Commonwealth v. Swope

J-S44007-15

2015 PA Super 196

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PETER MICHAEL SWOPE

Appellant No. 1115 WDA 2014

Appeal from the Judgment of Sentence June 11, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0011431-2006

CP-02-CR-0014506-2006

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

OPINION BY JENKINS, J.: FILED SEPTEMBER 16, 2015

Appellant Peter Michael Swope appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following the

revocation of his probation. Upon review, we affirm.

The relevant facts and procedural history of this appeal are as follows.

On July 22, 2006, Appellant entered the home of Missy Hodgson while she

was not present. After Miss Hodgson returned home and fell asleep in her

bed, Appellant awakened her by touching her buttocks. Miss Hodgson

screamed and woke her police officer boyfriend, David Pisani. Appellant ran

out of the home, and Mr. Pisani called the police and noticed that his wallet

and police badge were missing.

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The next day, Appellant entered a room of the Hilton Hotel in

Pittsburgh and hid in the armoire until three people returned to their room.

Upon discovering him and noting that he was visibly intoxicated, the hotel

room occupants alerted security guards, who detained Appellant until police

arrived. While he was being detained, Appellant threatened and fought with

the security guards. Police arrested and searched Appellant, revealing Mr.

Pisani’s police badge and other items, including credit cards from other

victims.

On June 5, 2007, Appellant entered a plea of nolo contendere to

burglary1 and indecent assault without consent of other2 relating to his July

22, 2006 offense (“home offense”).3 He also pled nolo contendere to

burglary, terroristic threats with intention to terrorize another,4 simple

assault,5 three counts of receiving stolen property,6 public drunkenness,7

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1

18 Pa.C.S. § 3502(a).

2

18 Pa.C.S. § 3126(a)(1).

3

This was docketed at CP-02-CR-0014506-2006.

4

18 Pa.C.S. § 2706(a)(1).

5

18 Pa.C.S. § 2701(a)(1).

6

18 Pa.C.S. § 3925(a).

7

18 Pa.C.S. § 5505.

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and disorderly conduct,8 relating to the hotel room offense (“first hotel room

offense”).9 For the home offense, the court sentenced Appellant to 18-36

months’ incarceration, followed by 10 years’ probation for the burglary

conviction and 12-24 months’ incarceration, concurrent, for the indecent

assault conviction. For the first hotel offense, the court sentenced Appellant

to 18-36 months’ incarceration, followed by 10 years’ probation for the

burglary conviction, and concurrent two-year periods of probation for each of

the terroristic threats with intent to terrorize another and simple assault

convictions.10 The court imposed the first hotel offense sentence

concurrently with the home offense sentence.

While he was on probation, Appellant was convicted of burglary,

simple assault, theft by unlawful taking,11 and access device fraud12 for an

incident in which he snuck into a Hilton hotel room, tried to get into bed with

a female victim, and stole and used the victim’s credit card. He was also

convicted of corruption of minors13 for having indecent contact with his

____________________________________________

8

18 Pa.C.S. § 5503(a).

9

This was docketed at CP-02-CR-0011431-2006.

10

The trial court imposed no additional sentence for Appellant’s other

convictions.

11

18 Pa.C.S. § 3921(a).

12

18 Pa.C.S. § 4106.

13

18 Pa.C.S. § 6301.

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seventeen-year-old daughter while she was unconscious. Appellant was

sentenced to an aggregate of 7-15 years’ incarceration for these crimes.14

In light of these other convictions, the trial court revoked Appellant’s

probation for the home offense and the first hotel room offense. On June

11, 2014, the court sentenced Appellant to consecutive sentences of 5-10

years’ incarceration for the home offense burglary and 1-10 years’

incarceration for the first hotel room offense burglary.15 This aggregate

sentence of 6-20 years’ incarceration was to be served consecutively to the

7-15 year sentence for the crimes committed while on probation.

On June 16, 2014, Appellant filed a timely motion for reconsideration

of sentence. On July 11, 2014, Appellant filed a timely notice of appeal.16

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14

The court sentenced Appellant on CP-25-CR-0001763-2013 to 60-120

months’ incarceration for the burglary conviction, 12-24 months’

incarceration for the simple assault conviction, and 12-24 months’

incarceration for the access device fraud conviction. The court sentenced

Appellant on CP-25-CR-0002649-2013 to 12-36 months’ incarceration for

the corruption of minors conviction. The sentences were imposed

consecutively, except for the access device fraud conviction, which was

imposed concurrently with the simple assault conviction.

15

The court imposed no additional sentences on Appellant’s other

convictions. The court gave Appellant credit for time served.

16

Although the court did not rule on Appellant’s motion to reconsider

sentence, this appeal is properly before this Court. “The filing of a motion to

modify sentence will not toll the 30-day appeal period.” Pa.R.Crim.P.

708(E). “Any appeal must be filed within the 30-day appeal period unless

the sentencing judge within 30 days of the imposition of sentence expressly

grants reconsideration or vacates the sentence.” Pa.R.Crim.P. 708(E),

Comment. After the 30 days have passed, the trial court is divested of

jurisdiction to rule on the motion to reconsider sentence. See

(Footnote Continued Next Page)

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On August 19, 2014, the court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he

timely complied on September 9, 2014.

Appellant raises the following issue for our review:

WAS THE SENTENCE OF SIX TO TWENTY YEARS OF

INCARCERATION MANIFESTLY EXCESSIVE, WHERE THE

COURT DID NOT CONSIDER [APPELLANT’S] SERIOUS

REHABILITATIVE NEEDS?

Appellant’s Brief at 6.

Appellant challenges the discretionary aspects of his sentence

following the revocation of his probation. Specifically, Appellant argues his

sentence of 6-20 years was manifestly excessive, especially because it was

imposed consecutively to his other sentence, resulting in what could be a life

sentence for Appellant. He further avers the trial court failed to consider

Appellant’s rehabilitative needs or mitigating factors and concludes the court

abused its discretion upon fashioning his sentence. We disagree.

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

_______________________

(Footnote Continued)

Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa.Super.1998).

Because Appellant filed a notice of appeal within 30 days of his judgment of

sentence, the appeal is timely, and the trial court lacks jurisdiction to rule on

his motion for reconsideration.

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An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a

four-part test: (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.

Id.

Presently, Appellant filed a timely notice of appeal and preserved his

issues in a post-sentence motion. Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 10-12. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

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.

Id. (internal citations omitted).

Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

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including incarceration. 42 Pa.C.S. § 9771(b). However, the imposition of

total confinement upon revocation requires a finding that either “(1) the

defendant has been convicted of another crime; or (2) the conduct of the

defendant indicates that it is likely that he will commit another crime if he is

not imprisoned, or (3) such a sentence is essential to vindicate the authority

of the court.” 42 Pa.C.S. § 9771(c).17

“An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates 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. Raven, 97 A.3d 1244, 1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

“When imposing a sentence, the sentencing court must consider the

factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the

public, gravity of offense in relation to impact on victim and community, and

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17

We note that an appellant presents a substantial question “when a

sentence of total confinement, in excess of the original sentence, is imposed

as a result of a technical violation of parole or probation.” Commonwealth

v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000). Here, the court imposed a

sentence of total confinement in excess of his original sentence based on

two crimes Appellant committed while on probation. Thus, the imposition of

total confinement after the revocation of Appellant’s probation alone does

not raise a substantial question.

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rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 A.2d

843, 847-48 (Pa.Super.2006) (internal citations omitted).

A court’s exercise of discretion in imposing a sentence concurrently or

consecutively does not ordinarily raise a substantial question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),

appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of

consecutive rather than concurrent sentences will present 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. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

To make it clear, a defendant may raise a substantial

question where he receives consecutive sentences within

the guideline ranges if the case involves circumstances

where the application of the guidelines would be clearly

unreasonable, resulting in an excessive sentence;

however, a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a

substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to consider

or accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97

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(Pa.Super.2001) (internal citation omitted) (emphasis in original).

Specifically,

[t]here is ample precedent to support a determination that

[a claim that the trial court failed to consider an appellant’s

rehabilitative needs] fails to raise a substantial question….

See Commonwealth v. Cannon, 954 A.2d 1222, 1228–

29 (Pa.Super.2008), appeal denied, 964 A.2d 893

([Pa.]2009) (claim that the trial court failed to consider the

defendant’s rehabilitative needs, age, and educational

background did not present a substantial question);

Commonwealth v. Coolbaugh, 770 A.2d 788, 793

(Pa.Super.2001) (citing Commonwealth v. Mobley, 581

A.2d 949, 952 ([Pa.Super.]1990)) (claim that sentence

failed to take into consideration the defendant’s

rehabilitative needs and was manifestly excessive did not

raise a substantial question where sentence was within

statutory guidelines and within sentencing guidelines);

Commonwealth v. Coss, 695 A.2d 831, 833

(Pa.Super.1997) (when the sentence imposed falls within

the statutory limits, an appellant’s claim that a sentence is

manifestly excessive fails to raise a substantial question);

Commonwealth v. Bershad, 693 A.2d 1303, 1309

(Pa.Super.1997) (a claim that a trial court failed to

appropriately consider an appellant’s rehabilitative needs

does not present a substantial question); Commonwealth

v. Lawson, 650 A.2d 876, 881 ([Pa.Super.]1994) (claim

of error for failing to consider rehabilitative needs does not

present substantial question).

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013), appeal

denied, 76 A.3d 538 (Pa.2013). Similarly, “this Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.” Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa.Super.2013) (internal citation omitted).

However, “prior decisions from this Court involving whether a

substantial question has been raised by claims that the sentencing court

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‘failed to consider’ or ‘failed to adequately consider’ sentencing factors has

been less than a model of clarity and consistency.” Commonwealth v.

Seagraves, 103 A.3d 839, 842 (Pa.Super.2014) (citing Dodge, supra). In

Commonwealth v. Dodge, this Court determined an appellant’s claim that

the sentencing court “disregarded rehabilitation and the nature and

circumstances of the offense in handing down its sentence” presented a

substantial question. Dodge, 77 A.3d at 1273.

This Court has also held that “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).

Additionally:

In determining whether a substantial question exists, this

Court does not examine the merits of whether the

sentence is actually excessive. Rather, we look to whether

the appellant has forwarded a plausible argument that the

sentence, when it is within the guideline ranges, is clearly

unreasonable. Concomitantly, the substantial question

determination does not require the court to decide the

merits of whether the sentence is clearly unreasonable.

Dodge, supra at 1270 (internal citations omitted).

Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider his

rehabilitative needs and mitigating factors upon fashioning its sentence,

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presents a substantial question. Thus, we grant his petition for allowance of

appeal and address the merits of his claim.

Our standard of review is well-settled:

The imposition of sentence following the revocation of

probation is vested within the sound discretion of the trial

court, which, absent an abuse of that discretion, will not be

disturbed on appeal. An abuse of discretion is more than

an error in judgment—a sentencing court has not abused

its discretion unless the record discloses that the judgment

exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.

Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa.Super.2014) appeal

denied, 109 A.3d 678 (Pa.2015).

Here, Appellant waived his right to have a pre-sentence report. See

N.T., 6/11/2014, at 8. Appellant’s counsel asked the court to consider

Appellant’s age, his admission of responsibility for his crimes as well as the

sentence that was already in place. N.T., at 15. In fashioning his sentence,

the court reasoned:

So while on probation for, among other things, burglarizing

the Hilton Hotel here in Pittsburgh, you went and

burglarized a hotel in Erie and you tried to have sex with a

woman while she was asleep. Don’t you think she has the

right to come in here and say Judge, how many chances

are you going to give this guy?

* *

This is [Appellant’s] MO. This is what he does. It has

nothing to do with his mother dying. Nobody’s happy to

hear that. This is what he does. He represents a very

serious threat to the safety of any community which he is

released into after custody.

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* * *

We want to parole people…. We don’t want to keep them

in jail, we want to facilitate their getting out of jail…. But

you’re dangerous when you’re paroled. You’re dangerous

when you’re given freedom. You do the same thing over

and over, and you go after females. This can’t happen…

Here’s what I’m going to do. I’m going to give the

Pennsylvania Board of Parole control of you for a long

time. I’m going to give the department of corrections

control of you for some time, too.

N.T., 6/11/14 at 10-19.

The court explained its decision for imposing Appellant’s consecutive

sentences. After considering mitigating factors and Appellant’ rehabilitative

needs, it found Appellant was dangerous when paroled and needed to spend

a significant amount of time incarcerated. Thus, his claim that the court

failed to consider his rehabilitative needs or mitigating factors is meritless.

Further, Appellant’s aggregate sentence of 6-20 years’ incarceration is not

manifestly excessive for his two burglary offenses, and the court was free to

impose the sentence consecutively to his other sentences for the crimes he

committed while on probation. Appellant is not entitled to a volume discount

for his crimes. See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595,

598 (Pa.Super.2010). We see no abuse of discretion in the trial court’s

sentence.

Judgement of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2015

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