Commonwealth v. Fiascki

886 A.2d 261, 2005 Pa. Super. 360, 2005 Pa. Super. LEXIS 3921
CourtSuperior Court of Pennsylvania
DecidedOctober 24, 2005
StatusPublished
Cited by56 cases

This text of 886 A.2d 261 (Commonwealth v. Fiascki) 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
Commonwealth v. Fiascki, 886 A.2d 261, 2005 Pa. Super. 360, 2005 Pa. Super. LEXIS 3921 (Pa. Ct. App. 2005).

Opinion

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant, Frank Fiascld, appeals from the trial court’s April 16, 2004 judgment of sentence. We affirm.

¶ 2 The trial court recited the following facts and procedural history:

On February 13, 2004, defendant entered open guilty pleas to twenty-three (23) counts of Theft by Failure to Make Required Disposition of Funds. 18 Pa. C.S. § 3927(a). On the same date, he entered open guilty pleas to twenty-three (23) counts of Securities Fraud— Sales and Purchases. 70 P.S. § 1-401(a), (b) & (c).
On March 12, 2004, the defendant was sentenced to an aggregate sentence of ten to twenty years of incarceration followed by twenty consecutive years of probation.
On April 14, 2004, a hearing on Defendant’s Motion for Reconsideration of Sentence was held. By Order, dated April 14, 2004, and amended on April 16, 2004, the court modified the sentence, reducing the incarceration portion to eight to twenty years, followed by twenty years of probation.
In this case, there were 23 individual victims involving more than 46 counts. The thefts exceeded two million dollars. 1
1 The total amount involved was $2,016,335.11. Because some of the victims’ monies were used to repay other victims in a classical Ponzi scheme, the “net” amount of the thefts and restitution is $1,280,098.
In connection with many of the thefts, the defendant knowingly placed the elderly, or otherwise vulnerable, victims in dire financial straights [sic].

Trial Court Opinion, 1/18/05, at 1-2.

¶ 3 Appellant raises the following issue for our review:

Whether the Sentencing Court abused its discretion in sentencing the Appellant by considering inappropriate factors and by making inappropriate comparisons to other types of cases when consecutive sentences were imposed.

Appellant’s Brief at 4. 1

¶4 Appellant raises a challenge to the discretionary aspects of his sentence. We apply the following standard of review:

*263 The right to appeal the discretionary aspects of the sentence is not absolute. Two requirements must be met before a challenge to the discretionary aspects of a sentence will be heard on the merits. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa.Super.2003) (internal citations omitted).

¶ 5 Appellant has complied with Pa.R.A.P. 2119(f) by including a concise statement of the reasons relied upon for allowance of appeal. In his 2119(f) statement, Appellant claims:

1. The Court of Common Pleas sentence is excessive with respect to protection of the public, the gravity of the offense, and the rehabilitative needs of the Appellant.
2. The Court of Common Pleas made an improper comparison with the Appellant’s case to that of a crime of violence.

Appellant’s Brief at 7.

¶ 6 Next, we must determine whether Appellant’s arguments raise a substantial question. Bishop. To demonstrate that a substantial question exists, “a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature.” Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 622 (2002), quoting, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999). In Mouzon, our Supreme Court held that allegations of an excessive sentence raise a substantial question where the defendant alleges that the sentence “violates the requirements and goals of the Code and of the application of the guidelines.... ” Id. at 627. A bald allegation of excessiveness will not suffice. Id.

¶ 7 In the instant matter, Appellant alleges in his 2119(f) statement that his sentence violates several specific goals of the Sentencing Code and Sentencing Guidelines. Therefore, he has raised a substantial question. Mouzon. We will review the merits of Appellant’s arguments.

¶8 The following standard governs our review of the discretionary aspects of Appellant’s sentence:

[T]he appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, is “unreasonable.” In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C.S.A. § 9781(c). In determining whether a particular sentence is clearly unreasonable or unreasonable, the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the presentence investigation re *264 port, 'if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the findings upon which the trial court based its sentence.

Commonwealth v. Dodge, 859 A.2d 771, 778 (Pa.Super.2004). Appellate courts often defer to the trial court’s decision to impose consecutive sentences, but the trial court does not have unfettered discretion in this regard. Id. at 779. In the instant matter, the trial court imposed a sentence that is within the Sentencing Guidelines. Accordingly, we must determine whether the trial court in Appellant’s case, while within the , guideline range, crafted a sentence that was “clearly unreasonable.” Id., quoting, 42 Pa.C.S.A. § 9781(c). A sentence is “clearly unreasonable” if it “violates the requirements and goals of the Code and of the application of the guidelines.” Id. at 782.

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Bluebook (online)
886 A.2d 261, 2005 Pa. Super. 360, 2005 Pa. Super. LEXIS 3921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fiascki-pasuperct-2005.