Commonwealth v. Kalwaic

9 Pa. D. & C.5th 535
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 11, 2009
DocketCP-06-CR-3852-07, 3897-07 and 5514-08
StatusPublished

This text of 9 Pa. D. & C.5th 535 (Commonwealth v. Kalwaic) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kalwaic, 9 Pa. D. & C.5th 535 (Pa. Super. Ct. 2009).

Opinion

LUDGATE, J,

DOCKET 3852-07

I. Procedural History

On September 21, 2007, Christopher T. Kalwaic (defendant) was charged by information in docket 3852-07 with open lewdness, 18 Pa.C.S. §5901, recklessly endangering another person, 18 Pa.C.S. §2705, fleeing or attempting to elude police officer, 75 Pa.C.S. §3733(a) and eight summary traffic offenses. The defendant pleaded guilty to open lewdness, 18Pa.C.S. §5901, fleeing or attempting to elude police officers, 75 Pa.C.S. §3733(a) and driving while license is suspended or revoked, 75 Pa.C.S. § 1543(a). The defendant was repre[537]*537sented by Attorney Kevin M. Beals at the guilty plea hearing; for sentencing in this docket, the defendant was represented by Attorney Holly B. Feeney.

On August 6,2009, the court sentenced the defendant to four to 12 months state incarceration for Count 1, open lewdness, 18 Pa.C.S. §5901 and 12 months to five years state incarceration followed by two years probation for Count 3, fleeing or attempting to elude police officer, 75 Pa.C.S. §3733(a).

On August 14,2009, the defendant, through Attorney Feeney, filed a post-sentence motion which was denied August 24, 2009. The defendant, through Attorney Roarke T. Aston, filed a timely notice of appeal on September 11, 2009. On October 13, 2009, the defendant timely filed a 1925(b) statement pursuant to order of this court. The same day, counsel was granted time to file a supplemental concise statement within 20 days of receipt of transcripts. On November 9, 2009, Attorney Aston indicated no supplemental 1925(b) statement would be filed.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the appeal in this docket be denied.

II. Issues Raised by the Defendant

The defendant, through Attorney Aston, raises one issue for review:

“The sentencing court abused its discretion by imposing a state sentence of four months to 12 months, concurrent with 12 months to five years, followed by two years probation where the sentence was not consistent with the protection of the public, the gravity of the offenses as they relate to the impact on the life of the victims and on [538]*538the community and the rehabilitative needs of defendant, and the factors enumerated in the Sentencing Code do not militate to the sentence imposed in this case.”

III. Analysis

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. Burkholder, 719 A.2d 346 (Pa. Super. 1998). This discretion is permitted because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). “An appellate court will not disturb the lower court’s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). (citation and internal quotations omitted)

At the guilty plea hearing, the following guideline ranges were put on the record as follows.1

“Count 1, open lewdness — Offense gravity score (OGS) 1; Prior record score 4; Standard range restorative sanctions — one month; Aggravated range seven months; Mitigated range not applicable;
[539]*539“Count 3, fleeing or attempting to elude police officer, Offense gravity score (OGS) 3; Prior record score 4; Standard range three to 14 months; Aggravated range 17 months; Mitigated range restorative sanctions.” (N.T., guilty plea, 3/24/2009, p. 9; N.T., sentencing hearing, 8/6/2009, pp. 16-18.)

The court also gave consideration to numerous factors in imposing sentence:2

“The Court: The court here today has considered the age of the defendant and the nature of the offenses charged for which he has been convicted of. The court has considered that these offenses occurred at least 12 or 13 times, that is the estimation of how many times he has been convicted of these similar offenses. I’m not talking about over 500 times that he admitted to and was in Dr. Villiere’s report. I’m only talking about convictions.
“I have considered the guidelines that were placed on the record when his pleas were entered. I have considered the plea agreement. I have considered the defendant adopted the changes that were made in the presentence investigation report. I have considered the argument made by the district attorney. I have considered the statement made by defense counsel.
“I certainly understand that everybody is asking me to honor the plea agreement with regard to the case in which Ms. Feeney is the attorney. I understand that Ms. Feeney is asking the court — I’m sorry, Ms. Scheidt is asking the court to place the defendant in Berks County [540]*540Prison. The court has spent a considerable amount of time reviewing all these documents prior to today, looking at the probable cause, all other charges, getting information from CPCMS. I have a better understanding of what to do with this defendant, knowing that when I sent him to the state penitentiary, back I forgot what year now, for nine months to five years, before he maxed out on that, he was convicted in Lehigh County on another indecent exposure. I do not have anything in there that he was removed or violated.
“I know that in addition to those offenses he’s had the offense of resisting arrest and escape. These other charges go to show that he’s not able to control his behavior. I understand that the doctors said what they said. I understand that he is — he is an exhibitionist. Obviously the court is convinced that he met the standard of sexually violent predator. However, unlike many others where I think one year in jail is not enough, I believe it is.” N.T., sentencing hearing, 8/6/2009, pp.15-16.

The sentence imposed in this docket was not an abuse of discretion as it is within statutory limits and not manifestly excessive in light of the numerous factors considered by the court.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied in this docket.

DOCKET 3897-07

On September 26, 2007, the defendant was charged by information in docket 3897-07 with fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a), pos[541]*541session of drug paraphernalia, 35 P.S. 780-113(a)(32) and three summary traffic offenses.

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Related

Commonwealth v. Burkholder
719 A.2d 346 (Superior Court of Pennsylvania, 1998)
Commonwealth v. Stork
737 A.2d 789 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Muhammad
794 A.2d 378 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Fish
752 A.2d 921 (Superior Court of Pennsylvania, 2000)
Commonwealth v. Starr
301 A.2d 592 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Mouzon
812 A.2d 617 (Supreme Court of Pennsylvania, 2002)
Commonwealth v. Ingold
823 A.2d 917 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Dixon
907 A.2d 533 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
9 Pa. D. & C.5th 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kalwaic-pactcomplberks-2009.