J-S69011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHAD MARCUS SCHWARTZ
Appellant No. 30 WDA 2017
Appeal from the Judgment of Sentence November 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0000124-2016
CP-02-CR-0000125-2016
CP-02-CR-0014918-2015
CP-02-CR-0015981-2015
BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED JANUARY 16, 2018
Chad Marcus Schwartz appeals from his November 14, 2016 judgment
of sentence of forty to eighty months imprisonment followed by five years
probation, which was imposed after he pled guilty in four cases to burglary,
receiving stolen property, possession of a controlled substance (second
offense), disorderly conduct, and two counts of possession of drug
paraphernalia. He challenges discretionary aspects of his sentence. We
affirm.
We glean the facts underlying the convictions from the
Commonwealth’s summary of the evidence at the guilty plea hearing. On or
* Former Justice specially assigned to the Superior Court.
J-S69011-17
about September 30, 2015, Baldwin Borough police responded to a call at
the CVS Pharmacy regarding a shoplifter. Witnesses told police that
Appellant took a package of peanuts and started to consume them as he
walked through the store. As he proceeded, he also knocked cosmetics off
the shelves and onto the floor. Police officers took him into custody. A
search incident to arrest yielded two capped needles and a prescription
bottle containing white pills that Appellant identified as Xanax. Although
Appellant claimed to have a prescription for the medication, that claim was
refuted following further investigation. Appellant was charged with
possession of a controlled substance, possession of drug paraphernalia, and
disorderly conduct at CC 201514918.1
Regarding the case filed at CC 201515981, the Commonwealth made
the following proffer. On December 10, 2015, Pittsburgh Police were
dispatched to a burglary in progress. The intruder was described as a white
male wearing a camouflage hat and baggy jeans. When the officers located
the intruder, he fled, but was apprehended and identified as Appellant. A
search of his person revealed a loaded needle containing a clear liquid
substance commonly used for the injection of heroin. He was charged with
possession of drug paraphernalia, possession of a controlled substance,
____________________________________________
1The charges of possession of drug paraphernalia and disorderly conduct
were withdrawn at sentencing.
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escape, and flight to avoid prosecution. The latter three charges were
subsequently withdrawn.
The Commonwealth represented that it would offer the following
evidence with regard to the burglary case filed at CC 201600124. On or
about November 20, 2015, upon returning home, Serena Williams noticed
that her kitchen window was open and that an arm was extended within
trying to gain entry. She screamed and the perpetrator fled. Pittsburgh
Police officers obtained Appellant’s latent print from the exterior window.
Appellant was arrested and charged with burglary of a structure suitable for
overnight accommodation with a person present, a first-degree felony.
On October 13, 2015, Stephanie Vendemia reported to Pittsburgh
Police that she had been burglarized. A day later, one of the items stolen, a
laptop, was traced to a phone store. The owner of the store told police that
he had purchased the laptop from Appellant, and later identified Appellant
from a photographic array. The victim later identified the laptop as
belonging to her and confirmed that Appellant did not have permission to
take or sell it. He was charged with receiving stolen property, a
misdemeanor of the first degree, at CC 201600125.
On August 15, 2016, after a thorough oral colloquy during which the
court advised Appellant that he was subject to an additional sentence since
he was on probation when he committed three of the four offenses,
Appellant pled guilty to the aforementioned crimes and the court accepted
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the plea. The court ordered a presentence investigation and scheduled the
sentencing for November 14, 2016. On that date, the court sentenced
Appellant to time served on the probation violations, and forty to eighty
months imprisonment followed by five years of probation on the four cases.
Appellant filed a timely post-sentence motion, which was denied. On
appeal, he presents one issue for our review:
I. Did the trial court err in imposing a sentence that was
manifestly excessive, unreasonable, and an abuse of
discretion when the trial court overlooked and/or failed to
carefully consider relevant factors when sentencing
[Appellant], including the unique facts and circumstances
of the crimes, and his background and rehabilitative
needs; and the court relied on an impermissible duplicative
factor; and failed to impose an individualized sentence?
Appellant’s brief at 8 (unnecessary capitalization omitted).
Appellant claims that his sentence was manifestly excessive and
unreasonable. Such a claim implicates the discretionary aspect of a
sentence. See Commonwealth v. Hornaman, 920 A.2d 1282, 1283-84
(Pa.Super. 2007). As Appellant correctly notes, “there is no absolute right
to appeal when challenging the discretionary aspect of a sentence.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en
banc). To adequately preserve a discretionary sentencing claim, a defendant
must present the issue in either a post-sentence motion or raise the claim
during the sentencing proceedings. Id. Further, he must file a timely
appeal and "preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise
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statement and a Pa.R.A.P. 2119(f) statement" in his appellate brief. Id.
Finally, we will permit such an appeal only if the appellant presents a
substantial question, i.e., a colorable claim that his sentence, while within
the guideline range, was unreasonable and inappropriate under the
sentencing code. Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa.Super. 2013).
Appellant filed a timely appeal and preserved his claim that his
sentence was excessive in his post-sentence motion and Rule 1925(b)
statement. In addition, Appellant includes a Rule 2119(f) statement in his
appellate brief in which he alleges that his sentence was manifestly
excessive as it was not individualized and tailored to him. Furthermore, he
contends the sentencing court overlooked or failed to carefully consider all of
the relevant sentencing factors as required in Section 9721(b). In
particular, he maintains that the court did not consider the non-violent
nature of the crimes, Appellant’s rehabilitative needs due to his
polysubstance abuse, and the fact that his crimes were motivated by his
need to support his addiction. Rather, he alleges that the court focused on
his prior record, which was already factored into the applicable sentencing
guidelines.
We held in Commonwealth v. Simmons, 56 A.3d 1280, 1286
(Pa.Super. 2012), that a claim that a sentence was manifestly excessive
because the trial court failed to issue an individualized sentence presented a
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substantial question. Moreover, plausible claims that the sentence violates
fundamental norms of the sentencing process present a substantial question.
Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super. 2003). Thus, we
will review the merits of Appellant's sentencing claim.
The following principles inform our review. 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.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006). An abuse
of discretion in this context is more than an error in judgment. Id. The
appellant must demonstrate 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.” Id. The sentencing
judge has broad discretion in determining the proper sentence and we
accord that decision great deference, recognizing that the sentencing court
is in the best position to view the defendant's character and show of
remorse. See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).
Our review of a guideline sentence focuses on whether the sentence is
"clearly unreasonable." 42 Pa.C.S. § 9781(c)(2).
In imposing sentence, the trial court is obliged to consider "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. § 9721(b). In considering the circumstances of
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the offense and the character of the defendant, the court should refer to the
defendant's prior criminal record, his personal characteristics, and his
potential for rehabilitation.
Appellant contends that the trial court abused its discretion by failing
to consider Appellant’s background, rehabilitative needs, and the non-violent
nature of his offenses, when it sentenced him to a lengthy period of
incarceration. He maintains that the court ignored the testimony of a
representative of the Allegheny County Bureau of Drug and Alcohol
regarding an outpatient treatment program. According to Appellant, a
sentence of probation with conditions or a state intermediate punishment
program would have better addressed both his rehabilitative needs and the
community’s safety. In short, although the court sentenced him within the
guidelines, Appellant contends this is a case where application of the
guidelines was unreasonable and the court failed to consider factors
individual to him and better sentencing alternatives.
The record reveals the following. At sentencing, defense counsel
acknowledged that Appellant had committed crimes involving theft of
property as a result of his addiction, but pointed out that he had not
physically hurt anyone. Counsel maintained that Appellant changed
significantly while he was in prison, which he attributed to his realization
that addiction was a dead-end road and his embrace of the Catholic faith.
Counsel advised the court that while Appellant was in prison, he worked with
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the Hope pre-release program, completed the twelve step fellowship
program, and took a parenting course at Chatham University.
Appellant offered a representative of the Allegheny County Bureau of
Drug and Alcohol, who testified regarding a new outpatient treatment
available to inmates addicted to drugs upon release from jail. The witness
explained that they meet with inmates, perform an assessment, and link
them with the providers of Methadone and Suboxone so that when they
leave jail, there is no waiting period to get into outpatient treatment. She
stated that the vivitrol maintenance program, together with drug and alcohol
counseling, would be a good fit for Appellant upon his release. The defense
submitted letters from Appellant’s boss to the effect that he was an excellent
worker. Appellant’s fiancée testified regarding his prior attempts at
rehabilitation, and spoke hopefully of the new program recommended by
Drug and Alcohol. She described changes in Appellant’s attitude and
outlook since he had been in prison and explained why she was standing by
him. Finally, Appellant acknowledged his long record and asked for the
court’s mercy and forgiveness.
After receiving the aforementioned information, the court first
addressed Appellant’s violation of his two-year probation at No. 201412527,
which was imposed for convictions of first-degree misdemeanor theft and
possession of an instrument of crime. On the probation violation, the court
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sentenced Appellant to time served, which was eleven months, and closed
interest on that case.
For the first-degree felony burglary conviction at CC 201600124, the
court imposed a sentence of forty to eighty months imprisonment followed
by five years of probation, a sentence which fell in the mitigated range. At
CC 20150014918, the court sentenced Appellant to six to twelve months
imprisonment for possession of a controlled substance, with the sentence to
run concurrently. Appellant received a sentence of three to six months
imprisonment for the possession of drug paraphernalia at CC 20150015981,
and a sentence of six to twelve months imprisonment on the theft charge at
CC 201600125, with both sentences to run concurrent to the sentences
imposed at the prior two cases. The court also determined that Appellant
was RRRI eligible.
Appellant argues that his sentence was excessive for two reasons. He
alleges first that the sentencing court failed to consider his rehabilitative
needs, and secondly, that it placed undue weight on his prior criminal
record. We find no merit in either contention.
Preliminarily, we observe the following. Appellant had a prior record
score of five. The sentence imposed on the burglary charge, which carried
an offense gravity score of nine, fell within the mitigated range of the
sentencing guidelines. The remaining sentences fell within the standard
range and were run concurrent to the sentence on the burglary. Appellant’s
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aggregate sentence appears to be quite lenient given the length of
incarceration he could have received and the fact that he was on probation
when he committed several of the offenses.
Furthermore, the record establishes that the court read and relied
upon the presentence report. Thus, it is presumed that it considered
Appellant’s individual circumstances including any mitigating factors.
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013). In
addition, the sentencing proceeding focused on Appellant’s rehabilitative
needs. Counsel characterized Appellant’s extensive criminal history as
“addiction driven behavior.” N.T. Sentencing, 11/14/16, at 13. He asked
the court to forego imprisonment in favor of the outpatient vivitrol treatment
program. Defense counsel described Appellant’s efforts at rehabilitation
while he was incarcerated. Appellant acknowledged his extensive criminal
record but apprised the court that he had changed and that he wished to
address his addiction. Appellant’s fiancée concurred that Appellant had
changed and expressed her belief that Appellant could now successfully treat
his addiction.
In addition to the foregoing testimony, the trial court noted that
Appellant’s criminal history dated back to 1991, that he was on probation
when he was arrested for the offenses herein, and that he had been
previously either been offered treatment or received treatment in four
programs. Thus, the record clearly indicates that the court was fully aware
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of Appellant’s current rehabilitative needs, as well as his prior opportunities
for rehabilitation, when it imposed a sentence of imprisonment. We find no
abuse of discretion on the record before us.
Appellant’s claim that his sentence was too harsh and excessive
because the court placed undue and duplicative weight on his prior record
fares no better. In support of his contention, Appellant points to the court’s
comment at sentencing that Appellant’s criminal behavior commenced in
1991. Appellant contends that his prior criminal record was already
considered in determining the applicable sentencing guidelines, and that in
considering it again, the court impermissibly weighed this factor twice.
The trial court explained that it referenced Appellant’s twenty-five-year
history of similar offenses in connection with its assessment of Appellant’s
amenability to rehabilitation, a separate sentencing factor under 42 Pa.C.S.
§ 9721(b). We find the court’s consideration of the duration and pattern of
Appellant’s criminal activity to be both proper and probative for the cited
purpose. The court concluded that Appellant’s “pattern of criminal activity
clearly demonstrates a lack of ability to address anti-social behavior.” Trial
Court Opinion, 6/27/17, at 7. We find no abuse of discretion.
In sum, we find nothing “clearly unreasonable” about the sentences
imposed that warrants relief. It is quite apparent from the record that the
sentencing court was apprised of all relevant sentencing factors, including
mitigating circumstances, and that it exercised reasoned judgment in
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fashioning an individualized sentence for Appellant. It is not the role of this
Court to reweigh the sentencing factors and substitute our judgment for that
of the sentencing court. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2018
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