Com. v. Dietrich, M.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2022
• Docket: 2008 EDA 2021
• Status: Unpublished

Opinion

J-A13019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW ERIC DIETRICH : : Appellant : No. 2008 EDA 2021

Appeal from the Judgment of Sentence Entered July 22, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP- 39-CR-0000171-2020

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 15, 2022

Appellant Matthew Eric Dietrich appeals from the Judgment of

Sentence entered following his open guilty plea to one count of Aggravated

Assault, charged in connection with a road rage incident. He raises a

discretionary aspects of sentence claim by challenging as excessive the

court’s imposition of a standard range sentence. After careful review, we

affirm.

We briefly summarize the facts underlying Appellant’s conviction. On

August 1, 2019, at 8 p.m. in Hanover Township, Appellant was driving his

pickup truck in traffic when he spotted in his rearview mirror a motorcycle

weaving in and out of traffic. This pattern of motorcycle driving annoyed

Appellant and when he saw the motorcycle preparing to pass his truck,

Appellant jerked his steering wheel to the left so the motorcycle would not

be able to pass. As a result, the motorcycle hit the rear side of Appellant’s J-A13019-22

truck and the impact threw the motorcycle and the rider onto the abutting

sidewalk. The rider suffered numerous bone fractures and other injuries.

When police officers arrived on the scene, Appellant stated, “It’s my fault. I

f****d up, but they need to learn that they can’t drive like that and do

whatever they want.” Affidavit of Probable Cause, dated 8/6/19.

The Commonwealth charged Appellant with six offenses. On June 2,

2021, Appellant pled guilty to Aggravated Assault, 18 Pa.C.S. § 2702(a)(1)

and the Commonwealth nolle prossed the remaining charges. The court

ordered a pre-sentence investigation (“PSI”).

On July 22, 2021, the court sentenced Appellant to a standard range

sentence of 54 months’ to 15 years’ incarceration. The court specifically

stated that it had reviewed the PSI report and considered all sentencing

factors, including Appellant’s lack of a prior criminal record, his employment

history, his expressions of remorse, the gravity of the offense, and the

protection of the public. See N.T., 7/22/21, at 43-45.

Appellant filed a post-sentence motion seeking reconsideration of his

sentence, which the court denied.

Appellant timely appealed. Both Appellant and the court complied with

Pa.R.A.P. 1925.1

Appellant presents the following Statement of Questions Involved:

____________________________________________

1 The trial court’s Rule 1925(a) Opinion incorporated by reference its September 1, 2021 Opinion denying Appellant’s post-sentence motion.

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1. Did the trial court err in imposing a sentence that, as imposed, is so manifestly excessive as to constitute an abuse of discretion, and inconsistent with the protection of the public, the gravity of the offenses, and Appellant Dietrich’s rehabilitative needs?

2. Did the trial court err in imposing a sentence that is based upon a mischaracterization of the underlying offense that gave rise to the manifestly excessive sentence complained of on appeal?

3. Did the trial court err in imposing a sentence that is based upon a misinterpretation of the Appellant Dietrich’s verbal and non-verbal statements that gave rise to the manifestly excessive sentence complained of on appeal?

Appellant’s Br. at 12.

Each of Appellant’s issues challenge the discretionary aspects of his

sentence. An appellant raising such a challenge is not entitled to review as

of right; rather, a challenge in this regard is properly viewed as a petition for

allowance of appeal. 42 Pa.C.S. § 9781(b); Commonwealth v.

Tuladziecki, 522 A.2d 17, 18-19 (Pa. 1987); Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

In order to obtain this Court’s review, an appellant challenging the

discretionary aspects of his sentence must comply with the following

requirements: (1) file a timely notice of appeal; (2) preserve the issue at

sentencing or in a motion to reconsider and modify sentence; (3) include

within his brief a concise statement of the reasons relied upon for allowance

of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial

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question that the sentence is inappropriate under the Sentencing Code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).

Rule 2119(f) requires an appellant who challenges the discretionary

aspects of a sentence in a criminal matter to “set forth in a separate section

of the brief a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P.

2119(f). The Rule 2119(f) statement must “immediately precede the

argument on the merits with respect to the discretionary aspects of the

sentence.” Id.

If an appellant fails to include a Rule 2119(f) statement and the

Commonwealth objects, the appellant has waived his discretionary

sentencing claims. See Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa.

Super. 2016).

Here, Appellant filed a timely appeal and preserved the issue in his

Post-Sentence Motion. Appellant has, however, neglected to include a

2119(f) Statement in his Brief and the Commonwealth has objected to the

omission. See Commonwealth’s Brief at 25. We, thus, conclude that

Appellant has waived his challenge to the discretionary aspects of his

sentence.

However, even if Appellant had not waived his challenge, we would

find it meritless. “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.” Commonwealth v. Barnes, 167 A.3d 110,

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122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court

has broad discretion in choosing the range of permissible confinement that

best suits a particular defendant and the circumstances surrounding his or

her crime. Commonwealth v. Celestin, 825 A.2d 670, 676 (Pa. Super.

2003).

Where the sentencing court has the benefit of a PSI report, we

presume that it is “aware of all appropriate sentencing factors and

considerations,” and we will not disturb the sentencing court’s discretion.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(discussing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)).

Moreover, when the trial court reviews the PSI report, it satisfies “the

requirement that reasons for imposing sentence be placed on the record by

indicating that he or she has been informed by the [PSI]; thus properly

considering and weighing all relevant factors.” Id.

In addition, courts have consistently found that sentences imposed

within the standard range of the sentencing guidelines are not excessive or

unreasonable. See, e.g., id. at 1134 (explaining that a sentence within the

guidelines is presumed to be reasonable); see also Commonwealth v.

Cruz–Centeno, 668 A.2d 536, 546 (Pa. Super. 1995) (finding that a

standard range sentence imposed following consideration of a PSI report was

neither excessive nor unreasonable).

Here, Appellant had a prior record score of 0 and an offense gravity

score of 11. The sentencing guidelines provide a standard range minimum

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sentence of 54 to 72 months’ incarceration. Appellant received a minimum

sentence of imprisonment of 54 months. Based on the above case law, even

if Appellant had filed a Rule 2119(f) Statement, we would conclude that the

court did not abuse its discretion in sentencing Appellant.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/15/2022

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