Opinion
J-S55041-19 No. 820 WDA 2019
11-19-2019
COMMONWEALTH OF PENNSYLVANIA v. THOMAS REIBER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 29, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005993-2015 BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. MEMORANDUM BY COLINS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Thomas Reiber, appeals from the aggregate judgment of sentence of eight years and 212 days to 15 years and 212 days of confinement, of which 577 days was immediately credited for time served, resulting in a period of incarceration of seven to fourteen years. This sentence was imposed after the revocation of his state intermediate punishment ("SIP") for three counts of endangering welfare of children ("EWOC"). We affirm on the basis of the trial court opinion.
18 Pa.C.S. § 4304(a)(1) (parent, guardian or other person supervising the welfare of a child under 18 years of age commits offense).
On May 3, 2015, Appellant's three-month-old baby died, because he left the infant and a three-year-old child in the care of a six-year-old child, while he took drugs. Appellant was already serving probation pursuant to at least seven different dockets since 2011 and was a participant in Allegheny County's Mental Health Court at the time his infant died. During his entire probationary period, Appellant struggled with drug abuse and mental health issues.
On February 2, 2016, Appellant pleaded guilty to the aforementioned charges. On August 30, 2016, he was sentenced to six years in SIP.
Following hearings on March 20 and 29, 2018, the trial court found Appellant had violated the terms of his SIP sentence and resentenced him to 577 days of confinement with immediate parole for the first count of EWOC and 3½ to 7 years of confinement for each of the other two EWOC counts. Order of Sentence - Revocation, 3/29/2018, at 1. These sentences were to be served consecutively to each other, for an aggregate judgment of sentence of seven years and 577 days to 14 years and 577 days of confinement - or eight years and 212 days to 15 years and 212 days of confinement, if 365 of the days from the 577 days are converted into a year. Id. As Appellant was immediately paroled on the first count, he would actually be serving seven to fourteen years of confinement.
At the conclusion of the second hearing, Appellant requested a new attorney, which the trial court granted. N.T., 3/29/2018, at 4; Order of Court, 3/29/2019. Appellant's new counsel filed an untimely notice of appeal, and this Court quashed that appeal.
On May 17, 2019, Appellant filed a counseled, timely petition pursuant to the Post Conviction Relief Act ("PCRA"), requesting that his direct appeal rights be reinstated nunc pro tunc. PCRA Petition, 5/17/2019, at 5. The PCRA court granted Appellant's petition and reinstated his right to file a post-sentence motion and his direct appeal rights. On May 24, 2019, Appellant filed a post-sentence motion challenging the discretionary aspects of his sentence, which the trial court denied on May 30, 2019. On June 4, 2019, Appellant filed this timely direct appeal.
Appellant simultaneously filed his statement of errors complained of on appeal. On August 2, 2019, the trial court entered an order stating that its opinion dated October 26, 2018, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review:
Did the trial court err in denying Appellant's post sentencing motions since the imposition of two statutory maximum sentences for [EWOC] (3.5 to 7 years' imprisonment at each count, for an aggregate sentence of 7-14 years' imprisonment, for a probation violation and revocation regarding Appellant's original sentence of [SIP] was manifestly excessive, unreasonable, and an abuse of discretion pursuant to 42 Pa.C.S. § 9771 (c), and not in conformity with the Sentencing Code. The trial court failed to provide adequate reasons for imposing sentences above the aggravated range of the guidelines, and failed to take into account Appellant's rehabilitative needs, his background, the circumstances of the crimes or the minimal need for public protection in this case; Appellant's crimes were the result of his drug addiction and mental illness, and the trial court focused primarily on Appellant's drug addiction?Appellant's Brief at 3 (unnecessary capitalization omitted).
Preliminarily, we recognize . . . that Appellant's SIP sentence was analogous to a sentence of probation. We review a sentence imposed following a revocation of probation for an error of law or an abuse of discretion. Accordingly, we apply that same standard in reviewing revocation of Appellant's SIP sentence.Commonwealth v. Flowers , 149 A.3d 867, 872-73 (Pa. Super. 2016) (citations omitted).
[A]n 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. Lekka , 210 A.3d 343, 350 (Pa. Super. 2019) (citation omitted).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary 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 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. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018). In the current case, Appellant filed a timely notice of appeal, preserved his issue in a post-sentence motion, and included a statement in his brief pursuant to Pa.R.A.P. 2119(f). Appellant's Brief at 9-12.
The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, "must be evaluated on a case-by-case basis. 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." Manivannan , 186 A.3d at 489 (quotation marks and some citations omitted).
The Rule 2119(f) statement sets forth the claims that the sentencing court failed to consider the factors set forth in 42 Pa.C.S. § 9721(b) and that his sentence is manifestly excessive in light of the conduct at issue. Appellant's argument therefore raises a substantial question. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) ("[a]rguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question" (citation omitted)); Commonwealth v. Dodge , 77 A.3d 1263, 1266-67, 1270-71, 1273 (Pa. Super. 2013) (claim that a sentence is excessive in light of the conduct at issue raises a substantial question); Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006) (appellant "presented a statement of reasons for allowance of appeal arguing that . . . his sentence of total confinement" was "manifestly excessive"; this Court concluded that this issue "present[ed] substantial questions for [its] review"). Hence, we will consider the substantive merits of his sentencing claim.
Section 9721(b) requires the sentencing court to "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."
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Beth A. Lazzara, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that question. See Trial Court Opinion, filed October 26, 2018, at 4-21 (finding: (I) the trial court did not abuse its discretion when it imposed Appellant's sentence, because the sentence was a product of various considerations and was justified by the totality of the circumstances, which include (A) the seriousness of his offense conduct, (B) the impact it had on his surviving children and his family, and (C) that Appellant (1) had been on probation since 2011, (2) was already a participant in Allegheny County's Mental Health Court at the time he committed these three EWOC counts, and (3) had suffered from drug addiction and mental illness throughout the entire time he was serving probation; (II) as the trial court considered all of these circumstances when it imposed sentence, "to suggest that th[e] court failed to give adequate consideration to [Appellant]'s rehabilitative needs when it imposed the aggregate sentence is completely unfounded . . . considering that not even the death of his own newborn was enough to usher him down the path of sobriety"; (III) based on the nature of Appellant's crime and his overall history with the court, consecutive sentences of total confinement were neither manifestly excessive nor unreasonable).
Accordingly, we cannot find that the trial court arrived at an unreasonable decision, and Appellant has failed to demonstrate an error of law or a manifest abuse of discretion. See Lekka , 210 A.3d at 350; Flowers , 149 A.3d 867, 872-73. We thereby will not disturb Appellant's sentence on appeal, and we thus affirm on the basis of the trial court's opinion. The parties are instructed to attach the opinion of the trial court dated October 26, 2018 to any filings referencing this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/19/2019
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