J-S11006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL LINEBURG,
Appellant No. 113 WDA 2016
Appeal from the Judgment of Sentence September 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001722-12
and CP-02-CR-0013718-2013
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017
Appellant, Michael Lineburg, appeals from the judgment of sentence
entered on September 30, 2015, as made final by the order entered on
January 6, 2016, which denied Appellant’s post-sentence motion. We affirm.
On July 14, 2015, Appellant pleaded guilty at docket number CP-02-
CR-0001722-2012 to aggravated assault, firearms not to be carried without
a license, possession of a firearm by a prohibited person, possession of a
firearm by a minor, and recklessly endangering another person; Appellant
also pleaded guilty at docket number CP-02-CR-0013718-2013 to
*Former Justice specially assigned to the Superior Court.
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aggravated assault.1 During the guilty plea hearing, the Commonwealth
summarized the factual basis for Appellant’s plea:
[At docket number CP-02-CR-0001722-2012,] the
Commonwealth would have called as witnesses Detective
Tim Rush as well as others in addition to Kimberly Wade
and Officer Achille. They would have testified that on the
4th of August 2011 [at approximately 10:16 p.m.,] City of
Pittsburgh [Police] officers were called to 2121 Koerner
Avenue on the North Side for a person shot. On arrival[,]
they located one Kimberly Wade who had been shot once in
the abdomen and grazed one time on the right side of her
torso. Ms. Wade was transported to Allegheny General
Hospital in critical condition and upgraded to serious
condition by a doctor at the hospital. [Appellant] was later
apprehended carrying a firearm that matched shell casings
found at the scene. [Appellant] was interviewed by
Detective Tim Rush and gave a confession indicating he had
fired multiple rounds emptying his clip in the general
direction at Kimberly Wade while she was located on the
front porch of her residence. That firearm was test-fired by
the Allegheny County Crime Lab, found to be in good
operating condition. And it was a nine millimeter caliber
Taurus pistol. . . . In addition, [Appellant] did not have a
valid license to carry a firearm and had been prior
adjudicated delinquent for person not to possess by virtue
of . . . possession of a firearm by a minor. . . .
[At docket number CP-02-CR-0013718-2013, the]
Commonwealth would have called as witnesses Detective
Dale Canofari as well as Detective Hal Bolin and Elijah David
. . . as well as others. They would have testified [that, on]
June 11, 2013, at approximately [12:50 a.m.,] officers
responded to 109 Rhine Place for a man shot. Upon
arrival[,] officers found victim Elijah David [lying] in front of
109 Rhine Place with numerous gunshot wounds. He was
transported to Allegheny General Hospital emergency room
____________________________________________
1
18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6105(a)(1), 6110.1, 2708, and
2701(a)(1), respectively.
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. . . in critical condition. Detectives spoke with Elijah David.
He indicated that he had been shot multiple times by
[Appellant]. He was struck five times during the incident in
his extremities and back area. He identified [Appellant]
through a series of photo arrays and identified him as the
[individual] who shot him.
N.T. Guilty Plea Hearing, 7/14/15, at 6-8.
On September 30, 2015, the trial court sentenced Appellant to serve
an aggregate term of 12-and-a-half to 25 years in prison, followed by five
years of probation, for his convictions. Appellant’s aggregate sentence
included a term of 90 to 180 months in prison for aggravated assault at
docket number CP-02-CR-0013718-2013 and a consecutive term of 60 to
120 months in prison for aggravated assault at docket number CP-02-CR-
0001722-2012; the former aggravated assault sentence fell within the
standard guideline range and the latter aggravated assault sentence fell
within the mitigated guideline range. N.T. Sentencing Hearing, 9/30/15, at
19.
On December 8, 2015, Appellant filed a counseled Post Conviction
Relief Act (“PCRA”) petition, seeking the reinstatement of his post-sentence
and direct appeal rights. See Appellant’s PCRA Petition, 12/8/15, at 1. The
PCRA court granted Appellant’s petition and Appellant filed a timely post-
sentence motion. Within Appellant’s post-sentence motion, Appellant
claimed:
Although his sentence is within the statutory limits, and in
fact the periods of incarceration imposed are in the standard
[sic] range, the sentence imposed was manifestly excessive,
unreasonable, and an abuse of discretion for the following
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reasons: (1) the trial court sentenced him without
providing sufficient reasons for the sentence imposed[;] (2)
the trial court failed to give careful consideration to all
relevant factors, specifically, the court did not review the
presentence investigation (PSI) report[; and,] (3) the court
cited no reasons for imposing the periods of incarceration
consecutive to one another, and the maximum sentence of
12 ½ to 25 years’ imprisonment imposed was excessive.
There were pertinent factors in this case that made the
imposition of the two standard [sic] range sentences
unreasonable. There is no indication that the court
considered [Appellant’s] willingness to take responsibility for
his actions by entering a guilty plea; [Appellant’s]
expression of remorse at his sentencing proceedings; and
other mitigating factors.
Additionally, [Appellant] asserts that the sentencing court
abused its discretion in not running the sentences
concurrent to one another instead of consecutively. . . .
[The trial court’s] imposition of a sentence of not less than
12 ½ years and not greater than 25 years’ imprisonment is
inconsistent with specific provisions of the Sentencing Code,
and is contrary to the fundamental norms underlying the
Code.
Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at 3-4.
The trial court denied Appellant’s post-sentence motion on January 6,
2016 and Appellant filed a timely notice of appeal. Appellant presents one
claim on appeal:
Did the trial court abuse its discretion in sentencing
[Appellant] to two consecutive standard range sentences
totaling 12 ½ to 25 years’ imprisonment where the court did
not consider all relevant sentencing code factors; did not
review the presentence report; did not consider
[Appellant’s] willingness to take responsibility for his actions
by pleading guilty, and his sincere expression of remorse;
and did not give any reasons for imposing consecutive
rather than concurrent terms in fashioning a sentence.
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Appellant’s Brief at 7 (internal bolding and some internal capitalization
omitted).
Appellant’s claim on appeal is a challenge to the discretionary aspects
of his sentence. “[S]entencing is a matter vested in the sound discretion of
the sentencing judge, whose judgment will not be disturbed absent an abuse
of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.
Super. 2001). Moreover, pursuant to statute, Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. Moreover, within Appellant’s post-sentence motion,
Appellant claimed that the trial court abused its discretion at sentencing
because the trial court: 1) “sentenced him without providing sufficient
reasons for the sentence imposed;” 2) “failed to give careful consideration to
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all relevant factors, specifically, the court did not review the presentence
investigation (PSI) report;” 3) “cited no reasons for imposing the periods of
incarceration consecutive to one another;” and, 4) did not consider
Appellant’s “willingness to take responsibility for his actions by entering a
guilty plea [or Appellant’s] expression of remorse at his sentencing
proceedings.” Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at
3-4.
On appeal, Appellant repeats the third and fourth numbered sub-
claims listed above. See Appellant’s Brief at 15-21. With respect to the first
numbered sub-claim (that the trial court “sentenced him without providing
sufficient reasons for the sentence imposed”), Appellant has not expounded
upon this claim outside of the contention that the trial court “cited no
reasons for imposing the periods of incarceration consecutive to one
another.” Id. Therefore, since Appellant’s first sub-claim is subsumed in
the third, we will not independently analyze Appellant’s first numbered sub-
claim. Further, on appeal, Appellant has abandoned his claim that the trial
court “did not review the presentence investigation [] report” and Appellant
claims, instead, that the trial court failed to consider his “background,
particularly his history of mental illness and physical abuse.” Appellant’s
Brief at 20. The claim Appellant raises on appeal is waived, as Appellant
failed to raise the claim in his post-sentence motion. Pa.R.Crim.P. 720;
Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”).
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We will now determine whether the claims Appellant preserved – that
the trial court “cited no reasons for imposing the periods of incarceration
consecutive to one another” and did not consider Appellant’s “willingness to
take responsibility for his actions by entering a guilty plea [or Appellant’s]
expression of remorse at his sentencing proceedings” – present a
“substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.” Cook, 941 A.2d at 11.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining
whether an appellant has raised a substantial question, we must limit our
review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.
This limitation ensures that our inquiry remains “focus[ed] on the reasons
for which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. at 727
(internal emphasis omitted).
The trial court in this case sentenced Appellant in the standard
sentencing range for one aggravated assault conviction and in the mitigated
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sentencing range for the second aggravated assault conviction; the trial
court then ordered that Appellant serve the two sentences for aggravated
assault consecutively. On appeal, Appellant claims that the trial court erred
because it “cited no reasons for imposing the periods of incarceration
consecutive to one another.” Appellant’s Brief at 20. This Court has held
that such a claim raises substantial question under the Sentencing Code.
Commonwealth v. L.N., 787 A.2d 1064, 1071-1072 (Pa. Super. 2001)
(holding the defendant’s claim that the trial court “failed to properly
articulate reasons for imposing consecutive sentences” raised a substantial
question). Therefore, we may reach the merits of Appellant’s claim.
However, Appellant’s claim on appeal immediately fails because the
trial court, in fact, fully and properly explained why it imposed consecutive
sentences in this case. As the trial court explained during the sentencing
hearing:
[Trial Court:] Here is the thing. I tend to agree with the
victim’s mother and the victim’s grandmother. This is a
horrific crime. But by the grace of God this isn’t a murder
case where your client is looking at life in prison for first
degree murder. . . . It is a miracle that the one victim is
alive. I know you saved us the cost of a trial and that, but
still at the same time this is the kind of conduct that kind of
scares me that if he gets back on the street too soon, it is
going to happen all over again and I am going to have
another victim’s family in front of me complaining that this
is happening again.
These were two separate incidents, or is this one incident
with two victims?
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[The Commonwealth:] Two separate case[s]. As I
indicated, he did the one case, he was placed in Vision
Quest. After he shot Kimberly Wade, he was placed in
Vision Quest. He escaped, absconded from Vision Quest,
and he gets a gun and puts Elijah David in a wheelchair.
...
[Trial Court:] Given the nature of the crimes as bad as they
were, in the case ending in 13718 I am going to give you a
standard range sentence, 90 to 180 months, on the original
count two. On the other case, the case ending in 1772, I
am going to give him slightly in the mitigated 60 to 120, but
I will run those consecutive rather than concurrent given
the nature of these acts. . . .
N.T. Sentencing Hearing, 9/30/15, at 18-19.
Further, as the trial court explained in its opinion to this Court, the
trial court “ordered, reviewed, and considered” Appellant’s presentence
investigation report prior to imposing Appellant’s sentence. Trial Court
Opinion, 7/14/16, at 7; see also Commonwealth v. Baker, 72 A.3d 652,
663 (Pa. Super. 2013) (“[w]hen a sentencing court has reviewed a
presentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
sentence”).
It is clear from the above that, at the sentencing hearing, the trial
court fully explained why “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” required
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consecutive sentences in this case. See 42 Pa.C.S.A. § 9721(b).
Appellant’s claim to the contrary fails.
Finally, Appellant claims that, at sentencing, the trial court “failed to
consider” the following two mitigating factors: Appellant’s “willingness to
take responsibility for his actions by entering a guilty plea” and Appellant’s
“expression of remorse at his sentencing proceedings.” See Appellant’s
Brief at 20. Appellant’s claim does not raise a substantial question under the
Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003) (“an allegation that the sentencing court did not consider
certain mitigating factors does not raise a substantial question”); see
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n
allegation that the sentencing court ‘failed to consider’ or ‘did not adequately
consider’ various factors does not raise a substantial question that the
sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also
Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a
claim that the trial court “erred by imposing an aggravated range sentence
without consideration of mitigating circumstances raises a substantial
question”) (emphasis added). Therefore, we may not reach the merits of
Appellant’s final claim.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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