Com. v. Dixon, C.

Opinion

J-S16040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES DWIGHT DIXON : : Appellant : No. 554 MDA 2021

Appeal from the Judgment of Sentence Entered April 9, 2021 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000642-2019

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

MEMORANDUM BY COLINS, J.: FILED: OCTOBER 3, 2022

Appellant, Charles Dwight Dixon, appeals from the aggregate judgment

of sentence of 91/2 to 20 years’ incarceration, imposed after he pled guilty to

homicide by vehicle while DUI, aggravated assault by vehicle while DUI, DUI-

controlled substance, and the summary offense of disregarding traffic lanes.1

For the reasons set forth below, we affirm.

On October 14, 2018, Appellant, a bus driver driving a passenger bus

while he was impaired by cocaine, drove the bus off Interstate 380 in

Lackawanna County, Pennsylvania and crashed it into trees, killing one of the

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* Retired Senior Judge assigned to the Superior Court. 1 75 Pa.C.S. § 3735(a) (in effect February 1, 2004 to December 23, 2018), 75 Pa.C.S. § 3735.1(a), 75 Pa.C.S. § 3802(d), and 75 Pa.C.S. § 3309(1), respectively. J-S16040-22

passengers and seriously injuring three other passengers. N.T. Guilty Plea at

5-6; N.T. Preliminary Hearing at 18-20. On December 7, 2020, Appellant

entered a plea of guilty to homicide by vehicle while DUI, aggravated assault

by vehicle while DUI, DUI-controlled substance, and the summary offense of

disregarding traffic lanes. N.T. Guilty Plea at 2-9. For defendants with

Appellant’s prior record score, the sentencing guidelines provided standard

range minimum sentences of 42-54 months and an aggravated minimum

sentence of 5 years for homicide by vehicle while DUI and standard range

minimum sentences of 30-42 months and an aggravated minimum sentence

of 41/2 years for aggravated assault by vehicle while DUI. 204 Pa. Code §§

303.15, 303.16(a); Guideline Sentence Forms.

On March 8, 2021, the trial court sentenced Appellant to consecutive

terms of 5 to 10 years’ incarceration for homicide by vehicle while DUI, 41/2

to 10 years’ incarceration for aggravated assault by vehicle while DUI, and 3

to 6 months for the DUI conviction, resulting in an aggregate sentence of 117

months to 201/2 years’ incarceration, and imposed a fine for the summary

offense conviction. N.T. Sentencing at 52-53; 3/8/21 Sentencing Order. At

this sentencing hearing, Appellant admitted that he was addicted to drugs and

had been unsuccessful in stopping using drugs prior to the accident,

repeatedly expressed remorse for his actions, and testified that after the

accident, he sought treatment for his addiction. N.T. Sentencing at 43-50.

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Appellant also presented testimony of the Lackawanna County Prison chaplain

concerning Appellant’s remorse and positive behavior in prison. Id. at 32-35.

On March 17, 2021, Appellant filed a motion for reconsideration of

sentence in which he sought to vacate the DUI sentence on the ground that

the DUI conviction merged with the homicide by vehicle while DUI and

aggravated assault by vehicle while DUI convictions and also sought reduction

of the homicide by vehicle while DUI and aggravated assault by vehicle while

DUI sentences on the ground that those sentences were harsh and excessive

and failed to take into account mitigating factors, including Appellant’s

background, remorse and low likelihood of reoffending. Petition for

Reconsideration of Sentence ¶¶3-5. On April 9, 2021, the trial court granted

the motion for reconsideration with respect to the DUI sentence, denied the

motion in all other respects, and issued a modified sentencing order that

imposed consecutive terms of 5 to 10 years’ incarceration for homicide by

vehicle while DUI and 41/2 to 10 years’ incarceration for aggravated assault

by vehicle while DUI, an aggregate sentence of 91/2 to 20 years’ incarceration,

and no sentence for the DUI conviction on the ground that it merged with

those other convictions. Trial Court Order, 4/9/21; 4/9/21 Modified

Sentencing Order. This timely appeal followed.

Appellant presents the following single issue for our review:

Whether the aggravated sentence was inappropriately harsh, excessive, an abuse of discretion and contrary to the fundamental norms of the sentencing guidelines and failed to consider appellant's remorse for his actions, his positive history over th[e]

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past ten years including his effort to address his addiction issues which indicates that he has a very low risk of reoffending, thus belying the sentencing court's emphasis on incapacitation.

Appellant’s Brief at 4.

This issue is a challenge to the discretionary aspects of Appellant’s

sentence. Challenges to the discretionary aspects of a sentence are not

appealable as of right and may be considered only where the following

requirements are satisfied: 1) the appellant has preserved the issue in the

trial court at sentencing or in a motion for reconsideration of sentence; 2) the

appellant has included in his brief a concise statement of the reasons relied

on for his challenge to the discretionary aspects of his sentence in accordance

with Pa.R.A.P. 2119(f), and 3) the challenge to the sentence raises a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code. Commonwealth v. Akhmedov, 216 A.3d 307, 328

(Pa. Super. 2019) (en banc); Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018) (en banc).

Appellant has satisfied these requirements. Appellant filed a timely

motion for reconsideration of sentence in which he argued that his sentence

was harsh and excessive because it was beyond the standard guideline range

and failed to take mitigating factors into account. Petition for Reconsideration

of Sentence ¶¶3(c)-(f), 4-5. Appellant has also included a Pa.R.A.P. 2119(f)

statement in his brief. Appellant’s Brief at 8-9.

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A substantial question exists where the appellant advances a colorable

argument that the sentencing judge’s actions were inconsistent with a specific

provision of the Sentencing Code or were contrary to the fundamental norms

of the sentencing process. Commonwealth v. DiClaudio, 210 A.3d 1070,

1075 (Pa. Super. 2019); Commonwealth v. Antidormi, 84 A.3d 736, 759

(Pa. Super. 2014). The argument that Appellant advances is that the trial

court’s imposition of an aggravated range sentence was excessive and

unreasonable because the court failed to consider mitigating factors and did

not articulate adequate reasons for an aggravated sentence. This presents a

substantial question. Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc) (claim that sentence was excessive coupled with claim

that trial court did not consider defendant’s rehabilitative needs presents a

substantial question); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.

Super. 2008) (claim that trial court failed to state adequate reasons for

imposing an aggravated range sentence raises a substantial question).

This issue, however, fails on the merits. Our standard of review on this

challenge to Appellant’s sentence is well-established:

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.

DiClaudio, 210 A.3d at 1074-75 (quoting Antidormi).

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Contrary to Appellant’s contentions, the trial court stated adequate

reasons for imposing sentences for homicide by vehicle while DUI and

aggravated assault by vehicle while DUI in the aggravated range of the

sentencing guidelines. Imposition of an aggravated range sentence is justified

where the trial court bases the sentence on a fact or facts about the

defendant’s crime warranting a more severe punishment that are not inherent

in the offense of which he was convicted. Commonwealth v. Clemat, 218

A.3d 944, 960 (Pa. Super. 2019); Commonwealth v. Fullin, 892 A.2d 843,

848-49 (Pa. Super. 2006). Here, the trial court made clear that it based the

aggravated range sentences that it imposed on the fact that Appellant did not

merely drive a vehicle while impaired; rather, the vehicle that he chose to

drive while impaired was a bus carrying 12 passengers whom he was

responsible for safely transporting. N.T. Sentencing at 51-52. That very

serious additional factor, not present in ordinary homicide by vehicle while

DUI and aggravated assault by vehicle while DUI cases, was a ground on which

the trial could properly conclude that aggravated range sentences were

appropriate.

The trial court also did not fail to consider Appellant’s mitigating factors.

The trial court had the benefit of and reviewed a pre-sentence report and

heard evidence of Appellant’s background and remorse. N.T. Sentencing at

32-50; N.T. Hearing on Petition for Reconsideration of Sentence, 4/5/21, at

4-5; Trial Court Opinion at 3, 11, 16. The court specifically noted the

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mitigating factors that Appellant argues, but concluded that the serious

aggravating factor of his disregard of his responsibility as a bus driver, coupled

with his mature age at the time of the accident and lengthy failure to make

efforts to stop using cocaine before the accident, far outweighed the mitigating

factors. N.T. Sentencing at 51-52; Trial Court Opinion at 15-16 & n.12. Where

the trial court has considered the defendant’s mitigating evidence and

rehabilitation prospects, its failure to accord them the weight that the

defendant desires does not constitute an abuse of the trial court’s sentencing

discretion. Commonwealth v. Velez, 273 A.3d 6, 12 (Pa. Super. 2022);

Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014).

Because Appellant has not shown that the trial court abused its

discretion in the sentences that it imposed, we affirm the trial court’s

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/03/2022

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