J-S58019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD CAPORAL,
Appellant No. 9 WDA 2014
Appeal from the Judgment of Sentence Entered July 24, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0000753-2009
CP-02-CR-0001797-2009
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 23, 2014
Appellant, Richard Caporal, appeals from the judgment of sentence of
an aggregate term of 6 to 12 years’ incarceration imposed after he was
convicted of multiple DUI offenses. Appellant claims his sentence is illegal
because the sentencing court failed to afford him credit for time served. He
also raises a challenge to the discretionary aspects of his sentence. After
careful review, we remand for the limited purposes of permitting the
sentencing court to amend the sentencing order(s) to afford Appellant
appropriate credit for time served, but otherwise we affirm his judgment of
sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S58019-14
The sentencing court summarized the factual and procedural history of
this case as follows:
Appellant, Richard Caporal, was charged by criminal
information (200900753) with one count of DUI highest rate of
alcohol,1 one count of DUI general impairment,2 and one count
of BAC 0.02 or higher.3
____________________
1
75 P.S. § 3802(c).
2
75 P.S. § 3802(a)(1).
3
75 P.S. § 1543(b)(1.1)(iii).
Appellant was charged by criminal information
(200901797) with three counts of DUI general impairment, two
counts of false report,4 two counts of accident causing damage
to unattended vehicle,5 and two counts of driving while license
suspended.6
____________________
4
18 PaC.S. § 4906(a).
5
75 P.S. § 3745(a).
6
75 P.S. § 1543(b)(1).
On February 4, 2011, Appellant proceeded to a jury trial
before the Honorable David R. Cashman at CC 200900753, at
the conclusion of which a mistrial was declared pursuant to a
hung jury. On June 8, 2011, Appellant proceeded to a jury trial
at CC 200901797, at the conclusion of which he was found guilty
of three counts of DUI general impairment, one count of accident
involving damage to unattended vehicle, and one count of
driving while license suspended. On June 23, 2011, Appellant
pled guilty to the information as filed at CC 200900753 and was
sentenced at both informations on that date.
A motion for reconsideration of sentence was filed on July
5, 2011, which was denied by operation of law on December 8,
2011. Appellant filed a [Post Conviction Relief Act] Petition on
January 27, 2012, to reinstate [his] post[-]sentence rights,
which was granted on January 30, 2012. On February 29, 2012,
Appellant filed a notice of appeal. On February 19, 2013, the
Superior Court vacated Appellant’s sentences and ordered
resentencing for RRRI consideration.
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On April 23, 2013, Appellant filed a motion for recusal,
which was granted on May 9, 2013. Both cases were thereafter
transferred to this Trial Court.
On July 24, 2013, Appellant was sentenced by the Trial
Court to the following:
Count one (CC 200900753): DUI highest rate of alcohol
— two to four years[’] incarceration;
Count three (CC 200900753): BAC 0.02 or higher —
two to four years[’] incarceration to be served consecutive
to the period of incarceration imposed at count one;
Count one (CC 200901797): DUI general impairment
second offense — two to four years[’] incarceration to be
served consecutive to the period of incarceration imposed
at count three (CC 200900753);
Count six (CC 200901797): driving while license
suspended — sixty days[’] incarceration to be served
concurrent to the period of incarceration imposed at count
one (CC 200901797).
Thus, the aggregate sentence was six to twelve years[’]
incarceration. Appellant received credit at CC 200900753 from
February 15-19, 2011; Appellant received credit at CC
200901797 from January 22-February 13, 2009, and from
February 15, 2011-July 19, 2011. Appellant was deemed RRRI
eligible.
Appellant filed a post[-]sentence motion on July 31, 2013,
which was denied by the Trial Court on November 27, 2013. This
timely appeal follows.
Trial Court Opinion (TCO), 5/22/14, at 2-4.
Appellant now presents the following questions for our review:
I. Is a sentence illegal if Appellant fails to receive credit time
when the credit was not applied to any other case?
II. Does a sentencing court abuse its discretion by imposing
an excessive sentence without adequately addressing all
required sentencing factors?
Appellant’s Brief at 9 (unnecessary capitalization omitted).
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We begin with Appellant’s second issue in which he challenges the
discretionary aspects of the sentence imposed by the sentencing court.
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
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.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Appellant filed a timely notice of appeal, preserved his claim in a
post-sentence motion, and provided a Rule 2119(f) statement in his brief.
Accordingly, it only remains for us to consider whether he presents a
substantial question for our review, and we conclude that he does.
Appellant claims his sentence was imposed without consideration of
statutory sentencing factors set forth in 42 Pa.C.S. § 9721(b) of the
Sentencing Code, particularly that the sentencing court failed to consider his
rehabilitative needs. A claim that a sentence is inconsistent with a specific
provision of the Sentencing Code presents a substantial question for our
review. See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super.
2010) (finding that a sentencing court’s failure to consider “Appellant’s
rehabilitative needs and the protection of society” raises a substantial
question).
We now turn to the merits of Appellant’s claim. We review Appellant’s
sentence for an abuse of discretion:
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.
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Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(citation omitted).
Appellant contends that the sentencing court failed to consider his
rehabilitative needs when it sentenced him to 6 to 12 years’ incarceration.
Specifically, Appellant argues that his convictions stem from his addiction to
alcohol, which “had not been sufficiently treated” during his previous
incarceration for similar offenses. Appellant’s Brief at 32 (citing N.T.,
7/24/13, at 8). Appellant asserts that he “wanted a chance to obtain
appropriate treatment for his addiction with the support of his family, move
forward with his life, and become a productive member of society.” Id. at
32-33 (citing N.T., 7/24/13, at 10). He notes that no one was injured as a
result of his offenses, and yet he was sentenced in a manner far more
consistent with a conviction for homicide by vehicle, which carries a
maximum possible penalty of ten years’ incarceration. Id. at 32.
The sentencing court rejected this claim, finding that “the record
clearly establishes that, prior to resentencing Appellant, the [court]
considered all relevant factors[.]” TCO at 8. The sentencing court then
referenced the following statement that it had made during Appellant’s
sentencing hearing:
As to [Appellant], the Court has taken into account the
Sentencing Guidelines. They'll be made part of the record. Also,
the two Pre-sentence Reports as referenced earlier in this
proceeding, one for Judge O'Toole in December of 1994, and the
second for Judge Cashman in May 2011.
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The Court understands the individualized sentence[ing
scheme] instituted in Pennsylvania calls into play the
[Appellant’s] background, which is detailed in the Pre-sentence
Report, criminal history, of course, detailed in the Pre-sentence
report, reflected in the prior record score, as reflected in the
Guidelines.
[The] Court takes into [account] its sentencing function
mindful of the protection of the public, and gravity of the
offenses, and impact on the community, as well as the
rehabilitative needs of the defendant.
The Court has taken into account the statement made on
his behalf today by [counsel], including the consequences of his
conduct, losing his home, not seeing, but hearing of his
grandchildren being born, his attendance at AA classes, his age,
his continued membership in the Carpenters Union, his work
history reflected in the Pre-sentence Report, family support
which he enjoyed in the past and apparently still does to the
present day, although he has had a very tumultuous family life
in a sense of his alcohol addiction has caused significant financial
problems to himself and his family in that regard, also, his
progress and history as an inmate to date.
The Court notes in terms of his history, the driving under
the influence convictions and episodes charged [and] detailed in
the Pre-sentence Report, summarized in the end of the
Presentence Report, the latest Pre-sentence Report, indicating
that the defendant -- this is quoted from the Pre-sentence
Report, not including the present ones, the ensuing three years,
three decades, this is referring to his first -- his earlier
convictions, that the defendant had been convicted of a total of
11 times for that offense, and these two would be 12 and 13.
The vehicle, his driving history is significant in terms of the
violations that, again, the Pre-sentence Report, [Appellant’s]
driving privileges have continuously been suspended since 1978.
Since 1977 he's incurred numerous violations, including traffic
light violation, chemical refusal eight times, exceeding maximum
speed two times, driving under the influence nine times, reckless
driving one time, driving while suspended or revoked ten times,
not paying the fines, and driving under suspension, DUI related
three times.
As to that date, [the] 2011 date, his privileges were
suspended until 2033. […]
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The Court notes [Appellant’s] statement today; and
certainly there is no question that the alcoholism has […] ruined
your life. It so significantly negatively impacted it, that it has
robbed you of a much more meaningful and productive life, not
only in the work place, but in terms of your own family. Those
consequences, of course, are your own.
The Court in this instance notes that you have had the
benefit of many different sentences, including probation,
community supervision, intermediate punishment, incarceration
at the local level, and, in fact, a period of incarceration at the
State level for one to two years in Huntsdale. Yet you continue
to re-offend.
The Court in this instance believes that, while taking into
account everything I have, that I have mentioned, and my
[empathy] for you and your family, that in this instance his
history is such that no matter what rehabilitative measures are
available to you, you chose not to avail yourself to them. They
had no effect, and […] you continue to drink; and you, also,
continue to drive […].
Taking all that into account, Mr. Caporal, the Court
believes that, again, the protection of the public is a paramount
interest here, has to be addressed here in light of your history
and your refusal to stop drinking, and refusal to stop driving
whether under the influence of alcohol or not.
Clearly, you just disregarded every admonition and
restriction put on you by the Department of Transportation or
the courts at the Common Pleas level in Allegheny and other
counties.
TCO at 8-10 (quoting N.T., 7/24/13, at 11-16).
It is clear from the above statement that the sentencing court
adequately considered Appellant’s rehabilitative needs when fashioning his
sentence. It is equally apparent that Appellant’s extensive criminal history
and the threat he posed to the public substantially outweighed consideration
of his rehabilitative needs. We, too, empathize with Appellant’s continued
battle with addiction. However, it must be noted that Appellant’s sentence
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does not reflect judgment about his affliction. Instead, his sentence is
directed at behaviors that arise out of his addiction, behaviors that continue
to put the safety of his fellow citizens at significant risk. Under such
circumstances, we must conclude that the sentencing court did not abuse its
discretion in fashioning Appellant’s sentence.
Appellant next claims that he is entitled to credit for time he spent
incarcerated prior to sentencing. Specifically, Appellant contends he did not
receive credit for time served from 1/17/09 to 1/22/09 and from 7/19/11 to
7/24/13. This matter is not in dispute. The Commonwealth agrees that
Appellant is entitled to credit against the balance of his sentence for these
periods of incarceration. Commonwealth’s Brief at 13-14. The trial court
also agrees, stating that it “acknowledges that Appellant was inadvertently
not given credit at his resentencing for that time, and that this was in error.
Appellant’s sentence should be amended to include time credit from
[1/17/09 to 1/22/09], and [7/19/11 to 7/24/13].” TCO at 7. Accordingly,
we remand this case to allow the sentencing court to amend Appellant’s
sentencing order[s] to reflect credit for time served during these periods.
Judgment of sentence affirmed in part, vacated in part. Case
remanded for the amendment of the sentencing order(s) to reflect credit
for time served. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2014
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