J-S74004-16


                                  2016 PA Super 238

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROBERT J. KEARNS

                            Appellant                    No. 192 EDA 2016


           Appeal from the Judgment of Sentence December 11, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000829-2012


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                        FILED NOVEMBER 07, 2016

        Robert J. Kearns (“Appellant”) appeals from the judgment of sentence

imposed on December 11, 2015, in the Court of Common Pleas of

Northampton County after this Court remanded the matter for resentencing

as to the length of the probationary period, which took Appellant’s sentence

beyond the statutory maximum.            On remand, the trial court remedied the

illegal sentence by eliminating the probationary period while retaining the

original upward departure sentence of six to twelve months’ incarceration for

third-degree misdemeanor theft by failure to make required disposition of

funds received.1 Appellant now contends his sentence is both illegal and the

product of the court’s abuse of sentencing discretion. We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.

(Footnote Continued Next Page)
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        We previously set forth the factual and procedural history of the case

as follows:


        On January 11, 2013, a jury convicted Kearns and his co-
        defendant, Patrick Joseph McLaine,[ ] of theft by failure to make
        required disposition of funds received.[ ] As will be discussed
        below, the court ultimately sentenced Kearns to a term of six to
        12 months’ incarceration, 12 months’ probation, a fine of
        $2,500.00, and restitution in the amount of $832,460.00.

        ***
        The facts and procedural history are as follows.[ ] Kearns and
        McLaine were the two principals of a company known as
        Municipal Energy Managers, Inc. (“MEM”). On July 2, 2007,
        Kearns and McLaine entered into a written contract with the
        Township of Bethlehem, a municipality in Northampton County
        (“Bethlehem Township”). The contract provided MEM would act
        as an agent for Bethlehem Township to facilitate the purchase of
        township street lights from the public utility company,
        Pennsylvania Power and Light (“PPL”)[, the purpose of which was
        to save the township money by accessing a lower utility rate for
        municipal-owned streetlights]. Kearns and McLaine drafted the
        contract and determined the total cost to do all work necessary
        for Bethlehem Township to purchase the street lights from PPL.
        A price of $1,001,230.00 was to be used to pay any and all costs
        of the purchase including, but not limited to, paying PPL for the
        transfer of the street lights. The contract provided performance
        was to occur within a period of 12 to 18 months, ending
        anywhere between July 2, 2008 and January 2, 2009, and was
        considered completed when ownership of the street lights was
        transferred from PPL to the township. Additionally, the contract
        stated the township would be receiving the lower utility rate by
        January of 2009. For its services, MEM was to receive a five
        percent commission of $50,060.00

        To begin performance, MEM requested Bethlehem Township pay
        them $832,460.00.    On July 3, 2007, Kearns and McLaine
                       _______________________
(Footnote Continued)
1
    18 Pa.C.S. § 3927.



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     received a check in the requested amount. On July 5, 2007, the
     check was deposited into a general corporate bank account in
     the name of MEM, which Kearns and McLaine jointly controlled.[ ]
     [With respect to the contract, there was no escrow requirement
     that Bethlehem Township’s funds be held separately from the
     rest of MEM’s other accounts. See N.T., 1/10/2013, at 162.]

     In October 2007, Kearns and McLaine wrote checks from the
     MEM general corporate account to themselves. Specifically, on
     October 1, 2007, a check was made payable to Kearns for the
     amount of $366,600.00. That same day, a check was issued to
     McLaine in the amount of $499,945.000, as well as a second
     check to McLaine in the amount of $109,059.00. All three
     checks were signed by both defendants. At trial, Kearns and
     McLaine testified these checks represented bonuses paid to
     themselves.

     On August 5, 2009, PPL sent a letter to Kearns, stating that it
     had learned MEM was performing unauthorized work on its
     streetlights. The letter identified Bethlehem Township as one of
     the affected municipalities.

     Despite receiving the funds, MEM did not contact PPL to initiate
     the transfer of street lights until August 10, 2009, eight months
     past the 18-month completion deadline, by sending a letter
     announcing its intent to purchase the streetlights.           On
     September 17, 2009, PPL sent a letter to MEM, outlining the
     estimated costs of the total project, which was to be
     $271,180.00, well below MEM’s estimate of $1,001,230.00. The
     letter also requested MEM make a deposit to PPL in the amount
     of $22,525.00 in order to initiate the process of the light
     transfer. Kearns and McLaine did not respond to PPL’s request
     or make the payment.           On October 5, 2009, MEM sent
     Bethlehem Township an invoice for $131,438.00. The township
     did not pay it.

     In January of 2010, a grand jury investigation was conducted in
     relation to this matter. On January 26, 2012, the grand jury
     returned a presentment, recommending the arrest of Kearns and
     McLaine on charges of theft by failure to make required
     disposition of funds received, misapplication of entrusted
     property, and criminal conspiracy.




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     A criminal complaint was then filed on February 16, 2012. As
     noted above, the two men were tried together. The joint jury
     trial began on January 7, 2013. On January 11, 2013, the jury
     found Kearns and McLaine guilty of theft by failure to make
     required disposition of funds received, but not guilty of the other
     two charges.

     On April 12, 2013, and April 19, 2013, Kearns and McLaine,
     respectively, were both sentenced to a term of 16 to 60 months’
     incarceration, 60 months of probation, and restitution in the
     amount of $832,460.00. The court graded the theft offense as a
     third-degree felony pursuant to 18 Pa.C.S. § 3903 (grading of
     theft offenses) on the basis that the value of the theft was in
     excess of $2,000.00.

     On April 24, 2013, Kearns and McLaine filed motions challenging
     the trial court’s grading of the offense as a third-degree felony
     pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000).
     They argued that the verdict slip could not support a felony
     conviction because it did not require the jury to determine the
     value of the property that gave rise to the convictions, i.e., the
     commencement check issued by Bethlehem Township. The trial
     court agreed and on May 31, 2013, granted the motion.

     On June 4, 2013, the court re-sentenced Kearns and McLaine
     with regard to the theft offense, grading it as a third-degree
     misdemeanor, and ordered them to serve a term of six to 12
     months’ incarceration, 60 months’ probation, a fine of
     $2,500.00, and restitution in the amount of $832,460.00.
     Subsequently, on June 13, 2013, Kearns and McLaine filed post-
     sentence motions, including a motion for reconsideration of
     sentence. On July 31, 2013, the trial court entered an order,
     modifying their sentences to a consecutive period of probation of
     12 months rather than 60 months. The remainders of their
     sentences were not changed. [Appellant’s] appeal followed.

Commonwealth       v.   Kearns,    No.    2480    EDA    2013,   unpublished

memorandum at 1-6 (Pa.Super. filed November 13, 2015).

     In addressing Kearns’ initial direct appeal, we rejected five issues

directed at his verdicts but deemed his challenge to the legality of sentence



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meritorious, for his aggregate two-year sentence, which included a one-year

probationary tail, exceeded the statutory maximum sentence of one-year

applicable to a misdemeanor of the third degree.           See 18 Pa.C.S. §

106(b)(8).     Accordingly, we vacated judgment of sentence and remanded

the matter “for re-sentencing as to the length of the probationary period.”

Kearns, at 32.       We came to the same decision and entered an identical

order in McLaine’s appeal.

       At Appellant’s and McLaine’s resentencing hearing, the Commonwealth

argued for the reinstatement of a statutory maximum six to twelve-month

sentence, but with no probationary tail, in accordance with this Court’s

memorandum decision.          N.T. 12/11/15, at 5-6.   The Commonwealth also

advised the court that it would object to any parole “because they’ve

[Appellant and McLaine] offered no restitution on this case whatsoever,

although they’ve been out and had that opportunity.” Id.

       Counsel for Appellant asked that the court consider, prior to

resentencing, his previous arguments calling for a standard range sentence

of restorative sanctions.2      Counsel for McLaine, meanwhile, suggested that

____________________________________________


2
  With an offense gravity score of one and a prior record score of zero, the
standard range applying to each of the defendants’ third-degree
misdemeanors was RS to RS, with an aggravated range of RS to three
months’ incarceration. N.T. 6/4/13 at 8. See 42 Pa.C.S.A. § 303.16(a).
Basic Sentencing Matrix (indicating M3 theft is with a prior record score of
zero is RS plus-or-minus three months.




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our decision could be read as a directive to eliminate either the probationary

period or the sentence of incarceration.         Counsel also informed the court

that he believed the guidelines called for restorative sanctions without

incarceration, and he objected to an upward departure, six to twelve-month

sentence of incarceration despite McLaine’s having “no prior record at all.”

Id., at 8.

        The Commonwealth responded:

        First of all, I don’t believe the Superior Court at all addressed the
        [trial court’s] decision to impose the maximum statutory offense
        permitted by law.         The whole appeal was based upon the
        consecutive probation that went beyond the twelve months.

        I think that [the trial court], you sat as the trial judge in this
        case. We’re talking about hundreds of thousands of dollars that
        were basically stolen by these two defendant. They have no
        remorse. They’re appealing all over the state with the same
        type of scheme that the jury found that they were involved with.

        And this court is not bound by those guidelines when it’s an
        egregious case. And I believe that you made a record on that,
        and certainly can make a record again, to impose the sentence
        that you intended, which was six to twelve months.

Id., at 9.

        The court agreed with the Commonwealth that elimination of the

probationary tail would satisfy the directive of this Court. After announcing

that it was adopting the “previous records made in all respects” at the prior

sentencing hearing, the court imposed a six to twelve-month sentence of

incarceration without any probationary tail.           Id., at 10.   On December 23,

2015,     the   trial   court   denied   Appellant’s    motion   for   reconsideration



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challenging, inter alia, the discretionary aspects of his sentence. This timely

appeal followed.

      Appellant raises the following issue for our review.

      1. WHETHER THE TRIAL COURT’S SENTENCE OF 6-12
         MONTHS       INCARCERATION     EXCEEDING     THE
         AGGRAVATING     RANGE    OF  THE   PENNSYLVANIA
         COMMISSION ON SENTENCING GUIDELINES AT 204 PA.
         CODE    §303.16(A)   FOR  A  CONVICTION   OF   A
         MISDEMEANOR THREE [M-3] THEFT BY FAILURE TO
         MAKE REQUIRED DISPOSITION OF FUNDS, TITLE 18
         Pa.C.S. § 3927(A) IS UNREASONABLE AND AN ABUSE
         OF DISCRETION?

Appellant’s brief at 7.

      As Appellant raises a challenge to the discretionary aspects of his

sentence, we note the applicable standard of review is as follows.

      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.

      ***
      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer
      to the defendant's prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa.Super. 2014)

(internal citations and quotation marks omitted).




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      An appellant is not entitled to the review of challenges to the

discretionary aspects of a sentence as of right.           Rather, an appellant

challenging the discretionary aspects of his sentence must invoke this

Court's jurisdiction.    We determine whether the appellant has invoked our

jurisdiction by considering the following four factors:

      (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. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

      The record reflects that Appellant timely filed a notice of appeal and

that he preserved this issue by including it in his post-sentence motion for

reconsideration.     Appellant has also included in his brief a statement

pursuant to Pa.R.A.P. 2119(f).      We now consider whether Appellant has

presented a substantial question for our review.

      What constitutes a substantial question must be evaluated on a case-

by-case basis.     Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super.

2003). 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.”



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Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). A claim that a

sentence is manifestly excessive might raise a substantial question if the

appellant's Rule 2119(f) statement sufficiently articulates the manner in

which the sentence imposed violates a specific provision of the Sentencing

Code or the norms underlying the sentencing process. Commonwealth v.

Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

       Appellant’s Rule 2119(f) statement presents the issue that the court’s

sentence was “manifestly excessive in light of the criminal conduct and is

inconsistent with the protection of the public and with the Defendant’s

rehabilitative needs.” Appellant’s brief at 11. Appellant asserts, also, that

the court abused its discretion when it resentenced him to “an aggravated

range”3 sentence for regraded offense when it originally identified no specific

aggravators upon sentencing him within the standard range for a third-

degree felony.4 As we discern within this statement a claim that insufficient
____________________________________________


3
  As noted, supra, Appellant’s sentence exceeds the aggravated range by
three months, making it an upward departure sentence. Appellant appears
to appreciate this fact, however, as we observe later within his statement
that he claims the sentence “exceeded the aggravated range.”
4
  Appellant fails to raise and develop this challenge in his argument section,
and so it is waived. Inferring the nature and contours of this claim from
Appellant’s rule 2119(f) statement, however, we conclude that argument
offered in its support would be devoid of merit.
      As noted above, the court downgraded Appellant’s offense from a
third-degree felony to a third-degree misdemeanor after granting his
Apprendi-based motion for reconsideration because the verdict slip did not
require the jury to determine the value of the property that gave rise to his
theft conviction. Advised by a new, corrected sentencing guideline sheet
(Footnote Continued Next Page)


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reasons supported Appellant’s upward departure sentence, we conclude it

raises a substantial question for our review. See, e.g., Commonwealth v.

Griffin, 804 A.2d 1, 8 (Pa.Super. 2002).

      In reviewing the court’s exercise of sentencing discretion, we refer to

Griffin, where we recognized:

      The sentencing court may, in an appropriate case, deviate from
      the guidelines by fashioning a sentence which takes into account
      the protection of the public, the rehabilitative needs of the
      defendant, and the gravity of the particular offense as it relates
      to the impact on the life of the victim and the community.
      [Commonwealth v. Eby, 784 A.2d 204 (Pa.Super. 2001)] at
      207. In doing so, the sentencing judge must state of record the
      factual basis and specific reasons which compelled him or her to
      deviate from the guideline ranges. Id. at 206. When evaluating
      a claim of this type, it is necessary to remember that the
      sentencing guidelines are advisory only. Id.

Griffin, 804 A.2d at 7–8.

                       _______________________
(Footnote Continued)

setting a range of RS plus-or-minus three months, and operating under a
reduced statutory maximum sentence of 12 months’ incarceration applicable
to a third-degree misdemeanor, the court deviated upward from the
guideline ranges by three months in imposing its six to 12 month sentence.
      Any contention under this record that the court’s imposition of a
standard range sentence on Appellant’s third-degree felony conviction
obligated it to sentence him in the standard range on his revised,
misdemeanor conviction is flawed. It was within the sound discretion of the
sentencing court, to consider trial evidence and victim impact statements at
sentencing and conclude that the circumstances and consequences of the
crime, while typical for a third-degree felony, were atypically egregious and
damaging for a third-degree misdemeanor. Accordingly, we would find no
abuse of discretion in the court’s decision to depart from a guideline range
sentence on Appellant’s third-degree misdemeanor.




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      At the resentencing hearing, the trial court imposed the same six to

twelve-month sentence of incarceration it imposed previously in its amended

sentence based on a corrected guideline sheet, but it did so without

reiterating the specific reasons that it offered at the original hearing in

support of an upward departure sentence. Instead, the court stated that it

was incorporating “the previous records made in all respects.”                   N.T.,

12/11/15, at 10.

      A   review   of   the   original   sentencing     hearing   shows    the   court

acknowledged receiving a presentence investigation report and a guideline

statement.    N.T., 4/19/13, at 2.        The court heard family statements in

mitigation, Appellant’s remorseful allocution, and counsel’s presentation of

Appellant’s singular attempts to rectify MEM and his willingness to work with

the bankruptcy trustee in a substantial way to maximize any restitution that

will be due. Id., at 5-34, 46-48.

      A county commissioner addressed the court, reminding it that,

because      of    Appellant’s    and       McLaine’s     theft    and      deliberate

misrepresentations, Bethlehem Township not only fails to own its streetlights

as promised and pays higher electric rates, as well, but also, as of 2013, has

paid $214,045.79 in interest payments on the $832,460 loan which the

defendants misappropriated. Id. at 36. The township, in fact, is scheduled

to make interest payments on the loan through 2027.               Id.    An additional

result of Appellant’s actions, according to the commissioner, was that the



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township had cut its workforce and left thirteen open positions vacant

through 2012. Id., at 35-38.

      The Commonwealth advised the court that it gave the defendants the

opportunity to make restitution in order to avoid prosecution, but Appellant

and McLaine made none. Id., at 41-44. Nor did the defendants offer any

restitution between their January verdicts and April sentencing hearing,

according to the prosecutor.     Id.   Future restitution also seemed doubtful,

the prosecutor concluded, given the defendants’ bankruptcy filings and the

defensive postures they assumed in various civil actions filed against them,

where they have made no offers of settlement. Id.

      Prior to announcing sentence, the court stated that it was confounded

by how a man so important to both his family and community could risk

everything by not only engaging in the conduct underlying the offense but

also avoiding responsibility post-verdict by avoiding serious efforts at

restitution.   Id., at 48-52.   The court, therefore, felt justified in departing

three months upwards from the guideline ranges given both the magnitude

of the deception perpetrated and the substantial economic burden assumed

by tens of thousands of residents, particularly in the absence of any

restitution as of the date of sentencing. Id., at 42-43.

      The notes of testimony from Appellant’s original sentencing hearing

demonstrate that the court fashioned its sentence in adherence to the

principles discussed in Griffin.    At the post-remand resentencing hearing,

the court specifically referenced the past sentencing hearing record and

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incorporated it for purposes of resentencing Appellant to the same six to

twelve-month sentence of incarceration minus a probationary period.

Accordingly, we reject Appellant’s claim alleging that the court failed to

provide a factual basis and state specific reasons supporting his upward

departure sentence.

     Judgment of sentence is AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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