Commonwealth v. Swope

123 A.3d 333

2015 PA Super 196

COMMONWEALTH of Pennsylvania, Appellee

v.Peter Michael SWOPE, Appellant.

No. 1115 WDA 2014

Superior Court of Pennsylvania.

Submitted June 29, 2015.

Filed Sept. 16, 2015.

Lawrence W. Kustra, Deputy Public Defender, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

Opinion

OPINION BY JENKINS, J.:

Appellant Peter Michael Swope appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following the revocation of his probation. Upon review, we affirm.

The relevant facts and procedural history of this appeal are as follows. On July 22, 2006, Appellant entered the home of Missy Hodgson while she was not present. After Miss Hodgson returned home and fell asleep in her bed, Appellant awakened her by touching her buttocks. Miss Hodgson screamed and woke her police officer boyfriend, David Pisani. Appellant ran out of the home, and Mr. Pisani called the police and noticed that his wallet and police badge were missing.

The next day, Appellant entered a room of the Hilton Hotel in Pittsburgh and hid in the armoire until three people returned to their room. Upon discovering him and noting that he was visibly intoxicated, the hotel room occupants alerted security guards, who detained Appellant until police arrived. While he was being detained, Appellant threatened and fought with the security guards. Police arrested and searched Appellant, revealing Mr. Pisani's police badge and other items, including credit cards from other victims.

On June 5, 2007, Appellant entered a plea of nolo contendere to burglary¹ and indecent assault without consent of other² relating to his July 22, 2006 offense (“home offense”).³ He also pled nolo contendere to burglary, terroristic threats with intention to terrorize another,⁴ simple assault,⁵ three counts of receiving stolen property,⁶ public drunkenness,⁷ and disorderly conduct,⁸ relating to the hotel room offense (“first hotel room offense”).⁹ For the home offense, the court sentenced Appellant to 18–36 months' incarceration, followed by 10 years' probation for the burglary conviction and 12–24 months' incarceration, concurrent, for the indecent assault conviction. For the first hotel offense, the court sentenced Appellant to 18–36 months' incarceration, followed by 10 years' probation for the burglary conviction, and concurrent two-year periods of probation for each of the terroristic threats with intent to terrorize another and simple assault convictions.¹⁰ The court imposed the first hotel offense sentence concurrently with the home offense sentence.

While he was on probation, Appellant was convicted of burglary, simple assault, theft by unlawful taking,¹¹ and access device fraud¹² for an incident in which he snuck into a Hilton hotel room, tried to get into bed with a female victim, and stole and used the victim's credit card. He was also convicted of corruption of minors¹³ for having indecent contact with his seventeen-year-old daughter while she was unconscious. Appellant was sentenced to an aggregate of 7–15 years' incarceration for these crimes.¹⁴

In light of these other convictions, the trial court revoked Appellant's probation for the home offense and the first hotel room offense. On June 11, 2014, the court sentenced Appellant to consecutive sentences of 5–10 years' incarceration for the home offense burglary and 1–10 years' incarceration for the first hotel room offense burglary.¹⁵ This aggregate sentence of 6–20 years' incarceration was to be served consecutively to the 7–15 year sentence for the crimes committed while on probation.

On June 16, 2014, Appellant filed a timely motion for reconsideration of sentence. On July 11, 2014, Appellant filed a timely notice of appeal.¹⁶ On August 19, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on September 9, 2014.

Appellant raises the following issue for our review:

WAS THE SENTENCE OF SIX TO TWENTY YEARS OF INCARCERATION MANIFESTLY EXCESSIVE, WHERE THE COURT DID NOT CONSIDER [APPELLANT'S] SERIOUS REHABILITATIVE NEEDS?

Appellant's Brief at 6.

Appellant challenges the discretionary aspects of his sentence following the revocation of his probation. Specifically, Appellant argues his sentence of 6–20 years was manifestly excessive, especially because it was imposed consecutively to his other sentence, resulting in what could be a life sentence for Appellant. He further avers the trial court failed to consider Appellant's rehabilitative needs or mitigating factors and concludes the court abused its discretion upon fashioning his sentence. We disagree.

Challenges to the discretionary aspects of sentencing do not entitle a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a discretionary challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (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.

Id.

Presently, Appellant filed a timely notice of appeal and preserved his issues in a post-sentence motion. Further, Appellant's brief includes a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 10–12. We now must determine whether Appellant presents a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.2011). Further:

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. (internal citations omitted).

Upon revoking probation, a sentencing court may choose from any of the sentencing options that existed at the time of the original sentencing, including incarceration. 42 Pa.C.S. § 9771(b). However, the imposition of total confinement upon revocation requires a finding that either “(1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned, or (3) such a sentence is essential to vindicate the authority of the court.” 42 Pa.C.S. § 9771(c).¹⁷

“An appellant making an excessiveness claim raises a substantial question when he sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super.2014), appeal denied, ––– Pa. ––––, 105 A.3d 736 (2014) (internal citations omitted).

“When imposing a sentence, the sentencing court must consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 A.2d 843, 847–48 (Pa.Super.2006) (internal citations omitted).

A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 609 Pa. 685, 14 A.3d 825 (2011). Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only “the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal denied , 621 Pa. 677, 75 A.3d 1281 (2013).

To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014) (emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996–97 (Pa.Super.2001) (internal citation omitted) (emphasis in original). Specifically,

[t]here is ample precedent to support a determination that [a claim that the trial court failed to consider an appellant's rehabilitative needs] fails to raise a substantial question.... See Commonwealth v. Cannon, 954 A.2d 1222, 1228–29 (Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that the trial court failed to consider the defendant's rehabilitative needs, age, and educational background did not present a substantial question); Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (citing Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949,

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