Com. v. Slaughter, S.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2023
• Docket: 438 MDA 2023
• Status: Unpublished

Opinion

J-S39010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEPHEN M. SLAUGHTER : : Appellant : No. 438 MDA 2023

Appeal from the Judgment of Sentence Entered February 8, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006180-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEPHEN MICHAEL SLAUGHTER : : Appellant : No. 439 MDA 2023

Appeal from the Judgment of Sentence Entered February 8, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006195-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEPHEN MICHA SLAUGHTER : : Appellant : No. 440 MDA 2023

Appeal from the Judgment of Sentence Entered February 8, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003935-2022

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J. J-S39010-23

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 13, 2023

Appellant, Stephen Slaughter, appeals from the February 8, 2023

Judgments of Sentence entered in the Dauphin County Court of Common Pleas

following his convictions by a jury of Terroristic Threats and Simple Assault,

charged at Docket Number CP-22-CR-0006180-2019 (“6180-2019”), and his

guilty pleas to Knowing and Intentional Possession of a Controlled Substance

(“Possession”), Tampering with Physical Evidence, Use of or Possession with

Intent to Use Drug Paraphernalia (“Drug Paraphernalia”), and Simple Assault,

charged at Docket Numbers CP-22-CR-0006195-2019 (“6195-2019”) and CP-

22-CR-0003935-2022 (“3935-2022”).1 Appellant challenges the discretionary

aspect of his aggregate sentence. After careful review, we affirm.2

A.

On December 1, 2019, the Commonwealth charged Appellant with, inter

alia, Terroristic Threats and Simple Assault at Docket Number 6180-2019 in

connection with domestic violence allegations. On December 12, 2022,

Appellant proceeded to a jury trial. The next day, the jury convicted him of

Terroristic Threats and Simple Assault and acquitted him of all other charges.3 ____________________________________________

1 18 Pa.C.S. §§ 2706(a)(1), 2701(a)(1); 35 P.S. § 780-113(a)(16), 18 Pa.C.S.

§ 4910(1); 35 P.S. § 780-113(a)(32); 18 Pa.C.S. §§ 2701(a)(1), respectively.

2 On May 31, 2023, we granted Appellant’s unopposed motion to consolidate

these appeals for our disposition.

3The jury acquitted Appellant of Criminal Attempt-Arson, Endangering the Welfare of Children, Risking Catastrophe, Unlawful Restraint—Risk of Serious Bodily Injury, Recklessly Endangering Another Person, and Kidnapping.

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The court ordered a pre-sentence report and scheduled sentencing for

February 8, 2023.

On February 8, 2023, prior to sentencing, the court accepted Appellant’s

guilty pleas to two counts of Possession, and one count each of Tampering

with or Fabricating Physical Evidence and Drug Paraphernalia charged at

Docket Number 6180-2019, and one count of Simple Assault charged at

Docket Number 3935-2022 charged in connection with another domestic

violence situation.4 The court then proceeded to impose standard range

sentences at all three dockets, which resulted in an aggregate term of

incarceration of 35 months to 78 months.5

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4Appellant also pleaded guilty to two summary Vehicle Code violations at Docket Number 6180-2019 and one count of Criminal Mischief at Docket Number 3935-2022. The court imposed no further penalty on these charges.

5 Specifically, at Docket Number 6195-2019, the court sentenced Appellant to

standard range sentences of 14-30 months of incarceration for Terroristic Threats and 12-24 months of consecutive incarceration for Simple Assault. At docket number 3935-2022, the court sentenced Appellant to a standard range sentence of 9-24 months of incarceration for Simple Assault, to be served consecutive to the sentences imposed at Docket Number 6195-2019. At Docket Number 6180-2019, the court sentenced Appellant to standard range sentences of 12-24 months’ incarceration on one count of Possession and 3- 12 months’ incarceration on the remaining charges, all to be served concurrent to his sentence on Docket Number 6195-2019.

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Appellant filed a timely Post-Sentence Motion on February 21, 2023.6

He sought reconsideration of his sentence, and specifically requested an

aggregate sentence of 24-48 months followed by two years of probation on

Docket Numbers 6195-2019 and 6180-2019. The court denied the motion on

March 2, 2023.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

B.

Appellant raises one issue for our review:

Whether the sentencing court abused its discretion when it sentenced [Appellant] to a series of consecutive sentences resulting in a minimum sentence of 35 months when [Appellant’s] rehabilitative needs and the needs of the community at large both weigh in favor of making [Appellant] State Court Drug Treatment eligible but the minimum sentence imposed make that treatment inaccessible to him for nearly an entire year?

Appellant’s Br. at 7.7

6 February 18, 2023 was the 10th day after Appellant was sentenced. However, February 18-20, 2023 were a Saturday, a Sunday, and Presidents’ Day.

7 Appellant raised a second issue, that the trial court “was biased by argument

outside the bounds of the [42 Pa.C.S. § 9721(b)] factors and the resulting sentence is based on inappropriate findings that fail to accurately reflect the gravity of the offenses.” Appellant’s Br. at 25 (capitalization omitted). However, this issue is waived, as Appellant failed to include it in his Rule 1925(b) statements on any of the three dockets. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement. . .are waived.).

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C.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right, and 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 (Pa. 1987). An appellant

challenging the discretionary aspects of his sentence must satisfy a four-part

test. We evaluate: (1) whether Appellant filed a timely notice of appeal; (2)

whether Appellant preserved the issue at sentencing or in a motion to

reconsider and modify sentence; (3) “whether Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal” pursuant

to Pa.R.A.P. 2119(f); and (4) “whether the concise statement raises a

substantial question that the sentence is appropriate under the [S]entencing

[C]ode.” Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super.

2013) (citation omitted).8

Here, Appellant has satisfied the first three elements by filing a timely

Notice of Appeal, preserving the issue in a Post-Sentence Motion, and

including a separate Rule 2119(f) Statement in his Brief to this Court. Thus,

we consider whether Appellant has presented a substantial question for

review.

8 An appellant may still challenge the discretionary aspects of his sentence after entering an open guilty plea. Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994) (“[W]here there have been no sentencing restrictions in a plea agreement, the entry of a guilty plea will not preclude a challenge to the discretionary aspects of sentencing.”).

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An appellant raises a substantial question when he “sets forth 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. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

The Sentencing Code requires a sentencing court to consider, when

determining a sentence, “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” along with the

sentencing guidelines. 42 Pa.C.S. § 9721(b).

It is well-established “that a claim of inadequate consideration of

mitigating factors does not raise a substantial question for our review.”

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation

omitted). A claim that the court refused to weigh mitigating factors as an

appellant “wished, absent more, does not raise a substantial question.”

Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010); see also

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

Moreover, “[t]he imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.” Moury,

992 A.2d at 171–72.

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D.

Appellant claims that the trial court abused its discretion in sentencing

him to consecutive sentences that, together, render him ineligible to begin the

State Drug Treatment Program (“STDP”) immediately. Appellant’s Brief at 20-

25. Specifically, Appellant argues that, although the sentencing court

acknowledged that Appellant needs drug treatment, “he will not be able to

treat his substance abuse issues for a significant period of time[,]” and the

sentence is, thus, unreasonable. Id. at 25.9

Appellant has not “set[] forth a plausible argument that the sentence

violates a provision of the sentencing code or is contrary to the fundamental

norms of the sentencing process.” Crump, 995 A.2d at 1282. Moreover, in

light of the number of convictions and the fact that the court imposed standard

range sentences, some of which will be served concurrently, and no further

penalty for two convictions, his aggregate sentence of 35 – 78 months does

not render his sentence “unduly harsh.” Moury, 992 A.2d at 171–72.

Further, as Appellant acknowledges, the trial court did consider

Appellant’s substance abuse as a mitigating factor. See, e.g., N.T. Sentencing

9 The sentence imposed does allow Appellant to participate in the state drug

treatment program. See 204 Pa. Code § 303-12(c) (providing that a defendant is eligible for the state drug treatment program where, inter alia, he is sentenced to “a minimum term not more than two years and a maximum term of five years or less; or a minimum term not more than five years and within two years of completing the minimum term.” 204 Pa. Code § 303.12(c)(1)(ii).

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Hr’g at 15, 18-19 (where sentencing court acknowledges its consideration of

Appellant’s “drug and alcohol issues, the mental health issues, as well as [his]

continued disregard for the law and failure to comply with the law and

assaultive behavior that [] has caused different issues with those who you’re

in relationships with[.]”); see also id., at 18-19 (where sentencing court

stated: “I don’t have say over state drug treatment, but we certainly would

recommend [it].”). Appellant’s wish that the court weighed this factor

differently does not raise a substantial question. Moury, 992 A.2d at 175.

E.

Because Appellant has failed to present a substantial question, this

Court has no jurisdiction to review Appellant’s challenge to the discretionary

aspects of his sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/13/2023

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