J-S20032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID MARTIN HOUDESHELL,
Appellant No. 1294 WDA 2015
Appeal from the Judgment of Sentence July 14, 2015
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0003289-2006
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 04, 2016
Appellant, David Martin Houdeshell, appeals from the judgment of
sentence entered after his guilty plea to one count each of defiant trespass
and false identification to law enforcement. 1 Specifically, he argues that his
sentence was manifestly excessive. We affirm.
We take the facts and procedural history from our review of the
certified record. In November 2006, Appellant was arrested and charged
with criminal trespass and false identification to law enforcement after
entering his former paramour’s apartment without her consent. Appellant
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3503(b)(1)(i), 4914(a).
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absconded from bail in 2007, prior to trial, and fled to Texas, where he
remained until 2015.
On May 6, 2015, Appellant pleaded guilty, pursuant to a negotiated
plea agreement; in exchange the Commonwealth reduced count one from
criminal trespass to defiant trespass. On July 14, 2015, the trial court
sentenced Appellant and stated its reasons on the record as follows:
The court has considered the Pennsylvania Sentencing Code, the
Presentence [Investigation] Report [(PSI)], and the Pennsylvania
Guidelines on Sentencing.
The court has also considered the statements of defense
counsel, the defendant, and the attorney for the Commonwealth.
The court has considered this defendant’s age, his
background, his character and rehabilitative needs, the nature,
circumstances, and seriousness of the offense, the protection of
the community and the impact that the offense has had on the
victim.
The court will note that the defendant has [pleaded] guilty
and accepted responsibility in accordance with a very favorable
plea bargain that his attorney worked out with the District
Attorney’s office reducing the charge from . . . a felony of the
third degree to a misdemeanor of the third degree.
The court would note this is the defendant’s fifth conviction
for criminal trespass. The other four having occurred after this
offense occurred.
The court also is concerned because the victim obviously
was frantic to keep [defendant] away from her and out of the
home, indicating she changed the locks, doors, did everything
she could and he still came back and got into the house and she
has, or was at the time, very concerned about her safety.
The defendant does also have and had, prior to this
offense, one, two, three, four, five ICC [protection from abuse]
violations and convictions.
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The defendant has a prior record score of zero but he has .
. . [twenty] convictions, [fourteen] of which were subsequent to
this offense.
The defendant also fled the jurisdiction of this court, was a
fugitive for eight years, and has, in the recent past, within the
last three years, committed [thirteen] new offenses while he was
a fugitive and has been incarcerated over the years a total of
[sixteen] times. He’s been placed on probation four times. He’s
been revoked from supervision two times. It’s pretty obvious
that the defendant continues, despite numerous incarcerations,
to commit offenses and is unsupervisable when he’s given an
opportunity on probation.
* * *
The court having considered all those things will order the
following sentence which is outside and above the guideline
ranges. The defendant on each count will be ordered to pay the
cost of prosecution, pay a fine of [twenty-five dollars] on each
count. Counts one and two, he will be ordered incarcerated a
minimum period of which will be six months, a maximum of
which will be [twelve] months. Sentence on count two will be
consecutive to the sentence on count one.
He will receive credit for time served in the amount of 220
days. He is RRRI eligible and that will reduce the minimum
sentence from six months to four months on each of those
counts. . . .
(N.T. Sentencing, 7/14/15, at 5-7, 9) (unnecessary capitalization omitted).
On July 22, 2015, the court denied Appellant’s timely post-sentence
motion to reconsider his sentence. This timely appeal followed.2
Appellant raises one issue on appeal:
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2
Appellant filed a timely Rule 1925(b) statement on August 26, 2015. See
Pa.R.A.P. 1925(b). The court filed an opinion on September 15, 2015, which
relied on the record from the sentencing hearing as the court’s basis for
sentencing. See Pa.R.A.P. 1925(a).
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Did the [trial] court violate the fundamental norms which
underlie the sentencing code in sentencing [Appellant] in the
aggravated range, without placing sufficient reasons on the
record?
(Appellant’s Brief, at 1) (most capitalization omitted).3
In his sole issue, Appellant claims that the trial court erred in imposing
a sentence that was above the guideline ranges without setting forth on the
record sufficient reasons for its sentence. (See id. at 4-5). He argues that
the court could have sentenced him to a lesser sentence, which would have
served his rehabilitative needs and the protection of the public. (See id.).
We disagree.
Appellant’s issue challenges the discretionary aspects of his sentence,
which “must be considered a petition for permission to appeal[.]”
Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013) (citation
omitted). To preserve claims relating to the discretionary aspects of a
sentence properly, an appellant must first raise them with the trial court.
See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),
affirmed, 17 A.3d 332 (Pa. 2011).
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3
We note that the trial court did not sentence Appellant in the aggravated
range, but rather, sentenced Appellant above the guideline ranges to the
maximum sentence provided by statute. (See N.T. Sentencing, at 9).
Although misstated in his question presented, Appellant correctly states this
later in his brief. (See Appellant’s Brief, at 5) (“[Appellant] was sentenced
to the maximum allowable sentence of six to twelve months of incarceration
on each count.”).
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When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to
the inappropriateness of the sentence. Two requirements must
be met before we will review this challenge on its merits. First,
an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. Second, the appellant
must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. That is,
[that] the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.
Hill, supra at 363-64 (citations omitted).
In this case, Appellant preserved his issue by raising it in his post-
sentence motion, and filed a Rule 2119(f) statement, in which he alleges
that the trial court failed to individualize his sentence and sentenced him to
the maximum allowable sentence. (See Appellant’s Brief, at 3). “A claim
that the sentencing court imposed an unreasonable sentence by sentencing
outside the guideline ranges presents a ‘substantial question’ for our
review.” Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002),
appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148
(2005) (citation omitted). Accordingly, we will review his challenge on its
merits.
Our standard of review for challenges to the discretionary aspects of a
sentence 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,
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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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
Additionally,
The sentencing guidelines are not mandatory, and sentencing
courts retain broad discretion in sentencing matters, and
therefore, may sentence defendants outside the [g]uidelines. In
every case where the court imposes a sentence . . . outside the
guidelines . . . the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation
from the guidelines. However, [t]his requirement is satisfied
when the judge states his reasons for the sentence on the record
and in the defendant’s presence. Consequently, all that a trial
court must do to comply with the above procedural requirements
is to state adequate reasons for the imposition of sentence on
the record in open court.
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. Where [PSIs]
exist, we shall . . . 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 [PSI] constitutes the record and
speaks for itself.
Id. at 760-61 (citations and quotation marks omitted).
Here, in imposing sentence, the trial court considered the sentencing
code and sentencing guidelines as well as the PSI and the particular
circumstances of this case, including the impact that the offense has had on
the victim. (See N.T. Sentencing, at 5-6). It then stated on the record, in
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open court, its reasons for imposing a sentence above the guideline ranges.
(See id. at 6-9).
Based on the trial court’s stated reasons, our independent review of
the record, and the fact that the court had the benefit of a PSI, we discern
no abuse of discretion on the part of the trial court in imposing an aggregate
sentence of not less than twelve nor more than twenty-four months’
incarceration. See Antidormi, supra at 760-61. Appellant’s claim does not
merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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