Com. v. Gustafson, S.

• Court: Superior Court of Pennsylvania
• Decided: March 6, 2024
• Docket: 158 EDA 2023
• Status: Unpublished

Opinion

J-S47044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHANE THOMAS GUSTAFSON : : Appellant : No. 158 EDA 2023

Appeal from the Judgment of Sentence Entered December 12, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003824-2019

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 6, 2024

Shane Thomas Gustafson appeals from the amended December 12,

2022 judgment of sentence of 1½ to 3 years’ imprisonment imposed following

the revocation of his probation and re-sentencing for one count of corruption

of minors.1 Appellant also received credit for time-served from August 23,

2022 to December 12, 2022 and was ordered to complete a sex offender

evaluation and follow recommended treatment. After careful review, we

affirm the judgment of sentence.

The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On August 3, 2020, Appellant entered a

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6301(a)(1)(i). J-S47044-23

negotiated guilty plea to corruption of minors in connection with his solicitation

of a minor female for sex. Appellant was subsequently sentenced to 3 years’

probation in connection with this incident. On September 14, 2022, Appellant

was found in violation of his probation and was sentenced to 13½ to 27

months’ imprisonment to be served concurrently with his sentence imposed

at CP-15-CR-0001741-2019.2

The trial court summarized the remaining procedural history of this case

as follows:

On September 26, 2022, [Appellant] filed a motion for reconsideration of his violation of probation sentence entered on September 14, 2022. In response, [the trial court] ordered a hearing to be scheduled for December 12, 2022 as well as ordered a pre-sentence investigation report on both dockets (“PSI”). A hearing was held on December 12, 2022 where [the trial court] denied Appellant’s request and, upon the information provided via the PSI as well as testimony heard in court, vacated its September 14, 2022 sentence and re-sentenced Appellant to one and a half (1.5) to three (3) years of incarceration with credit for time served from August 23, 2022 until December 12, 2022. Appellant filed an additional motion for reconsideration on December 22, 2022, which [the trial court] denied without a hearing on December 27, 2022. Appellant filed a notice of appeal in this matter on January 11, 2023. An Order pursuant to Pa.R.A.P. 1925(a) was issued on January 19, 2023.

2 The record reflects that on September 14, 2022, the trial court also revoked

Appellant’s parole at CP-15-CR-0001741-2019 for driving under the influence, 75 Pa.C.S.A. § 3802(b). Appellant was sentenced to serve the balance of the maximum term of 5 months and 26 days’ imprisonment. Appellant did not appeal this sentence.

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Trial court Rule 1925(a) opinion, 2/13/23 at 1 (citations, footnotes,

extraneous capitalization, and some parentheticals omitted).

Appellant failed to file a Rule 1925(b) statement. On February 13, 2023,

the Honorable Louis A. Mincarelli filed a Rule 1925(a) opinion finding all of

Appellant’s claims waived. Id. at 2-3. On February 16, 2023, Appellant filed

a petition to file concise statement nunc pro tunc, which was denied by the

trial court. Thereafter, on June 6, 2023, this Court remanded this case for

Appellant to file a supplemental Rule 1925(b) statement and directed the trial

court to file a supplemental Rule 1925(a) opinion. Appellant filed his timely

concise statement on June 27, 2023, and the trial court filed a supplemental

opinion on July 17, 2023.

Appellant raises the following issues for our review:

I. Did the trial court err and abuse its discretion by inappropriately relying on affidavits that were attached to Appellant’s pre-sentence investigation report (“PSI”), specifically the following[:]

A. The allegations contained in the affidavits filed against Appellant in Maryland rather than the convictions or the facts of record regarding the convictions which served as the basis for violation of probation and revocation[?]

II. Did the trial court err and abuse its discretion when it failed to determine Appellant’s prior record score and the offense gravity score of the underlying charge which was necessary to determine and consider the appropriate resentencing guidelines before imposition of sentence?

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Appellant’s brief at 5 (extraneous capitalization omitted).

Preliminarily, we note that “[i]n an appeal from a sentence imposed

after the court has revoked probation, we can review the validity of the

revocation proceedings, the legality of the sentence imposed following

revocation, and any challenge to the discretionary aspects of the sentence

imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015)

(citation omitted). A “[r]evocation of a probation sentence is a matter

committed to the sound discretion of the trial court and that court’s decision

will not be disturbed on appeal in the absence of an error of law or an abuse

of discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super.

2014) (citation omitted), appeal denied, 109 A.3d 678 (Pa. 2015).

Appellant’s first claim is that the trial court abused its discretion by

considering an improper sentencing factor, namely, allegations of Appellant's

inappropriate sexual contact with two minor females in Maryland that were

detailed in affidavits attached to his PSI report. Appellant’s brief at 24-42.

“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. Zirkle, 107 A.3d 127, 132 (Pa.Super.

2014) (citation omitted), appeal denied, 117 A.3d 297 (Pa. 2015). 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.”

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Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017) (citation

omitted), appeal denied, 184 A.3d 944 (Pa. 2018).

Where an appellant challenges the discretionary aspects of his sentence,

as is the case here, the right to appellate review is not absolute.

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal

denied, 206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging

the discretionary aspects of his sentence must invoke this Court’s jurisdiction

by satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether appellant preserved his issue; (3) whether appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

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

(citations omitted).

Instantly, the record reveals that Appellant filed a timely notice of

appeal and preserved his sentencing claim in his December 22, 2022 post-

sentence motion. Appellant has also included a statement in his brief that

comports with the requirements of Pa.R.A.P. 2119(f). See Appellant’s brief

at 19-23. Accordingly, we must determine whether Appellant has raised a

substantial question.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d

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932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538

(Pa. 2013). “A substantial question exists only when 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

This Court has recognized that an allegation that the trial court

considered an improper sentencing factor presents a substantial question.

See Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa.Super. 2009).

Accordingly, we proceed to address the merits of Appellant’s sentencing claim.

As noted, Appellant contends that the sentencing court abused its

discretion by relying on affidavits that were attached to the PSI that were

“filed against [him] in Maryland, rather than the convictions or the facts of

record regarding the convictions.” Appellant’s brief at 24. We disagree.

The record reflects that on January 5, 2022, Appellant was sentenced in

Maryland to an aggregate term of 10 years’ imprisonment, with 8½ years

suspended, and 3 years’ probation, imposed following his convictions for sex

offense – third degree and sexual solicitation of a minor. See “Violation

Hearing Report,” 9/7/22 at 1-2. These charges stemmed from Appellant’s

sexual contact with a 12-year-old minor female and transfer of sexually

explicit photographs to another minor female. See notes of testimony,

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12/12/22 at 14-16. Attached to the PSI in this matter were affidavits of

probable cause detailing the facts underlying each of these Maryland cases,

as well as a list of the crimes for which Appellant was initially charged.

Appellant’s assertion that the sentencing court cannot consider all the

information contained within the PSI report, even if some of the conduct

described is uncharged, is patently incorrect.

In Commonwealth v. Goggins, 748 A.2d 721 (Pa.Super. 2000),

appeal denied, 759 A.2d 920 (Pa. 2000), a panel of this Court held that

“essential and adequate elements of a PSI report” include, inter alia, “a

complete description of the offense and the circumstances surrounding it, not

limited to aspects developed for the record as part of the determination of

guilt, as well as “a full description of any prior criminal record of the

offender[.]” Id. at 728 (emphasis added); see also Pa.R.Crim.P. 702(A)(3)

(stating, “the pre-sentence investigation report shall include information

regarding the circumstances of the offense and the character of the defendant

sufficient to assist the judge in determining sentence.”).

A sentencing court is permitted consider the totality of information

contained within PSI report for the purposes of fashioning a sentence,

including criminal conduct for which defendant was not charged. In

Commonwealth v. P.L.S., 894 A.2d 120 (Pa.Super. 2006), appeal denied,

906 A.2d 542 (Pa. 2006), this Court observed that prior uncharged criminal

conduct can be considered for sentencing purposes under certain limited

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circumstances. Id. at 128. “[T]he fact that a defendant is guilty of prior

criminal conduct for which he escaped prosecution has long been an

acceptable sentencing consideration.” Id. at 130. The P.L.S. Court cautioned

that “this type of conduct can be used as a sentencing factor only under

tightly-prescribed circumstances when there is evidentiary proof linking the

defendant to the conduct[,]” id., as is clearly the case here given Appellant’s

convictions to some of the offenses listed.

When the trial court has the benefit of a PSI report, “we shall … presume

that the sentencing judge was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Antidormi, 84 A.3d 736, 761

(Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

Based on the foregoing, we find that Appellant’s discretionary sentencing claim

must fail.

Appellant next argues that the trial court abused its discretion in failing

to determine Appellant’s prior record score and his offense gravity score prior

to imposing his probation revocation sentence, in accordance with the

Resentencing Guidelines, 204 Pa. Code. § 307.1, et seq. Appellant’s brief at

43. We disagree.

Section 307.2 of the Resentencing Guidelines provides, in pertinent part,

that the “Guidelines shall apply to revocations of probation for all offenses

committed on or after January 1, 2020. Amendments to the Resentencing

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Guidelines shall apply to revocations of probation for all offenses committed

on or after the effective date of the amendment.” 204 Pa. Code § 307.2(b).

Amendment 1 became effective January 1, 2021. Id. § 307.2(b)(2).

Upon review, we agree with the trial court that the Resentencing

Guidelines were inapplicable to this matter. See trial court supplemental

opinion, 6/17/23 at 3-4. At the time of Appellant’s revocation hearing on

December 12, 2022, the first amendment to the Resentencing Guidelines had

taken effect. However, Appellant committed the offenses in question on March

20, 2019, prior to the effective date. Accordingly, Appellant’s second claim of

trial court error must fail.3

For all the foregoing reasons, we affirm the December 12, 2022

judgment of sentence.

Judgment of sentence affirmed.

Date: 3/06/2024

3 Alternatively, we note our agreement with the trial court that it properly set

forth on the record its reasoning for deviating from the Guidelines at the time it imposed Appellant’s sentence. See notes of testimony, 12/12/22 at 29-32.

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