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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LOIS WILSON, : No. 515 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, February 9, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos. CP-36-CR-0002883-2016,
CP-36-CR-0002884-2016, CP-36-CR-0002885-2016,
CP-36-CR-0002886-2016, CP-36-CR-0002887-2016,
CP-36-CR-0005284-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2017
Lois Wilson appeals the February 9, 2017 judgment of sentence in
which the trial court sentenced her to serve an aggregate sentence of 6½ to
18 years. After careful review, we affirm.
The facts and procedural history, as recounted by the trial court, are
as follows:
On December 11, 2014, [appellant] was
charged on information No. 5284-2014 with one
count of delivery of a controlled
substance,[Footnote 1] heroin, and one count of
criminal conspiracy.[Footnote 2] She pled guilty to
these offenses on October 15, 2015, and, on
December 29, 2015, was sentenced to five years[’]
intermediate punishment with the first six months to
be served under house arrest with electronic
monitoring.
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[Footnote 1]: 35 P.S. § 780-113(a)(30).
[Footnote 2]: 18 Pa.C.S.[A.] § 903(a).
On June 22, 2016, [appellant] was charged on
information Nos. 2883-2016, 2884-2016,
2885-2016, 2886-2016 and 2887-2016 with five
counts of delivery of a controlled substance, heroin,
two counts of criminal conspiracy and five counts of
criminal use of a communication facility.[Footnote 3]
These offenses all took place between November 23,
2015, and December 29, 2015. During this time,
[appellant] was free on bail awaiting sentencing on
her earlier charges. The charges on information
No. 2886-2016 arose from [appellant’s] sale of
heroin to an undercover officer later on the day on
which she was actually sentenced on those earlier
charges.
[Footnote 3]: 18 Pa.C.S.[A.] § 7512.
On July 5, 2016, a hearing was held at which
the Court found [appellant] to be in violation of the
terms of her intermediate punishment sentence. The
Court revoked her intermediate punishment sentence
and deferred sentencing until disposition of the new
charges.
[Appellant] pled guilty to the new charges on
December 1, 2016, and, on February 9, 2017, was
sentenced for these offenses as well as for the
intermediate punishment violation relating to her
earlier guilty plea. On each of the 2016
informations, [appellant] was sentenced to a period
of incarceration of 1 to 3 years. On the intermediate
punishment violation, [appellant] was sentenced to a
period of incarceration of 1½ to 3 years. All
sentences were to run consecutively for an
aggregate sentence of 6½ to 18 years.
On February 21, 2017, [appellant] filed a
post[-]sentence motion for reconsideration of
sentence which was denied on March 6, 2017.
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[Appellant] filed her notice of appeal on March 10,
2017, and her concise statement of errors
complained of on appeal on April 10, 2017.
The only issue raised in [appellant’s] concise
statement of errors complained of on appeal is that
the aggregate sentence imposed is “manifestly
excessive under the circumstances and an abuse of
the Court’s discretion.”
Trial court opinion, 5/2/17 at 1-2.
Appellant raises the following issue for this court’s review: “Was the
[trial] court’s aggregate sentence of not less than six and one-half (6½) nor
more than eighteen (18) years of incarceration manifestly excessive under
the circumstances and an abuse of the Court’s discretion?” (Appellant’s brief
at 8.)
Appellant challenges the discretionary aspects of her sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not 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. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
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particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e 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).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of her sentence. First, appellant timely filed her notice of appeal
pursuant to Pa.R.A.P. 903. Second, appellant raised the issue that the trial
court imposed a sentence that was excessive and did not take into account
her rehabilitative needs in her post-sentence motion which essentially is the
issue before this court. Third, appellant included a Rule 2119(f) statement
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in her brief in which she avers she raises a substantial question because the
trial court did not focus on her rehabilitative needs and, instead, focused on
the seriousness of the offenses such that the sentence imposed was not
consistent with the protection of the public, the gravity of the offenses, and
her rehabilitative needs. Fourth, this court must next determine whether
appellant raised a substantial question for this court’s review.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.
2015). “A substantial question exists only when an 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.” Id. at
338 (citation omitted).
Appellant argues that the appeal presents a substantial question for
essentially two reasons. First, she argues that the sentence was excessive
because the trial court failed to consider her rehabilitative needs. Second,
she argues that the sentence was excessive due to the consecutive nature of
the sentences. This court has held that a challenge to the imposition of
consecutive sentences as unduly excessive, together with a claim that the
trial court failed to consider a defendant’s rehabilitative needs when
fashioning its sentence, presents a substantial question. Commonwealth
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v. Bonner, 135 A.3d 592 (Pa.Super. 2016). As appellant has presented a
substantial question, we will address this claim on the merits.
With respect to the trial court’s alleged failure to consider the
rehabilitative needs of appellant, such as her drug addiction, history of
suffering from abuse, mental health issues, and low IQ, the trial court stated
at sentencing:
I’ve considered your rehabilitative needs.
There is no question that you have mental health
problems. There is no question that you have
substance abuse problems. I’ve considered what
Mr. Straszynski [(appellant’s attorney)] said on your
behalf. I’ve considered the position of the
Commonwealth and I have considered what you
have told me.
Now, [appellant] --
....
I’ve been involved in the legal system far too
long to take anything personally. I want to assure
you of that. The fact that you came in and pled
guilty and went right out and committed more of
these offenses, it doesn’t surprise me, quite
honestly, nor does it disappoint me. The fact that
you were sentenced and went right out and
committed a similar transaction, again, it’s not
something that is unexpected.
Unfortunately, what this demonstrates to me is
that you have virtually no interest in rehabilitation.
Absolutely none.
Notes of testimony, 2/9/17 at 15-16.
Furthermore, the trial court considered the Pre-Sentence Investigation
Report (“PSI”) and referred to it extensively at the sentencing hearing.
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“Where a [PSI] exist[s], we [] presume that the [trial court] was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating factors. A [PSI] constitutes the record
and speaks for itself.” Commonwealth v. Antidormi, 84 A.3d 736, 761
(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). This court finds
no merit to the charge that the trial court did not consider appellant’s
rehabilitative needs when it fashioned the sentence.
Appellant also challenges the aggregate sentence as clearly
unreasonable, at least in part, because the trial court imposed consecutive
rather than concurrent sentences.
Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A. § 9721,
permits the sentencing court to use its discretion to impose a sentence
consecutively or concurrently to other sentences that the sentencing court is
imposing. “In imposing a sentence, the trial judge may determine whether,
given the facts of a particular case, a sentence should run consecutive to or
concurrent with another sentence being imposed.” Commonwealth v.
Perry, 883 A.2d 599, 603 (Pa.Super. 2005).
Here, the trial court imposed consecutive standard range sentences for
the charges for which appellant pled guilty. The trial court explained that it
considered the PSI, the Commonwealth’s sentencing memorandum, the
intermediate punishment program violation summary submitted by the
probation department, and various incident reports submitted by the
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Commonwealth. The trial court also considered the Sentencing Code, the
sentencing guidelines, the authorized penalties for the offenses, the
circumstances of appellant’s new offenses, the nature of the first offense,
the need to protect the public, and appellant’s rehabilitative needs. (Trial
court opinion, 5/2/17 at 5.)
The trial court carefully considered the relevant factors set forth in
Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced
appellant. The trial court explained in detail the reasons for its decision.
The trial court did not abuse its discretion when it imposed consecutive
sentences for appellant’s crimes.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
-8-
Com. v. Wilson, L.
Combined Opinion