Commonwealth v. Sponheimer

26 Pa. D. & C.5th 284
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedJuly 24, 2012
DocketNo. 361 CR 2011
StatusPublished

This text of 26 Pa. D. & C.5th 284 (Commonwealth v. Sponheimer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sponheimer, 26 Pa. D. & C.5th 284 (Pa. Super. Ct. 2012).

Opinion

NANOVIC, J.,

The defendant, Kermit R. Sponheimer, has appealed from the judgment of sentence imposed on May 14, 2012, raising one issue: whether the sentence is excessive and unduly harsh because it runs consecutively to a sentence previously imposed on an unrelated case. This opinion is filed in accordance with Pa.R.A.P. 1925 (a).

PROCEDURAL AND FACTUAL BACKGROUND

On March 5, 2012, defendant pled guilty to criminal attempt to commit the crime of contraband, a felony of the second degree. 18 Pa.C.S.A. §§ 901 (a), 5123 (a.2). The offense involved defendant’s attempt to have his son supply defendant with suboxone, a schedule III narcotic, while defendant was an inmate in the Carbon County correctional facility. The plea agreement recommended a sentence of two to five years with the remaining charges to be dismissed. The agreement was silent on whether the sentence would be concurrent or consecutive to any existing sentence defendant was serving.

Plaintiff’s plea was taken on the first day defendant’s case was scheduled for jury trial. Upon receipt of defendant’s plea, a pre-sentence investigation was ordered. Sentencing was scheduled for May 14,2012. At the time of sentencing, the pre-sentence investigation report previously ordered was made part of the record. The report recommended a sentence of not less than twenty-four months nor more [286]*286than sixty months in a state correctional facility. The recommendation further indicated that defendant was entitled to no credit.

Atthetime ofthe offense, defendant was fifty-eightyears old. He was sixty at the time of sentencing. Defendant had a significant criminal history spanning twenty-seven years, between 1983 and 2010, with fourteen recorded offenses. Defendant’s prior record score was five. The standard guideline range was twenty-four to thirty months.

Defendant’s prior criminal history was significant for drug use and for crimes to support his habit. Defendant admitted he preyed on the love and vulnerability of his son to entice him, as well as defendant’s wife, to arrange to smuggle Suboxone into the prison for defendant’s use.

The sentence imposed ran consecutive to a sentence defendant was then serving in the county prison for retail theft, a felony of the third degree, with the max-date being September 30,2012. (Pre-sentence investigation report, p. 5).

As stated at sentencing, the reasons for the sentence included defendant’s serious addiction problem which he had failed to address; the nature and circumstances of defendant’s conduct which showed a disregard for the community; the perceived risk that defendant would commit further criminal acts based upon his previous history; and consistency of the sentence with the plea agreement. The court further noted defendant’s long and extensive criminal history and condemned defendant for preying on his son and involving his son in his criminal activities.

[287]*287OnMay24,2012, defendant filed apost-sentence motion seeking to have his sentence modified to ran concurrent to the sentence defendant was serving for retail theft. This motion was denied by order dated May 31, 2012.

Defendant’s notice of appeal was filed on June 4,2012. Subsequently, on June 27, 2012, defendant filed a timely concise statement in response to our Pa.R.A.P. 1925 order of June 5, 2012.

DISCUSSION

The issue defendant raises is a challenge to the discretionary aspects of his sentence. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005) (holding that a challenge to the trial court’s imposition of consecutive sentences is a challenge to the discretionary aspects of the sentence); see also Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.Super. 1994) (explaining that where a plea agreement exists which is silent as to a discretionary aspect of sentencing, an appeal which addresses the court’s exercise of discretion on such matters is not barred by the plea agreement), appeal denied, 540 Pa. 594, 655 A.2d 983 (Pa. 1995). Such challenges, as a condition to appellate review, require a defendant to set forth pursuant to Pa.R. A.P. 2119 (f)1 a substantial question that the sentence imposed [288]*288was not appropriate under the sentencing code. Marts, 889 A.2d at 612 (Pa. Super. 2005). When the claim involves excessiveness of the sentence, a prima facie showing of a substantial question requires the defendant to “sufficiently articulate[] the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the sentencing code or a particular norm underlying the sentencing process.” Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality).

Specifically, when the claim challenges the length of imprisonment predicated on the imposition of consecutive sentences, the Superior Court noted:

Recently, this court examined whether a claim that an appellant’s sentence was manifestly excessive based on the imposition of consecutive sentences presents a substantial question. Specifically, in Gonzalez-Dejusus, this court held the following:
Generally speaking, the court’s exercise of discretion in imposing consecutive as opposed to concurrent sentences is not viewed as raising a substantial [289]*289question that would allow the granting of allowance of appeal. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.2005). However, the case of Commonwealth v. Dodge (“Dodge I”), 859 A.2d 771 (Pa.Super.2004) [(Stevens, J., dissent)], vacated and remanded on other grounds, 594 Pa. 345, 935 A.2d 1290 (2007), finds an aggregate sentence manifestly excessive and that a substantial question was presented where there were numerous standard range sentences ordered to be served consecutively. Dodge I offered this holding despite the existence of prior cases finding that an assertion of error grounded upon the imposition of consecutive versus concurrent sentences did not raise a substantial question. Discussing the matter, Marts indicates:
To the extent that he complains that his sentence on two of the four robberies were imposed consecutively rather than concurrently, [the appellant] fails to raise a substantial question. Long standing precedent of this court recognizes that 42 Pa.C.S.A. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed atthe same time orto sentences already imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995).... Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa.Super.2005); see also Commonwealth v. Hoag, 445 Pa. Super.

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Related

Commonwealth v. Dodge
935 A.2d 1290 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Dalberto
648 A.2d 16 (Superior Court of Pennsylvania, 1994)
Commonwealth v. Johnson
873 A.2d 704 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Walls
926 A.2d 957 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Mouzon
828 A.2d 1126 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Graham
661 A.2d 1367 (Supreme Court of Pennsylvania, 1995)
Commonwealth v. Dodge
957 A.2d 1198 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Hoag
665 A.2d 1212 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Mouzon
812 A.2d 617 (Supreme Court of Pennsylvania, 2002)
Commonwealth v. Perry
883 A.2d 599 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Devers
546 A.2d 12 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Marts
889 A.2d 608 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Goggins
748 A.2d 721 (Superior Court of Pennsylvania, 2000)
Commonwealth v. Reynolds
835 A.2d 720 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Pass
914 A.2d 442 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Mastromarino
2 A.3d 581 (Superior Court of Pennsylvania, 2010)
Commonwealth v. Dodge
859 A.2d 771 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Bromley
862 A.2d 598 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Coulverson
34 A.3d 135 (Superior Court of Pennsylvania, 2011)

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Bluebook (online)
26 Pa. D. & C.5th 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sponheimer-pactcomplcarbon-2012.