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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES NOVIS,
Appellant No. 2280 MDA 2015
Appeal from the Judgment of Sentence December 2, 2015
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000950-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 14, 2017
Appellant, James Novis, appeals from the judgment of sentence
imposed following his open guilty plea to homicide by vehicle while driving
under the influence (DUI), DUI-general impairment, DUI-high rate of
alcohol, and accidents involving death or personal injury while not properly
licensed.1 We affirm.
We take the following facts from our review of the certified record. In
the early morning hours of May 4, 2013, Officer Charles Musial of the
Lehman Township Police Department was dispatched to the scene of a single
vehicle crash. Upon arriving, the officer found Appellant, and his
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*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3735(a), 3802(a)(1) and (b), and 3742.1(a), respectively.
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passengers, Cheri Hummel, and Michael Romanoskey, injured on the side of
the road. He detected a strong odor of alcohol on Appellant and Hummel,
who was nonresponsive and died at the scene. An investigation by the
Pennsylvania State Police determined that Appellant’s vehicle was travelling
at approximately eighty-three miles per hour (MPH) in a fifty MPH zone.
Appellant failed to negotiate a turn, went up an embankment, “vaulted
approximately forty-five (45) feet over a gap, and [landed] directly into
another embankment.” (Trial Court Opinion, 6/27/16, at 2).
On November 12, 2015, Appellant pleaded guilty to the
aforementioned charges. On December 2, 2015, after ordering and
receiving the pre-sentence investigation report (PSI), the trial court
sentenced Appellant to an aggregate term of incarceration of not less than
seven nor more than fourteen years. The court denied Appellant’s post-
sentence motion. Appellant timely appealed.2
Appellant raises two questions for this Court’s review: “I. Whether the
trial court abused its discretion in sentencing [him; and] II. Whether the trial
court failed to consider [his] remorse and other mitigating circumstances[?]”
(Appellant’s Brief, at 1).
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2
Appellant filed a court-ordered statement of errors complained of on appeal
on December 30, 2015. See Pa.R.A.P. 1925(b). The court filed an opinion
on June 27, 2016. See Pa.R.A.P. 1925(a).
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Appellant’s issues challenge the discretionary aspects of his sentence,
which “must be considered a petition for permission to appeal.”
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation
omitted).
Further:
This Court has held that there is no absolute right to
appeal when challenging the discretionary aspect of sentencing.
In order for such an appeal to be valid, an appellant’s brief must
contain a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of the
sentence and must also show that there is a substantial question
that the sentence imposed is not appropriate under the
Sentencing Code. In order to raise a substantial question, an
appellant’s Pa.R.A.P. 2119(f) statement must argue the manner
in which the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal
denied, 63 A.3d 776 (Pa. 2013) (citations omitted).
In the case before us, Appellant’s one-sentence Rule 2119(f)
statement merely claims, “Appellant alleges that the trial court abused its
discretion in sentencing Appellant in the aggravated range of the Sentencing
Guidelines.” (Appellant’s Brief, at 3). Although, standing alone, this does
not raise a substantial question, a review of Appellant’s brief reveals that he
claims “the trial court abused its discretion in sentencing him in the
aggravated range relying upon issues already factored into the Sentencing
Code[,]” and in failing to consider mitigating factors. (Id., at 7; see id. at
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10). Appellant raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc).
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.
* * *
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation. Where the
sentencing court had the benefit of a presentence investigation
report (PSI), we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. . . .
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal
denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks omitted).
Additionally:
It is impermissible for a court to consider factors already
included within the sentencing guidelines as the sole reason for
increasing or decreasing a sentence to the aggravated or
mitigated range. Trial courts are permitted to use prior
conviction history and other factors already included in the
guidelines if, they are used to supplement other extraneous
sentencing information.
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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(emphasis in original) (citation, quotation marks, and some emphasis
omitted).
Here, the trial court explains in its opinion that, at the sentencing
hearing:
. . . [It] noted [Appellant’s] extensive criminal record, the
attempts at rehabilitation offered through probation, parole and
the Luzerne County IPP program; all of which were afforded the
Appellant numerous times in the past[,] noting that the attempts
failed. The [c]ourt noted that [Appellant] repeatedly committed
other crimes while he was on prior parole and probation
sentences. He was rearrested for some while he was under
conditions and drove while intoxicated multiple times. As the
court reviewed the criminal history, the court noted that it could
not find one sentence that [Appellant] previously served that
was not revoked. Lastly, the court specifically found that the
Appellant was a danger to society and that he had been afforded
many opportunities over the past years.
(Trial Ct. Op., at 5). Our review of the notes of testimony from the
sentencing hearing supports the trial court’s opinion, and demonstrates that
the court did not impermissibly “consider factors already included within the
sentencing guidelines as the sole reason” for sentencing Appellant in the
aggravated range. Shugars, supra at 1275 (emphasis in original); (see
also N.T. Sentencing, 12/02/15, at 9-14). Moreover, the trial court had the
benefit of a PSI, and, therefore, is presumed to have considered all relevant
mitigating factors. See Griffin, supra at 937. Hence, we conclude that the
trial court did not abuse its discretion in sentencing Appellant in the
aggravated range. See id. Appellant’s claims lack merit.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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