Com. v. Clelland, N.

• Court: Superior Court of Pennsylvania
• Decided: September 21, 2017
• Docket: 136 WDA 2017
• Status: Unpublished

Opinion

J-S60021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICOLE MARIE CLELLAND, : : Appellant : No. 136 WDA 2017

Appeal from the Judgment of Sentence July 21, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000989-2015, CP-02-CR-0016877-2014

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2017

Appellant, Nicole Marie Clelland, appeals from the Judgment of

Sentence following her guilty pleas to one count each of Theft, Accidents

Involving Injury/Not Properly Licensed, Simple Assault, and Criminal

Mischief; four counts of Recklessly Endangering Another Person (“REAP”);

and two counts of Aggravated Harassment by a Prisoner.1 We affirm.

We summarize the facts and procedural history as follows. On May

13, 2014, Appellant stole a car from the parking lot of Mercy Hospital in

Pittsburgh, and crashed it into a valet stand and the hospital entrance door,

____________________________________________

1 18 Pa.C.S. § 3921(a); 75 Pa.C.S. § 3742.1(a); 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 3304(a)(3); 18 Pa.C.S. § 2705; and 18 Pa.C.S. § 2703.1, respectively.

____________________________________ * Former Justice specially assigned to the Superior Court. J-S60021-17

striking and injuring several people. Police extricated Appellant from the

vehicle and transported her to Allegheny County Jail. On June 9, 2014,

while incarcerated, Appellant engaged in an altercation at Allegheny County

Jail, throwing urine on jail staff.

On February 25, 2016, Appellant entered open guilty pleas to the

above charges, after which the court ordered the preparation of a Pre-

Sentence Investigation Report.

On July 21, 2016, the court sentenced Appellant to an aggregate term

of 9-18 years’ imprisonment, comprised of two terms of 2-4 years’

imprisonment for each Aggravated Harassment by a Prisoner charge; 18-36

months’ imprisonment on the Theft charge; 6-12 months’ imprisonment on

the Accident Involving Injury/Not Properly Licensed charge; 12-24 months’

imprisonment on the Simple Assault charge; and four 6-12 month terms of

imprisonment on the REAP charges. The court ordered that all of the

sentences run consecutively and that Appellant also serve a term of 3 years’

probation, undergo a drug, alcohol, and mental health evaluation, and

comply with any recommended treatment. All of Appellant’s sentences were

within the standard range of the Sentencing Guidelines. That same day,

Appellant filed a pro se Notice of Appeal.

On July 25, 2016, Appellant’s plea counsel filed a Petition for Leave to

Withdraw as Counsel. On July 26, 2016, the court appointed appellate

counsel.

-2- J-S60021-17

On November 22, 2016, counsel filed a Petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, seeking the

reinstatement of Appellant’s right to file a Post-Sentence Motion nunc pro

tunc. The trial court granted Appellant’s Petition, and on January 6, 2017,

Appellant filed a Post-Sentence Motion in which she argued that her

consecutive sentences were manifestly excessive in light of her mental

health problems and her acceptance of responsibility for her crimes. Post-

Sentence Motion, 1/6/17, at 4.

On January 17, 2017, the trial court denied Appellant’s Post-Sentence

Motion. Appellant timely appealed on January 19, 2017. Appellant and the

trial court have complied with Pa.R.A.P. 1925.

Appellant raises one issue in her counseled brief:

Did the trial court err in denying Appellant’s Post Sentencing Motions since the trial court abused its discretion in sentencing Appellant to an aggregate sentence of 9-18 years’ imprisonment at the instant two cases since the aggregated sentence was manifestly excessive because both sentences at 989-2015 were run consecutively, as were seven sentences at 16877-2014, and the sentences at both CC numbers were run consecutive to one another; the manifestly excessive aggregated sentence was unwarranted since [Appellant] accepted full responsibility for her crimes and pled guilty at both cases, and she suffers from acute mental illness, and housing her in a state prison for 9-18 years will not serve to improve her mental illness and will likely exacerbate it?

Appellant’s Brief at 3.

Appellant’s claim that her aggregate sentence was manifestly

excessive under the circumstances presents a challenge to the discretionary

-3- J-S60021-17

aspects of her sentence. Commonwealth v. Lutes, 793 A.2d 949, 964

(Pa. Super. 2002) (stating that an assertion that sentence is manifestly

excessive challenges the discretionary aspects of sentencing). Challenges to

the discretionary aspects of sentencing do not entitle an appellant to an

appeal as of right. Commonwealth v. Roberts, 133 A.3d 759, 774 (Pa.

Super. 2016). “An appellant must satisfy a four-part test to invoke this

Court’s jurisdiction when challenging the discretionary aspects of a

sentence.” Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.

2015). The test includes: (1) preserving the issue in the court below; (2)

filing a timely Notice of Appeal; (3) including a Pa.R.A.P. 2119(f) Statement;

and (4) raising a substantial question for our review. Id. at 797-98.

(citation omitted).

Instantly, Appellant has satisfied the first three requirements. Thus,

we must determine whether she has presented a substantial question that

her sentence is inappropriate under the Sentencing Code. We find that she

has not.

As to whether Appellant has presented a substantial question, we

note:

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

-4- J-S60021-17

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

omitted).

In her Rule 2119(f) Statement, Appellant argues that her consecutive

sentences were manifestly excessive2 in light of her mental health problems,

her guilty plea, and her stated desire to improve her life. Appellant’s Brief at

13. Notably, Appellant has not claimed that her aggregate sentence is

inconsistent with a specific provision of the Sentencing Code or contrary to

the fundamental norms underlying the sentencing process.

This Court has held that “allegations of an excessive sentence raise a

substantial question where the defendant alleges that the sentence violates

the requirements and goals of the Code and of the application of the

[G]uidelines[].” Commonwealth v. Fiascki, 886 A.2d261, 263 (Pa. Super.

2005), citing Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

A bald allegation of excessiveness will not suffice. Commonwealth v.

Fiascki, supra at 263; see also Mouzon, supra at 627.

The Sentencing Code gives the sentencing court wide discretion to

impose its sentence concurrently or consecutively to other sentences.

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). See

also 42 Pa.C.S. § 9721. Generally, a challenge to the exercise of the court’s

discretion to impose consecutive sentences does not raise a substantial ____________________________________________

2 Appellant acknowledges that each of the sentences imposed was within the standard range of the Sentencing Guidelines. Appellant’s Brief at 11.

-5- J-S60021-17

question. Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa.

Super. 2010). However, the imposition of consecutive, rather than

concurrent, sentences may raise a substantial question “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) (citation omitted). Whether a challenge to the

court’s decision to run sentences consecutively presents a substantial

question is dependent upon whether the aggregate sentence appears to be

excessive in light of the criminal conduct at issue. Mastromarino, 2 A.3d at

587.

This Court has held that “where the sentencing judge had the benefit

of a [Pre-S]entence [I]nvestigation [R]eport, it will be presumed that he or

she was aware of the relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)

(citation omitted). 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 lower court in

fashioning Appellant’s sentence.” Commonwealth v. Griffin, 804 A.2d 1, 9

(Pa. Super. 2002) (citation omitted). Additionally, such “an allegation does

not raise a substantial question that the sentence imposed was, in fact,

inappropriate.” Id.

-6- J-S60021-17

In her Brief to this Court, Appellant acknowledges that the trial court

has authority to impose consecutive sentences. Appellant’s Brief at 19.

However, she argues that her sentences, imposed consecutively, were

manifestly excessive because she accepted responsibility for her crimes,

entered guilty pleas to the charges she faced, and that serving an “excessive

aggravated sentence” will exacerbate her mental illness. Id. at 20.

With respect to Appellant’s claim that the trial court abused its

discretion in ordering her to serve her sentences consecutively, we conclude

that Appellant has not presented a substantial question necessitating this

Court’s review. Appellant has failed to set forth any argument about, or

analysis of how, her aggregate sentence was excessive in relation to the

nature of her criminal conduct. Rather, she offers only the bald assertion

that, “concurrent sentences would have been appropriate, rather than all

consecutive sentences.” Id.

With respect to Appellant’s alternate claim that the sentencing court

failed to consider mitigating factors such as her troubled youth, mental

health issues, and guilty plea, we likewise find that Appellant has failed to

raise a substantial question. Appellant’s claim does not set forth a plausible

argument that her sentence violates a provision of the Sentencing Code or is

contrary to the fundamental norms of the sentencing process. See

Commonwealth v. Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008)

(finding no substantial question raised by a claim that the trial court failed to

-7- J-S60021-17

consider adequately the defendant’s mitigating factors, such as his

rehabilitative needs, age, and educational background); Commonwealth v.

Coss, 695 A.2d 831, 833-34 (Pa. Super. 1997) (holding that, when the

sentence imposed falls within the statutory recommendation, an appellant’s

claim that a sentence is manifestly excessive fails to raise a substantial

question).

Moreover, as noted supra, when the sentencing court has the benefit

of a Pre-Sentence Investigation Report, we presume it was aware of and

considered relevant information regarding mitigating factors. Here, the

sentencing court had such a benefit. Additionally, the court explained at the

sentencing hearing that, in fashioning Appellant’s sentence, it had

considered the Sentencing Guidelines, the nature of the charges, the fact of

Appellant’s guilty plea, the contents of the Pre-Sentence Investigation

Report, counsel’s arguments, the punitive, deterrent, and rehabilitative

aspects of sentencing, Appellant’s need for mental health treatment, and

Appellant’s upbringing. N.T., 7/21/16, at 12. Thus, even if Appellant had

presented a substantial question for this Court’s review, it would lack merit.

Because Appellant has failed to present a substantial question, this

Court has no jurisdiction to review Appellant’s challenge to the discretionary

aspects of her sentence.

Judgment of Sentence affirmed.

-8- J-S60021-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2017

-9-