Com. v. Burk, I.

• Court: Superior Court of Pennsylvania
• Decided: August 16, 2019
• Docket: 1516 EDA 2018
• Status: Unpublished

Opinion

J-S45038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISHMAEL ALI BURK : : Appellant : No. 1516 EDA 2018

Appeal from the Judgment of Sentence April 30, 2018 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0008580-2017

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019

Ishmael Ali Burk (Burk) appeals from the judgment of sentence imposed

by the Court of Common Pleas of Bucks County (trial court) after he pleaded

guilty in case numbers 4724-2017 and 8580-2017.1 Specifically, he

challenges the discretionary aspects of his sentence. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Burk also has filed an identical appeal of his judgment of sentence for case number 4724-2017, at docket number 1522 EDA 2018. See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (Holding that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case.”). J-S45038-19

I.

A.

We take the following facts and procedural history from the trial court’s

February 15, 2019 opinion and our independent review of the record. On

February 16, 2018, Burk pleaded guilty in case number 8580-2017, the case

involved in this appeal, to Criminal Attempt-Theft by Deception, Theft by

Deception, Bad Checks, Insurance Fraud, and Criminal Use of a

Communication Facility. The charges related to Burk’s operation of a complex

criminal scheme to defraud auto insurance companies from June 31, 2014,

through September 3, 2015. (See N.T. Guilty Plea and Sentencing, 2/16/18,

at 16). In the course of the scheme’s operation, Burk filed 32 fraudulent

claims with ten different insurance companies, with each claim pertaining to

one of six cars. During the policy application and claim processes, Burk would

falsely deny previous coverage for the car, provide deceptive reports of vehicle

damage and about past claims (if discovered), and give and use false names,

birthdates, Social Security numbers and addresses. (See id. at 19-20). Burk

received $22,994.95 due to the fraudulent claims. (See id. at 21). He would

have realized another $85,000.00 if all of the claims he attempted had been

successful. (See id.).

B.

In an unrelated case, on October 30, 2017, Burk pled guilty at docket

number 4724-2017, before us in a companion appeal at docket number 1522,

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to two counts of Aggravated Assault, Fleeing or Attempting to Elude a Police

Officer, Recklessly Endangering Another Person, Resisting Arrest, False

Identification to Law Enforcement,2 and several summary traffic offenses. The

court deferred sentencing. The charges arose from a June 26, 2017 incident

in which Officer Thomas Leonhauser initiated the traffic stop of a vehicle driven

by Burk because it was going 62 miles per hour in a 40 mile per hour zone.

(See Guilty Plea, 10/30/17, at 4). When Officer Leonhauser stopped the

vehicle and asked Burk, who later was determined to be driving with a

suspended license, to provide his identifying information, he responded that

he had no identification on him and he provided an incorrect spelling of his

name (Shamael Burk) and wrong date of birth. (See id. at 4-5). The female

passenger in Burk’s car did not provide any identification either. (See id. at

5).

Officer Andrews arrived on scene as backup. A search on the car’s

license plate revealed the vehicle’s registration expired in 2008 and that there

was an active Bucks County arrest warrant for Burk, the vehicle owner. (See

id.). When the officers asked to Burk to exit the vehicle, he refused and

started it instead. The officers engaged in a physical struggle with Burk, who

put the car in reverse and hit both officers with his open drivers’ door, causing

218 Pa.C.S. § 2702(a)(3), 75 Pa.C.S. § 3733(a), and 18 Pa.C.S. §§ 2705, 5104, and 4914(a), respectively.

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them to fall. (See id. at 5-6). They returned to their police vehicle and

pursued Burk, who was fleeing the scene in excess of speeds of 75 miles per

hour. (See id. at 6). With other vehicles on the road, Burk exited his moving

car, leaving it for his passenger to try to control, and began to flee on foot.

(See id.). The officers engaged in a foot pursuit of Burk through a residential

neighborhood and were required to tase him twice. When the officers finally

subdued him, they did so in spite of his consistent and aggressive attempts to

resist arrest. (See id.). The officers were transported to the hospital for their

injuries, which consisted of bruises and scrapes on their bodies. (See id. at

7).

C.

Burk was sentenced on the two unrelated criminal convictions at the

same time. In case number 8580-2017, the case involved in this appeal, the

trail court sentenced Burk to an aggregate term of not less than 67 nor more

than 134 months’ incarceration for one count each of Insurance Fraud, Dealing

in Proceeds of Unlawful Activity, and Identity Theft, but did not impose any

sentences on the remaining charges. (See id. at 42-44). The court ordered

the sentences to run consecutively, for a total aggregate term of not less than

118 nor more than 236 months’ incarceration. (See id. at 44). In case

number 4724-2017, the trial court sentenced Burk to an aggregate term of

incarceration of not less than 51 nor more than 102 months’ incarceration for

one count each of Aggravated Assault, False Information to Law Enforcement,

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and Fleeing or Attempting to Elude Police,. (See id. at 40-42). No further

sentence was imposed on the remaining charges.

Burk filed a motion for reconsideration of sentence on both cases that

the trial court granted. It held a hearing on April 30, 2018. After the hearing,

in case number 8580-2017, the court decreased each of the individual

sentences, leading to an aggregate sentence of not less than 54 nor more

than 108 months’ incarceration. (See id. at 30-31). The court ordered the

sentences to run consecutively, for a total aggregate sentence of not less than

90 nor more than 180 months’ (seven and one-half nor more than fifteen

years’) incarceration. (See id. at 31). In case number 4724-2017, the court

vacated the sentence for False Information to Law Enforcement and decreased

the remaining individual sentences, resulting in a modified aggregate sentence

of not less than 36 nor more than 72 months’ incarceration. (See

Reconsideration of Sentence, 4/30/18, at 29-30). Burk timely appealed. He

and the trial court complied with Rule 1925. See Pa.R.A.P. 1925.

II.

On appeal, Burk contends that the trial court abused its discretion in

imposing his sentence because while the sentence is “purported to be within

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the guidelines, but upon the aggregation of the counts and cases is

unreasonable[.]” (Burk’s Brief, at 4).3

This issue challenges the discretionary aspects of sentence which “must

be considered a petition for permission to appeal.” Commonwealth v. Kelly,

33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted).

It is well-settled that:

When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an 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 a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, [that] the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant’s Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.

3 “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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

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Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations

omitted) (emphases in original).

Burk has met the procedural requirement of including a Rule 2119(f)

statement. (See Burk’s Brief, at 12-13). Further, his issue, that the sentence

is excessive for the protection of the public, the gravity of the offense, and his

rehabilitative needs, and is unreasonable “based on the consecutive nature of

each count and case,” raises a substantial question. (Burk’s Brief, at 12);

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015), appeal

denied, 126 A.3d 1282 (Pa. 2015) (“[C]hallenge to the imposition of his

consecutive sentences as unduly excessive, together with [] claim that the

court failed to consider [sentencing factors] upon fashioning its sentence,

presents a substantial question.”); Commonwealth v. Dodge, 77 A.3d 1263,

1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014) (“[D]efendant

may raise a substantial question where he receives consecutive sentences

within the guideline ranges if the case involves circumstances where the

application of the guidelines would be clearly unreasonable, resulting in an

excessive sentence[.]”) (emphasis and citations omitted). Hence, we will

consider the merits of his claim.

In imposing its sentence, the trial court explained its reasons stating:

Our sentence was necessary to protect the public from an extreme recidivist who completely rejected the terms and conditions of probation and parole supervision. Both cases had significant impact on their specific victims as well as the

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surrounding community. We reached our sentencing decision only after careful consideration of the Sentencing Code, the circumstances of the offenses, and the character of the offender.

(Trial Court Opinion, 2/15/19, at 10); (see also id. at 13 (“[W]e considered

[Burk’s] conduct, his criminal history, his rehabilitative needs, the sentencing

guidelines, the impact of his crimes on the victims and community, and public

safety.”); (N.T. Reconsideration of Sentence, at 28-29).

Our independent review reveals that the court did not abuse its

discretion when fashioning Burk’s sentence. The court found that Burk had

an “absolute disregard for the rule of law” based on his criminal history, the

fact that he committed each new crime while on probation, parole, or bail, and

that there was an outstanding warrant for his arrest at the time of the

Aggravated Assault incident because he “was an absconder from parole

supervision at the time.” (Trial Ct. Op., at 7); (see N.T. Guilty Plea and

Sentencing, at 36-37, 39; Reconsideration of Sentence, at 29-30). The court

also considered Burk’s rehabilitative needs, finding that he “certainly [has not]

responded to probationary treatment[] [because he] still commit[s] crimes.”

(N.T. Sentencing, at 39); (see also Reconsideration of Sentence, at 29). The

court considered the “confusing and conflicting testimony from [Burk]

regarding his employment, mental health treatment and prescribed

medication” and the fact that treating physicians expressed concerns that

“[Burk] was attempting to manipulate his diagnosis by exaggerating

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symptoms or malingering.” (Trial Ct. Op., at 8); (see also N.T.

Reconsideration of Sentence, at 7, 29).

As for Burk’s claim that the individual standard range sentences were

excessive in the aggregate considering the sentence imposed with the fraud

charge, the court only imposed sentences on six of the fifteen counts available,

with no further penalties imposed on the other nine counts. (See Trial Ct.

Op., at 1, 5-6). Upon reconsideration, the court vacated a sentence on one

count and reduced the sentences on four of the remaining five counts. (See

N.T. Reconsideration of Sentence, at 30-31). In any event, “[L]ong standing

precedent of this Court recognizes that 42 Pa.C.S. 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.” Commonwealth v. Johnson-Daniels, 167

A.3d 17, 28 (Pa. Super. 2017), appeal denied, 174 A.3d 1029 (Pa. 2017)

(citations omitted).

Based on all of the foregoing and our independent review of the certified

record, we discern no manifest abuse of discretion by the trial court in

sentencing Burk to consecutive terms of incarceration in this matter. See

Antidormi, supra at 760; see also Commonwealth v. Foust, 180 A.3d

416, 434 (Pa. Super. 2018) (“[D]efendants convicted of multiple offenses are

not entitled to a ‘volume discount’ on their aggregate sentence.”) (citations

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omitted). Therefore, his issue fails and we affirm the trial court’s judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/19

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