonable under the circumstances
of this case, as it was not consistent with the protection of the
public, the gravity of the offense, and the rehabilitative needs of
[] Roeting and the [trial c]ourt did not impose an individualized
sentence which took into consideration [] Roeting’s circumstances
and instead based such sentence solely upon [] Roeting’s lack of
remorse and lack of accountability and did the [trial c]ourt further
abuse its discretion in not recommending that [] Roeting
participate in boot camp?
Appellant’s Brief at 6.
Roeting challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
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
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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, Roeting filed a timely appeal and preserved his claim in his post-
sentence motion. Roeting 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) (citation omitted). “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).
In his Rule 2119(f) statement, Roeting argues that the trial court
imposed a manifestly excessive sentence, improperly focused on his lack of
remorse, and did not properly considering his age and drug and alcohol history
in denying him entry into the boot camp program. See Appellant’s Brief at 10-
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12. Roeting’s claim raises a substantial question. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (noting that “an
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.” (citation
omitted)).
Our standard of review of a challenge to the discretionary aspects of a
sentence 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. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
Roeting contends the trial court abused its discretion by imposing a
manifestly excessive sentence. See Appellant’s Brief at 13, 16, 18-19. Roeting
suggests that this sentence was too severe a punishment based upon the
circumstances of the crime and was inconsistent with the protection of the
public and his rehabilitative needs. See id. at 13. Roeting points out that the
trial court improperly focused on his lack of remorse, as he was allowed to
maintain his innocence of the charge and exercise his right to a trial. See id.
at 16, 18. Roeting further claims that the trial court should have considered
his need for drug and alcohol treatment in rendering the sentence. See id. at
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17; see also id. at 18 (noting that his drug and alcohol abuse started at the
age of 15 and was responsible for his prior probation and parole violations).
Moreover, Roeting highlights that he was eligible for the boot camp program
and that the trial court made him ineligible for the program without an
explanation. See id. at 17-18.
The trial court addressed Roeting’s claims as follows:
In sentencing [Roeting] in the instant matter, the [trial]
court was guided by an extensive presentence investigation.
Contrary to [Roeting’s] current assertions, in fashioning sentence,
the [trial] court gave thoughtful consideration to: the penalties
authorized by the Legislature; the sentencing guidelines and all of
the applicable ranges, including the standard, aggravated, and
mitigated ranges; the facts and circumstances of the current
offenses; the pre-sentence investigation and all attachments
thereto, including court documentation regarding the current
charges, a drug and alcohol evaluation conducted by staff at the
Lancaster County Prison, documentation from Wellness
Counseling, documentation From Rehab After Work,
documentation from White Deer Run, documentation from Drug
and Alcohol Treatment Services, and records of the Lancaster
County Probation Department; the comments made by the
attorney for the Commonwealth; the comments of [Roeting’s]
attorney; the position of [Roeting]; [Roeting’s] rehabilitative
needs; the need for there to be a deterrence; and, the need for
the protection of the entire community. The court also noted that
[Roeting] refused to participate in the presentence investigation
report and, as such, the court was provided with limited
information regarding [Roeting’s] background. (N.T., Sent., pp.
11-12).
The court extensively considered and discussed [Roeting’s]
age, his extensive prior criminal record, his extensive drug and
alcohol concerns, his multiple failed attempts at rehabilitation, his
sporadic employment history, and his lack of remorse or
acceptance of responsibility. (N.T., Sent., pp. 1-15).
As reflected in the aforementioned comments and
considerations noted by the [trial] court, th[e trial] court believes
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that a sentence in the standard range was appropriate and that
any lesser sentence would depreciate the seriousness of this
conduct.
Lastly, [Roeting] alleges that the court abused its discretion
in not recommending him for participation in the motivational boot
camp program based solely upon his lack of remorse and lack of
accountability.
61 Pa.C.S.A. § 3904(b) provides,
The sentencing judge shall employ the sentencing
guidelines to identify those defendants who are
eligible for participation in a motivational hoot camp.
The judge shall have the discretion to exclude a
defendant from eligibility if the judge determines that
the defendant would be inappropriate for placement
in a motivational boot camp. The judge shall note on
the sentencing order whether the defendant has been
excluded from eligibility for a motivational boot camp
program.
61 Pa.C.S.A. § 3904(b).
Contrary to [Roeting’s] current assertion, this court
considered the totality of the considerations noted above in
determining the [Roeting] would be inappropriate for placement
in a motivational boat camp, including, but not limited to, the
severity of the conduct alleged, the extensive prior criminal
record, and repeated history of failure in rehabilitative
programming.
Trial Court Opinion, 5/5/23, at 6-7.
Here, the trial court considered the presentence investigation report.
See N.T., 2/1/23, at 3, 7, 12-13; see also Presentence Investigation Report
at 1-17. As such, the trial court was properly apprised of and considered all
relevant factors in fashioning Roeting’s sentence, and there is no indication
that the trial court ignored any factors. See Watson, 228 A.3d at 936 (stating
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that where the trial court is informed by a presentence investigation 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). Moreover, in rendering the sentence, the trial court
highlighted Roeting’s lack of remorse throughout trial, specifically noting his
failure to cooperate with the pre-sentence investigation report, and rejected
his attempt to blame others for his own conduct. See N.T., 2/1/23, at 14. In
addition, the trial court explained its reasons for not making Roeting eligible
for the boot camp program. See 61 Pa.C.S.A. § 3904(b). In light of the
foregoing, the trial court did not abuse its discretion in imposing the sentence.
See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (stating that
“the sentencing court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and judgment that should
not be lightly disturbed.”).
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/20/2023
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