J-S79014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK WOLF
Appellant No. 125 EDA 2016
Appeal from the Judgment of Sentence November 12, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005714-2015;
CP-09-CR-0005845-2015
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 01, 2016
Appellant, Mark Wolf, appeals from the judgment of sentence entered
in the Bucks County Court of Common Pleas, following his open guilty plea
to two counts of retail theft and one count of receiving stolen property.1 We
affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts of this case. Therefore, we have no reason to restate them.
Procedurally, the Commonwealth charged Appellant with the various
offenses on October 8, 2015. Appellant entered an open guilty plea to all
offenses on November 12, 2015. The same day, the court sentenced
____________________________________________
1
18 Pa.C.S.A. §§ 3929(a)(1) and 3925(a), respectively.
J-S79014-16
Appellant to consecutive terms of nine (9) to eighteen (18) months’
incarceration on each count of retail theft; Appellant’s receiving stolen
property charge merged for sentencing purposes with retail theft. Thus, the
court imposed an aggregate sentence of eighteen (18) to thirty-six (36)
months’ incarceration. On Monday, November 23, 2015, Appellant timely
filed a post-sentence motion, which the court denied on December 4, 2015.
On December 31, 2015, Appellant filed a notice of appeal. The court
ordered Appellant on January 11, 2016, to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied on January 28, 2016.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY
SENTENCING APPELLANT TO SERVE CONSECUTIVE
SENTENCES OF INCARCERATION THAT AGGREGATED TO A
STATE PRISON SENTENCE BY NOT CONSIDERING
MITIGATING EVIDENCE, AND RELYING ON FACTORS THAT
WERE ALREADY CONTEMPLATED BY THE AVAILABLE
SENTENCING GUIDELINES?
(Appellant’s Brief at 4).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspects of sentencing issue:
[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
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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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary
aspects of sentence are generally waived if they are not raised at the
sentencing hearing or raised in a motion to modify the sentence imposed at
that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103,
112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),
cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).
The determination of what constitutes a substantial question must be
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evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 913. A claim of excessiveness can
raise a substantial question as to the appropriateness of a sentence under
the Sentencing Code, even if the sentence is within the statutory limits.
Mouzon, supra at 430, 812 A.2d at 624. Importantly, a claim that the
court double-counted a defendant’s prior record raises a substantial
question. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super.
2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000).
Additionally:
Pennsylvania law affords the sentencing court discretion to
impose [a] sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this
discretion does not raise a substantial question. In fact,
this Court has recognized the imposition of consecutive,
rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering
the nature of the crimes and the length of imprisonment.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013), appeal
denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation
marks omitted).
Here, Appellant properly preserved his discretionary aspects of
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sentencing claim in his post-sentence motion and Rule 2119(f) statement;
and his claim that the court double-counted his prior convictions by focusing
on his previous offenses at sentencing appears to raise a substantial
question as to the discretionary aspects of his sentence. See Goggins,
supra.
Our standard of review of a challenge to the discretionary aspects of
sentencing is as follows:
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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with 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.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
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imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, “a sentencing
court may not ‘double count’ factors already taken into account in the
sentencing guidelines.” Goggins, supra at 732. Nevertheless, “courts are
permitted to use prior conviction history and other factors included in the
guidelines if, they are used to supplement other extraneous sentencing
information.” Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa.Super. 2006).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diane E.
Gibbons, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed April 19, 2016, at 4-6) (finding:
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transcript from sentencing hearing shows court discussed Appellant’s long-
term drug abuse; court considered Appellant’s drug treatment efforts, but
found Appellant enrolled in treatment only in response to incarceration
rather than of his own volition; court noted Appellant’s prior record score of
five, which indicated Appellant was likely to reoffend; court imposed
sentences within standard range; court’s observation of Appellant’s lengthy
criminal history before court imposed consecutive sentences was not abuse
of discretion; court fashioned sentence based on individual circumstances
involved in Appellant’s case; sentence imposed was therefore reasonable).
Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
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Circulated 10/14/2016 01:51 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA No. CP-09-CR-0005714~2015
CP-09-CR-0005845-2015
v.
[125 EDA 2016)
MARK JOSEPH WOLF
OPINION
On November 12, 2015, on Docket Number CP-09-CR-0005714-2015, the Defendant,
Mark Joseph Wolf, entered a guilty plea to retail theft' and receiving stolen property and was
sentenced to a term of incarceration of nine months to eighteen months. On that same date, on
Docket Number CP-09-CR-0005845-2015, the Defendant also entered a guilty plea to retail
theft' and was sentenced to a consecutive term of incarceration for nine months to eighteen
months.4 The Defendant thereafter filed a timely appeal challenging the sentences imposed.
Information number 5714 of2015
On July 24, 2015, the Defendant entered the Giant Food Store located on New Falls Road
in Middletown Township, Bucks County. He selected ten DVD movies and left the store
without paying for the items. The total value of the merchandise was $89.90.
On August 14, 2015, the Defendant entered the same Giant Food Store and selected
forty-eight cans of Red Bull energy drink. He placed the merchandise in a·,sh0pping basket and
.it~·:;: , : /; . . ·. , ~( ·:-::1.!Y
left the store without paying for the items. The total value of the merchandise Wt!s$l0);2;2~1 l,)
118Pa.C.S. § 3929(a)(l). [ / :ad bi ti:<' ';''
2 18 Pa.C.S. § 3925(a).
3
18 Pa.C.S. § 3929(a)(l).
4 The Defendant filed a motion to reconsider sentence on November 23, 2015. That motion was denied by Order
dated December 3, 2015.
On August 16, 2015, the Defendant and an unknown white female entered the same Giant
Food Store. They selected three Sonicare toothbrushes, three refills and twenty-one assorted
cosmetic items. The Defendant placed the merchandise in a shopping basket and left the store
without paying for the items. The total value of the merchandise was $439.33.
Information number 5845 of 2015
On August 19, 2015, the Defendant entered the Giant Food Store located at 2721 Street
Road in Bensalem Township, Bucks County. He selected multiple items that included makeup
and toiletry products. He then concealed some the items in his pants and some of the items in a
shopping basket. He left the store without paying for the merchandise. The total value of the
merchandise was $260.70.5
Sentencing
At the time of sentencing, the Commonwealth introduced the following information
regarding the Defendant's prior record. The Defendant's criminal history began in 2007. On
October 11, 2007, he was convicted of a driving under the influence offense. On December 3,
2007, he was convicted of a felony one burglary offense. On August 5, 2010, he was convicted
of a second driving under the influence offense that involved an automobile collision. On
September 27, 2012, he was convicted of possession of a controlled substance. On August 20,
2015, the day after the last retail theft committed in these cases, the Defendant was convicted of
retail theft. 6 The only mitigating evidence offered by the Defendant was that he waived his
preliminary hearing, that he was taking responsibility for his actions and that he spent
approximately twenty days in a treatment facility. That treatment occurred only after he was
5
N.T. 11/12/15 pp. 18-22.
6
N.T. 11/12/15 pp. 22-24.
2
incarcerated on these offenses. He was released to the drug treatment facility as a condition of a
7
bail reduction.
Issue on Appeal
The sole issue on appeal is whether this Court imposed "an unduly harsh aggregated
sentence of not less than eighteen months nor more than thirty-six months in a state correctional
facility by not considering [the Defendant's] mitigating evidence and relying on facts already
contemplated by the Sentencing Guidelines. 8 The standard of review in sentencing matters is set
forth in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961-962 (2007) (footnotes
omitted):
Our Court has stated that the proper standard of review when
considering whether to affirm the sentencing court's determination
is an abuse of discretion. Commonwealth v. Smith, 543 Pa. 566,
673 A.2d 893, 895 (1996) ("Imposition of a sentence is vested in
the discretion of the sentencing court and will not be disturbed
absent a manifest abuse of discretion."). As stated in Smith. an
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."
Id. 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."
Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003).
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
particular offense based upon an evaluation of the individual
circumstances before it." Commonwealth v. Ward, 524 Pa. 48,
568 A.2d 1242, 1243 (1990); see also Commonwealth v. Jones,
418 Pa.Super. 93, 613 A.2d 587, 591 (1992) (en bane) (offering
that the sentencing court is in a superior position to "view the
defendant's character, displays of remorse, defiance or indifference
7N.T.11/12/15pp.25-26.
8 Statement of Matters Complained of on Appeal p. I 1 l.
3
and the overall effect and nature of the crime."). Simply stated, the
sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the
cold transcript used upon appellate review. Moreover, the
sentencing court enjoys an institutional advantage to appellate
review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with the
advent of the sentencing guidelines, the power of sentencing is a
function to be performed by the sentencing court. Ward, 568 A.2d
at 1243. Thus, rather than cabin the exercise of a sentencing
court's discretion, the guidelines merely inform the sentencing
decision.
In the instant case, this Court imposed a sentence within the standard range of the
sentencing guidelines in both cases. 9 The standard of review of a sentence within the guidelines
is set forth in the Sentencing Code which provides, in pertinent part:
(c) Determination on appeal.-The appellate court shall vacate the
sentence and remand the case to the sentencing court with
instructions if it finds:
***
(2) the sentencing court sentenced within the sentencing guidelines
but the case involves circumstances where the application of the
guidelines would be clearly unreasonable.
42 Pa.C.S. §978l(c) (emphasis added).
In imposing sentence, this Court stated,
I take into account that there is a certificate of achievement
presented by the staff at White Deer Run in Allenwood, presented
for successfully completing chemical dependency treatment
program in September of 2015.
I note, however, this was done in response to incarceration, and not
done of his own volition.
I take into account the sentencing guidelines which on each case
calls for incarceration.
9 The offense gravity score was two. The prior record score was five. The guidelines therefore provided for the
following sentencing ranges: Mitigated - RS; Standard - one month to nine months; Aggravated - nine to twelve
months.
4
I note that you have a prior record score of five, which is the
maximum you can have.
I note that the fact that you already burglarized somebody's home
and hurt somebody as a result of this drug addiction you continued.
I note that ... intervention has had no impact on you whatsoever.
You continue to engage in crime. And you refuse to do what you
need to do to try to deal with this addiction unless you are
incarcerated or forced to do so.
***
This is going to stop. This crime wave is going to stop. You have
been unable to stop it yourself. The only way I can prevent you
from engaging in -- continuing to engage in criminal conduct is to
remove you from the community and place you and force you to
undergo therapeutic treatment in the State Correctional System.l?
The Defendant's assertion that the sentence imposed was unreasonable because this
Court failed to consider the mitigating evidence is not supported by the record. This Court
clearly considered the Defendant's drug treatment efforts but found them to be inadequate. The
Defendant's claim that this Court improperly considered the Defendant's lengthy criminal
background in deciding to impose consecutive sentences is also without merit. See
Commonwealth v. Klueber. 588 Pa. 401, 904 A.2d 911 (2006) (Standard range consecutive
sentences are not clearly unreasonable where the trial court relies on the defendant's prior history
and a finding that he was a high risk to re-offend); Commonwealth v. Dodge, 77 A.3d 1263,
1277-78 (Pa.Super.2013) (In imposing consecutive sentences, sentencing court's reliance on
Appellant's lengthy criminal background as well as the sheer number of victims involved in
handing down its sentence, and its belief that Appellant's apology to his victims rang hollow was
not abuse of discretion). This Court determined the proper penalty to be imposed based upon the
individual circumstances involved. Given the Defendant's criminal history and long-term drug
10
N.T. 11/12/15 pp. 29-31.
5
abuse, this Court properly concluded that a lengthy period of incarceration was necessary. The
sentence imposed is therefore "reasonable" within the meaning of 42 Pa.C.S. § 978l(c).
For the aforementioned reasons, the Defendant's challenge to the sentence imposed is
without merit.
BY THE COURT:
Date
D i c \' tt wjv~)
Cv:t,L_
DIANE E. GIBBONS, J.
AJ-< ~
6