J. A34010/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                      v.                     :
                                             :
WALTER R. SCHWEIZER,                         :          No. 369 MDA 2014
                                             :
                           Appellant         :


        Appeal from the Judgment of Sentence, December 20, 2013,
                in the Court of Common Pleas of York County
             Criminal Division at No. CP-67-CR-0008282-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED APRIL 14, 2015

      Appellant      appeals   his     judgment   of   sentence,   challenging   the

discretionary aspects of that sentence. Finding no merit, we affirm.

      Appellant was charged with driving under the influence of alcohol

(“DUI”) and related offenses as a result of a single vehicle motorcycle

accident in Shrewsbury Township on July 19, 2012. Appellant fled the scene

of the accident on foot, but was discovered by police nearby in an

intoxicated state.

      On February 14, 2013, appellant entered a guilty plea. However, on

April 29, 2013, on the advice of new counsel, appellant filed a motion to

withdraw his guilty plea. Apparently, appellant was subsequently permitted
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to withdraw his plea.1 On October 11, 2013, a jury convicted appellant of

DUI -- general impairment, DUI -- highest rate of alcohol, and immediate

notice of accident to police department.2

        On December 20, 2013, the court sentenced appellant for the DUI --

highest rate of alcohol conviction to 8 months’ to 5 years’ imprisonment

(county jail), a sentence within the standard range of the Sentencing

Guidelines. The court was apprised by a pre-sentence investigative report.

(Notes of testimony, 12/20/13 at 1; 1/22/14 at 9.)              Appellant filed a

post-sentence motion on December 30, 2013, seeking a reduction of his

sentence.     At a hearing on that motion, the court made the following

underlined remarks which form the basis of appellant’s present appeal:

              However, the Defendant then consulted with
              different counsel and chose to withdraw his guilty
              plea and exercise his right to trial, and he absolutely
              has the right to exercise his right to trial, and we
              note that, and we would never consider punishing an
              individual for going to trial. We just don’t do that.
              We think it’s their constitutional right. They have
              the right to enforce [sic] the Commonwealth to do
              that.

                    However, we do think that we can, particularly,
              in an instance where someone pleads guilty and then
              decides essentially to go to trial and roll the dice, we

1
  We can find no order in the record permitting appellant to withdraw his
plea. A hearing was held on the motion on May 1, 2013, but the court
merely continued sentencing until the Commonwealth had an opportunity to
review the motion. Thereafter, the court held status hearings at which the
case was continued, but the motion to withdraw the plea was not addressed.
Ultimately, a jury trial commenced on October 10, 2013.
2
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3746, respectively.


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            think we can take that as an indication from their
            standpoint that they’re attempting to avoid
            responsibility for the criminal act for which they have
            committed, and that can show, also, a lack of
            remorse on the Defendant’s part, and we think that
            those are appropriate considerations.

Notes of testimony, 1/22/14 at 9-10.3

     On appeal, appellant challenges the discretionary aspects of his

sentence.

            A challenge to the discretionary aspects of a
            sentence must be considered a petition for
            permission to appeal, as the right to pursue such a
            claim is not absolute. Two requirements must be
            met before we will review this challenge on its
            merits. First, an 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 a sentence. Second, the appellant must
            show that there is a substantial question that the
            sentence imposed is not appropriate under the
            Sentencing Code. 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 trial court inconsistent with the
            Sentencing Code or contrary to the fundamental
            norms underlying the sentencing process.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014),

quoting Commonwealth v. Bowen, 55 A.3d 1254, 1262-1263 (Pa.Super.

2012), appeal denied, 64 A.3d 630 (Pa. 2013).




3
  The underlined portion is quoted in appellant’s brief at 23. We have
included a fuller quote to give a better sense of what the trial court was
stating.


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     Appellant’s    brief   does   contain   the   requisite    concise   statement.

Therein, appellant argues that the trial court relied upon an impermissible

factor in crafting his sentence.       Appellant argues that the trial court

improperly relied upon his decision to withdraw his plea and proceed to jury

trial as a reason to impose an excessive sentence.             We note that such a

claim has been found to raise a substantial question and we will, therefore,

consider the merits of appellant’s claim. Commonwealth v. Allen, 24 A.3d

1058, 1064-1065 (Pa.Super. 2011).

           Our standard of review of a challenge to the
           discretionary aspects of sentence is well-settled:

                   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.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014),

quoting Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super.2007).

     Appellant argues that he has been given an excessive sentence

because he exercised his constitutional right to trial. Appellant relies upon

the following holding by our supreme court:




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                   We believe the [Commonwealth v.] Staley[,
            324 A.2d 393 (Pa.Super. 1974)] principle that a
            demand for a jury trial is not a factor which warrants
            escalating the severity of a sentence is sound. That
            principle is premised primarily upon the rationale
            that the right to a trial by jury is a fundamental one,
            constitutionally    guaranteed       to    all   criminal
            defendants, and that a practice which exacts a
            penalty for the exercise of the right is without
            justification and unconstitutional. The price exacted
            by imposing a harsher sentence on one who chooses
            to put the state to its proof by a jury trial rather than
            plead guilty is obvious. Not only is the individual
            defendant penalized for the present exercise of his
            constitutional right but, should the practice become
            sufficiently well known within a given jurisdiction, a
            substantial chilling effect on the exercise of the right
            would inevitably ensue.

                                     ....

            Accordingly, we reaffirm the Superior Court’s holding
            in   Commonwealth         v.   Staley    that    it is
            constitutionally impermissible for a trial court to
            impose a more severe sentence because a defendant
            has chosen to stand trial rather than plead guilty.

Commonwealth v. Bethea, 379 A.2d 102, 104-105 (Pa. 1977).

      We find no error under Bethea. Appellant misperceives what behavior

the trial court was considering when it crafted appellant’s sentence. In the

fuller quotation that we have provided, it is quite clear that the trial court

was well aware that it is impermissible to consider a defendant’s choice to go

to trial rather than plead guilty as a sentencing factor.      Rather, the trial

court simply interpreted appellant’s choice to first plead guilty and then

withdraw the plea as a failure to take responsibility for appellant’s crime and

a lack of remorse.       Lack of remorse is a proper sentencing factor.


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Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa.Super. 2009).               We

see no error in this.

      Moreover, we cannot find that appellant’s sentence was excessive.

The sentencing range for appellant under the standard range of the

Sentencing Guidelines was 90 days’ to 9 months’ imprisonment. (Notes of

testimony, 12/20/13 at 9.) Appellant’s minimum sentence of 8 months was,

therefore, within the standard range.    This court has previously held that

“where the sentencing court imposed a standard-range sentence with the

benefit of a pre-sentence report, we will not consider the sentence

excessive.”    Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super.

2011). As previously noted, the trial court was apprised of a pre-sentence

investigative report. Since appellant’s sentence was not excessive, we find

no prejudice to appellant by the court’s consideration of his lack of remorse.

      Accordingly, we shall affirm the judgment of sentence.

      Judgment of sentence affirmed.

Shogan, J. joins the Memorandum.

Stabile, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2015



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