Commonwealth v. Eberle

1

COMMONWEALTH OF PENNSYLVANIA v. WILLIAM RUSSELL EBERLE Appellant

No. 489 WDA 2023

No. J-A09038-24

Superior Court of Pennsylvania

September 5, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered March 8, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009500-2021

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM

NICHOLS, J.

Appellant William Russell Eberle appeals from the judgment of sentence imposed following his open guilty plea to burglary and related offenses. Appellant challenges the discretionary aspects of his sentence. We affirm in part, vacate in part and remand for resentencing.

We adopt the trial court's summary of the facts underlying this matter. See Trial Ct. Op., 6/26/23, at 2. Briefly, on November 25, 2021, Appellant broke into the residence of his ex-girlfriend (the victim). Id. After entering the residence, Appellant assaulted the victim and damaged her property. Id. Appellant fled from the scene in his vehicle and was subsequently apprehended by police. Id. At that time, Appellant's blood alcohol level was .193. Id.

On December 13, 2022, Appellant entered an open plea to burglary, DUI-highest rate of alcohol, simple assault, and criminal mischief.^[1] See N.T. Plea Hr'g 12/13/22,^[2] at 8-9; see also Guilty Plea Colloquy, 12/13/22, at 1-13. The trial court deferred sentencing for the preparation of a pre-sentence investigation (PSI) report. See N.T. Plea Hr'g, 12/13/22, at 9.

On March 8, 2023, the trial court sentenced Appellant to an aggregate term of thirty-three to eighty-four months of incarceration followed by one year of probation. Specifically, the trial court imposed consecutive terms of imprisonment as follows: twenty-one to sixty months for burglary and twelve to twenty-four months for simple assault. Sentencing Order, 3/8/23, at 1-2 (unpaginated). The trial court also imposed concurrent terms of seventy-two hours of incarceration, followed by five months of probation for DUI, and one year of probation for criminal mischief.^[3] Id.

Appellant filed a timely post-sentence motion to reconsider his sentence, which the trial court denied. Appellant then filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue:

Whether the trial court abused its discretion in fashioning an excessive and unreasonable aggregate sentence of 33-84 months' state incarceration where it focused on the gravity of the offense at the expense of the other required sentencing factors under 42 Pa.C.S. § 9721(b)?

Appellant's Brief at 6 (formatting altered).

In his sole issue, Appellant challenges the discretionary aspects of his sentence. Appellant argues that the trial court imposed an unduly harsh and manifestly excessive sentence and failed to consider the sentencing factors required by 42 Pa.C.S. § 9721(b). Id. Specifically, Appellant claims that the trial court failed to consider his rehabilitative needs or mitigating factors, such as his guilty plea, and impermissibly placed too much emphasis on the severity of the offenses. Id. at 27-28 (citing Commonwealth v. Vega, 850 A.2d 1277, 1282 (Pa. Super. 2004) (explaining that when deviating from the standard sentencing guidelines, "[t]he focus should not be on the seriousness or egregiousness of the offense generally, but, rather, on how the [] case deviates from what might be regarded as a 'typical' case")).

"[C]hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issues; (3) whether Appellant's brief includes a [Pa.R.A.P. 2119(f)] concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations omitted).

"To preserve an attack on the discretionary aspects of sentence, an appellant must raise his issues at sentencing or in a post-sentence motion. Issues not presented to the sentencing court are waived and cannot be raised for the first time on appeal." Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a).

"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super. 2017) (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." Commonwealth v. Grays, 167 A.3d 793, 816 (Pa. Super. 2017) (citation omitted).

Here, the record reflects that Appellant preserved his sentencing claim in a post-sentence motion, filed a timely notice of appeal, and included the issue in his Rule 1925(b) statement. Appellant also included a Rule 2119(f) statement in his brief. Additionally, we conclude that Appellant has raised a substantial question for review. See Commonwealth v. Kurtz, 294 A.3d 509, 535-36 (Pa. Super. 2023) (finding a substantial question for review where the defendant "pair[ed] an excessive sentence claim with an assertion that the [trial] court failed to consider mitigating evidence" (citation omitted)), appeal granted on other grounds, 306 A.3d 1287 (Pa. 2023). Accordingly, we will review the merits of Appellant's claim.

Our standard of review is as follows:

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.

Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously; (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(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 [PSI].

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some citations omitted and some formatting altered).

The balancing of sentencing factors is the sole province of the sentencing court, which had the opportunity to observe the defendant and all witnesses firsthand. See Kurtz, 294 A.3d at 536. In conducting appellate review, this Court "cannot reweigh sentencing factors and impose judgment in place of sentencing court where lower court was fully aware of all mitigating factors[.]" Id. (citation omitted).

When provided with discretion to fashion a sentence, the trial court must ensure that the term of confinement is consistent with "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[,]" and provide "a statement of the reason or reasons for the sentence imposed." 42 Pa.C.S. § 9721(b). "Our Supreme Court has determined that where the trial court is informed by a [PSI], 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. Edwards, 194 A.3d 625, 637-38 (Pa. Super. 2018) (citation omitted and formatting altered).

"[I]t is well-established that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court." Kurtz, 294 A.3d at 535 (citation omitted and formatting altered). "Defendants convicted of multiple offenses are not entitled to a 'volume discount' on their aggregate sentence. Further, we will not disturb consecutive sentences unless the aggregate sentence is grossly disparate to the defendant's conduct, or viscerally appears as patently unreasonable." Commonwealth v. Bankes, 286 A.3d 1302, 1310 (Pa. Super. 2022) (citations omitted and formatting altered).

Here at sentencing, the trial court noted that it had reviewed the PSI, which included Appellant's personal history, mental health diagnoses and treatment history, and the victim's impact statement. See N.T. Sentencing Hr'g, 3/8/23, at 2-4. During the hearing, the...