J-S29005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

CHARLES R. NINNESS,

                            Appellant                     No. 611 WDA 2015


          Appeal from the Judgment of Sentence Entered March 4, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0010291-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 24, 2016

        Appellant, Charles R. Ninness, appeals from the judgment of sentence

of an aggregate term of 3 to 6 years’ incarceration, imposed after he was

convicted of his tenth offense of driving under the influence of alcohol (DUI),

75 Pa.C.S. § 3802(b) (High rate of alcohol), and driving while operating

privileges are     suspended or         revoked, 75   Pa.C.S.   §   1543(b)(1.1)(i).

Appellant solely challenges the discretionary aspects of his sentence.          We

affirm.

        Appellant pled guilty to the above-stated offenses on December 10,

2014. On March 3, 2015, the court imposed Appellant’s sentences for the


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*
    Former Justice specially assigned to the Superior Court.
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offenses in this case.1 On that same date, the court also revoked terms of

probation Appellant was serving in unrelated cases and resentenced him on

those docket numbers.           Appellant filed timely post-sentence motions to

modify his sentence and to withdraw his plea, which were denied. He then

filed a timely notice of appeal, as well as a timely concise statement of

errors complained of on appeal. Herein, Appellant presents one issue for our

review:

       I. Did the trial court fail to adequately consider and apply all of
       the relevant sentencing criteria, including [Appellant’s] character
       and rehabilitative needs, the gravity of the offense, and the
       protection of the public, as required under 42 Pa.C.S.A. §
       9721(b) (sentencing generally) and 42 Pa.C.S.A. § 9725 (total
       confinement)?

Appellant’s Brief at 5 (unnecessary capitalization and emphasis omitted).

       Appellant’s single issue challenges the discretionary aspects of his

sentence.

       Accordingly, his right to appellate review is not absolute. See
       Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa. Super.
       2005); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
       Super. 2007) (“A challenge to the discretionary aspects of a
       sentence must be considered a petition for permission to
       appeal[.]”). The Rules of Appellate Procedure mandate that to
       obtain review of such claims, the appellant must include in his
       brief a Concise Statement of Reasons Relied Upon for Allowance
       of Appeal. See id.; see also Pa.R.A.P. 2119(f). The defendant's
____________________________________________


1
  On March 4, 2015, the court issued a second sentencing order correcting a
clerical error in the sentencing order entered on March 3, 2015. The caption
in this Court’s decision reflects the date on which the final, corrected
sentencing order was entered on the trial court’s docket.



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     Concise Statement must, in turn, raise a substantial question as
     to whether the trial judge, in imposing sentence, violated a
     specific provision of the Sentencing Code or contravened a
     “fundamental norm” of the sentencing process. See Fiascki,
     886 A.2d at 263; Commonwealth v. Ousley, 392 Pa.Super.
     549, 573 A.2d 599, 601 (1990) (citations and internal quotation
     marks omitted) (“[A]ppeals from the discretionary aspects of
     sentence are not to be granted as a matter of course, but ...
     only in exceptional circumstances where it can be shown in the
     2119(f) statement that despite the multitude of factors
     impinging on the sentencing decisions, the sentence imposed
     contravenes the sentencing code.”) The determination of
     whether a particular issue poses a substantial question is to be
     made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If
     the Rule 2119(f) statement is absent or if the statement
     provided fails to demonstrate a substantial question, this Court
     may refuse to accept the appeal. See id.

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).

      Here, Appellant has included a Rule 2119(f) statement in his brief.

Therein, he maintains that the sentencing court failed to adequately consider

the factors set forth in 42 Pa.C.S. § 9721(b), i.e., the protection of the

public, the gravity of the offense, and the rehabilitative needs of Appellant.

See Appellant’s Brief at 16-17; 42 Pa.C.S. § 9721(b). Appellant avers that

instead   of   assessing   these   factors,   the   court   “relied   primarily   on

[Appellant’s] criminal history when imposing the maximum sentence

allowable, and ignored copious mitigating evidence.” Id. at 17 (citations to

the record omitted). Additionally, Appellant contends that in fashioning his

sentence, the court “resorted to personal frustration, bias and ill-will, and

ignored [Appellant’s] rehabilitative needs and other mitigating evidence.”

Id. at 18 (citation and quotation marks omitted).




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      Based on the arguments presented in Appellant’s Rule 2119(f)

statement, and the case law on which he relies, we conclude that he has

presented a substantial question for our review.         See Commonwealth v.

Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (finding a substantial question

existed where Riggs argued “that the trial court failed to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense and [Riggs’] rehabilitative needs …, as 42 Pa.C.S. §

9721(b) requires, and instead focused on the injuries suffered by the

complaining victims”)). Accordingly, we will review the merits of his claims,

keeping in mind that,

      [t]he sentencing court is given broad discretion in determining
      whether a sentence is manifestly excessive because the
      sentencing judge is in the “best position to measure factors such
      as the nature of the crime, the defendant's character and the
      defendant's display of remorse, defiance, or indifference.”
      Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
      1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958
      (Pa. Super. 1997)). In order to find that a trial court imposed an
      “unreasonable” sentence, we must determine that the
      sentencing court imposed the sentence irrationally and that the
      court was “not guided by sound judgment.” Commonwealth v.
      Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).

Riggs, 63 A.3d at 786.

      Appellant begins by arguing that the sentencing court failed to

consider   his   “rehabilitative   needs    and    copious    mitigating   evidence.”

Appellant’s Brief at 19.    Specifically, he contends that the court failed to

adequately    consider    “that    [he]    had    completed    a   12-week    alcohol

rehabilitation program” while incarcerated, and that he had “developed a

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community-based treatment plan” through Justice Related Services (JRS).

Id. at 19, 23.   Appellant also avers that the court did not consider that,

while he previously had no familial or friend support, and at times had been

homeless, he had developed a friendship with an individual who was also

providing Appellant with housing. Id. at 23. Additionally, Appellant points

out that he had “recently been approved for Social Security” as of the date

of his sentencing hearing, which provided him further stability that the

sentencing court failed to take into account. Id. at 23.

      In sum, Appellant asserts that at the time of his sentencing hearing,

he had developed a

      stability [that] would have helped [him] successfully reacclimate
      to society after a lesser period of incarceration. Though some
      degree of punishment was necessary, a maximum sentence of
      total confinement was not.       A sentence through the State
      Intermediate Punishment program would have better attended
      to [Appellant’s] rehabilitative needs, and, by extension, the
      community’s safety.

Id. Appellant contends that rather than consider the appropriate, statutory

factors, the sentencing court fashioned his term of incarceration based on its

“personal frustration” toward him. In support, he cites several comments by

the court, including the court’s statement that Appellant was “59 years old

and [his] life has not really been much more than a waste….”                  N.T.

Sentencing, 3/3/15, at 12.

      Having   carefully   reviewed   the   record   of   Appellant’s   sentencing

proceeding, we ascertain no abuse of discretion by the court. Initially, we

stress that the court had the benefit of a presentence report and reviewed

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that report prior to the sentencing proceeding. Id. at 13. Additionally, the

trial court indicated that it had presided over a prior case of Appellant’s, and

had knowledge of him based thereon.         See id. at 12, 17.    The court also

listened to defense counsel discuss many of the mitigating factors Appellant

cites, supra.   See id. at 3, 4-5, 5-6 (counsel’s emphasizing Appellant’s

difficult life, his long term struggle with alcoholism, his mental and physical

health issues, lack of familial support, prior “bouts of homelessness,”

Appellant’s completion of a drug and alcohol rehabilitation program while

incarcerated, and his work with JRS to develop a “Service Plan” that would

provide Appellant with a “second level of support” when he was released into

the community).

      Appellant was also permitted to speak, and informed the court of his

remorse, as well as his determination to “now … be a productive member of

society.” Id. at 9. He also stated that he has a place to live, and will be

receiving social security benefits that will provide him with financial stability.

Id. at 9, 11. The court further heard Appellant’s comments regarding the

drug and alcohol program he completed, and his acknowledgments that he

“need[s] help” and he “really [does] want to change.” Id. at 11, 12.

      When Appellant concluded his statement by declaring that he does not

“want to waste [his] life[,]” the court responded, as follows:

      THE COURT: Well, you’re a little too late for not wasting your
      life. You’re 59 years old and your life has not really been much
      more than a waste, to be quite honest with you.



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Id. at 12.   While the court’s blunt response seems harsh, it tempered its

remark, and provided further explanation for Appellant’s sentence, in the

following exchange:

     THE COURT: There’s no way for me to state on the record what
     your circumstances are without seeming mean.

     [Appellant]: Okay.

     THE COURT: At this point in your life, it is what it is. Right?

     [Appellant]: Yes, yes.

     THE COURT: I mean, we are what … our whole entire past
     encompasses. And, you know, my issue with you, [Appellant] --
     and, again, I’ve told you this in the past -- nothing is personal.

           It’s really just looking at all of the attendant circumstances
     and trying to figure out what’s appropriate. But if you think that
     I sit here for a minute and believe that you didn’t have an
     opportunity for treatment, you’re nuts.

     [Appellant]: Oh, I had lots of opportunity.

     THE COURT: I see that.         You had many, many, many
     opportunities for treatment. You never availed yourself of them,
     ever.

           And there are many circumstances under which old DUIs
     and probations were closed without [your] even completing the
     steps because [you] weren’t interested.

           No one’s interested in that until they’re in jail. Then they
     want to attend all kinds of stuff [until] they hit the street again.

           And it’s amazing, when you tell me that 19 out of 22 years
     you were incarcerated, I don’t know that that’s the case. I
     certainly didn’t add it up. You still managed to rack up an
     astounding criminal record in that time period, in that time
     frame, on the brief periods that you’ve been out.

     …

     [W]hat basically the Pre-sentence Report points out is that
     you’re a career criminal. There’s no other nicer way to say it.

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     …

           Your criminal career continued unabated, other than
     incarceration. For the periods you were incarcerated, that was
     the only time period in which you seemed to be able to not pick
     up new charges, amazingly, while you were incarcerated.

           It seems to be the only time that you weren’t basically
     doing whatever you felt like doing, whether it was burglaries,
     thefts, retail thefts, assaults, and most concerning in this
     particular circumstance … would be the continuation of the
     drinking and driving and driving while under suspension.

           And at this point, this is DUI number 10, with the
     attendant 1543(b), driving under suspension DUI-related, while
     under the influence.

           And, you know, there comes a point, looking at all the
     rehabilitative factors, you know, looking at all the things that
     you could avail yourself of, I look at it as whether or not that
     appears to be something that would come to fruition and what
     takes the front seat here … is public safety.

           Every time you get behind the wheel of a car and you’re
     under the influence -- and you pointed out, it’s amazing that you
     haven’t hurt anyone. You’ve had three accidents, at least three
     that I can see in your Pre-sentence Report, related to driving
     under the influence.

     …

            On October 30, 2006, you pled guilty … [to] … charges [of]
     accidents involving death or injury, possession of drug
     paraphernalia, driving while your operating privileges were
     suspended or revoked, and reckless driving. And that was part
     of a larger plea deal along with three other cases that day.

            And then the Pre-sentence Report lists the various
     locations in which you have been involved in accidents. … All of
     the times you weren’t supposed to be driving and you were
     driving under suspension.

           So there comes a point, to me, where the public safety
     becomes the overwhelming issue, given that I think that the
     rehabilitative prospects are low, if not nonexistent, if I go based
     on the past history and compliance with terms of probation.


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Id. at 12-17. Additionally, before imposing Appellant’s sentence, the court

noted that only two months had passed between Appellant’s being released

from prison on another, unrelated charge and his committing the DUI

offense in this case. Id. at 17.

      Based on this record, we conclude that the sentencing court

adequately considered all of the mitigating circumstances and the section

9721(b) factors, including Appellant’s rehabilitative needs.       The court

stressed that its primary concern was public safety, which was completely

reasonable considering Appellant’s lengthy criminal history - including ten

DUI offenses - and his past failure to take advantage of rehabilitation

opportunities.   The court’s comments to Appellant did not demonstrate a

bias, ill-will, or prejudice against him; instead, the court’s remarks were

simply a blunt characterization of the circumstances Appellant, himself, had

created.    In sum, we      are    convinced that   the   court fashioned an

individualized sentence taking into account all of the statutory factors, the

above-stated circumstances of Appellant’s current case and his criminal

history, as well as the significant risk that Appellant poses to public safety

when not incarcerated. We ascertain no abuse of discretion in the ultimate

sentence imposed by the court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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