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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHANE MCCULLOUGH, :
:
Appellant : No. 749 WDA 2015
Appeal from the Judgment of Sentence June 18, 2014
In the Court of Common Pleas of Erie County
Criminal Division No(s).: CP-25-CR-0000190-2014
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015
Appellant, Shane McCullough, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas after he pleaded guilty to
criminal trespass,1 criminal mischief,2 and theft from a motor vehicle.3 He
challenges the discretionary aspect of his sentence. Appellant claims the
trial court failed to consider significant and compelling mitigating factors and
his rehabilitative needs and potential. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3503(a)(11).
2
18 Pa.C.S. § 3304(a)(5).
3
18 Pa.C.S. § 3934(a).
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The facts are unnecessary for our disposition. On June 18, 2014,
Appellant was sentenced to twelve to thirty-six months’ imprisonment for
criminal trespass, nine to twenty-four months’ imprisonment for criminal
mischief, and six to twelve months’ imprisonment for theft from a motor
vehicle. The sentences were concurrent. On November 13, 2014, Appellant
filed a pro se Post Conviction Relief Act4 (“PCRA”) petition. Counsel was
appointed and filed a supplement to the PCRA petition. On March 6, 2015,
Appellant’s request for collateral relief was granted and his right to file a
post-sentence motion was reinstated. On March 16, 2006, Appellant filed a
post-sentence motion nunc pro tunc. On April 17, 2015, the court denied
the motion for modification of sentence. This timely appeal followed.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. The trial court filed a responsive opinion.
Appellant raises the following issue for our review: “Whether the
sentencing court failed to consider and afford due weight to the various
mitigating factors in regard to the sentence that was imposed?” Appellant’s
Brief at 2.
Appellant challenges the discretionary aspect of his sentence.
Initially, we must determine whether Petitioner has the
right to seek permission to appeal the sentencing court’s
exercise of its discretion. Where a defendant pleads guilty
without any agreement as to sentence, the defendant
retains the right to petition this Court for allowance of
4
42 Pa.C.S. §§ 9541-9546.
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appeal with respect to the discretionary aspects of
sentencing.
Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)
(citation omitted).
This Court has stated,
discretionary aspects of . . . sentence . . . are not
appealable as of right. Rather, an appellant challenging
the sentencing court’s discretion must invoke this Court’s
jurisdiction by satisfying a four-part test.
We 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely appealed, preserved his issue in his post
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
Accordingly, we ascertain whether Appellant has raised a substantial
question. See id.5
5
This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement
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Appellant contends his sentence was manifestly excessive in
disregarding several mitigating factors, specifically, his acceptance into
Father Peterson’s in Spartansburg prior to sentencing.6 Appellant’s Brief at
5. A representative of the facility, Joe Tarquenio, was scheduled to appear
at sentencing and advocate for his placement in the program as a
sentencing alternative. Id. However, the representative was not present at
the time of sentencing. Id. Appellant avers the court did not take into
consideration his alcohol and drug use at the time of the commission of the
failed to include a statement of where his sentence fell within the sentencing
guidelines. Appellant’s Brief at 4. However, as the Commonwealth did not
argue a defect in his Rule 2119(f) statement, we decline to find waiver. See
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014).
6
Appellant does not cite any legal authority in support of this argument.
This Court has stated:
[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with
references to the record and with citations to legal
authorities. Pa.R.A.P. 2119(a), (b), (c). Citations to
authorities must articulate the principles for which they are
cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Moreover, when
defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or
find certain issues to be waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted). Instantly, we decline to find waiver as this defect does
not impede our ability to conduct meaningful appellate review. See id.
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underlying criminal conduct. Id. The court failed to consider the fact that
he had a minor child. Id.
Generally, where the sentence is in the standard range, as in the case
sub judice, “a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). However, a claim of
excessiveness can raise a substantial question as to the appropriateness of a
sentence under the Sentencing Code, even if the sentence is within the
statutory limits. Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.
2002).
In his Rule 2119(f) statement, Appellant avers:
As to the instant case and the sentence at issue, the
fundamental norm violated was that the sentencing
scheme imposed by the [c]ourt was manifestly excessive
and not individualized, in that the court failed to consider
significant and compelling mitigating factors and
[Appellant’s] rehabilitative needs and potential. The
sentencing scheme could have served the interests of the
public and recognized the rehabilitative prospects of
[A]ppellant without imposing such a lengthy sentence.
Appellant’s Brief at 4.
We find that Appellant’s Rule 2119(f) statement presents a substantial
question.7 See Mouzon, 812 A.2d at 624. Therefore, we will review the
merits of Appellant’s challenge to the discretionary aspects of his sentence.
7
We note the trial court found that Appellant did not raise a substantial
question. Nonetheless, the court addressed the issue, “[a]ssuming the
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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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for confinement
that 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.
42 Pa.C.S.A. § 9721(b).
Furthermore,
Section 9781(c) specifically defines three instances
in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court
applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly
unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the
guidelines and is “unreasonable.” 42 Pa.C.S. §
9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
courts must review the record and consider the
nature and circumstances of the offense, the
sentencing court’s observations of the defendant, the
Honorable Superior Court finds otherwise . . . .” Trial Ct. Op., 6/2/15, at 2.
The court found the claim to be meritless. See id. at 2-4. “We may affirm
the trial court on any ground.” Commonwealth v. Lynch, 820 A.2d 728,
730 n.3 (Pa. Super. 2003).
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findings that formed the basis of the sentence, and
the sentencing guidelines. The weighing of factors
under 42 Pa.C.S. § 9721(b) is exclusively for the
sentencing court, and an appellate court could not
substitute its own weighing of those factors. The
primary consideration, therefore, is whether the
court imposed an individualized sentence, and
whether the sentence was nonetheless unreasonable
for sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some citations omitted).
Our Supreme Court has stated:
Where pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any
lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. . . .
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
At the sentencing hearing, the record reveals the following:8
8
We note that Appellant’s probation was revoked at the hearing. N.T.,
6/18/14, at 8. The Commonwealth stated to the court that the instant
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[Defense Counsel]: [Appellant’s] been in jail . . . . He’s
had time to talk and to think. I’ve talked to him quite a
bit. I think he has some insight into what he’s doing. On
his own he got ahold [sic] of Joe Tarquinio of the Maria
House Project, who will accept him.
He has some mental health issues that put him on SSD
[Social Security Disability]. . . . The crimes are relatively
small. We’d ask for him to have a chance to work with Mr.
Tarquinio. He believes that substance abuse is his issue.
The Court: . . . Mr. McCullough, I did receive a letter from
you. Is there anything you would like to say, sir?
[Appellant]: I’m making no excuses for my actions. I need
help. I’ve lost my son to OCY like 19 months ago and I
just went down a deep, dark spiral of drinking and it’s
gotten me in trouble. And I really need help.
* * *
[The Commonwealth]: . . . In terms of looking at his
history here, his adult history, we have a robbery in Florida
in 2008, a trespass in 2009, simple assault here in Erie in
2010, and then strings of just nuisance offenses, disorderly
conduct, public drunkenness, all the way up until you
sentence him for possessing with the intent to deliver
marijuana and you give him probation. He’s put on
probation in September of 2013, and it looks like just
within a few months he’s committing a new offense. It’s
classified not a serious offense, but he broke into
someone’s property and was smashing windows on
vehicles.
* * *
The Court: . . . I’ve considered of number of things here,
the presentence investigative report on the new
conviction was the basis for the revocation. Id. at 5. The court sentenced
Appellant to seven to fourteen months’ imprisonment with credit for 210
days. Id. The court discharged him on that offense. Id.
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offense in its entirety and I’m going to make that part of
the record. I’ve also considered [Appellant’s] letter. I’m
going to make that a part of the record and attach it to the
presentence report. I’ve also considered the revocation
summary, and I’m going to make that a part of the record.
I’ve considered the Pennsylvania Sentencing Code, the
guidelines as they apply to the new offenses, and the
various statements made here to me today.
N.T. at 5-8.
Appellant’s argument that the trial court ignored all mitigating factors
is belied by the record. The court considered mitigating factors in imposing
the sentence. Furthermore, the court considered the presentence report.
See id.; Devers, 546 A.2d at 18. Accordingly, after examining the record
as a whole, we find that the trial court’s sentence was not manifestly
excessive. We discern no abuse of discretion. See Bricker, 41 A.3d at
875-76.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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