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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ADAM LEE WHITE
Appellant No. 206 MDA 2015
Appeal from the Judgment of Sentence November 24, 2014
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000232-2013
CP-18-CR-0000276-2013
CP-18-CR-0000280-2014
CP-18-CR-0000282-2014
CP-18-CR-0000468-2008
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 28, 2015
Adam Lee White appeals from the judgment of sentence imposed on
November 24, 2014,1 in the Court of Common Pleas of Clinton County, and
made final by the denial of post-sentence motions on January 12, 2015.
White was charged with and pled guilty to multiple offenses at five separate
informations that were consolidated for sentencing purposes. With regard to
two of the criminal dockets, White pled guilty on October 27, 2014 to fleeing
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*
Retired Senior Judge assigned to the Superior Court.
1
White’s judgment of sentence was amended that same day due to a
scrivener’s error, with no substantive changes. The amended sentence was
time stamped on December 4, 2014.
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or attempting to elude an officer, two counts of recklessly endangering
another person (“REAP”), driving while operating privilege is suspended or
revoked, reckless driving, and retail theft.2 With respect to the remaining
three dockets, White pled guilty at various dates to two counts of receiving
stolen property and one count of retail theft, and his probationary sentence
as to all three dockets was subsequently revoked on August 26, 2014.3 In
addressing all five informations, the court sentenced White to an aggregate
period of 72 to 300 months’ imprisonment.4 The sole issue on appeal is a
challenge to the discretionary aspects of sentencing. After a thorough
review of the submissions by the parties, the certified record, and relevant
law, we affirm the judgment of sentence.
As stated above, this appeal involves five separate cases that were
consolidated at the trial court level: Docket No. 468-2008 (“No. 468”);
Docket No. 232-2013 (“No. 232”); Docket No. 276-2013 (“No. 276”);
Docket No. 280-2014 (“No. 280”); and Docket No. 282-2014 (“No. 282”).
At No. 468, the Commonwealth charged White with receiving stolen property
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2
75 Pa.C.S. § 3733(a), 18 Pa.C.S. § 2705, 75 Pa.C.S. § 1543(a), 75
Pa.C.S. § 3736(a), and 18 Pa.C.S. § 3929(a)(1), respectively.
3
18 Pa.C.S. § 3925(a) and 18 Pa.C.S. § 3929(a)(1), respectively.
4
The court agreed White was an eligible offender in accordance with the
Recidivism Risk Reduction Incentive (“RRRI”) Act. See 61 P.S. §§ 4501-
4512. Therefore, the court reduced his aggregate minimum sentence to 60
months.
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and theft by unlawful taking on October 10, 2008. On November 24, 2008,
White pled guilty to receiving stolen property, and was sentenced on
November 13, 2009, to two years’ probation. White’s probation was
subsequently revoked, and he was resentenced to a period of nine to 24
months’ incarceration, to run consecutively to the other sentences he was
currently serving.
At No. 232, the Commonwealth charged White with retail theft on May
23, 2013. He pled guilty and was sentenced on September 9, 2013, to two
years’ probation. His probation was subsequently revoked, and he was
resentenced to a period of 24 to 84 months, to run consecutively to the
other sentences he was serving.
At No. 276, the Commonwealth charged White with burglary, receiving
stolen property, and theft by unlawful taking on June 14, 2013. He pled
guilty and was sentenced on September 9, 2013, to two years’ probation.
His probation was subsequently revoked, and he was resentenced to a
period of 12 to 60 months, to run consecutively to the other sentences he
was currently serving.
At No. 280, the Commonwealth charged White with fleeing or
attempting to elude officers, two counts of REAP, driving while operating
privilege is suspended or revoked, and reckless driving on May 19, 2014.
On the same day, the Commonwealth also charged White with retail theft at
No. 282. He pled guilty to all the charges on October 27, 2014. The court
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sentenced him to an aggregate term of 15 to 48 months at No. 280, 5 and a
term of 12 to 84 months at No. 282, to run consecutively to the other
sentences he was currently serving.
As stated above, the court imposed an aggregate sentence of 72 to
300 months’ incarceration. Nevertheless, the court found White was an
eligible offender for the RRRI program and reduced his aggregate minimum
sentence to 60 months. White filed a motion for modification of sentence on
December 1, 2014. A hearing was held on January 12, 2015. That same
day, the court entered an order denying White’s post-sentence motion. This
appeal followed.6
In his sole issue, White challenges the discretionary aspects of his
sentence. Specifically, White states the court imposed a “manifestly
excessive sentence” given the totality of the circumstances. White’s Brief at
18. He points to the following evidence: (1) he fully cooperated with the
Commonwealth and the probation department in the completion of the
presentence investigation; (2) he has shown remorse for and frustration
with his actions from the beginning; (3) he entered a guilty plea and fully
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5
Specifically, the court imposed a sentence of three to 24 months’
incarceration for the fleeing an officer conviction, and two terms of six to 12
months’ imprisonment for the REAP charges.
6
On January 26, 2015, the trial court ordered White to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
White filed a concise statement on February 13, 2015. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on February 18, 2015.
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accepted the charges against him; (4) he has demonstrated his remorse and
understanding of the severity of these offenses to all parties he has
interacted with during this criminal procedure, particularly by waiving his
right to a preliminary hearing in three of the five cases; and (5) he is 36
years old and has one child with whom he maintains significant contact. Id.
at 18-19. Moreover, he notes he has an extensive prior record, and that his
extreme struggle with drug addiction has contributed to the current offenses
and his prior record. Id. at 19. Additionally, White alleges he has fully
appreciated the gravity and outcome of his actions, but he needs a
treatment program and that another judge, the Honorable Michael F.
Salisbury, sent him a letter, and presented the opportunity to be supervised
at a later time with a treatment court program. Id. at 20. White concludes
his “acceptance of responsibility together with The Honorable Michael F.
Salisbury’s acknowledgment of [White] being in need of treatment and
rehabilitation, indicates that [he] has the ability to be rehabilitated and to
return to society.” Id.
The standard of review for a claim challenging a discretionary aspect
of sentencing is well-established:
Sentencing is a matter vested in the sound discretion of
the judge, and will not be disturbed on appeal absent a manifest
abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citations and quotation marks omitted). To reach the merits
of a discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, White filed a notice of appeal, preserved the issue in a post-
sentence motion, and included the requisite statement pursuant to Pa.R.A.P.
2119(f) in his appellate brief. Therefore, we may proceed to determine
whether White has presented a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
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Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013).7
To the extent White puts forth the assertion that his sentence was
excessive because the trial court failed to properly consider mitigating
factors, such an allegation does not raise a substantial question. See
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
To the extent White argues his sentence was “manifestly excessive,”
such a claim does raise a substantial question. “[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
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7
With respect to whether an issue presents a substantial question, we are
guided by the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. See
Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
(Pa. Super. 2007). “A substantial question exits 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. Griffin, 2013 PA Super 70, 65 A.3d 932,
2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted).
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nature of a sentence will not raise a substantial question.” Commonwealth
v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d
161 (Pa. 2014) (emphasis in original); see also Commonwealth v. Kelly,
33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is manifestly
excessive such that it constitutes too severe a punishment raises a
substantial question.”).
We note that when imposing a sentence, the sentencing court must
consider “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.” 42 Pa.C.S. § 9721(b). Moreover,
“[w]hen imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects
court was aware of relevant information regarding defendant’s
character and weighed those considerations along with any
mitigating factors). Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d
536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
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(stating combination of PSI and standard range sentence, absent
more, cannot be considered excessive or unreasonable).
Moury, 992 A.2d at 171.
Additionally, because White’s aggregate sentence also includes
revocation sentences, we are guided by the following: “In general, the
imposition of sentence following the revocation of probation is vested within
the sound discretion of the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal.” Commonwealth v. Hoover,
909 A.2d 321, 322 (Pa. Super. 2006). “[T]he scope of review in an appeal
following a sentence imposed after probation revocation is limited to the
validity of the revocation proceedings and the legality of the sentence
imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,
790 (Pa. 2005) (citation omitted).
Upon the revocation of a defendant’s probation, a trial court may
impose any sentencing option that was available under the Sentencing Code
at the time of the original sentencing, regardless of any negotiated plea
agreement. See 42 Pa.C.S. § 9771(b); Commonwealth v. Wallace, 870
A.2d 838, 843 (Pa. 2005). Moreover, “[t]he trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the
probationary sentence.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.
Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001). Section 9771(c),
however, limits the trial court’s authority to impose a sentence of total
confinement upon revocation unless one of three circumstances are present:
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(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).8
“In addition, in all cases where the court resentences an offender
following revocation of probation ... the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a statement of
the reason or reasons for the sentence imposed [and] [f]ailure to comply
with these provisions shall be grounds for vacating the sentence or
resentence and resentencing the defendant.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations
omitted); 42 Pa.C.S. § 9721(b). “A trial court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1282-1283 (Pa. Super. 2010),
appeal denied, 13 A.3d 475 (Pa. 2010).
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8
Furthermore, it is well-established that “[t]echnical violations can support
revocation and a sentence of incarceration when such violations are flagrant
and indicate an inability to reform.” Commonwealth v. Carver, 923 A.2d
495, 498 (Pa. Super. 2007).
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Here, the trial court set forth its rationale on the record at the
November 24, 2014, sentencing hearing, stating the following:
The Court’s reviewed the presentence investigation, listened to
the comments here today by both the District Attorney, Defense
Counsel, and [White], reviewed the letter from the Treatment
Court that [White] asked me to review. [White] set forth his
facts that are -- the Court has to consider from the presentence
investigation. He’s 36, single, has a child. Obviously, currently
unemployed because he’s incarcerated. He has a GED.
His prior record, as noted, is extensive. His presentence
investigation, I believe, is seven pages long. It’s mostly
summary offenses early. And then as [White] indicated, he
starts with a criminal conspiracy to commit burglary in ’98. And
then he has convictions throughout his adulthood until we come
here today. He is serving sentences, the Court has just been
informed, of one to two from Centre County and one to three
years in Lycoming County.
[White] is eligible for RRRI and County Intermediate
Punishment. The Court would note that the Court’s reviewed the
maximum sentences that are permitted as listed in the
presentence investigation and guidelines that are applicable.
The court notes that Number 468-2008, 232-2013, 276-2013
that the sentencing guidelines are not applicable because these
are resentencings.
The Court would note that the presentence investigation
finds that [White] was paroled from the State Correctional
Institution on February 22nd, 2014, and, within three months,
had four new sets of criminal charges in three separate counties.
The presentence investigation also indicates that [White]’s prior
record is staggering, that it has -- that he has an outstanding --
an astounding number of retail thefts and theft related
convictions.
[White] has blatant disrespect and apathy toward law
enforcement, County probation, State parole, and State law.
The Court’s listened to what was said here today by [White] and
has adjusted it’s sentence somewhat to reflect not only what
[White] said, but also what the other courts have -- other courts,
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Centre and Lycoming, that they have done since [White] has two
more years of incarceration from those two counties.
N.T., 11/24/2014, 18-19. In its Rule 1925(a) opinion, the trial court
reiterated what it opined at sentencing. See Trial Court Opinion, 2/18/2015,
at unnumbered 1-2.
We conclude the trial court properly considered all of the relevant facts
prior to sentencing, particularly White’s propensity to repeat his prior bad
conduct and his potential, or lack therefor, for rehabilitation. The court
indicated it had the benefit of the presentence investigation, had reviewed
the sentencing guidelines, and had listened to White’s own statements.
It merits emphasis that White’s aggregate sentence of 72 to 300
months is a mix of three revocation sentences and two new sentences. As
stated above, with respect to the revocation sentences, a court may impose
any sentencing option that was available under the Sentencing Code at the
time of the original sentencing. See 42 Pa.C.S. § 9771(b). White does not
complain these sentences conflict with statutory provisions regarding
revocation. Furthermore, his two new sentences amounted to a term of 27
to 132 months’ incarceration, or a little over a third of his total sentence.
White does argue that these sentences fell outside the standard sentencing
guideline range. Additionally, White’s “cooperative” and “remorseful”
behavior leading up to sentencing does not render an abuse of discretion by
the trial court. As such, we cannot conclude that the imposition of
consecutive sentences in this case was clearly unreasonable. See Dodge.
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Accordingly, considering all the attendant circumstances, we detect no abuse
of discretion on the part of the trial court in imposing a sentence of 72 to
300 months’ imprisonment, including RRRI eligibility, for White’s numerous
probation violations and new criminal convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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