J-S43017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PACURIE HUYNH,
Appellant No. 2872 EDA 2013
Appeal from the Judgment of Sentence entered August 2, 2013,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0001195-2013
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2014
entered after he pleaded guilty to one count of accidents involving death or
personal injury resulting in death.1
The trial court summarized the pertinent facts and procedural history
as follows:
On July 4, 2012, Thomas Quercetti, victim herein, was
struck by a vehicle while walking in the 100 block of State
Road in Springfield Township, Delaware County. The
driver of the vehicle callously fled the scene, leaving the
victim lying alone on the side of the road with massive
injuries. On February 20, 2013, the victim succumbed to
his injuries.
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1
75 Pa.C.S.A § 3742.
*Former Justice specially assigned to the Superior Court.
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After countless months of investigation by the
Springfield Police Department and assistance from the FBI,
the driver of the vehicle was identified as Appellant,
Pacurie Huynh. Appellant was arrested and charged with
accidents involving death or personal injury and failure to
stop and render aid.
On May 8, 2013, Appellant pleaded guilty to accidents
involving death or bodily injury resulting in death, a felony
of the third degree. Appellant was sentenced on August 2,
2013, to three and one half years to seven years in a state
correctional institute.
***
On August 12, 2013, Appellant filed a post sentence
motion to (1) withdraw his guilty plea; and (2) for [the
trial court] to reconsider his sentence. After a hearing on
motion[.]
On October 15, 2013, Appellant filed a timely notice of
appeal. The following day, [the trial court] issued an
Order requesting Appellant to file a 1925(b) statement.
Appellant filed his 1925(b) statement on October 23, 2013
raising two issues: (1) The sentence imposed was in
excess of the guidelines and therefore an abuse of
discretion; and (2) the sentence was manifestly
unreasonable under the circumstances.
Trial Court Opinion, 11/13/13, at 1-3 (footnotes omitted).
In accordance with Pa.R.A.P. 1925(a), the trial court filed an opinion
on November 13
the following issue for our review:
Is [Appellant] entitled to a new sentencing hearing where
the sentencing court clearly abused its discretion in
sentencing [Appellant] to the statutory maximum sentence
of 3½ to 7 years incarceration, after [Appellant] waived his
preliminary hearing, pleaded guilty, had no record, and a
sentencing guideline range of 12-24 months incarceration?
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A challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, Appellant must petition for allowance of
appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856
A.2d 1254, 1257 (Pa. Super. 2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (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 aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Here, Appellant preserved his claim by filing a post-sentence motion
and timely notice of appeal. Appellant has additionally included in his brief a
concise statement pursuant to Pa.R.A.P. 2119(f). See -
excess of the guidelines, without placing adequate reasons on the record for
its decision to do so, constitutes a substantial question for our review. See
Commonwealth v. Antidormi
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Court has held that claims that the sentencing court imposed a sentence
outside the standard guidelines without stating adequate reasons on the
Appellant argues that the trial court abused its sentencing discretion
when it imposed a sentence in excess of the guidelines.2 Appellant contends
that in its imposition of sentence, the trial court based its sentencing
decision only on the seriousness of the crime, and disregarded the fact that
Appellant conveyed sympathy and remorse, pleaded guilty, and had no prior
-15. Accordingly, Appellant argues
that he is entitled to a new sentencing hearing.
Our standard of review in sentencing matters 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. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007)
(citation omitted).
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2
The guidelines recommended a sentence of twelve months in the standard
range and 18 months in the aggravated range. The statutory maximum was
3½ to 7 years.
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Where an excessive sentence claim is based on deviation from
the sentencing guidelines, we look for an indication that the
sentencing court understood the suggested sentencing range.
When there is such an indication, the sentencing court may
deviate from the sentencing guidelines to fashion a sentence
which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community, so long as the court also states of
record the factual basis and specific reasons which compelled
him to deviate from the guideline range. Thus, simply stated,
the sentencing guidelines are merely advisory and the
sentencing court may sentence a defendant outside the
guidelines as long as the sentencing court places its reasons for
doing so on the record.
Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013) quoting
Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. Super. 2005); 42
Pa.C.S.A. § 9721(b).
The legislature has provided that an appellate court shall vacate
sentencing court sentenced outside the sentencing guidelines
and
court shall affirm the sentence imposed by the sentencing
weighed when we review a sentence include:
(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. § 9781(d).
Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006).
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guidelines, appellate courts look to the reasons set forth on the record for
the sentencing court's deviation; if the sentencing court proffers reasons
indicating that its decision to depart from the guidelines is not unreasonable,
Commonwealth v. Smith, 863 A.2d 1172,
1177-1178 (Pa .Super. 2004) citing Commonwealth v. Mouzon, 828 A.2d
1126, 1129 1130 (Pa. Super. 2003). Here, the trial court explained:
At the sentencing hearing [the trial court] made a
thorough record of the reasons
[The trial court] started by recognizing that sentencing
should be consistent with the general principles of:
protection of the public, gravity of the offense on the
victim, impact on the community, the rehabilitative needs
of the defendant, and consideration of the sentencing
guidelines. Next, [the trial court] stated everything that
was taken into consideration before imposing a sentence;
report, the psychiatric report, the substance abuse
evaluation, the sentencing memorandum submitted by the
Commonwealth, the sentencing memorandum submitted
by counsel for [Appellant], including the numerous letters
of support attached thereto, the sentencing guidelines, all
statements made prior to sentencing, and that includes the
victim impact statements, and a statement by the family of
Pursuant to 42 Pa.C.S. Section 9721(b), in every
case where a court deviates from the guideline range, they
are to provide the reasons for the deviation. [The trial
deviated from the standard range and the aggravated
range as suggested by the sentencing guidelines for the
testimo
deviation, which include: [A]ppellant was acutely aware
that he struck something and kept going; that leaving the
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closed for several hours causing major inconvenience on
the community; that despite being front page news for
several days, [A]ppellant never once stepped forward; and
furthermore, that [A]ppellant actually took steps to cover
up his actions by attempting to get his vehicle fixed with
cash, not offering any identification, and telling the
mechanic the damage was from hitting a wall. If Appellant
was truly remorseful, he would not have attempted to
evade authorities for upwards of two hundred days, forcing
them to spend countless hours and resources on tracking
down the driver.
In addition to his lack of remorse, the impact on the
miracle but none came. Then, for nearly eight months the
family anguished over who the heartless coward was that
took the life of Thomas Quercetti and left him lying on the
road as if he were merely animal road kill, just another
deer, cruel and inhumane for a deer, but far worse for a
young man of twe
testified that their family has been haunted by this
tragedy.
[The trial court] addressed all of the requisite
general principles of sentencing and carefully outlined its
analysis of each factor. Furthermore, [the trial court]
recognized the standard guidelines and addressed its
reasons for deviation. Simply because [the trial court],
well within its discretion, chose to sentence Appellant to
the statutory maximum does not make the sentence an
abuse of discretion.
Trial Court Opinion, 11/13/13, at 4-5 (citations to notes of testimony
omitted).
Upon review, we conclude that the trial court did not ignore or
misapply the law or exercise its judgment for reasons of partiality, prejudice,
bias or ill will, and we do not find the trial court's imposition of a sentence
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outside of the guidelines to be unreasonable. At the sentencing hearing, the
trial court emphasized that the victim was left on the side of the road lying
in a pool of blood, and that the accident caused significant damage to
something, yet declined to stop his vehicle. Moreover, Appellant made
efforts to repair his damaged vehicle, and in doing so made a conscious
effort to conceal his identity by declining to provide his name to the auto
repair shop, paying in cash, and informing the repair shop that the accident
occurred when he hit a wall. N.T., 8/2/13, at 24-26. With regard to
hat Appellant did
not turn himself in immediately or even shortly after the accident, and that
236 days passed before he was located by police as a suspect, leading to his
subsequent admission of guilt. Id
the trial court focused solely on the seriousness of the crime in fashioning its
sentence, the record reflects that at the sentencing hearing, the trial court
expressly indicated it considered the pre-sentence report, including a
psychiatric report, as well as letters in support of Appellant, the protection of
the public, the gravity of the offense as it related to the impact on the
considerations in rendering its sentence. Id. at 21-22.
Appellant asserts that the record is devoid of any indication that he is
a menace to society or that he is not amendable to rehabilitation.
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oad was closed by police after
decision to deviate from the guidelines because every crime causes
upheaval, and traffic congestion is not an aggravating factor. However, we
reiterate that the trial court, in addition to mentioning that the accident
caused a traffic disturbance and that the crime had a significant impact on
ene of the crime, his failure to turn
himself in at the earliest opportunity, and his efforts to conceal his crime.
Although Appellant objects to the emphasis placed by the trial court on
various sentencing factors and asks for a new sentencing hearing on this
basis, we may not substitute our judgment for that of the sentencing court.
Commonwealth v. Marts, 889 A.2d 608, 616 (Pa. Super. 2005). For the
foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Justice Fitzgerald files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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