J-S58019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD CAPORAL,

                            Appellant                  No. 9 WDA 2014


         Appeal from the Judgment of Sentence Entered July 24, 2013
             In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                          CP-02-CR-0000753-2009
                          CP-02-CR-0001797-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 09, 2014

        Appellant, Richard Caporal, appeals from the judgment of sentence of

an aggregate term of 6 to 12 years’ incarceration imposed after he was

convicted of multiple DUI offenses. Appellant claims his sentence is illegal

because the sentencing court failed to afford him credit for time served. He

also raises a challenge to the discretionary aspects of his sentence.   After

careful review, we remand for the limited purposes of permitting the

sentencing court to amend the sentencing order(s) to afford Appellant

appropriate credit for time served, but otherwise we affirm his judgment of

sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      The sentencing court summarized the factual and procedural history of

this case as follows:

            Appellant, Richard Caporal, was charged by criminal
      information (200900753) with one count of DUI highest rate of
      alcohol,1 one count of DUI general impairment,2 and one count
      of BAC 0.02 or higher.3
                         ____________________
         1
             75 P.S. § 3802(c).
         2
             75 P.S. § 3802(a)(1).
         3
             75 P.S. § 1543(b)(1.1)(iii).

           Appellant    was     charged   by    criminal   information
      (200901797) with three counts of DUI general impairment, two
      counts of false report,4 two counts of accident causing damage
      to unattended vehicle,5 and two counts of driving while license
      suspended.6
                          ____________________
         4
             18 PaC.S. § 4906(a).
         5
             75 P.S. § 3745(a).
         6
             75 P.S. § 1543(b)(1).

            On February 4, 2011, Appellant proceeded to a jury trial
      before the Honorable David R. Cashman at CC 200900753, at
      the conclusion of which a mistrial was declared pursuant to a
      hung jury. On June 8, 2011, Appellant proceeded to a jury trial
      at CC 200901797, at the conclusion of which he was found guilty
      of three counts of DUI general impairment, one count of accident
      involving damage to unattended vehicle, and one count of
      driving while license suspended. On June 23, 2011, Appellant
      pled guilty to the information as filed at CC 200900753 and was
      sentenced at both informations on that date.

            A motion for reconsideration of sentence was filed on July
      5, 2011, which was denied by operation of law on December 8,
      2011. Appellant filed a [Post Conviction Relief Act] Petition on
      January 27, 2012, to reinstate [his] post[-]sentence rights,
      which was granted on January 30, 2012. On February 29, 2012,
      Appellant filed a notice of appeal. On February 19, 2013, the
      Superior Court vacated Appellant’s sentences and ordered
      resentencing for RRRI consideration.


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            On April 23, 2013, Appellant filed a motion for recusal,
      which was granted on May 9, 2013. Both cases were thereafter
      transferred to this Trial Court.

            On July 24, 2013, Appellant was sentenced by the Trial
      Court to the following:

              Count one (CC 200900753): DUI highest rate of alcohol
            — two to four years[’] incarceration;

               Count three (CC 200900753): BAC 0.02 or higher —
            two to four years[’] incarceration to be served consecutive
            to the period of incarceration imposed at count one;

               Count one (CC 200901797): DUI general impairment
            second offense — two to four years[’] incarceration to be
            served consecutive to the period of incarceration imposed
            at count three (CC 200900753);

               Count six (CC 200901797): driving while license
            suspended — sixty days[’] incarceration to be served
            concurrent to the period of incarceration imposed at count
            one (CC 200901797).

          Thus, the aggregate sentence was six to twelve years[’]
      incarceration. Appellant received credit at CC 200900753 from
      February 15-19, 2011; Appellant received credit at CC
      200901797 from January 22-February 13, 2009, and from
      February 15, 2011-July 19, 2011. Appellant was deemed RRRI
      eligible.

         Appellant filed a post[-]sentence motion on July 31, 2013,
      which was denied by the Trial Court on November 27, 2013. This
      timely appeal follows.

Trial Court Opinion (TCO), 5/22/14, at 2-4.

      Appellant now presents the following questions for our review:

       I.     Is a sentence illegal if Appellant fails to receive credit time
              when the credit was not applied to any other case?

      II.     Does a sentencing court abuse its discretion by imposing
              an excessive sentence without adequately addressing all
              required sentencing factors?

Appellant’s Brief at 9 (unnecessary capitalization omitted).

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     We begin with Appellant’s second issue in which he challenges the

discretionary aspects of the sentence imposed by the sentencing court.

           Challenges to the discretionary aspects of sentencing do
     not entitle an appellant to review as of right. Commonwealth
     v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

        [W]e conduct a four-part analysis to determine: (1)
        whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, see Pa.R.Crim.P. [720]; (3) whether
        appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
        (4) whether there is a substantial question that the
        sentence appealed from is not appropriate under the
        Sentencing Code, 42 Pa.C.S.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
     (internal citations omitted).   Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
     Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.
     Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
     A substantial question exists “only when the appellant advances
     a colorable argument that the sentencing judge's actions were
     either: (1) inconsistent with a specific provision of the
     Sentencing Code; or (2) contrary to the fundamental norms
     which underlie the sentencing process.” Sierra, supra at 912-
     13.

           As to what constitutes a substantial question, this Court
     does not accept bald assertions of sentencing errors.
     Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
     2006). An appellant must articulate the reasons the sentencing
     court's actions violated the sentencing code. Id.



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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

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

post-sentence motion, and provided a Rule 2119(f) statement in his brief.

Accordingly, it only remains for us to consider whether he presents a

substantial question for our review, and we conclude that he does.

Appellant claims his sentence was imposed without consideration of

statutory sentencing factors set forth in 42 Pa.C.S. § 9721(b) of the

Sentencing Code, particularly that the sentencing court failed to consider his

rehabilitative needs. A claim that a sentence is inconsistent with a specific

provision of the Sentencing Code presents a substantial question for our

review. See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super.

2010) (finding that a sentencing court’s failure to consider “Appellant’s

rehabilitative needs and the protection of society” raises a substantial

question).

      We now turn to the merits of Appellant’s claim. We review Appellant’s

sentence for an abuse of discretion:

      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. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.




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Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)

(citation omitted).

      Appellant contends that the sentencing court failed to consider his

rehabilitative needs when it sentenced him to 6 to 12 years’ incarceration.

Specifically, Appellant argues that his convictions stem from his addiction to

alcohol, which “had not been sufficiently treated” during his previous

incarceration for similar offenses.    Appellant’s Brief at 32 (citing N.T.,

7/24/13, at 8).       Appellant asserts that he “wanted a chance to obtain

appropriate treatment for his addiction with the support of his family, move

forward with his life, and become a productive member of society.” Id. at

32-33 (citing N.T., 7/24/13, at 10). He notes that no one was injured as a

result of his offenses, and yet he was sentenced in a manner far more

consistent with a conviction for homicide by vehicle, which carries a

maximum possible penalty of ten years’ incarceration. Id. at 32.

      The sentencing court rejected this claim, finding that “the record

clearly establishes that, prior to resentencing Appellant, the [court]

considered all relevant factors[.]”   TCO at 8.   The sentencing court then

referenced the following statement that it had made during Appellant’s

sentencing hearing:

           As to [Appellant], the Court has taken into account the
      Sentencing Guidelines. They'll be made part of the record. Also,
      the two Pre-sentence Reports as referenced earlier in this
      proceeding, one for Judge O'Toole in December of 1994, and the
      second for Judge Cashman in May 2011.



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           The Court understands the individualized sentence[ing
     scheme] instituted in Pennsylvania calls into play the
     [Appellant’s] background, which is detailed in the Pre-sentence
     Report, criminal history, of course, detailed in the Pre-sentence
     report, reflected in the prior record score, as reflected in the
     Guidelines.

           [The] Court takes into [account] its sentencing function
     mindful of the protection of the public, and gravity of the
     offenses, and impact on the community, as well as the
     rehabilitative needs of the defendant.

           The Court has taken into account the statement made on
     his behalf today by [counsel], including the consequences of his
     conduct, losing his home, not seeing, but hearing of his
     grandchildren being born, his attendance at AA classes, his age,
     his continued membership in the Carpenters Union, his work
     history reflected in the Pre-sentence Report, family support
     which he enjoyed in the past and apparently still does to the
     present day, although he has had a very tumultuous family life
     in a sense of his alcohol addiction has caused significant financial
     problems to himself and his family in that regard, also, his
     progress and history as an inmate to date.

           The Court notes in terms of his history, the driving under
     the influence convictions and episodes charged [and] detailed in
     the Pre-sentence Report, summarized in the end of the
     Presentence Report, the latest Pre-sentence Report, indicating
     that the defendant -- this is quoted from the Pre-sentence
     Report, not including the present ones, the ensuing three years,
     three decades, this is referring to his first -- his earlier
     convictions, that the defendant had been convicted of a total of
     11 times for that offense, and these two would be 12 and 13.

            The vehicle, his driving history is significant in terms of the
     violations that, again, the Pre-sentence Report, [Appellant’s]
     driving privileges have continuously been suspended since 1978.
     Since 1977 he's incurred numerous violations, including traffic
     light violation, chemical refusal eight times, exceeding maximum
     speed two times, driving under the influence nine times, reckless
     driving one time, driving while suspended or revoked ten times,
     not paying the fines, and driving under suspension, DUI related
     three times.

          As to that date, [the] 2011 date, his privileges were
     suspended until 2033. […]

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J-S58019-14


            The Court notes [Appellant’s] statement today; and
      certainly there is no question that the alcoholism has […] ruined
      your life. It so significantly negatively impacted it, that it has
      robbed you of a much more meaningful and productive life, not
      only in the work place, but in terms of your own family. Those
      consequences, of course, are your own.

            The Court in this instance notes that you have had the
      benefit of many different sentences, including probation,
      community supervision, intermediate punishment, incarceration
      at the local level, and, in fact, a period of incarceration at the
      State level for one to two years in Huntsdale. Yet you continue
      to re-offend.

            The Court in this instance believes that, while taking into
      account everything I have, that I have mentioned, and my
      [empathy] for you and your family, that in this instance his
      history is such that no matter what rehabilitative measures are
      available to you, you chose not to avail yourself to them. They
      had no effect, and […] you continue to drink; and you, also,
      continue to drive […].

            Taking all that into account, Mr. Caporal, the Court
      believes that, again, the protection of the public is a paramount
      interest here, has to be addressed here in light of your history
      and your refusal to stop drinking, and refusal to stop driving
      whether under the influence of alcohol or not.

             Clearly, you just disregarded every admonition and
      restriction put on you by the Department of Transportation or
      the courts at the Common Pleas level in Allegheny and other
      counties.

TCO at 8-10 (quoting N.T., 7/24/13, at 11-16).

      It is clear from the above statement that the sentencing court

adequately considered Appellant’s rehabilitative needs when fashioning his

sentence. It is equally apparent that Appellant’s extensive criminal history

and the threat he posed to the public substantially outweighed consideration

of his rehabilitative needs.   We, too, empathize with Appellant’s continued

battle with addiction. However, it must be noted that Appellant’s sentence

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does not reflect judgment about his affliction. Instead, his sentence is

directed at behaviors that arise out of his addiction, behaviors that continue

to put the safety of his fellow citizens at significant risk.     Under such

circumstances, we must conclude that the sentencing court did not abuse its

discretion in fashioning Appellant’s sentence.

      Appellant next claims that he is entitled to credit for time he spent

incarcerated prior to sentencing.   Specifically, Appellant contends he did not

receive credit for time served from 1/17/09 to 1/22/09 and from 7/19/11 to

7/24/11.   This matter is not in dispute.     The Commonwealth agrees that

Appellant is entitled to credit against the balance of his sentence for these

periods of incarceration.   Commonwealth’s Brief at 13-14.      The trial court

also agrees, stating that it “acknowledges that Appellant was inadvertently

not given credit at his resentencing for that time, and that this was in error.

Appellant’s sentence should be amended to include time credit from

[1/17/09 to 1/22/09], and [7/19/11 to 7/24/11].” TCO at 7. Accordingly,

we remand this case to allow the sentencing court to amend Appellant’s

sentencing order[s] to reflect credit for time served during these periods.

      Judgment of sentence affirmed in part, vacated in part.             Case

remanded for the amendment of the sentencing order(s) to reflect credit

for time served. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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