Commonwealth v. Davis

1

COMMONWEALTH OF PENNSYLVANIA v. MARK GREGORY DAVIS Appellant

No. 2781 EDA 2022

No. J-S11020-23

Superior Court of Pennsylvania

August 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 17, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004094-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

McLAUGHLIN, J.

Mark Gregory Davis appeals from the judgment of sentence entered following his open guilty plea to driving under the influence ("DUI") - controlled substance, recklessly endangering another person, possession of paraphernalia, and illegally operating a vehicle without ignition interlock.^[1]Davis argues the court abused its discretion by imposing an excessive sentence. We affirm.

On April 16, 2021, Falls Township police officers and fire fighters responded to an accident that caused a vehicle to catch fire on Route 13 North in Bucks County. N.T., 2/1/22 at 6-7, 17; N.T., 8/17/22, at 3. The first responders blocked off a portion of the road with a barricade consisting of 30 ¶ares, 75 to 80 cones, and six or seven police and fire vehicles, all with flashing lights. N.T., 2/1/22, at 7-10. The barricade and lights were about 600 yards away from the accident. Id. at 10. As a result of the barricade, oncoming traffic had to exit Route 13. Id.

Davis failed to exit Route 13 and drove through the barricade at an estimated speed of 70 miles per hour. Id. at 18. Davis brought his vehicle to a stop once he reached the firetrucks that had the roadway completely blocked off. Id. Officer Michael Parnes approached the stopped vehicle and directed Davis to get out of his vehicle. Id. at 19. Officer Parnes detected the odor of alcohol and marijuana. Id. Additionally, as Davis was pulled out of his vehicle, officers observed a glass smoking device, previously on Davis's lap, fall to the ground. Id. at 20. At that point in time, Officer Parnes believed that Davis was under the influence of a controlled substance and alcohol, such that Davis was unable to safely operate his vehicle. Id. at 24. Davis refused to submit to a blood draw and no field sobriety tests were conducted because of safety concerns related to the vehicle fire. Id. at 21, 24-25. Officer Parnes conducted a search of Davis's driving history and learned that Davis was required to have an ignition interlock device in his vehicle. Id. at 26. Davis's vehicle did not have an ignition interlock device at the time of the incident. N.T., 8/17/22 at 10.

On June 13, 2021, Davis pleaded guilty to the above-referenced offenses. At sentencing, on August 17, 2022, Davis stated that he had been speeding on the night of the incident, but that he was confused about what had occurred on the roadway during his incident. Id. at 6. Davis also said he did not know he was required to have an ignition interlock device in his vehicle. Id. at 10. Davis spoke about his addiction issues, his decision to have his parents adopt his daughter, and his past drug treatment success. Id. at 8, 13-14. Davis concluded by speaking about his desire to get back to his family, friends, passions, hobbies, and work. Id. at 13-14. Davis also submitted a letter to the court.

Before imposing Davis's sentence, the court stated:

Okay. Let's not forget what charges are here. Third offense driving under the influence, recklessly endangering four different people, all of whom I assume are first responders trying to protect the safety of the community, having the paraphernalia with you. . . driving a vehicle that you were prohibited from operating because it did not have an ignition interlock control because of your prior drunk driving charges.

You have provided me with a 13-page, small-writing statement in which at no time did you accept responsibility for your conduct, did you at no time show any remorse for your conduct, at no time did you show any sympathy or understanding of the harm you put other people in. All you talked about was how you had been picked on throughout your life.

You don't care about anybody but yourself. You profess to have this love for your child. I'm not saying you don't, but you seem to think that means that you can do as you please and have no responsibility and that your daughter is your keep-out-of-jail-free card. It ain't happening.

You've been through the system. You've been through jail. You've been on probation. You've been in treatment. At times you successfully completed it.

But you are a danger to the community. I have no doubt in my mind that when you walk out of a state correctional institution in the future the first opportunity you have to get high, to get behind the wheel of the car and go out and do as you please, you'll do. You won't even hesitate to think about the repercussions to yourself should you get caught driving or what you might do to other people.

I am going to impose a sentence in the aggravated range of the DUI, and I'm doing that, one, because of those issues I just mentioned: the lack of remorse, the lack of an acceptance of responsibility, the multiple persons in jeopardy. But I'm doing it also because I won't put - impose sentences on the other open counts.

Id. at 14-16.

At the conclusion of sentencing hearing, the court imposed a sentence in the aggravated range of 27 to 60 months' incarceration on the DUI offense, with no further penalty on the other charges.

Davis filed a motion for reconsideration of sentence. At a hearing on the motion, Davis apologized and explained that the goal of his letter to the court was to paint a broad picture of himself and factors of his personal life. N.T., 9/26/22, at 3-7. After hearing testimony from Davis, the court denied the motion. Id. at 7.

Before denying the motion, the court stated:

Let me say this, Mr. Davis. I don't question your remorse and your apology. I don't challenge that . . .

But, look, I hear what you're saying. But all those various factors were taken into consideration at the time of sentencing.

Id. at 5, 7.

Davis filed a timely appeal. Davis raises the following issue:

Did the trial court abuse its discretion in sentencing [Davis] by imposing a manifestly excessive sentence at the high end of the aggravated range, relying on improper factors and the nature of the offense and failing to consider all relevant factors?

Davis's Br. at 7.

Davis challenges the discretionary aspects of his sentence. "The right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal." Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits of Davis's claim, we must determine whether: "(1) the appeal is timely; (2) the appellant has preserved his issue; (3) his brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentence; and (4) the concise statement raises a substantial question whether the sentence is inappropriate under the Sentencing Code." Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who challenges the discretionary aspects of a sentence "shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence").

Here, Davis has complied with the first three requirements: his appeal is timely, he preserved the issue in a post-sentence motion, and his brief includes a statement of the reasons for allowance of appeal. We now turn to whether Davis has raised a substantial question.

A substantial question exists when the appellant makes a colorable argument that the sentencing judge's actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Davis's Rule 2119(f) statement claims that the sentencing court failed to consider relevant factors such as family history, age, or rehabilitative needs and considered improper factors. Davis's Br. at 9-10. This presents a substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (stating "an excessive sentence claim-in conjunction with an assertion that the court failed to consider mitigating factors-raises a substantial question"); see also Commonwealth v. Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023) (finding an excessive sentence claim coupled with a claim of disregard for appellant's "rehabilitative potential" raises a substantial question); Commonwealth v. Crawford, 254 A.3d 769, 782 (Pa.Super. 2021) (stating that a claim that the sentencing court relied on improper factors raises a substantial question). Thus, we proceed to the merits of Davis's claim.

Davis argues that the sentencing court relied on improper factors focused on the nature of the offense that was already addressed by the Sentencing Guidelines, and failed to consider all relevant factors. Davis's Br. at 11-16. With respect to improper factors, Davis argues that the court justified its sentence, in part, "on the inappropriate and unfounded belief that [Davis] will use drugs and commit another DUI, as soon as possible" and "[Davis's] lack of remorse." Id. at 14. Davis further argues that the sentencing court focused on factors related to the nature of the offenses that were already contemplated in the Sentencing Guidelines, namely, elements of the offense to which Davis entered his guilty plea. Id. at 15. He contends that the sentencing court failed to consider relevant factors, including his history and character and his...