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[U] Commonwealth v. Ridgeway

Superior Court of Pennsylvania

December 4, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TRACY LEE RIDGEWAY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TRACY LEE RIDGEWAY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TRACY LEE RIDGEWAY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TRACY LEE RIDGEWAY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
TRACY LEE RIDGEWAY Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence July 23, 2012 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000664-2012, CP-25-CR-0002815-2011, CP-25-CR-0002827-2011, CP-25-CR-0002873-2011, CP-25-CR-0002997-2011

BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM

LAZARUS, J.

Tracy Lee Ridgeway appeals from the judgment of sentence, entered in the Court of Common Pleas of Erie County, after he pled guilty to burglary, [1] criminal mischief, [2] forgery, [3] theft by unlawful taking, [4] and access device fraud.[5] Ridgeway was ordered to serve an aggregate sentence of 130-260 months' imprisonment;[6] the court also imposed a restitution award as well as costs of prosecution and fees.[7] Ridgeway filed no post-sentence motions or direct appeal.

Ridgeway filed a timely PCRA petition, which the trial court granted, reinstating his post-sentence motion rights. On May 6, 2013, Ridgeway filed post-trial motions nunc pro tunc; the motions were denied the following day. This appeal timely follows.

On appeal, Ridgeway raises the following issues for our review:

(1) Whether the sentencing court committed legal error and abused its discretion in failing to afford due consideration and deference to the mitigating factors presented on behalf of the appellant.
(2) Whether the sentencing court committed legal error and abused its discretion in imposing a consecutive sentencing scheme without the provision of a legally sufficient predicate.
(3) Whether the appellant has stated a sufficient basis to permit the suspension of the installment plan established directing a monthly draw from his inmate income for payment of the restitution order.

Ridgeway's first two issues concern the discretionary aspects of his sentence and whether the trial court abused its discretion by: (1) imposing consecutive sentences; and (2) failing to give due consideration to mitigating factors.[8]

When the discretionary aspects of a sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.Super. 1992). Rather, the appellant must "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence, " Pa.R.A.P. 2119(f), and must also present a "substantial question." 42 Pa.C.S.A. § 9781(b); Moore, 617 A.2d at 11. An appellate court will find a "substantial question" and review the decision of the trial court only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).

Section 9721 of the Sentencing Code affords sentencing courts the discretion to impose their sentences concurrently or consecutively. 42 Pa.C.S. § 9721. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008). However, even if we found that Ridgeway presents a substantial question with regard to the court's imposition of consecutive sentences, he would be afforded no relief. The sentencing court clearly indicated its reasons for imposing its sentence in such a fashion: Ridgeway's "long, long criminal record" found in his PSI; the extreme seriousness of the current crimes; the significant impact of the crimes upon Ridgeway's victims; and Ridgeway's dire need for rehabilitation. N.T. Sentencing, 7/23/2012, at 9. Accordingly, the trial court did not abuse its discretion in imposing consecutive, rather than concurrent, sentences. Hermanson, supra.

With regard to Ridgeway's claim that the court failed to consider and reflect upon mitigating factors prior to imposing his sentence, we find this presents a substantial question. See Commonwealth v. Terrizzi, 502 A.2d 711 (Pa.Super. 1985). Instantly, the court recognized at sentencing that Ridgeway took full responsibility for his actions and had apologized to his victims. Id. at 7. Moreover, the sentencing judge stated that "if there is anything good that has happened here . . . [it] was that you took full responsibility for what you did and you are sorry for what you did. I think that's significant." Id. at 8 (emphasis added). Because the sentencing court clearly considered Ridgeway's remorse in fashioning his sentence, specifically noting that his remorse was the only positive event flowing from his criminal actions, there was no abuse of discretion. Hermanson, supra.

In his final issue, Ridgeway claims that the trial court should have modified its restitution sentence which "results in an onerous and unwarranted taking from [him and] leav[es] him destitute."

When restitution is imposed as part of a direct sentence, as it was in the instant case, a trial court has no obligation to consider the defendant's financial resources. See 18 Pa.C.S. §§ 1106(a) (general rule for restitution for injuries to person or property) and (c)(1)(i) (mandatory restitution); see also Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006) (where defendant entered guilty plea to stealing aluminum plates from scrap yard and judge was clear that $28, 450 in restitution would be imposed, court did not need to consider defendant's ability to pay at time of imposing restitution). Rather, a defendant may petition to modify restitution for inability to pay, provided that he presents evidence to support such modification. Commonwealth v. Parella, 834 A.2d 1253, 1256 (Cmwlth. 2003). Moreover, at the time of sentencing, the trial court shall specify the amount and method of restitution, which may include ordering that the payments be made "in a lump sum, by monthly installments or according to such other schedule as it deems just." 18 Pa.C.S. § 1106(c)(2)(ii).

Prior to being sentenced, Ridgeway agreed to the Commonwealth's restitution claims that specified the amount of monies owed to the victims on each separate docket. N.T. Sentencing, 7/23/2012, at 5.[9] Ridgeway also failed to object to the court's statement that he "be put on a payment plan and make monthly installments." Id. at 10. In accordance with the installment plan established for Ridgeway's restitution payments, the Department of Corrections takes 20% out of Ridgeway's inmate account monthly. Despite Ridgeway's displeasure with this arrangement, neither the trial court nor this Court has involvement or control over such monetary deductions from inmate accounts. Rather, original jurisdiction lies with the Commonwealth Court in such matters. See Commonwealth v. Jackson, 858 A.2d 627 (Pa.Super. 2004) (en banc). (Commonwealth Court has jurisdiction over claims involving monetary deductions[10] from inmate accounts for purposes of satisfying restitution obligation). He is entitled to no relief on this issue.

Judgment of sentence affirmed.

Judgment Entered.


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