Com. v. Rhoads, E.

Superior Court of Pennsylvania

Com. v. Rhoads, E.

DecidedNovember 6, 2017

Docket125 MDA 2017

StatusUnpublished

This text of Com. v. Rhoads, E. (Com. v. Rhoads, E.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Rhoads, E., (Pa. Ct. App. 2017).

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Opinion

J-S42023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ERIC RHOADS

Appellant No. 125 MDA 2017

Appeal from the Judgment of Sentence February 1, 2017 In the Court of Common Pleas of Clinton County Criminal Division at No(s): CP-18-CR-0000400-2016

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 06, 2017

Eric Rhoads appeals from the February 1, 2017 judgment of sentence

entered in the Clinton County Court of Common Pleas following his plea of

nolo contendere to one count each of stalking and theft by unlawful taking –

movable property.1 We affirm.

On November 3, 2016, Rhoads entered a plea of nolo contendere to

the above charges. On December 5, 2016, the trial court sentenced Rhoads

to a term of 11½ to 24 months’ incarceration on the stalking conviction and

a consecutive term of 60 months’ probation for the theft conviction. The

trial court also imposed a $1,000 fine. On February 1, 2017, the trial court

entered an amended sentencing order, correcting a typographical error.

____________________________________________

1 18 Pa.C.S. §§ 2709.1(a)(1) and 3921(a), respectively. J-S42023-17

Rhoads raises the following issue on appeal:

Whether the court abused its discretion in sentencing [Rhoads] to essentially the maximum of the minimum sentence on a stalking charge and the maximum available period of probation on the theft charge resulting in an aggregate sentence of eleven and one-half (11 ½) to twenty-four (24) months minus one (1) day and five (5) years consecutive probation.

Rhoads’ Br. at 9 (unnecessary capitalization omitted).

An appeal from the discretionary aspects of sentencing is not

guaranteed as a matter of right. Commonwealth v. Mastromarino, 2

A.3d 581, 585 (Pa.Super. 2010). Before addressing such a challenge, we

must determine: (1) whether the appeal is timely; (2) whether [the] [a]ppellant preserved his [or her] issue; (3) whether [the] [a]ppellant’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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));

see Pa.R.A.P. 2119(f).

Here, Rhoads filed a timely notice of appeal, preserved his claim in a

timely post-sentence motion, and included in his brief a concise statement of

reasons for allowance of appeal under Rule 2119(f). We must now

determine whether he has raised a substantial question that his sentence is

inappropriate under the Sentencing Code.

-2- J-S42023-17

We evaluate whether a particular issue raises a substantial question on

a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa.Super. 2011). A substantial question exists where an appellant raises a

“plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quoting

Commonwealth v. Naranjo, 53 A.2d 66, 72 (Pa. 2002)).

In his Rule 2119(f) statement, Rhoads contends that his minimum

sentence for the stalking conviction and the length of his probation sentence

for the theft conviction are excessive and argues that the trial court did not

consider and/or adequately consider “numerous factors.” Rhoads’ Br. at 7.2

“[A]n excessiveness claim in conjunction with an assertion that the court did

not adequately consider a mitigating factor may present a substantial

2Rhoads does not identify which factors he believes the trial court failed to consider in his Rule 2119(f) statement. “Generally, a bald excessiveness claim does not raise a substantial question.” Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015). However, elsewhere in his brief, Rhoads identifies the factors he contends the trial court did not consider, including: his age, that he was readily employable, that he had not been involved with the criminal justice system since 2007, that he had been incarcerated for five months by the time of sentencing, that the trial court placed undue weight on his past violation of a protection from abuse order where the victim withdrew similar charges, and that the trial court placed great weight on its belief that Rhoads is a danger to society even though his prior record consisted primarily of driving under the influence offenses, and there was no allegation that alcohol was involved in the instant offenses. See Rhoads’ Br. at 14, 16.

-3- J-S42023-17

question,” Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super.

2015), as does “[a]n averment that the trial court failed to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense and the rehabilitative needs of [the a]ppellant, as 42

P[a].C.S.[ ] § 9721(b) requires[,]” Commonwealth v. Derry, 150 A.3d

987, 992 (Pa.Super. 2016) (quoting Commonwealth v. Riggs, 63 A.3d

780, 786 (Pa. Super. 2012)) (some alterations in original). Accordingly, we

conclude that Rhoads has raised a substantial question for our review.

“Sentencing is a matter vested within the discretion of the trial court

and will not be disturbed absent a manifest abuse of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “An

abuse of discretion requires the trial court to have acted with manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. The Sentencing Code requires a

trial court to impose a sentence that is “consistent with the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S. § 9721(b); see Commonwealth v. Walls, 926 A.2d

957, 962 (Pa. 2007).

At the time of sentencing, the trial court stated:

Mr. Rhoads is before this Court for sentencing as previously referenced to two counts of the information, stalking and theft by unlawful taking, both misdemeanors of the first degree, I believe. The only agreement in this

-4- J-S42023-17

case is that [Rhoads] will be permitted to serve his minimum sentence locally. The Court will honor that portion of the agreement. The Court has reviewed the sentencing guidelines. They were previously referenced. They were referenced correctly. I’m not going to repeat those. Also reviewed the Pre-Sentence Investigation, and listened very closely to the victim impact statement that was provided today by [the victim], as well as the statement that was included with the presentence.

Mr.

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