J-S64029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON LAWRENCE VANSPLINTER,
Appellant No. 155 MDA 2017
Appeal from the Judgment of Sentence December 7, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000513-2016, CP-35-CR-0002734-
2015
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 03, 2017
Brandon Lawrence Vansplinter (“Appellant”) appeals the judgment of
sentence imposed after he pled guilty to one count of delivery of a controlled
substance, one count of homicide by vehicle while driving under the
influence, and one count of driving under the influence (“DUI”).1 We affirm.
In August and September of 2015, Appellant sold Oxycodone to a
confidential informant who worked for the Pennsylvania State Police. The
police filed a criminal complaint at docket number CP-35-CR-0002734-2015
(“2734-CR-2015”) on October 30, 2015, charging Appellant with multiple
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 75 Pa.C.S. § 3735(a), and 75 Pa.C.S.
§ 3802(d)(2), respectively.
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drug related offenses. Appellant waived a preliminary hearing, and the
Commonwealth filed a two-count criminal information on January 12, 2016.
On November 27, 2015, while under the influence of heroin and
Xanax, Appellant drove his vehicle into the back of a tractor trailer, killing
his girlfriend/passenger, Carly Otto (“the victim”). The police filed a criminal
complaint at docket number CP-35-CR-0000513-2016 (“513-CR-2016”) on
February 24, 2016, charging Appellant with homicide by vehicle (DUI), DUI,
and other criminal offenses. Appellant waived a preliminary hearing, and
the Commonwealth filed a thirteen-count criminal information on April 7,
2016.
Pursuant to a negotiated plea agreement, Appellant pled guilty at both
dockets, as indicated above, on September 12, 2016, in exchange for the
Commonwealth entering nolle prosequis on the remaining charges. The trial
court sentenced Appellant on December 7, 2016, to incarceration for an
aggregate term of five years to eleven years, which fell within the
aggravated sentencing range. Appellant filed a post-sentence motion on
December 16, 2016, seeking reconsideration of his sentence. The trial court
denied Appellant’s motion by order dated December 20, 2016, and filed on
January 11, 2017. This timely appeal followed. Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents two questions for our consideration:
1. Did the trial court abuse its discretion by imposing a
sentence at the highest end of the aggravated range of the
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Pennsylvania Sentencing Guidelines, by failing to consider the
relevant sentencing criteria of the Pennsylvania Sentencing Code
within 42 Pa.C.S.A. § 9721(b), failing to consider mitigating
circumstances, erroneously finding that [Appellant] committed
homicide by vehicle – DUI while on bail to justify the aggravated
sentence and, then, by failing to state sufficient reasons on the
record for the sentence imposed?
2. Did the trial court err and/or abuse its discretion in failing
to run the sentences in homicide by vehicle – DUI and controlled
substance cases concurrent to one another?
Appellant’s Brief at 4.
Appellant’s issues challenge the discretionary aspects of his sentence.
“The right to appellate review of the discretionary aspects of a sentence is
not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.
2014). Rather, where an appellant challenges the discretionary aspects of a
sentence, the appeal should be considered a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
[a]n 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 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).
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Id. at 170 (citation and internal brackets omitted).
Herein, the first, second, and third requirements of the four-part test
are met: Appellant brought a timely appeal, challenged his sentence in a
post-sentence motion, and included in his brief the necessary separate
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Notice of Appeal, 1/18/17; Post-Sentence
Motion, 12/16/16; Appellant’s Brief at 17. Thus, we turn to whether
Appellant presents a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
The determination of whether there is a substantial question is made
on a case-by-case basis, and this Court will allow the appeal 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. Sierra, 752 A.2d 910, 912–913
(Pa. Super. 2000). “[W]e cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine whether a
substantial question exists.” Commonwealth v. Provenzano, 50 A.3d
148, 154 (Pa. Super. 2012) (citation omitted). “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
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merits.” Commonwealth v. Knox, 165 A.3d 925, 929 (Pa. Super. 2017)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
In his petition for allowance of appeal, Appellant argues that the trial
court imposed an aggravated-range sentence without considering mitigating
factors. Appellant’s Brief at 17 (Pa.R.A.P. 2119(f) Statement, 9/19/17, at
¶¶ 10, 12, 13, 16, 17). Appellant also asserts that the aggravated-range
sentence was manifestly excessive, too severe a punishment, and based on
erroneous and improper factors. Id. (Rule 2119(f) Statement at ¶¶ 11, 15,
18). Appellant concludes that his sentence violates the Pennsylvania
Sentencing Code and fundamental norms of sentencing, and, therefore, he
has presented a substantial question for allowance of this appeal. Id. at
¶ 19. The Commonwealth objects, arguing that Appellant fails to state a
substantial question. Commonwealth’s Brief at 5.
To the extent Appellant complains that the trial court imposed an
aggravated-range or manifestly excessive sentence without considering
mitigating circumstances, a substantial question exists. See
Commonwealth v. Dodge, 77 A.3d 1263, 1272–1273 (Pa. Super. 2013)
(en banc) (“The substantial question . . . is an ‘excessive sentence claim in
conjunction with an assertion that the court did not consider mitigating
factors.’”). Similarly, insofar as Appellant claims that the trial court imposed
an aggravated-range sentence based on incorrect or impermissible factors, a
substantial question exists. See Commonwealth v. Stewart, 867 A.2d
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589, 592 (Pa. Super. 2005) (“Based on [a]ppellant’s assertion that the
sentencing court considered improper factors in placing the sentence in the
aggravated range, we conclude that [a]ppellant presents a substantial
question on appeal.”). Thus, we grant Appellant’s petition for allowance of
appeal with regard to his first issue and review its merits.
Our standard of review is well-settled:
“[I]mposition of sentence is vested in the discretion of the
sentencing court and will not be disturbed by an appellate court
absent a manifest abuse of discretion.” Commonwealth v.
Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation omitted). “An
abuse of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to 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. (citation omitted). “If
the sentence is ‘not unreasonable,’ the appellate court must
affirm.” Id. (citation omitted).
Commonwealth v. Simpson, 829 A.2d 334, 336 (Pa. Super. 2003). A
sentencing court “is required to consider the particular circumstances of the
offense and the character of the defendant.” Griffin, 804 A.2d at 10. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.” Id.
Appellant complains that the trial court relied upon erroneous or
improper factors in sentencing Appellant within the aggravated range of the
sentencing guidelines for the homicide-by-vehicle (DUI) conviction.
Appellant’s Brief at 21. Specifically, Appellant claims the trial court
erroneously believed that Appellant was on bail from the controlled-
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substance offense when the fatal vehicle accident occurred, it wrongly
characterized Appellant as having no respect for authority, and it failed to
provide adequate reasons for the aggravated-range sentence. Appellant’s
Brief at 25–28.
Our review of the record suggests a basis for Appellant’s position. At
the sentencing hearing, the trial court stated:
And the sentence of this court in [the homicide by vehicle while
DUI] case will be that you are to be incarcerated in the state
correctional [institution] for a minimum period of time which
shall be 4 years to a maximum which shall be 8 years. That
sentence falls in the aggravated range of the sentencing
guidelines. And it is above the mandatory minimum [of three
years]. And that is due to the fact that I find that this was
-- this charge was committed while you were on bail on
the prior felony charges that involve the sale of drugs.
Although one plea, nevertheless, I considered the two different
dates that factored into that. But insofar as the aggravated
range of this case, the fact that it was committed while
you were on bail. And secondly, that I do not accept that you
are truly remorseful for your conduct here.
N.T., 12/7/16, at 38 (emphases supplied). In its opinion to this Court,
however, the trial court justified the aggravated-range sentence as follows:
[Appellant] also asserts that the court relied on incorrect
and impermissible factors in sentencing him in the aggravated
range. First, he asserts that the court incorrectly believed that
he was on bail at the time of committing the homicide by motor
vehicle charge. While [Appellant] is correct that this court was
mistaken in believing that he had already been arrested for the
delivery of a controlled substance charges and was released on
bail when he committed the homicide by motor vehicle, he is
incorrect that this was the only factor that led the court to
sentence him in the aggravated range. As this court stated at
the time of sentencing, it considered many factors in
imposing sentence here, including [Appellant’s] lifelong
disrespect for authority, his failure to complete the PATH
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program while released on bail in this case, his failure to
comply with the condition of his bail that he refrain from
driving a motor vehicle, and his defiance with this court
when confronted with this violation.... [Appellant’s]
conduct while a student demonstrated to the court that
[Appellant’s] lack of respect for authority, which he
exhibited while in school, continued up to the time of the
current crimes and even in his inability to comply with the
terms of his release on bail.
Trial Court Opinion, 3/17/17, at 7–8 (emphases supplied).
Cognizant of our standard of review, we discern no abuse of the trial
court’s discretion in imposing an aggravated-range sentence. Although the
trial court was wrong about Appellant’s bail status, it carefully considered
numerous appropriate factors in fashioning Appellant’s sentence, all of which
are supported by the record. Trial Court Opinion, 3/17/17, at 7–8; N.T.,
12/7/16, at 33–37. Moreover, as discussed below, the trial court had the
benefit of a presentence investigation report (“PSI”). Thus, we conclude
that Appellant is not entitled to relief on this claim.
Appellant also contends that the trial court failed to consider mitigating
factors. Specifically, Appellant identifies the following: he came from a
broken home in a violent neighborhood; from an early age, he provided
emotional and familial support to his single mother and siblings; he suffered
from emotional and learning disabilities; he developed an opioid addiction at
age fourteen; he provided emotional and financial support to the victim and
her daughter; he did not have a juvenile record; he completed court-ordered
treatments and voluntarily participated in other drug treatment programs;
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he produced clean drug screens while on bail; he took responsibility for the
accident and pled guilty to the most serious charges; and he expressed
remorse for his conduct. Appellant’s Brief at 29–32.
An assertion that the trial court did not consider mitigating factors is
often an assertion that the court did not accord the factors the weight that
the defendant wished. Commonwealth v. Proctor, 156 A.3d 261, 274
(Pa. Super. 2017); accord Commonwealth v. Raven, 97 A.3d 1244, 1255
(Pa. Super. 2014) (“The gist of Raven’s argument is not that the court failed
to consider the pertinent sentencing factors, but rather that the court
weighed those factors in a manner inconsistent with his wishes.”).
Moreover, where the sentencing judge has the benefit of a PSI, “it will be
presumed that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028,
1038 (Pa. Super. 2016); see also Commonwealth v. Downing, 990 A.2d
788, 794 (Pa. Super. 2010) (“Our Supreme Court has determined that
where the trial court is informed by a [PSI], it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be
disturbed.”).
With respect to Appellant’s proffered mitigating factors, the trial court
received and reviewed five letters on behalf of Appellant in advance of the
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sentencing hearing. N.T., 12/7/16, at 21. Moreover, the trial court heard
testimony at the sentencing hearing from Appellant’s sister and his mother,
as well as argument from Appellant’s counsel, regarding Appellant’s
remorse, his addiction, his attempts to obtain treatment, and his acceptance
of responsibility. Id. at 23–31. The trial court also heard from Appellant.
Id. at 31–32. The trial court had the benefit of a PSI. From the bench, the
trial court explained the difficulty of the case from a sentencing perspective
and, contrary to Appellant’s claim, provided reasons for its sentence. Id. at
32–37. Finally, the trial court advises us that:
[it] considered everything in [Appellant’s] extensive pre-
sentence investigative file. The court considered all of this
information as well as the testimony at the sentencing hearing
and weighed it against the mitigating factors in sentencing
[Appellant] in the aggravated range. [Appellant] has not
indicated what information the court failed to consider that
would have changed the sentence here.
Trial Court Opinion, 3/17/17, at 7.
Based on the foregoing, Appellant’s mitigation argument does not
persuade us that the trial court abused its discretion in imposing an
aggravated-range sentence. Armed with a PSI, the court considered the
above mitigating factors in the context of a fatal DUI-related car accident; it
simply did not accord those facts the weight Appellant desired. Accordingly,
Appellant’s claim does not warrant relief.
Appellant’s second issue challenges the trial court’s imposition of
consecutive sentences on the homicide-by-vehicle (DUI) and possession
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convictions as resulting in a manifestly excessive sentence. Appellant’s Brief
at 33. This issue does not appear in Appellant’s Rule 2119(f) statement and,
therefore, could be deemed waived. However, because the Commonwealth
does not object to its omission, we address it. See Commonwealth v.
Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (quoting Commonwealth v.
Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (“If a defendant fails to
include an issue in his Rule 2119(f) statement, and the Commonwealth
objects, then the issue is waived and this Court may not review the
claim.”)).
This Court has recognized for years that 42 Pa.C.S. § 9721(a) affords
the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed, and that a challenge to the imposition of
consecutive rather than concurrent sentences does not present a substantial
question to justify this Court’s review. Commonwealth v. Lloyd, 878 A.2d
867, 873 (Pa. Super. 2005) (citing Commonwealth v. Hoag, 665 A.2d
1212, 1214 (Pa. Super. 1995)). However, a substantial question exists
where an appellant challenges the imposition of his consecutive sentences as
unduly excessive together with his claim that the court failed to consider
mitigating factors upon fashioning its sentence. Commonwealth v.
Swope, 123 A.3d 333, 340 (Pa. Super. 2015). Thus, we grant Appellant’s
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petition for allowance of appeal with regard to his second issue and proceed
to the merits.
In support of his second issue, Appellant reasserts his claims that the
trial court relied on an erroneous belief about his bail status and did not
consider mitigation. Appellant’s Brief at 35. Appellant adds that the trial
court failed to consider the rehabilitative needs of Appellant, an opioid
addict. Id. According to Appellant, “[i]mposing consecutive sentences, in
the present matter, satisfies none of the goals or general principles of the
Sentencing Code and Guidelines. The sentence, as a whole, results in being
purely punitive.” Id. at 36.
The trial court justified the consecutive sentences as follows:
[Appellant] here committed two distinct deliveries of a controlled
substance in August and September of 2015, as well as the
homicide by motor vehicle while driving under the influence on
November 27, 2015. As the court stated when imposing
sentence, these were two separate and serious crimes and it is
tragic and ironic that the use of drugs caused the homicide by
motor vehicle charge to occur. In light of the serious criminal
conduct committed by [Appellant] at different times, consecutive
sentences were appropriate here.
Trial Court Opinion, 3/17/17, at 8–9.
Reviewing for an abuse of discretion, we observe none. The trial court
carefully considered the gravity of Appellant’s two possession offenses and
his homicide-by-vehicle (DUI) offense, his addiction, his conduct before and
after the fatal accident, the protective needs of the community, and the
impact of Appellant’s crimes on the victim’s family. N.T., 12/7/16, at 33–
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37; Trial Court Opinion, 3/17/17, at 4, 6–9. The DUI offense merged with
the homicide-by-vehicle (DUI) offense for sentencing purposes, and the drug
sentence fell “in the high end of the standard range because the amount of
drugs involved indicates that [Appellant] was not a small time user dealing
to support his own habit. . . .” Trial Court Opinion, 3/17/17, at 4. Based on
the foregoing, we conclude that Appellant’s sentence is not excessive or
unreasonable in light of the crimes committed and the sentencing court’s
consideration of the individual circumstances of this case.
Although Appellant raised substantial questions concerning the
sentences imposed, after review, we conclude there is no merit to his claims
and no relief is due. The sentences were not manifestly excessive, and the
trial court did not abuse its discretion. Accordingly, we affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2017
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