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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAYMOND CORDY :
:
Appellant : No. 3416 EDA 2017
Appeal from the Judgment of Sentence September 5, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001070-2015
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 06, 2018
Raymond Cordy appeals from the judgment of sentence imposed on
September 5, 2017, in the Court of Common Pleas of Monroe County. Cordy
challenges the discretionary aspects of his sentence. Finding his standard
range sentence presumptively reasonable, we affirm.
The court summarized the factory history of the case as follows:
On May 12, 2015, at approximately 9:28 p.m., Sergeant
Bowman (hereinafter “Bowman”) was monitoring traffic on SR 115
with a tracker speed timing device when he observed an SUV
bearing PA registration JKT 7889 traveling northbound at
approximately 71.1 MPH. Upon timing the speed of the vehicle
Bowman activated his emergency lights and stopped the vehicle.
After being stopped, two men exited the vehicle via the front
passenger door and walked toward Bowman's patrol car. Both
men appeared unsteady on their feet, and Bowman instructed the
men to stop and return to their vehicle. Both men complied.
Upon approaching the vehicle, Bowman observed both
males in the front two seats of the SUV, as well as a female in the
back seat, and detected a strong odor of alcohol in the vehicle.
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Bowman inquired why the driver exited the SUV via the passenger
door. The driver responded that he did not have a license.
Bowman then asked why the driver was driving, to which the man
responded he was driving because his friend had asked him to.
Bowman asked the men if they had been drinking. Both males
replied that they had each had one drink. Bowman observed both
men to have glassy and watery eyes. Bowman then asked the
female if she had also been drinking, to which she responded no.
At that point, Bowman requested identification from each
individual. The man in the front passenger seat produced a PA
license and registration identifying himself as Greg Knoble. The
driver could not produce a license or any other form of
identification. Bowman informed the driver he was the subject of
an official investigation and requested the man's information. The
man identified himself as Raymond Wilson, date of birth March 25,
1959. The female passenger identified herself as Caitlin Bums,
date of birth May 13, 1983.
Bowman then returned to his patrol vehicle and requested
an NCIC and drivers check on all three individuals. Bowman was
advised that there was no record for Bums or Wilson. At that time,
Bowman radioed Officers Papi and Bohrman and requested
assistance. Upon their arrival, Officer Bohrman remained with the
SUV, and Officer Papi observed Bowman as he administered
sobriety tests to Wilson.
Bowman administered three field sobriety tests: the
Horizontal Gaze Nystagmus, the Walk and Turn, and the Walk and
Stand. Wilson failed all three tests. Wilson’s eyes failed to pursue
the pen during the Horizontal Gaze Nystagmus, he could not
maintain his balance nor consistently walk heel to toe during the
Walk and Tum, and could not maintain his balance during the Walk
and Stand. After failing all three tests, Bowman placed Wilson
under arrest, placed him in the rear of his patrol car, and
proceeded to Femridge barracks.
At Femridge barracks, Trooper Bailey conducted a live scan
resulting in a positive identification for Wilson as Raymond John
Cordy. Appellant was present for the results and indicated that he
had to try and get away with falsely identifying himself because
he did not want a DUI on his record. A review of the live scan
showed two active warrants for Appellant, the first out of Luzerne
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County for failure to appear on a Felony 3 retail theft, and the
second out of Lackawanna County for disorderly conduct and a
probation violation. A check of Appellant’s driver’s record indicated
that he has been classified as a habitual offender on two separate
occasions; the first on December 12, 1984, and the second on
May 26, 1993.
Trial Court Opinion, 12/9/17, at 1-3.
Cordy ultimately entered a guilty plea to driving under the influence,
general impairment, 75 Pa.C.S.A. § 3802(a)(1), as a first offense, classified
as an ungraded misdemeanor, and habitual offenders, 75 Pa.C.S.A. § 6503.1,
graded as a misdemeanor of the second degree. Sentencing took place on
September 5, 2017, during which the court had the benefit of a pre-sentence
investigation (“PSI) report.
The court delayed sentencing until Cordy’s records were received from
a Veterans Administration hospital. The records showed that Cordy had
previously been treated as an inpatient for alcohol and opioid addiction. At the
time of the sentencing hearing, Cordy had made an appointment with the
Veterans Administration hospital for additional treatment.
At the sentencing hearing, the Commonwealth’s attorney reviewed with
the trial court Cordy’s extensive criminal record, including multiple DUI
convictions, thirteen retail theft convictions, and four prior escape convictions.
On the day the offenses at issue here were committed, Cordy was wanted on
two bench warrants issued in reference to a prior conviction, and was on
supervision in Lackawanna County.
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Prior to imposing the sentence, the court referred to the PSI report. In
addition to hearing the arguments of Cordy’s counsel, the court heard
extensive testimony from Cordy as to his addiction problems.
The court imposed a standard range sentence. Specifically, the court
sentenced Cordy in the standard range to not less than nine nor more than
twenty-three months’ incarceration on the charge of Habitual Offenders, and
to a concurrent term of six months’ probation for the DUI charge, which was
mandatory.
Following sentencing, Cordy filed a post-sentence motion, which the
court denied. Cordy then filed a petition for furlough, requesting permission
to participate in a residential rehabilitation program at the Department of
Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. Attached to the
petition was an acceptance letter issued by the facility. The court granted the
petition after a hearing and without objection by the Commonwealth. This
timely appeal followed.
On appeal, Cordy solely challenges the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We 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
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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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
internal citations omitted). Cordy has satisfied the first three requirements:
he timely filed a notice of appeal, he sought reconsideration of his sentence in
a post-sentence motion, and he has included a Rule 2119(f) statement in his
brief to this Court. We next consider whether he has raised a substantial
question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017). “A substantial question exists only when the
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.” Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018)
(citation omitted).
In his Rule 2119(f) statement, Cordy contends that the trial court “did
not consider Mr. Cordy’s legitimate mitigating factors, an error that presents
a substantial question.” Appellant’s Brief, at 9. Cordy’s allegation that his
sentence is excessive due to the revocation court’s failure to consider relevant
sentencing criteria raises a substantial question for our review. See
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en
banc) (“[A]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas a
statement that the court failed to consider facts of record, though necessarily
encompassing the factors of § 9721 has been rejected.”) Cordy also maintains
that the court focused solely “on the seriousness of the crime without also
considering other relevant criteria.” Appellant’s Brief, at 9. This too raises a
substantial question. See Commonwealth v. Knox, 165 A.3d 925, 929-930
(Pa. Super. 2017). The record, however, contradicts each of these claims.
Our standard of review of a sentencing challenge 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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
Here, the court had the benefit of a PSI report. Thus, the law presumes
the court was aware of and weighed relevant information regarding a
defendant’s character along with mitigating statutory factors. See
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (“It would
be foolish, indeed, to take the position that if a court is in possession of the
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facts, it will fail to apply them to the case at hand.”) See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (finding
that where the sentencing court has a PSI “it is presumed that the sentencing
court was aware of the relevant information regarding defendant’s character
and weighed those considerations along with mitigating statutory factors”)
(internal quotation marks omitted). Also, as noted, Cordy and his counsel were
given full opportunities to speak at the sentencing hearing—and they both
gave the court substantial information about Cordy’s drug and alcohol
addiction, his depression, the circumstances surrounding the death of his
children, and his past military service.
And, as Cordy concedes, the court imposed a sentence in the standard
range of the sentencing guidelines.1 A standard range sentence is
presumptively reasonable. See, e.g., Commonwealth v. Fowler, 893 A.2d
758, 767 (Pa. Super. 2006). Thus, to succeed on this claim, Cordy has to show
that “the case involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply
not the case here. The sentence is in no way excessive. Thus, Cordy’s
challenge to the discretionary aspects of his sentence fails.
____________________________________________
1 As noted, the court sentenced Cordy to the mandatory probationary term for
the DUI conviction.
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There is no basis upon which to disturb the sentence imposed by the
sentencing court. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/18
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