Opinion
J-S44041-15 No. 387 WDA 2015
08-05-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. CLIFFORD R. ZUSCHLAG Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 30, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000321-2014, CP-43-CR-0001003-2014, CP-43-CR-0001269-2014
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J. MEMORANDUM BY LAZARUS, J.:
Clifford R. Zuschlag appeals from his judgment of sentence, imposed in the Court of Common Pleas of Mercer County, following his plea of guilty to one count each of forgery, burglary with a person present, and burglary with no person present. Upon careful review, we affirm.
18 Pa.C.S. § 3502(a)(2); this count of burglary consolidated 15 burglaries into one count.
The trial court set forth the facts of this case as follows:
On January 11, 2014, at approximately 3:00 p.m., a white male in a black hoodie stole Carol Leach's purse as she was about to enter the K-Mart store in Hermitage, Pennsylvania. A foot chaseTrial Court Opinion, 3/25/15, at 1-3.
ensued. The white male dropped the purse and drove away in a red Chevrolet Blazer. When . . . Leach examined the purse, she found her wallet was missing.
Several hours later, . . . Leach's debit card, which had been in her wallet, was used at several locations in Greenville, Pennsylvania. At one of the locations, footage from the store's video surveillance camera showed [Zuschlag] to be the one using the card.
[Zuschlag] was arrested at No. 321 Criminal 2014 and charged with robbery, criminal conspiracy, forgery, theft, access device fraud and identity theft. He was released on $20,000.00 bail February 12, 2014.
On June 11, 2014, at approximately 2:00 p.m., Diane Smith stopped in to check on her mother's residence in Findley Township. She observed a beige sedan in the parking lot that she did not recognize. She went to the door [of the residence] and found it open. Immediately after entering the residence, she heard a noise and, as a result, called out "hello, hello." A white male ran down the steps and then out the door.
The next day at approximately 3:00 p.m., Trooper Fennel of the Pennsylvania State Police saw a beige Hyundai matching the description of the vehicle seen by . . . Smith travelling south on State Route 62. The vehicle had an expired inspection sticker and, as a result, the trooper stopped the vehicle. [Zuschlag] was the sole occupant in the vehicle. After speaking with [Zuschlag] for a few minutes, [Zuschlag] indicated he wanted to go to the barracks and speak about his recent activities.
At the barracks, [Zuschlag] admitted to burglarizing . . . Smith's mother's residence as well as a second residence. The motive for the burglaries was to provide for his family and to pay for his heroin addiction.
[Zuschlag] was charged at No. 1296 Criminal 2014 with burglary of an occupied residence and theft by unlawful taking, for the incident involving . . . Smith's mother's residence.
[Zuschlag] was charged at No. 1003 Criminal 2014 with the burglary of the other residence.
While awaiting trial on these charges, [Zuschlag] confessed to 14 other burglaries. These burglaries involved the theft of over $70,000.00 in personal property and several firearms.
At No. 321 Criminal 2014, [Zuschlag] pled guilty on October 14, 2014 to forgery—F3.
On December 2, 2014 [Zuschlag] pled guilty to one count of burglary of a residence with a person present at No. 1269 Criminal 2014 that same date, the other 15 burglaries were consolidated into a single count of burglary of a residence with no one present at No. 1003 Criminal 2014, and [Zuschlag] pled guilty to that consolidated count.
[Zuschlag] was sentenced on January 30, 2015, at No. 321 Criminal 2014, to a term of imprisonment of not less than one month nor more than 24 months; at No. 1269 Criminal 2014, to a consecutive term of imprisonment of not less than two years nor more than five years; and at No. 1003 Criminal 2014, to a consecutive term of imprisonment of not less than five years nor more than 13 years.
On February 5, 2015, Zuschlag filed a post-sentence motion seeking modification of the sentence associated with the consolidated burglary charge. Zuschlag's motion was denied, without a hearing, on February 6, 2015. On March 2, 2015, Zuschlag filed a timely notice of appeal.
On appeal, Zuschlag challenges the discretionary aspects of his sentence. He argues that the trial court abused its discretion by sentencing him outside of the sentencing guidelines without stating on the record an adequate reason.
Zuschlag's allegation that his sentence was excessive is not appealable as of right. Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by satisfying a four-part test. Commonwealth v. Prisk , 13 A.3d 526 (Pa. Super. 2011).
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 the 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. § 9781(b).Id. at 532, citing Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006).
Here, Zuschlag filed a timely notice of appeal, and preserved his claim by raising it in a timely filed post-sentence motion. Zuschlag's counsel has also included in his brief a statement pursuant to Rule 2119(f), claiming that the trial court imposed an excessive sentence.
Judicial review of the discretionary aspects of a sentence is granted only upon a showing that there is a substantial question that the sentence was inappropriate and contrary to the fundamental norms underlying the Sentencing Code. Commonwealth v. Tuladziecki , 522 A.2d 17 (Pa. 1987). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's action were either: (1) inconsistent with a specific provision in the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Brown , 741 A.2d 726, 735 (Pa. Super. 1999) (en banc).
Zuschlag claims he raises a substantial question because the sentencing court did not state on the record a sufficient reason for deviating from the sentencing guidelines. "Departure [from the sentencing guidelines] should be based upon the conclusion that the conduct underlying the crime in question differed from the conduct typically associated with that crime so as to render the suggested punishment inappropriate for the particularized facts of the case." Commonwealth v. McIntosh , 911 A.2d 513, 522 (Pa. Super. 2006). However, a departure from the sentencing guidelines can be acceptable when the sentencing court, exercising its discretion, provides an adequate reason for its departure on the record. Commonwealth v. Gooding , 818 A.2d 546, 553 (Pa. Super. 2003). Because Zuschlag claims that the sentencing judge did not provide adequate reasons for the sentence imposed, we find that he has raised a substantial question. Id.
Contrary to Zuschlag's assertion, the record indicates that the sentencing court provided reasons for deviating from the sentencing guidelines, both in the sentencing hearing transcript and the trial court opinion. N.T. Sentencing Hearing, 1/30/15, at 26-27; Trial Court Opinion, 3/25/15, at 5. At sentencing, a pre-sentence report was made available to the court, and the Honorable Thomas R. Dobson stated on the record that he had considered the report in arriving at Zuschlag's sentence. N.T. Sentencing Hearing, 1/30/15, at 6. Judge Dobson also clearly stated on the record his basis for imposing the sentence:
I note that a number of the crimes involve firearms being taken, and you must understand from my perspective this is extraordinarily concerning because of the danger it puts back in the community. What you are doing is stealing items and selling them to get money. People who should not have weapons are being given weapons because of you. These crimes are still more than the items you take. They steal from them the sense of security we want from our lives, and they never get it back.Id. at 26-27.
It is devastating to know that you are not safe in your own house. It affects them each moment they are there, and that is sad and tragic.
I'm aware of your situation with your family, and, yes, heroin is a scourge. Heroin is one of those drugs where the only solution is never to take it. Mr. Hartley is correct. It explains: it does not mitigate.
What I'm going to do is give you a sentence, and I've had other multiple burglaries, and Mr. Hetrick knows about where I'm at. The first two will be in the standard range. It's going to be a combined sentence of seven years, one month to twenty years, which is about right for your burglaries. You'll still get out with half of your life left ahead of you.
You've been in jail long enough that the physical addiction to heroin is gone. The psychological will always be there if you choose to allow it to be. And the only one that can stop that is you. There is no magic. There is no cure. It is simply a choice at this point in time in your life.
Here, Judge Dobson deviated from the sentencing guidelines when he sentenced Zuschlag because there were factors associated with Zuschlag's burglaries that deviated from the normal burglary. Judge Dobson considered the excessive number of burglaries committed by Zuschlag, as well as the adverse impact of the theft and resale of firearms on the community and the devastation of the families that were impacted by Zuschlag's crimes. Therefore, upon review of the record, the briefs of the parties, and applicable law, we find that the sentencing court reasonably deviated from the sentencing guidelines and did not abuse its discretion. Gooding , supra .
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015