J-S29005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES R. NINNESS,
Appellant No. 611 WDA 2015
Appeal from the Judgment of Sentence Entered March 4, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010291-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 24, 2016
Appellant, Charles R. Ninness, appeals from the judgment of sentence
of an aggregate term of 3 to 6 years’ incarceration, imposed after he was
convicted of his tenth offense of driving under the influence of alcohol (DUI),
75 Pa.C.S. § 3802(b) (High rate of alcohol), and driving while operating
privileges are suspended or revoked, 75 Pa.C.S. § 1543(b)(1.1)(i).
Appellant solely challenges the discretionary aspects of his sentence. We
affirm.
Appellant pled guilty to the above-stated offenses on December 10,
2014. On March 3, 2015, the court imposed Appellant’s sentences for the
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*
Former Justice specially assigned to the Superior Court.
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offenses in this case.1 On that same date, the court also revoked terms of
probation Appellant was serving in unrelated cases and resentenced him on
those docket numbers. Appellant filed timely post-sentence motions to
modify his sentence and to withdraw his plea, which were denied. He then
filed a timely notice of appeal, as well as a timely concise statement of
errors complained of on appeal. Herein, Appellant presents one issue for our
review:
I. Did the trial court fail to adequately consider and apply all of
the relevant sentencing criteria, including [Appellant’s] character
and rehabilitative needs, the gravity of the offense, and the
protection of the public, as required under 42 Pa.C.S.A. §
9721(b) (sentencing generally) and 42 Pa.C.S.A. § 9725 (total
confinement)?
Appellant’s Brief at 5 (unnecessary capitalization and emphasis omitted).
Appellant’s single issue challenges the discretionary aspects of his
sentence.
Accordingly, his right to appellate review is not absolute. See
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super.
2005); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (“A challenge to the discretionary aspects of a
sentence must be considered a petition for permission to
appeal[.]”). The Rules of Appellate Procedure mandate that to
obtain review of such claims, the appellant must include in his
brief a Concise Statement of Reasons Relied Upon for Allowance
of Appeal. See id.; see also Pa.R.A.P. 2119(f). The defendant's
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1
On March 4, 2015, the court issued a second sentencing order correcting a
clerical error in the sentencing order entered on March 3, 2015. The caption
in this Court’s decision reflects the date on which the final, corrected
sentencing order was entered on the trial court’s docket.
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Concise Statement must, in turn, raise a substantial question as
to whether the trial judge, in imposing sentence, violated a
specific provision of the Sentencing Code or contravened a
“fundamental norm” of the sentencing process. See Fiascki,
886 A.2d at 263; Commonwealth v. Ousley, 392 Pa.Super.
549, 573 A.2d 599, 601 (1990) (citations and internal quotation
marks omitted) (“[A]ppeals from the discretionary aspects of
sentence are not to be granted as a matter of course, but ...
only in exceptional circumstances where it can be shown in the
2119(f) statement that despite the multitude of factors
impinging on the sentencing decisions, the sentence imposed
contravenes the sentencing code.”) The determination of
whether a particular issue poses a substantial question is to be
made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If
the Rule 2119(f) statement is absent or if the statement
provided fails to demonstrate a substantial question, this Court
may refuse to accept the appeal. See id.
Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).
Here, Appellant has included a Rule 2119(f) statement in his brief.
Therein, he maintains that the sentencing court failed to adequately consider
the factors set forth in 42 Pa.C.S. § 9721(b), i.e., the protection of the
public, the gravity of the offense, and the rehabilitative needs of Appellant.
See Appellant’s Brief at 16-17; 42 Pa.C.S. § 9721(b). Appellant avers that
instead of assessing these factors, the court “relied primarily on
[Appellant’s] criminal history when imposing the maximum sentence
allowable, and ignored copious mitigating evidence.” Id. at 17 (citations to
the record omitted). Additionally, Appellant contends that in fashioning his
sentence, the court “resorted to personal frustration, bias and ill-will, and
ignored [Appellant’s] rehabilitative needs and other mitigating evidence.”
Id. at 18 (citation and quotation marks omitted).
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Based on the arguments presented in Appellant’s Rule 2119(f)
statement, and the case law on which he relies, we conclude that he has
presented a substantial question for our review. See Commonwealth v.
Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (finding a substantial question
existed where Riggs argued “that the trial court failed to consider relevant
sentencing criteria, including the protection of the public, the gravity of the
underlying offense and [Riggs’] rehabilitative needs …, as 42 Pa.C.S. §
9721(b) requires, and instead focused on the injuries suffered by the
complaining victims”)). Accordingly, we will review the merits of his claims,
keeping in mind that,
[t]he sentencing court is given broad discretion in determining
whether a sentence is manifestly excessive because the
sentencing judge is in the “best position to measure factors such
as the nature of the crime, the defendant's character and the
defendant's display of remorse, defiance, or indifference.”
Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958
(Pa. Super. 1997)). In order to find that a trial court imposed an
“unreasonable” sentence, we must determine that the
sentencing court imposed the sentence irrationally and that the
court was “not guided by sound judgment.” Commonwealth v.
Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).
Riggs, 63 A.3d at 786.
Appellant begins by arguing that the sentencing court failed to
consider his “rehabilitative needs and copious mitigating evidence.”
Appellant’s Brief at 19. Specifically, he contends that the court failed to
adequately consider “that [he] had completed a 12-week alcohol
rehabilitation program” while incarcerated, and that he had “developed a
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community-based treatment plan” through Justice Related Services (JRS).
Id. at 19, 23. Appellant also avers that the court did not consider that,
while he previously had no familial or friend support, and at times had been
homeless, he had developed a friendship with an individual who was also
providing Appellant with housing. Id. at 23. Additionally, Appellant points
out that he had “recently been approved for Social Security” as of the date
of his sentencing hearing, which provided him further stability that the
sentencing court failed to take into account. Id. at 23.
In sum, Appellant asserts that at the time of his sentencing hearing,
he had developed a
stability [that] would have helped [him] successfully reacclimate
to society after a lesser period of incarceration. Though some
degree of punishment was necessary, a maximum sentence of
total confinement was not. A sentence through the State
Intermediate Punishment program would have better attended
to [Appellant’s] rehabilitative needs, and, by extension, the
community’s safety.
Id. Appellant contends that rather than consider the appropriate, statutory
factors, the sentencing court fashioned his term of incarceration based on its
“personal frustration” toward him. In support, he cites several comments by
the court, including the court’s statement that Appellant was “59 years old
and [his] life has not really been much more than a waste….” N.T.
Sentencing, 3/3/15, at 12.
Having carefully reviewed the record of Appellant’s sentencing
proceeding, we ascertain no abuse of discretion by the court. Initially, we
stress that the court had the benefit of a presentence report and reviewed
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that report prior to the sentencing proceeding. Id. at 13. Additionally, the
trial court indicated that it had presided over a prior case of Appellant’s, and
had knowledge of him based thereon. See id. at 12, 17. The court also
listened to defense counsel discuss many of the mitigating factors Appellant
cites, supra. See id. at 3, 4-5, 5-6 (counsel’s emphasizing Appellant’s
difficult life, his long term struggle with alcoholism, his mental and physical
health issues, lack of familial support, prior “bouts of homelessness,”
Appellant’s completion of a drug and alcohol rehabilitation program while
incarcerated, and his work with JRS to develop a “Service Plan” that would
provide Appellant with a “second level of support” when he was released into
the community).
Appellant was also permitted to speak, and informed the court of his
remorse, as well as his determination to “now … be a productive member of
society.” Id. at 9. He also stated that he has a place to live, and will be
receiving social security benefits that will provide him with financial stability.
Id. at 9, 11. The court further heard Appellant’s comments regarding the
drug and alcohol program he completed, and his acknowledgments that he
“need[s] help” and he “really [does] want to change.” Id. at 11, 12.
When Appellant concluded his statement by declaring that he does not
“want to waste [his] life[,]” the court responded, as follows:
THE COURT: Well, you’re a little too late for not wasting your
life. You’re 59 years old and your life has not really been much
more than a waste, to be quite honest with you.
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Id. at 12. While the court’s blunt response seems harsh, it tempered its
remark, and provided further explanation for Appellant’s sentence, in the
following exchange:
THE COURT: There’s no way for me to state on the record what
your circumstances are without seeming mean.
[Appellant]: Okay.
THE COURT: At this point in your life, it is what it is. Right?
[Appellant]: Yes, yes.
THE COURT: I mean, we are what … our whole entire past
encompasses. And, you know, my issue with you, [Appellant] --
and, again, I’ve told you this in the past -- nothing is personal.
It’s really just looking at all of the attendant circumstances
and trying to figure out what’s appropriate. But if you think that
I sit here for a minute and believe that you didn’t have an
opportunity for treatment, you’re nuts.
[Appellant]: Oh, I had lots of opportunity.
THE COURT: I see that. You had many, many, many
opportunities for treatment. You never availed yourself of them,
ever.
And there are many circumstances under which old DUIs
and probations were closed without [your] even completing the
steps because [you] weren’t interested.
No one’s interested in that until they’re in jail. Then they
want to attend all kinds of stuff [until] they hit the street again.
And it’s amazing, when you tell me that 19 out of 22 years
you were incarcerated, I don’t know that that’s the case. I
certainly didn’t add it up. You still managed to rack up an
astounding criminal record in that time period, in that time
frame, on the brief periods that you’ve been out.
…
[W]hat basically the Pre-sentence Report points out is that
you’re a career criminal. There’s no other nicer way to say it.
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…
Your criminal career continued unabated, other than
incarceration. For the periods you were incarcerated, that was
the only time period in which you seemed to be able to not pick
up new charges, amazingly, while you were incarcerated.
It seems to be the only time that you weren’t basically
doing whatever you felt like doing, whether it was burglaries,
thefts, retail thefts, assaults, and most concerning in this
particular circumstance … would be the continuation of the
drinking and driving and driving while under suspension.
And at this point, this is DUI number 10, with the
attendant 1543(b), driving under suspension DUI-related, while
under the influence.
And, you know, there comes a point, looking at all the
rehabilitative factors, you know, looking at all the things that
you could avail yourself of, I look at it as whether or not that
appears to be something that would come to fruition and what
takes the front seat here … is public safety.
Every time you get behind the wheel of a car and you’re
under the influence -- and you pointed out, it’s amazing that you
haven’t hurt anyone. You’ve had three accidents, at least three
that I can see in your Pre-sentence Report, related to driving
under the influence.
…
On October 30, 2006, you pled guilty … [to] … charges [of]
accidents involving death or injury, possession of drug
paraphernalia, driving while your operating privileges were
suspended or revoked, and reckless driving. And that was part
of a larger plea deal along with three other cases that day.
And then the Pre-sentence Report lists the various
locations in which you have been involved in accidents. … All of
the times you weren’t supposed to be driving and you were
driving under suspension.
So there comes a point, to me, where the public safety
becomes the overwhelming issue, given that I think that the
rehabilitative prospects are low, if not nonexistent, if I go based
on the past history and compliance with terms of probation.
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Id. at 12-17. Additionally, before imposing Appellant’s sentence, the court
noted that only two months had passed between Appellant’s being released
from prison on another, unrelated charge and his committing the DUI
offense in this case. Id. at 17.
Based on this record, we conclude that the sentencing court
adequately considered all of the mitigating circumstances and the section
9721(b) factors, including Appellant’s rehabilitative needs. The court
stressed that its primary concern was public safety, which was completely
reasonable considering Appellant’s lengthy criminal history - including ten
DUI offenses - and his past failure to take advantage of rehabilitation
opportunities. The court’s comments to Appellant did not demonstrate a
bias, ill-will, or prejudice against him; instead, the court’s remarks were
simply a blunt characterization of the circumstances Appellant, himself, had
created. In sum, we are convinced that the court fashioned an
individualized sentence taking into account all of the statutory factors, the
above-stated circumstances of Appellant’s current case and his criminal
history, as well as the significant risk that Appellant poses to public safety
when not incarcerated. We ascertain no abuse of discretion in the ultimate
sentence imposed by the court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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