Opinion
J-S47042-19 No. 184 MDA 2019 No. 185 MDA 2019
09-20-2019
COMMONWEALTH OF PENNSYLVANIA v. SEAN JOSEPH LUSE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 19, 2018 in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004275-2018 Appeal from the Judgment of Sentence Entered December 19, 2018 in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003255-2018 BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
In these consolidated appeals, Sean Joseph Luse ("Luse") appeals from the judgment of sentence imposed following his guilty pleas to one count each of terroristic threats, at CP-67-CR-3255-2018 ("No. 3255"), and burglary, at CP-67-CR-4275-2018 ("No. 4275"). We affirm.
Id. § 3502(a)(2).
Concerning the guilty plea at No. 3255, Luse admitted that, in January 2018, he communicated several threats of physical harm to the female victim via phone calls and text messages. Four months later, regarding No. 4275, Luse broke into the residence of the mother of his son, while the residence was vacant, and caused extensive damage to the residence and contents therein.
Both instances involved Luse's acting in retaliation to perceived wrongs that the victims committed against Luse.
Following the entry of Luse's open guilty pleas, the trial court ordered the preparation of a pre-sentence investigation report ("PSI"). On December 19, 2018, the trial court sentenced Luse, at No. 3255, to 9 to 18 months in prison. At No. 4275, the court sentenced Luse to 36 to 72 months in prison, and ordered this sentence to run consecutively to the sentence at No. 3255. Notably to the instant appeal, the sentence at No. 4275 was in the aggravated range of the sentencing guidelines.
On December 26, 2018, Luse filed a post-sentence Motion for reconsideration of sentence, asserting that it was excessive, where the trial court had failed to appropriately consider certain mitigating factors. After a hearing, the trial court denied Luse's Motion. Luse timely filed Notices of Appeal, followed by court-ordered Pa.R.A.P. 1925(b) Concise Statements of errors complained of on appeal. The trial court then issued a Rule 1925(a) Opinion.
Luse complied with the dictates of our Supreme Court in Commonwealth v. Walker , 185 A.3d 969, 971, 977 (Pa. June 1, 2018) (holding that, prospectively from the date of the Walker decision, "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case[,]" and that a failure to do so will result in quashal). See also Pa.R.A.P. 341, note.
Luse presents the following question for our review:
Did the sentencing court abuse its discretion in imposing an aggravated-range term of incarceration after not only failing to consider strong mitigation—[]Luse's employment and lack of infractions during presentence incarceration, as well as his addiction and mental health problems—but even using this as aggravation?Brief for Appellant at 4.
Luse challenges the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Sunealitis , 153 A.3d 414, 420 (Pa. Super. 2016). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review, by raising it in a timely post-sentence motion, he must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence, pursuant to Pa.R.A.P. 2119(f); and (2) demonstrate that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Id.
The open guilty pleas Luse entered permit him to challenge his sentence. See Commonwealth v. Tirado , 870 A.2d 362, 365 n.5 (Pa. Super. 2005) (explaining that, when the plea agreement is open, containing no bargain for a specific or stated term of sentence, the defendant will not be precluded from appealing the discretionary aspects of his sentence).
Here, Luse included a Rule 2119(f) Statement in his brief. See Brief for Appellant at 16. Accordingly, we will examine the Rule 2119(f) Statement to determine whether a substantial question exists. Luse asserts as follows:
In sentencing [] Luse to an aggravated-range term of incarceration, the court cited Luse's employment and lack of infractions in presentence incarceration as evidence that he only functioned in a controlled environment, and similarly cited his mental health and addiction struggles as aggravation instead of mitigation. But employment and a lack of infractions while incarcerated show rehabilitative potential, and mental health and addiction struggles are properly viewed as mitigation as opposed to aggravation.Brief for Appellant at 16.
The determination of what constitutes a substantial question 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.Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
Luse's claim presents a substantial question for our review. See Commonwealth v. Stewart , 867 A.2d 589, 592 (Pa. Super. 2005) (stating that a claim that the sentencing court considered improper factors in placing a sentence in the aggravated range presents a substantial question on appeal); see also Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (noting that although an allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question, a substantial question is raised where an appellant alleges that the sentencing court imposed sentence in the aggravated range without adequately considering mitigating circumstances). Accordingly, we will address the merits of Luse's claims.
We review discretionary aspects of sentence claims under the following standard: "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Barnes , 167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court has broad discretion in choosing the range of permissible confinement that best suits a particular defendant and the circumstances surrounding his or her crime. Commonwealth v. Walls , 846 A.2d 152, 154-55 (Pa. Super. 2004).
The Sentencing Code sets forth the considerations a sentencing court must take into account when formulating a sentence, stating that
the court shall 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.42 Pa.C.S.A. § 9721(b).
Moreover, this Court has observed that
although the sentencing guidelines are an important factor in sentencing, they are but only one factor when determining an individualized sentence: The guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors - they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.Commonwealth v. Holiday , 954 A.2d 6, 13 (Pa. Super. 2008) (citation, paragraph break, and brackets omitted).
Finally, where, as here, the sentencing court had the benefit of 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." Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted); see also id. (stating that "[t]he sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the [PSI]; thus properly considering and weighing all relevant factors.").
Here, Luse argues that the trial court considered certain factors as aggravating factors, which the court should have viewed as mitigating factors. See Brief for Appellant at 18-20. Specifically, Luse points to his (1) lack of infractions while confined prior to sentencing; (2) mental health issues and drug/alcohol addiction; and (3) employment while in prison. See id.; see also id. at 18, 19 (asserting that these considerations "plainly showed rehabilitative potential, and thus should have been viewed as mitigation warranting a lesser sentence[,]" but the trial court instead "gave Luse a longer sentence ... because of this good behavior.").
In its Opinion, the trial court stated its reasons for imposing an aggravated-range sentence, elaborated upon the nature of the crimes and Luse's history, and opined that the sentence was appropriate under the circumstances. See Trial Court Opinion, 5/2/19, at 2-6. Briefly, the trial court emphasized the following sentencing considerations:
• Luse's history reveals an inability to conform to society in an unstructured environment;Id. at 3-6; see also N.T. (sentencing), 12/19/18, at 22, 23 (wherein the trial court stated as follows: "[t]he [c]ourt can deduce from the pattern of [Luse's] prior [criminal] conduct[,] and the conduct in this case[,] that when [Luse] is using substances[, i.e., alcohol and/or drugs], when [he] is off his [psychiatric] medication, and because of his behavioral health issues, [he] is a threat to public safety and he's a threat to people with whom he has a grudge[,]" and "[Luse's] desire to intimidate others[] and his preying upon females is also a relevant consideration[.]"). The trial court's sound analysis is supported by the record, and we thus adopt it for the purposes of this appeal, see Trial Court Opinion, 5/2/19, at 2-6, and conclude that the court did not abuse its discretion in imposing an aggravated-range sentence at No. 4275. Accordingly, Luse's challenge to the discretionary aspects of his sentence entitles him to no relief.
• Luse has mental health issues and refuses to take prescribed psychiatric medications, which compounds these issues;
• The trial court did not, in fact, consider Luse's lack of infractions in prison and mental health issues as aggravating factors;
• Even though Luse had remained crime-free for a period of ten years, he otherwise had an extensive criminal history, and other factors outweighed the crime-free mitigating factor;
• The consequences of the crimes upon the victims were severe, and caused one of the victims to become homeless;
• Luse showed no remorse for the crimes;
• Luse's extreme actions in preying upon two female victims shows his vindictiveness and desire to inflict extreme harm;
• The sentence recommended by the probation department was merely a recommendation, and was insufficient under the circumstances.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/20/2019
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