Com. v. Bushyager, R.

• Court: Superior Court of Pennsylvania
• Decided: November 13, 2023
• Docket: 611 MDA 2023
• Status: Unpublished

Opinion

J-S35006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROSS BUSHYAGER : : Appellant : No. 611 MDA 2023

Appeal from the Judgment of Sentence Entered March 13, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001944-2022

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: NOVEMBER 13, 2023

Ross Bushyager appeals the discretionary aspects of the judgment of

sentence he received after pleading guilty to aggravated assault. Bushyager

does not challenge the standard-range term of imprisonment imposed by the

sentencing court. Rather, Bushyager only challenges the sentencing court’s

requirement that he submit to a mental health evaluation and follow treatment

recommendations. We affirm the judgment of sentence.

As Bushyager’s sole challenge on appeal goes to the discretionary

aspects of his sentence, only a brief recitation of the factual and procedural

history of the case is necessary. Bushyager pleaded guilty to aggravated

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* Retired Senior Judge assigned to the Superior Court. J-S35006-23

assault after striking his neighbor with a piece of concrete pushed from his

window and then hitting that neighbor with a brick.

A pre-sentence investigation (“PSI”) report was completed, which

contained Bushyager’s mental health history, and which Bushyager concedes

he reviewed prior to sentencing. See Appellant’s Brief at 10. The court

sentenced Bushyager to a term of imprisonment of 22 months to five years.

The sentence also included a condition that Bushyager submit to a mental

health evaluation and follow all treatment recommendations.

Counsel filed a post-sentence motion, challenging the court’s discretion

in requiring Bushyager to undergo a mental health evaluation and follow

treatment recommendations. The court denied the motion, and Bushyager

filed a notice of appeal. He renews his claim on appeal that the court abused

its discretion by including the mental health condition in his sentence.

We note at the outset that Bushyager is not entitled to review of his

claim challenging the discretionary aspect of his sentencing. See

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). To the

contrary, this Court will only review a discretionary sentencing claim if the

appellant shows he filed a timely notice of appeal, properly preserved his claim

at sentencing or in a post-sentence motion, included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief, and raised a substantial question that his

sentence is not appropriate under the Sentencing Code. See id.

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Bushyager met the first three requirements here, though we find he has

not clearly raised a substantial question. A substantial question is one where

the appellant advances a colorable argument that the sentencing court’s

actions were either inconsistent with a specific provision of the Sentencing

Code or contrary to the fundamental norms underlying the sentencing

process. See id.

As we assess whether an appellant has raised a substantial question on

a case-by-case basis, see id., we must look to the specific claim Bushyager

raises here. Essentially, Bushyager asserts the sentencing court erred by

requiring him to undergo a mental health evaluation as the record did not

support a conclusion that such an evaluation was reasonably related to his

rehabilitative needs. See Appellant’s Brief at 18. This Court has held, however,

that a claim that the sentencing court did not properly consider a defendant’s

rehabilitative needs, standing alone, does not raise a substantial question.

See Griffin, 65 A.3d at 936-937.

Even if we were to find Bushyager raised a substantial question for our

review, we would find no merit to his claim that the trial court abused its

discretion in sentencing him.

This Court will not disturb a sentence unless we find the sentencing court

committed a manifest abuse of discretion. See Commonwealth v. Lekka,

210 A.3d 343, 350 (Pa. Super. 2019). In reviewing a record to determine

whether the sentencing court abused its discretion, the Sentencing Code

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directs this Court to consider the nature and circumstances of the crime; the

history and characteristics of the defendant; the sentencing court’s findings

and the court’s opportunity to observe the defendant; and the sentencing

guidelines. See 42 Pa. C.S.A. § 9781(d).

The Sentencing Code also instructs sentencing courts to consider “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). The balancing of these sentencing

factors is solely within the province of the sentencing court. See Lekka, 210

A.3d at 353.

Here, Bushyager claims the sentencing court abused its discretion by

sentencing him to undergo a mental health evaluation and any recommended

treatment because, according to Bushyager, there was no record evidence to

support that sentencing condition. In rejecting this claim, the sentencing court

first noted that “when a court considers the [PSI] report for sentencing

purposes, it is presumed to have properly considered all relevant aggravating

and mitigating factors.” Trial Court Opinion, 6/9/2023, at 3 (citing

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015). It then

stated:

Because [Bushyager’s] PSI indicated that he suffered from Depression, Mood Disorder, [Bipolar] Disorder, Anxiety Disorder, and Schizophrenia, none of which were being treated, this court ordered [Bushyager] to submit to a mental health examination and follow all treatment recommendations. Given [these] facts of

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record, [Bushyager’s] sentence is appropriate, and there was no abuse of discretion.

Trial Court Opinion, 6/9/2023, at 3-4.

We note that Bushyager did not include his PSI in the certified record,

as was his burden. See Griffin, 65 A.3d at 936 (stating it “is the responsibility

of an appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court to

perform its duty”). However, Bushyager does not dispute that the PSI

contained his mental health history or that he reviewed the PSI and in fact,

Bushyager attached a copy of the PSI to his brief. The PSI explicitly lists his

mental health history and his five diagnoses, with “not currently taking

medication” reported under each diagnosis.

Given this record, Bushyager has failed to establish that the trial court

abused its discretion by ordering Bushyager to undergo a mental health

evaluation and follow any recommended treatment as part of his sentence.

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Judgment of sentence affirmed.

Judge Colins joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/13/2023

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