Opinion
J-S08037-17 No. 1081 WDA 2016
03-03-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROGER WILLIAMSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 12, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): 9232-2007, CP-25-CR-0000155-2016 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Roger Williamson, appeals from the judgment of sentence entered in the Erie County Court of Common Pleas, following his jury trial convictions of aggravated assault, resisting arrest or other law enforcement, and public drunkenness and similar misconduct. We affirm.
18 Pa.C.S.A §§ 2702(a)(3), 5104, 5505, respectively. --------
The relevant facts and procedural history of this case, as taken from the certified record, are as follows. On November 24, 2015, emergency first responders received a call that an individual needed assistance. When the responders arrived at the scene, they found Appellant lying on the ground. Appellant reeked of alcohol; his speech was slurred; and, he was having difficulty sitting up. Appellant refused medical attention and attempted to stagger away. Shortly after, the police arrived and arrested Appellant for public intoxication. Appellant became resistant at the police station, so the officers placed Appellant in control holds and escorted him to his cell where Appellant forcefully resisted entering it. The officers pinned Appellant to the ground; Officer Gabriel Carducci's arm was locked around Appellant's head, near his mouth; and, Appellant bit Officer Carducci's arm repeatedly, causing an open wound.
That day, the Commonwealth charged Appellant with aggravated assault, resisting arrest or other law enforcement, and public drunkenness and similar misconduct. A jury trial ensued on June 7, 2016, and the jury convicted Appellant of the above-mentioned charges on June 9, 2016. With the benefit of a pre-sentence investigation ("PSI") report, the court conducted Appellant's sentencing hearing on July 12, 2016. At the conclusion of the hearing, the court sentenced Appellant to twenty-seven (27) to fifty-four (54) months' imprisonment for aggravated assault and nine (9) to eighteen (18) months' imprisonment for resisting arrest or other law enforcement. The court imposed no further penalty for public drunkenness and similar misconduct. The court also revoked Appellant's probation, at docket number 2932 of 2007, and sentenced him to one (1) to two (2) years' imprisonment for the theft conviction related to that docket number. The court ordered Appellant to serve all of the sentences consecutively; thus, Appellant received an aggregate sentence of four (4) to eight (8) years' imprisonment.
Appellant filed a post-sentence motion for sentence reconsideration on July 18, 2016, claiming the court failed to fashion a sentence that properly took into account Appellant's need for mental health treatment. The court denied relief the following day. Appellant timely filed a notice of appeal on July 22, 2016, and an amended notice of appeal on July 25, 2016. On August 1, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on August 2, 2016.
Appellant raises one issue for our review:
DID THE [TRIAL] COURT COMMIT REVERSIBLE ERROR AND ABUSE ITS DISCRETION BY HANDING DOWN A MANIFESTLY EXCESSIVE AND CLEARLY UNREASONABLE SENTENCE BY SENTENCING [APPELLANT] TO CONSECUTIVE SENTENCES OF IMPRISONMENT CONSIDERING THE TYPE OF CRIME COMMITTED AND [APPELLANT]'S MENTAL HEALTH ISSUES[?](Appellant's Brief at 2).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). 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. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). 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." Sierra , supra at 912-13 (quoting Commonwealth v. Brown , 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a substantial question if the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon , supra at 435, 812 A.2d at 627. Nevertheless, a bare "allegation that a sentencing court 'failed to consider' or 'did not adequately consider' certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Cruz-Centeno , 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia , 653 A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)). See also Commonwealth v. Kane , 10 A.3d 327 (Pa.Super. 2010), appeal denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating claim that sentencing court failed to consider factors set forth in 42 Pa.C.S.A. 9721(b) does not raise substantial question).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Robert A. Sambroak, Jr., we conclude Appellant's issue merits no relief. The trial court opinion fully discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed September 7, 2016 at 3-6) (finding: in fashioning Appellant's sentence, court considered statements of counsel, Appellant's statement, revocation summary, PSI report, behavioral health evaluation of Appellant, and psychiatric evaluation of Appellant by Dr. Craig Rush; while Appellant had issues concerning drugs, alcohol, and mental health, Appellant had many opportunities to address them; for example, Appellant has history of involvement in probation and mental health programs, but Appellant was unable or unwilling to take advantage of available programs or assistance; testimony at trial revealed Appellant, during otherwise routine arrest for minor offense, bit officer, and this incident indicates Appellant is danger to himself and others; Dr. Rush's evaluation concludes similarly; Appellant committed assault on police while on probation; court concluded Appellant would not benefit from lenient sentence of participation in high-intensity mental health treatment program, based on violent nature of offenses, history of medical non-compliance, and conflicting evidence regarding Appellant's eligibility for mental health program; for same reasons, Appellant's participation in program would not protect community from Appellant's violent and emotional outbursts; in fashioning Appellant's consecutive sentence in high-end of standard range and in state correctional institution, court considered not only Appellant's mental health treatment needs but also protection of community; thus, court's sentence ensures Appellant will receive proper mental health treatment and attention). Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/3/2017
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