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[U] Commonwealth v. Seibert

Superior Court of Pennsylvania

August 28, 2013



Appeal from the Judgment of Sentence entered December 11, 2012, in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0004102-2012, CP-23-CR-0004110-2012.




In these consolidated appeals, Chris Robbin Seibert a/k/a Christopher Robbin Seibert ("Appellant"), challenges the discretionary aspects of his sentence. We affirm.

The trial court summarized the pertinent facts and procedural history as follows:

On December 17, 2011, the Marcus Hook Police [D]epartment was called to investigate a bar fight during which several people were hurt. After reviewing video surveillance tape footage showing [Appellant] striking three victims, Officer Nicole Lantz applied for a warrant for [Appellant's] arrest. [Appellant was later arrested on three counts of simple assault, 18 Pa.C.S.A. § 2701, and related charges at Docket No. CP-23-CR-0004110-2012.]
On December 29, 2011, while on routine patrol, Officer Lantz observed [Appellant] walking down the street in an unsteady manner. She arrested him, and, during a search of his person, cocaine was seized from his right front pants pocket. She charged [Appellant] with: [(1) possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16); and (2) possession of drug paraphernalia, 35 P.S. § 780-113(a)(32)]. [Appellant] entered an open guilty plea [to one count of simple assault and both drug charges].
Prior to the sentencing hearing, [defense] counsel submitted an "Attorney Generated Presentence Investigation Report" and a sentencing memorandum, wherein he requested that the Court impose a county rather than a state sentence.
At the sentencing held on December 11, 2012, the Commonwealth recommended that the Court impose: 6-24 months of incarceration on the assault charge; 12-24 months [of] incarceration on the possession charge; and, one year probation on the paraphernalia charge. Defense counsel again recommended a term of 11½ to 23 months [of] incarceration in a county jail. After hearing arguments from all counsel and testimony from [Appellant], [the trial court] imposed the following sentence: (1) on the simple assault charge, 12-24 months in a state correctional institution; (2) on the possession of controlled dangerous substance charge, 12-24 months in a state correctional institution; and (3) on the paraphernalia charge, one year of state probation. All sentences [were] to run consecutively [for an aggregate sentence of two to four years of incarceration, followed by a one-year probationary term].
On December 20, 2012, defense counsel filed a "Post Sentence Motion to Modify Sentence." Counsel admitted that the sentence imposed was "within the sentencing guidelines, " but he asserted that it was a "manifest abuse of discretion" under the criteria in the [S]entencing [C]ode. On December 27, 2012, [the trial court] denied [Appellant's] motion.

Trial Court Opinion, 4/8/13, at 1-2 (citations omitted). This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

In his statement of issues, Appellant asserts that the trial court erred "as a matter of manifest abuse of discretion" when it imposed the separate one to two year sentences for the simple assault and possession charges when: (1) only minor injuries resulted from the assault; (2) Appellant's prior record "consisted mostly of misdemeanors, but also three felonies, mostly relating either to drunk or disorderly situations or domestic situations"; (3) the trial court failed to give "due consideration" to Appellant's character and background; (4) the trial court erred by imposing consecutive sentences on two charges; and (5) the trial court "failed to engage in individualized sentencing since the sentencing court did not recite any information about [Appellant's] character and background at the sentencing hearing, and although the court had before it an attorney generated Pre-sentence Investigation Questionnaire and Presentence Memorandum of Law, the court did not make reference to the questionnaire at the sentencing hearing as required by case law[.]" See Appellant's Brief at 4-5.[1]

A challenge to the discretionary aspects of a sentence is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004). When an appellant challenges a discretionary aspect of sentencing, we must conduct a four-part analysis before we reach the merits of the appellant's claim. Commonwealth v. Allen, 24 A.3d 1059, 1064 (Pa. Super. 2011). In this analysis, we must determine: (1) whether the present appeal is timely; (2) whether the issue raised on appeal was properly preserved; (3) whether Appellant has filed a statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has raised a substantial question that his sentence is not appropriate under the Sentencing Code. Id.

In the instant case, Appellant filed a timely notice of appeal, and properly preserved his claim in a post-sentence motion. Additionally, Appellant has substantially complied with Pa.R.A.P. 2119(f).[2] See Appellant's Brief at 15-17. We must therefore determine whether Appellant has raised a substantial question for our review.

A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Here, Appellant argues that the sentence imposed on both offenses "was manifestly excessive" because:

[as to the possession charge, the trial court did not give] due consideration to the fact that [Appellant] had only one prior conviction relating to controlled substances many years ago, thus allowing an enhanced maximum sentence, and other factors, such as the fact that [Appellant's] prior record score overstates the severity of his past criminal record, the recent trajectory of his criminal record (diminished number of convictions in the last ten years), and other factors cited in this brief.
Similarly as regard [sic] to the sentence imposed after a guilty plea to simple assault, in which only one of the three individuals assaulted reported a minor injury, and there was no indication of the requirement that any of the individuals required medical treatment, the nature of the assaults, i.e. no persistent attack on those assaulted, and other factors stated in this brief, there is raised a substantial question with respect to the discretionary aspects of the sentence imposed for simple assault[.]

Appellant's Brief at 15. Appellant asserts that both sentences were "manifestly unreasonable" given the above factors as well as the amount of cocaine involved in his possession charge. Id. at 16.

Appellant also asserts that he has raised a substantial question because he was sentenced consecutively rather than concurrently, and that the sentencing court "failed to engage in individualized sentencing as required by current case law, since the sentencing court did not indicate on the record at sentencing that it had consulted or been informed by" the documents prepared by his counsel. Id. According to Appellant, "the limited comments of the sentencing court at the sentencing hearing, mostly about the assault, and also about [Appellant's] record, did not establish that the court engaged in individualized sentencing." Id. at 16-17.

By arguing that the trial court did not give "due consideration" to certain factors, Appellant's challenge is in essence a claim that the trial court abused its discretion in failing to properly consider legitimate sentencing factors. This claim does not raise a substantial question for our review. See e.g., Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002). An allegation that the sentencing court "failed to consider" or "did not adequately consider" various factors is, in effect, a request that this Court substitute its judgment for that of the trial court in fashioning Appellant's sentence. This we cannot do. Id. While Appellant attempts to minimize his conduct during the assault, the amount of cocaine found on his person, and his lengthy prior record score, the weight to be assigned these factors was properly for the trial court.

We further conclude that Appellant's claim regarding the consecutive nature of his sentences does not raise a substantial question. See Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (explaining that, "Long standing precedent of this Court recognizes that 42 Pa.C.S.A. section 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.").

Finally, we view Appellant's individualized sentencing claim to raise a substantial question because it "essentially challenges the adequacy of the reasons given by the court for its sentencing choice." Id. at 613; see also Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (explaining that a claim that the sentencing court failed to give specific reasons for sentencing raises a substantial question).

The standard employed when reviewing the discretionary aspects of sentencing is very narrow. Commonwealth v. Koren, 646 A.2d 1205, 1208 (Pa. Super. 1994). We may reverse only if the sentencing court abused its discretion or committed an error of law. Id. We must accord the sentencing court's decision great weight because it was in the best position to review the defendant's character, defiance or indifference, and the overall effect and nature of the crime. Id. Because the trial judge is in the best position to view a defendant's "character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime, " Commonwealth v. Hess, 745 A.2d 29, 33 (Pa. Super. 2000), we generally defer to the trial judge's assessment of the defendant and the evidence in fashioning a proper sentence. "If the sentence is 'not unreasonable, ' the appellate court must affirm." Griffin, 804 A.2d at 7.

At sentencing, the trial court first discussed with the parties the applicable guidelines for Appellant's crimes. The trial court then stated that, although a determination of a prior record score is capped at five, Appellant's lengthy criminal history, and dating back to 1979, would total thirteen. See N.T., 12/11/12, at 9. Defense counsel agreed that the total would be at least an eight. Id. The Commonwealth pointed out to the trial court that Appellant was on probation when he committed the two crimes at issue, and admitted in his pre-sentence report that he has a problem with alcohol. Id. at 18.

After considering the arguments of the parties, and Appellant's explanation for the simple assault, the trial court imposed the consecutive sentences. When asked by defense counsel if it would consider concurrent sentences, the trial court responded, "No. They're different cases. They're two different cases. I'm not going to do it." Id. at 24.

Although the trial court made no specific reference to the pre-sentence report prepared by defense counsel, or defense counsel's pre-sentence memorandum, the sentencing transcript, when read as a whole, demonstrates that the trial court was aware of Appellant's individual circumstances. Both of Appellant's sentences fell within the standard range of the sentencing guidelines. Thus, we can assume the court was aware of the relevant information regarding Appellant's character, and weighed those considerations along with mitigating statutory factors. Commonwealth v. Fullin, 892 A.2d 843, 849-580 (Pa. Super. 2006).

Because we cannot conclude that Appellant's sentence is unreasonable given that the crimes involved two separate incidents and given Appellant's lengthy record, we affirm his judgment of sentence. Griffin, supra.

Judgment of sentence affirmed. Judgment Entered.

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