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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KENNETH TYLER CARY, :
:
Appellant : No. 540 MDA 2015
Appeal from the Judgment of Sentence entered on February 18, 2015
in the Court of Common Pleas of Lackawanna County,
Criminal Division, No. CP-35-CR-0001630-2014
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 13, 2015
Kenneth Tyler Cary (“Cary”) appeals from the judgment of sentence
imposed after he pled guilty to receiving stolen property and unsworn
falsification to law enforcement.1 We affirm.
The trial court set forth the relevant procedural history and facts
underlying this appeal as follows:
On November 20, 2014, [Cary] pled guilty to one count of
receiving stolen property and one count of making an unsworn
falsification to law enforcement, and[,] in exchange, the other
charges pending against [him, i.e., burglary, criminal trespass,
and theft by unlawful taking (collectively referred to as “the
dismissed charges”),] were nolle prossed. These charges arose
on January 26, 2014, in Scranton, when [Cary] entered the
victims’ home and stole cash, gift cards, and silver coins. After
conducting an investigation, the police determined that [Cary]
had used the stolen gift cards, and when he was arrested by
police on February 20, 2014, he provided a written statement
and lied about where and how he had obtained the gift cards.
1
See 18 Pa.C.S.A. §§ 3925(a), 4904(a)(1).
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On February 18, 2015, [Cary] was sentenced. [At the
sentencing hearing, t]he Commonwealth stated that the victim[s
were] seeking $5[,]800 in restitution, and [Cary’s] attorney
objected[,] since the amount in the [criminal] information[,] and
the amount of restitution [Cary] had agreed to at the time of the
plea[,] was $2[,]700. The [trial] court asked the Commonwealth
where this new amount had come from, and the Commonwealth
indicated that it was in the victim impact statement submitted to
the Commonwealth. The court asked to see it, and [Cary’s]
counsel then stated that [Cary] was indicating that he[] [would]
accept responsibility for the restitution even though it was not
part of the original charges. The court said that this should have
been made part of the file[,] and made available to defense
counsel. [Cary’s] counsel stated that this is the first time he has
seen this, but that his client indicates that he is willing to take
responsibility for the amount of restitution now being demanded.
[Prior to imposing sentence, t]he [trial] court stated that it
understood that [Cary had] committed these crimes because of a
drug addiction, but that [Cary] does not understand that[,] while
it hurts people to lose things taken from their home, it hurts
them even more to take away their sense of security in their
own home. The court stated that they never feel the same
about being in their own home, and the court views the entry of
someone else’s home[,] and taking of items from them[,] as
being a very serious crime, because the sense of security is
never replaced. The court also noted that [Cary] was either
under court supervision[,] or just recently released from court
supervision[,] when the [crimes] were committed, since th[e
trial] court had sentenced him in March of 2011 to one to three
years [in prison] ….
The [trial] court imposed a sentence of one to four years
[in prison] on the [receiving stolen property] charge, and three
months to one year on the falsification to law enforcement
charge, consecutive to the first [sentence]. The court noted that
the sentences f[e]ll within the standard range of the sentencing
guidelines, and that the court was going into the upper reaches
of the standard range because [Cary] was under supervision[,]
or just released from supervision[,] when he committed the
crimes. The court stated that it took into consideration [Cary’s]
rehabilitative needs, but that when he makes his problems
somebody else’s problems, the court had to get serious about
the time imposed. The court also ordered restitution of $5[,]800
to the victims, as well as a drug and alcohol evaluation.
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Trial Court Opinion, 5/7/15, at 1-3 (paragraph breaks added, citations
omitted).
Cary timely filed a Motion for reconsideration of sentence, which the
trial court denied. Cary then timely filed a pro se Notice of Appeal, after
which the trial court appointed him counsel. The trial court ordered Cary to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, and Cary timely complied.
On appeal, Cary presents the following issues for our review:
A. Whether the [sentencing] court incorrectly relied on [the
dismissed] charges for the sentences, charges to which
[Cary] did not plead guilty, of which he was not
convicted, and which were nolle prossed as part of his
plea agreement?
B. Whether the [sentencing] court imposed harsh,
excessive and unreasonable sentences?
C. Whether the [sentencing] court erred and imposed an
illegal sentence by imposing restitution of $5,800.00,
where the amount to which he pled guilty, and the
stolen items that he acknowledged responsibility for
receiving[,] was only $2,700.00?
Brief for Appellant at 4.
We will address Cary’s first two issues together, as they are related.
Cary argues that the sentencing court committed an abuse of discretion in
sentencing him because it (1) impermissibly considered the dismissed
charges when fashioning Cary’s sentence; and (2) imposed an unduly harsh
and excessive sentence. See id. at 10-11, 11-16.
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Cary challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d
359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review, by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence,
pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Here, Cary included a Rule 2119(f) Statement in his brief. See Brief
for Appellant at 10-11. Moreover, Cary’s above-mentioned claims present a
substantial question for our review. See Commonwealth v. Stewart, 867
A.2d 589, 592 (Pa. Super. 2005) (stating that a claim that a sentence is
excessive because the sentencing court relied on impermissible factors
raises a substantial question); Commonwealth v. Simpson, 829 A.2d 334,
338 (Pa. Super. 2003) (same); see also Commonwealth v. Mouzon, 812
A.2d 617, 627-28 (Pa. 2002) (plurality) (stating that a claim of
excessiveness of sentence may raise a substantial question even if the
sentence imposed is within the standard range of the sentencing
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guidelines).2
Our standard of review 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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted).
Cary argues that the sentencing court improperly
focused on the impact [that] the burglary of the victim[s’] house
had on the victims[,] and the feeling of being unsafe in their own
home that such victims feel. [Cary] argues that the [sentencing]
court impermissibly consider[ed] criminal conduct of which
[Cary] neither pled guilty nor was convicted[,] and [the
dismissed charges were] nolle prossed pursuant to a plea
agreement.
Brief for Appellant at 12. In support of his claim, Cary relies primarily upon
this Court’s decision in Stewart, supra. See Brief for Appellant at 11-12.
The appellant in Stewart challenged the discretionary aspects of his
sentence, asserting that the sentencing court had improperly considered, as
an aggravating factor, charges that had been nolle prossed pursuant to his
2
Concerning Cary’s claim of excessiveness of sentence, though it is
essentially a bald claim, which ordinarily would not present a substantial
question, see Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012), we will address the merits of the claim. It is associated with Cary’s
separate claim that the sentencing court improperly considered the
dismissed charges in fashioning the sentence; this claim presents a
substantial question. See Stewart, supra.
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guilty plea agreement. Stewart, 867 A.2d at 591. This Court initially
observed that “while our courts have … ruled that, when a court imposes its
sentence, the court may consider a defendant’s previous arrests and
concurrent charges[,] … there is authority for the proposition that a sentence
cannot be enhanced for any offense other than the one to which the
defendant pled guilty.” Id. at 593 (internal citations and paragraph break
omitted). In Stewart, the sentencing judge had expressly stated that he
was imposing a sentence in the aggravated range because of the nolle
prossed charges. Id. This Court held that the sentencing judge’s
consideration of this factor was an abuse of discretion, and warranted a new
sentencing hearing. See id.
We determine that Cary’s reliance upon Stewart is misplaced. Unlike
the situation in Stewart, here, the sentencing judge, the Honorable Vito P.
Geroulo (“Judge Geroulo”), never referred to the dismissed charges when
imposing sentence. Rather, he impressed upon Cary the impact that home
invasion crimes can have upon victims’ sense of security in their homes.
See N.T., 2/18/15, at 5-7. In making this observation, Judge Geroulo was
not using the dismissed charges as an “aggravating factor”; rather, he was
remarking on Cary’s character and the impact of his criminal conduct. See,
e.g., Commonwealth v. Vernille, 418 A.2d 713, 719 (Pa. Super. 1980)
(holding that it was not improper for the sentencing judge to consider the
defendant’s criminal activity for which he was not tried, charged or
convicted, as it was relevant to an evaluation of his character).
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Furthermore, the receiving stolen property charge to which Cary pled guilty
concerned property taken during the same home invasion that was the basis
for the dismissed charges. Therefore, we see no impropriety by Judge
Geroulo in merely reflecting upon the impact that the home invasion had on
the victims.
Finally, Judge Geroulo’s observation concerning the impact of Cary’s
conduct was not the reason that the court gave for imposing a sentence in
the upper range of the sentencing guidelines. Rather, Judge Geroulo stated
that he felt compelled to impose such a sentence because of Cary’s prior
criminal history and supervision status at the time of the home invasion.
See N.T., 2/18/15, at 5-8. Judge Geroulo also stated that he had
considered Cary’s rehabilitative needs in imposing this particular sentence.
See id. at 8 (stating that “while I generally focus on rehabilitation for those
who are addicted, when you make your problems somebody else’s problems,
then we have to get serious about the time imposed.”). Accordingly, we
cannot agree with Cary that Judge Geroulo improperly sentenced him based
upon a consideration of the dismissed charges, and Cary’s first issue thus
lacks merit.
Concerning Cary’s second issue, his claim of excessiveness of sentence
is largely based on the same above-mentioned claim, which we have already
rejected. See Brief for Appellant at 16 (asserting that Cary “contends that
the [sentencing] court imposed unreasonable and harsh sentences when it
considered criminal conduct involving the [dismissed] charge[s].”).
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Nevertheless, to the extent that Cary raises an independent claim of
excessiveness, we discern no abuse of discretion by the sentencing court,
and conclude that Cary’s sentence, which was within the standard guideline
range, was neither excessive nor unreasonable. See Commonwealth v.
Walls, 926 A.2d 957, 964 (Pa. 2007) (stating that “rejection of a sentencing
court’s imposition of sentence on unreasonableness grounds [should] occur
infrequently, whether the sentence is above or below the guideline
ranges.”); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(stating that “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.”). Judge Geroulo properly exercised his discretion in
imposing a sentence that he deemed appropriate, given, inter alia, (1) the
court’s prior experience with Cary; (2) the impact of the crime on the
victims; (3) Cary’s rehabilitative needs; and (4) Cary’s prior offenses.
Accordingly, Cary is not entitled to relief on this claim.
In his final issue, Cary argues that Judge Geroulo imposed an illegal
sentence by ordering him to pay $5,800.00 in restitution, where the value of
the items he had pled guilty to stealing, as reflected on the criminal
information, was only $2,700.00. See Brief for Appellant at 16-19.
Initially, we note that
[i]n the context of criminal proceedings, an order of restitution is
not simply an award of damages, but, rather, a sentence. An
appeal from an order of restitution[,] based upon a claim that a
restitution order is unsupported by the record[,] challenges the
legality, rather than the discretionary aspects, of sentencing.
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The determination as to whether the trial court imposed an
illegal sentence is a question of law; our standard of review in
cases dealing with questions of law is plenary.
Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012)
(citations and quotation marks omitted); see also Commonwealth v.
Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010).
Mandatory restitution, as part of a defendant’s sentence, is authorized
by 18 Pa.C.S.A. § 1106, which provides, in relevant part as follows:
(c) Mandatory restitution.
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of
the defendant, so as to provide the victim with the
fullest compensation for the loss. …
***
(2) At the time of sentencing[,] the court shall specify the
amount and method of restitution. In determining the
amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim’s request for restitution … and such
other matters as it deems appropriate.
***
[(3)](i) It shall be the responsibility of the district
attorneys of the respective counties to make a
recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered.
This recommendation shall be based upon information
solicited by the district attorney and received from the
victim.
18 Pa.C.S.A. § 1106(c) (emphasis added).
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In challenging the $5,800.00 in restitution as being unsupported by
the record, Cary argues that
the affidavit of probable cause, the criminal information, and
[Cary’s] guilty plea (written and in court) colloqui[es] identified
the items stolen from the [victims’] house[,] and which [Cary]
admitted to “receiving, retaining, or disposing of[,]” as $300.00
in cash, $600.00 in gift cards, and $1,800.00 in collectible silver
coins. These items totaled $2,700.00. … [T]he amount of
restitution should have been limited to these items and their
value as stated in the criminal information.
Brief for Appellant at 19 (some capitalization omitted); see also id. at 17-18
(citing Commonwealth v. Valent, 463 A.2d 1127, 1128 (Pa. Super. 1983)
(stating that an order of restitution must be supported by the record)).
Though we understand Cary’s claim concerning the discrepancy
between the two different amounts of restitution that the Commonwealth
asserted he owes,3 he is not entitled to relief on the merits of his legality of
sentence challenge. As noted above, Cary’s counsel stated at sentencing, on
3
There is scant information in the certified record concerning the two
different amounts of restitution, aside from the statements of counsel at
sentencing. See N.T., 2/18/15, at 2-4. However, the Commonwealth
asserts in its brief that
the victim impact statement contained a Scranton Police Department
“Inventory of Items Stolen or Missing” [(“the Inventory”),] which
itemized each item taken during the course of [Cary’s] crime. Th[e
Inventory] was attached to the victim impact statement that was
provided by the victim[s] to the district attorney. The [I]nventory
included jewelry that was not calculated into the original restitution
amount.”
Brief for the Commonwealth at 16-17 (emphasis added); cf. Brief for
Appellant at 19 (asserting that Cary “was neither charged with nor pled
guilty to any criminal offense involving jewelry or any other items taken
from the [victims’] house.”) (emphasis omitted). The Inventory is not
contained in the certified record.
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two separate occasions, that although the $5,800.00 in restitution that the
Commonwealth had demanded at sentencing was more than the amount
listed on the criminal information, “[Cary] indicate[d] that he’s willing to
take responsibility for the restitution that’s being demanded.” N.T.,
2/18/15, at 3; see also id.
Even assuming, arguendo, that the amount of restitution imposed was
illegal, Cary waived any challenge to the amount of restitution imposed by
expressly and unequivocally agreeing to it at sentencing. See, e.g.,
Commonwealth v. Byrne, 833 A.2d 729, 736 (Pa. Super. 2003) (where
the defendant had expressly waived his statutory right to credit for time
served as part of his guilty plea agreement, stating that “[w]e are aware of
no authority that provides an impediment to a defendant’s express,
knowing, and voluntary waiver of a statutory right if that waiver is key in
obtaining a bargained-for exchange from the Commonwealth.”) (citing, inter
alia, Peretz v. U.S., 501 U.S. 923, 936 (1991) (stating that “[t]he most
basic rights of criminal defendants are … subject to waiver.”)).
Accordingly, as we discern no abuse of discretion by the court in
sentencing Cary, and he is not entitled to relief on his legality of sentence
challenge, we affirm Cary’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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