Com. v. Leach, J.

• Court: Superior Court of Pennsylvania
• Decided: December 28, 2022
• Docket: 497 MDA 2022
• Status: Unpublished

Opinion

J-S35020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA C. LEACH : : Appellant : No. 497 MDA 2022

Appeal from the Judgment of Sentence Entered December 14, 2021 In the Court of Common Pleas of Union County Criminal Division at No(s): CP-60-CR-0000058-2021

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 28, 2022

Joshua C. Leach appeals from the judgment of sentence entered

following his guilty plea to fleeing/attempting to elude a police officer

(“fleeing/eluding”), a third-degree felony. 18 Pa.C.S.A. § 3733(a). Leach

argues his sentence amounts to cruel and unusual punishment due to his

medical conditions. We affirm.

Leach, whose driver’s license was suspended, drove at speeds

exceeding 100 miles per hour and against oncoming traffic for over four miles

as he fled from police officers to avoid apprehension due to an outstanding

arrest warrant. See Affidavit of Probable Cause, 2/21/21. Following arrest,

the Commonwealth charged him with nine offenses, including three felonies.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S35020-22

Leach entered a negotiated guilty plea to one count of fleeing/eluding.

In exchange, the Commonwealth dismissed the other charges and agreed to

a minimum sentence of six months, which is at the bottom of the standard

range of the Sentencing Guidelines. See Trial Court Opinion, 4/25/22, at 1

(citing Guilty Plea Colloquy, 10/7/21). The plea agreement stated that the

court would set the maximum sentence, and that the Commonwealth would

oppose Leach’s request to serve his sentence in a county prison facility. Id.

Before sentencing, the court ordered a pre-sentence investigation report

(“PSI”). The PSI stated that Leach reported that he has degenerative disc

disease and a spinal cord injury, has had a stroke, and requires neck surgery.

PSI at 6. Leach also stated that he takes medication for bipolar disorder. Id.

Due to the gravity of Leach’s actions, his open warrant for domestic violence,

and his “history of violence, escape, and substance use,” the PSI

recommended the court impose a sentence to be served in state prison. Id.

at 7.

At sentencing, regarding his medical conditions, Leach told the court,

“I’m suffering a spinal cord injury, and I just tested positive for COVID today.

I’m having a lot of problems now real bad.” See N.T., 12/14/21, at 4. Defense

counsel stated that Leach “needs to have surgery on his neck” and that he’s

“had considerable other physical problems.” Id. at 5. Counsel argued that a

sentence in a state correctional institution is “not an ideal situation, not for

the state, to be blunt, not for the taxpayers of the Commonwealth of

Pennsylvania, for my purposes not – certainly not for Mr. Leach.” Id. Counsel

-2- J-S35020-22

also argued that because Leach had already served his minimum sentence,

the imposition of a county sentence would result in his extradition to Ohio on

his outstanding warrant. Id. at 5-6.

The court sentenced Leach to six months to two and a half years in state

prison. Leach filed a post-sentence motion challenging his sentence, which the

court denied.

Leach appealed. He presents the following issue: “[Leach] respectfully

avers error that occurred where he was sentenced to a state correctional

institution when less restrictive alternatives were available and he suffers from

serious negative medical conditions, which is tantamount to cruel and unusual

punishment.” Leach’s Br. at 4.

Leach includes a statement pursuant to Pa.R.A.P. 2119(f), contending

he “suffers from very serious physical ailments” and that sentencing him to

time in a state correctional institution, “where he could have been given a

county sentence, was unnecessary and arguably, cruel and unusual.” Id. at

7. In the argument section of his brief, Leach notes that “the Eighth

Amendment to the U.S. Constitution and Article 1 Section 13 of the

Pennsylvania Constitution both preclude the imposition of cruel and unusual

punishment.” Id. at 10. He claims that the PSI “comprehensively sets out the

medical dangers” he faces, including “degenerative disc disease, a bipolar

disorder, substance abuse dependence and a spinal cord injury.” Id. at 9. He

points out the PSI also states that he requires surgery. Leach argues that

-3- J-S35020-22

sentence requiring him to serve his sentence in a state prison “unnecessarily

and unconstitutionally exacerbated his existing plight.” Id. at 10.

To the extent Leach challenges his sentence as violating the federal and

state Cruel and Unusual Punishment Clauses, his claim implicates the legality

of his sentence. See Commonwealth v. Thorne, 276 A.3d 1192, 1196-97

(Pa. 2022). However, we find the issue waived as undeveloped. The only

authorities Leach cites are the state and federal constitutions, with no

discussion of relevant jurisprudence. See Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009).

Moreover, the claim fails on the merits. He has not shown that his

sentence, falling at the low end of the standard range of the Sentencing

Guidelines, is “wholly and irrationally disproportionate” to the dangerous crime

Leach committed. See Commonwealth v. Yasipour, 957 A.2d 734, 743

(Pa.Super. 2008) (explaining that protection from cruel and unusual

punishment “prohibits sentences which are wholly and irrationally

disproportionate to the crime”). Leach does not actually identify the medical

treatment he allegedly requires, other than “neck surgery.” More to the point,

he does not claim that medical treatment sufficient to meet Eighth

Amendment standards will be unavailable in state prison but could be obtained

in county lockup.

-4- J-S35020-22

To the extent Leach challenges the trial court’s decision to order him to

serve his sentence in state prison,1 his challenge goes to discretionary aspects

of sentencing. We will only review a discretionary sentencing claim if the

appellant (1) preserved the issue in the court below, (2) filed a timely notice

of appeal, (3) included in his brief a concise statement of the reasons for the

appeal, see Pa.R.A.P. 2119(f), and (4) has raised a substantial question

whether the sentence is appropriate under the Sentencing Code.

Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019), aff’d, 265

A.3d 541 (Pa. 2021).

It is undisputed that Leach has satisfied the first three of these

requirements. Leach also raised a substantial question by asserting that his

sentence is excessive and that the court failed to consider mitigating

circumstances. See Commonwealth v. White, 193 A.3d 977, 983-84

(Pa.Super. 2018).

We will not grant relief on a discretionary sentencing claim absent a

manifest abuse of discretion. Commonwealth v. Shull, 148 A.3d 820, 831

(Pa.Super. 2016) (quoting Commonwealth v. Antidormi, 84 A.3d 736, 760

(Pa.Super. 2014)). Such an abuse exists only where the court “ignored or

misapplied the law, exercised its judgment for reasons of partiality, prejudice,

1 See 42 Pa.C.S. § 9762(a)(2) (“Maximum terms of two years or more but less than five years may be committed to the Department of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court.”).

-5- J-S35020-22

bias or ill will, or arrived at a manifestly unreasonable decision.” Id. (quoting

Antidormi, 84 A.3d at 760).

As stated above, Leach has failed to explain the way in which he

contends a state sentence affects his medical conditions or treatment.

Furthermore, we presume the sentencing court, which had a PSI, duly

considered Leach’s circumstances, including his medical conditions (which

Leach concedes were identified in the PSI). Commonwealth v. Watson, 228

A.3d 928, 936 (Pa.Super. 2020). We find no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/28/2022

-6-