Com. v. Chilcote, A.

• Court: Superior Court of Pennsylvania
• Decided: September 10, 2021
• Docket: 1520 MDA 2020
• Status: Unpublished

Opinion

J-S17022-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDY LEE CHILCOTE : : Appellant : No. 1520 MDA 2020

Appeal from the Judgment of Sentence Entered July 26, 2017, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0001147-2016.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 10, 2021

Andy Lee Chilcote appeals from the judgment of sentence imposed after

a jury convicted him of various offenses. Upon review, we affirm.

This matter arises from the following facts. On March 31, 2016, Chilcote

was driving on Race Track Road in Franklin County Pennsylvania. He pulled

up to Rodney Walls’ parked vehicle and started an argument with him.

Chilcote then got out of his car and walked over to Walls’ car where he reached

into the passenger side and grabbed Carl Biddle’s wrist. Chilcote got back in

his car, started driving, erratically, and entered the traffic way to St. Thomas

Towing. Chilcote then hit a moving vehicle, and traveled on across the truck

scales and hit a pole on the outside of a building. When Chilcote got out of

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* Retired Senior Judge assigned to the Superior Court. J-S17022-21

the car, he was acting aggressively and making comments about fighting.

Chilcote then grabbed the arm of a bystander, pulled out his genitals and

started urinating. Others observed his bizarre actions.

When Trooper Seth Sprague arrived, he saw Chilcote stumbling around

and having difficulty maintaining his balance. Chilcote was yelling obscenities

in front of a large group of people. Trooper Sprague observed that Chilcote’s

eyes were glassy and bloodshot. Chilcote told Trooper Sprague that he had

smoked a lot of marijuana earlier that day.

Trooper Benjamin Frantz indicated that Chilcote showed signs of

impairment and noted that his tongue was green and his breath smelled of

marijuana. Chilcote’s eyes had little to no reaction to light, and he was

sluggish. Chilcote told him that he uses cocaine and heroin. Chilcote was

arrested and charged with multiple offenses.

Following trial, a jury convicted Chilcote of one count of DUI, three

counts of recklessly endangering another person (REAP), one count of

indecent exposure, and one count of disorderly conduct obscene

language/gesture. 1 The trial court sentenced Chilcote to an aggregate term

of 57-114 months of incarceration. The sentences were imposed

consecutively. Chilcote filed a post-sentence motion, which the trial court

denied.

1 75 Pa.C.S.A. §3802(d)(2), 18 Pa.C.S.A. § §2705, 3127(a), and 5503(a)(3).

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Chilcote appealed challenging the discretionary aspects of his sentence.

On appeal, this Court found that he waived this issue for failure to include the

sentencing transcript in the original record. Commonwealth v. Chilcote,

1619 MDA 2019, unpublished memorandum at 13 (May 22, 2020).

Subsequently, Chilcote filed a petition under the Post-Conviction Relief

Act2 seeking reinstatement of his direct appellate rights, which the court

granted. This timely appeal followed. Chilcote and the trial court complied

with Pa.R.A.P. 1925.

In this appeal, Chilcote raises a single issue for our consideration which

again challenges the discretionary aspects of his sentence. This Court has

stated that challenges to the discretionary aspects of sentencing do not entitle

an appellant to appellate review as of right. Commonwealth v. Sierra, 752

A.2d 910, 912 (Pa. Super. 2000). Further, we have explained that, to reach

the merits of a discretionary sentencing issue, we must conduct a four-part

analysis to determine:

(1) whether the appeal is timely; (2) whether [Chilcote] preserved his issue; (3) whether [Chilcote]’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

2 42 Pa. C.S.A. §§ 9541-46.

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Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

Chilcote satisfied the first three requirements of Colon.3 Accordingly, we must

determine whether Chilcote raises a substantial question.

In his Rule 2119(f) statement, Chilcote claims that the trial court’s

imposition of consecutive, rather than concurrent, sentences was unduly

harsh, given the nature of the crimes and the length of imprisonment.

Chilcote’s Brief at 6. This is the only claim raised in his rule 2119(f)

statement.4

Regarding the imposition of consecutive sentences and whether a

substantial question has been raised, this Court has held:

A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010)[.] Rather, the imposition of consecutive rather than concurrent sentences will present a ____________________________________________

3 We note that, although Chilcote did not place this statement under the heading “Statement of Reasons for Allowance of Appeal” or “Rule 2119(f) Statement,” his statement fully satisfies the purpose of Rule 2119(f), which is to inform the Court why review of the sentence is proper prior to consideration of the merits and to limit sentencing challenges to exceptional cases. See, e.g, Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en banc). Compliance with the substance of Rule 2119(f) despite failure to use a separate label is not considered waiver. Commonwealth v. Pickering, 533 A.2d 735, 737-38 (Pa. Super. 1987).

4 In the body of his brief, Chilcote also claims that the trial court double- counted factors already considered in the sentencing guidelines, particularly his prior record. Id. at 8-9. While this raises a substantial question, Chilcote failed to include it in his Rule 2119(f) statement, and therefore, we will not consider it.

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substantial question in only “the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012)[(en banc)].

[An appellant] 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; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)

(quotations and citations omitted).

Because Chilcote claims that the consecutive sentences were unduly

harsh, in light of the nature of his crimes and length of his sentence, we

conclude that Chilcote has raised a substantial question. Therefore, we will

consider the merits of his sentencing claim.

Our standard of review of a sentencing claim is as follows:

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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Additionally, we observe that the imposition of consecutive rather than

concurrent sentences lies within the sound discretion of the sentencing court.

Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005). The

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Sentencing Code 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. 42 Pa.C.S.A. § 9721; Commonwealth

v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).

Here, we first note that the trial court had the benefit of a pre-sentence

report when it sentenced Chilcote. “[W]here the trial court is informed by a

pre-sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.” Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). The trial

court remarked that it considered the pre-sentence report, along with

counsel’s statements to the court, and the evidence in this case to fashion

Chilcote’s sentence. N.T., 7/26/17, at 8.

Further, in explaining the basis for its sentence, the trial court

acknowledged that its sentence must be consistent with the protection of the

public, the gravity of the offense as it related to the impact on the life of the

victim and on the community, and Chilcote’s rehabilitative needs. The court

thoroughly weighed all of these factors. Id. at 9. The trial court remarked

that Chilcote had a long history of violating the law in varying degrees which

spanned 36 years. The trial court also noted that Chilcote was under

supervision for almost 16 years, and incarcerated for more than two and one-

half years. And, even while incarcerated during the past year, Chilcote

repeatedly violated the rules and was found guilty of 19 incidents of

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misconduct. Id. at 11. From these facts, the trial court concluded: “In short,

Mr. Chilcote, you have a complete and utter lack of respect for the laws that

govern all of us in our everyday lives.” Id. The trial court further observed,

given the opportunities Chilcote was previously afforded: “What is clearly

established before the [c]ourt today and that to the extent you had any

rehabilitative needs over the course of your life, you have completely chosen

to forfeit them in continuing to violate the law of this Commonwealth.” Id. at

13. The court stated that “the needs of the public to be free from you, vastly

outweigh any other considerations in this case.” Id.

Finally, before sentencing Chilcote, the trial court noted that the

particular offenses in this case were only misdemeanors and were not as

severe as others. However, it observed that Chilcote’s conduct, which led to

his charges, demonstrated extreme behavior. The court concluded that

“[Chilcote] is an ever present danger to the law-abiding citizens in the county”

and therefore the lengthier sentence it imposed was warranted. Id. at 14.

Based upon the deferential standard this Court must apply regarding

consecutive sentences and the trial court’s rationale for its sentence, we find

that the trial court did not abuse its discretion when it imposed consecutive

sentences for Chilcote’s convictions. Chilcote’s sentencing claim merits no

relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/10/2021

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