Opinion
J. S59044/15 No. 845 WDA 2015
10-15-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL C. CANNON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 15, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0001075-2014 CP-02-CR-0001076-2014 CP-02-CR-0001107-2014 CP-02-CR-0001610-2014 CP-02-CR-0001611-2014 CP-02-CR-0002486-2014 CP-02-CR-0002488-2014 CP-02-CR-0002506-2014
BEFORE: BOWES, DONOHUE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Michael C. Cannon, appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas after he entered an open guilty plea to numerous counts of burglary, theft, and related offenses. Appellant claims the aggregate sentence of six to twelve years' imprisonment followed by three years' probation was "clearly unreasonable, unduly harsh[,] and manifestly excessive." Appellant's Brief at 8. We affirm.
On January 3, 2014, detectives from Ross Township and West View Borough arrested Appellant. Appellant confessed to committing numerous burglaries and other offenses between October 2013 and January 2014. Appellant was charged in the following criminal cases: (1) CR-1075-2014, burglary of the home of Joseph Halder; (2) CR-1076-2014, burglary of the home of John Gaisor; (3) CR-1107-2014, burglary of the homes of Dennis Carleton and Christopher Banks; (4) CR-1610-2014, burglary of the home of Christopher Meyer and Nathaniel Vickinovac; (5) CR-1611-2014, burglary of the home of Timothy Knable; (6) CR-2486-2014, a burglary of the home of Appellant's parents; (7) CR-2488-2014, a separate burglary of the home of his parents; and (8) CR-2506-2014, a separate theft of a firearm from his parents. On October 1, 2014, Appellant entered open guilty pleas to all charges.
On December 15, 2014, the trial court sentenced Appellant to an aggregate six to twelve years' imprisonment, followed by three years' probation. Specifically, the court imposed three terms of two to four years' imprisonment each in CR-1075-2014, CR-1076-2014, and CR-1610-2014, to run consecutively, as well as a consecutive term of three years' probation in CR-2506-2014. The court also imposed concurrent two-to-four year sentences in each of the remaining cases, as well as a three-year probationary term in CR-2488-2014, to run concurrent with the probationary term in CR-2506-2014.
On December 23, 2014, Appellant's plea counsel filed timely a post-sentence motion challenging the sentence and requesting an extension of time to file a brief. At the same time, plea counsel requested leave to withdraw from representation. The trial court granted both the leave to withdraw and the request to extend the time to file a brief. Present counsel entered his appearance on January 12, 2015, and filed a brief in support of Appellant's sentencing challenge. Appellant's post-sentence motion was denied on May 26, 2015, by an order entered by operation of law. Appellant filed a timely notice of appeal the following day. The court did not order a Pa.R.A.P. 1925(b) statement but filed an opinion in support of its sentence.
Appellant's sole contention in this appeal is that the trial court abused its discretion when sentencing. He asserts the aggregate sentence was "manifestly excessive" and the trial court "focused on the seriousness of the offense and failed to consider [the] protection of the community or [his] rehabilitative needs." Appellant's Brief at 8, 18-19. No relief is due.
Appellant has complied with the procedural requirements for preserving a challenge to the discretionary aspects of his sentence by (1) timely filing a post-sentence motion raising the claim, (2) timely filing a notice of appeal, and (3) including in his brief a Pa.R.A.P. 2119(f) statement of the reasons for relied upon for allowance of appeal. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265-66 (Pa. Super.), appeal denied, 104 A.3d 1 (Pa. 2014). Therefore, we consider whether Appellant has raised a substantial question. See id. (citation omitted).
It is well settled that
[w]hether a particular challenge to a sentence amounts to a substantial question is determined 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."Id. at 1266 (citations omitted).
As to a trial court's decision to order sentences to run consecutively, we note:
[T]he imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court. Long standing precedent of this Court recognizes that 42 Pa.C.S.[ ] § 9721 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. A challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence. "We see no reason why [a defendant] should be afforded a 'volume discount' for his crimes by having all sentences run concurrently."
However, we have recognized that a sentence can be so manifestly excessive in extreme circumstances that it may create a substantial question. When determining whether a substantial question has been raised, we have focused upon "whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its
face to be, an excessive level in light of the criminal conduct in this case."Commonwealth v. Zirkle , 107 A.3d 127, 133-34 (Pa. Super. 2014) (citations omitted), appeal denied, 117 A.3d 297 (Pa. 2015).
"[A]rguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas a statement that the court failed to consider facts of record, though necessarily encompassing the factors of § 9721, has been rejected." Buterbaugh ,91 A.3d at 1266 (citation omitted). "[A] claim that a court did not weigh the factors as an appellant wishes does not raise a substantial question." Zirkle ,107 A.3d at 133 (citations omitted).
Instantly, we discern no extreme circumstance presented by the aggregate sentence of six to twelve years' imprisonment followed by three years' probation. Although the trial court sentenced consecutively in four of the eight cases, it sentenced concurrently in the remaining four cases. All of the individual sentences fell below the Sentencing Guideline's suggested mitigated ranges. We further read Appellant's boilerplate assertion that the trial court failed to consider necessary factors as a challenge to the weight given to the factors by the court. See Appellant's Brief at 18 (asserting court "focused on the seriousness of the offense and failed to consider protection of the community or [his] rehabilitative needs"). Thus, we find no substantial question warranting review. See Zirkle , 107 A.3d at 133-34; Buterbaugh , 91 A.3d at 1266.
Appellant's prior record score was "REFEL," and the lead charge of burglary, in all cases except CR-2506-2014, had an offense gravity score of seven. The Sentencing Guidelines, therefore, suggested a minimum sentence between thirty-five and forty-five months, plus or minus six for aggravating or mitigating factors.
In CR-2506-2014, the lead offense of theft had an offense gravity score of eight because the item taken was a firearm. The Sentencing Guidelines recommended a minimum sentence between forty and fifty-two months, plus or minus nine months. As noted above, the trial court ordered a probationary sentence in that case.
In any event, were we to accept Appellant's assertion that the trial court failed to consider necessary factors, a review of the record confirms that Appellant's sentencing claim lacks merit. The court's on-the-record statements at the sentencing hearing evince its consideration of all necessary factors, including Appellant's heroin addiction and relapse before committing the instant offenses. See N.T., 12/15/14, at 12-14. The record reveals no further basis to disturb the sound discretion exercised by the court, and we would affirm based on the opinion of the Honorable Edward J. Borkowski. See Trial Ct. Op., 6/30/15, at 6-9 (concluding, inter alia, trial court considered all relevant factors, and "[r]ather than being a sentence that was unreasonable, harsh, and excessive, the [t]rial [c]ourt imposed a carefully crafted and reasonable, if not lenient sentence").
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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