J-S48035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

BRITTANY ANN RASKOWSKY

                        Appellant                 No. 241 WDA 2015


         Appeal from the Judgment of Sentence of January 9, 2015
             In the Court of Common Pleas of Mercer County
            Criminal Division at No.: CP-43-CR-0001680-2013


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                     FILED SEPTEMBER 22, 2015

      Brittany Ann Raskowsky appeals her January 9, 2015 judgment of

sentence. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

      On August 9, 2013, [Raskowsky] was operating a motor vehicle
      on Old Ash Road in Springfield Township, Mercer County just
      before midnight when she left the road. She went approximately
      240 feet off the road, through [two] fences before striking
      [three] people. Instead of stopping, she continued on until the
      vehicle was stopped by witnesses.

      Austin Rife, age [fifteen], died as a result of being struck by
      [Raskowsky.] His mother, Stephanie Rife, sustained a broken
      arm. The third victim, Aimee Dibbs, sustained minor injuries.

      [Raskowsky’s blood alcohol content] was 0.212%.

      [Raskowsky] was charged with homicide by vehicle-DUI related;
      homicide by vehicle; involuntary manslaughter; DUI; aggravated
      assault by vehicle-DUI related; aggravated assault by vehicle;
      aggravated assault; aggravated assault involving death or
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       personal injury; and [five] counts of recklessly endangering
       another person.

       [Raskowsky] was ordered held for trial on all counts on
       November 21, 2013, following a preliminary hearing before
       Magisterial District Judge Lorinda Hinch.

       On October 31, 2014, [Raskowsky] pled guilty to homicide by
       vehicle-DUI related; aggravated assault by vehicle-DUI related;
       and a consolidated count of recklessly endangering another
       person pursuant to an Alford plea.[1]

       [Raskowsky] was sentenced on January 9, 2015 to not less than
       [three] years’ imprisonment nor more than [eight] years on the
       charge of homicide by vehicle-DUI related; a consecutive
       sentence of not less than [two] years’ imprisonment nor more
       than [eight] years on the charge of aggravated assault-DUI
       related; and a concurrent sentence of not less than [six] months’
       imprisonment nor more than [two] years on the charge of
       recklessly endangering another person. All [three] sentences
       were in the standard range of the sentencing guidelines.

Trial Court Opinion (“T.C.O.”), 3/10/2015, at 1-2 (minor grammatical

changes made for clarity).

       On January 20, 2015, Raskowsky filed a post-sentence motion to

modify her sentence, which the trial court denied on the same day.2        On

February 5, 2015, Raskowsky filed a notice of appeal. On February 6, 2015,

the trial court ordered Raskowsky to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Raskowsky timely



____________________________________________


1
       See North Carolina v. Alford, 400 U.S. 25 (1970).
2
     Raskowsky’s post-sentence motion was timely, as January 19, 2015
was Martin Luther King Day.



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complied.     On March 10, 2015, the trial court filed a Pa.R.A.P. 1925(a)

opinion.

      Raskowsky raises one issue for our review: “Whether the trial court

abused its discretion in giving [Raskowsky] consecutive sentences?”       Brief

for Raskowsky at 5 (capitalization modified for clarity).

      Our 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.

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

(citation omitted).

      The right to challenge the discretionary aspects of sentencing is not

absolute.    Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super.

2010).

      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; (2)
           whether the issue was properly preserved at sentencing or
           in a motion to reconsider and modify sentence; (3)
           whether appellant’s brief has a fatal defect; and (4)
           whether there is a substantial question that the sentence
           appealed from is not appropriate under the Sentencing
           Code.


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Id. at 170 (internal citations omitted).

         Raskowsky has complied with the first two parts of the test by filing a

timely notice of appeal and preserving the issue in her post-sentence

motion. Raskowsky also has included a Pa.R.A.P. 2119(f) statement in her

brief.     Therefore, we must determine whether Raskowsky has raised a

substantial question.

         A substantial question will be found where an appellant advances
         a colorable argument that the sentence imposed is either
         inconsistent with a specific provision of the Sentencing Code or is
         contrary to the fundamental norms which underlie the
         sentencing process. At a minimum, the Rule 2119(f) statement
         must articulate what particular provision of the code is violated,
         what fundamental norms the sentence violates, and the manner
         in which it violates that norm.

Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)

(citation omitted).

         In her Rule 2119(f) statement, Raskowsky argues that her sentence is

contrary to fundamental norms that underlie the sentencing process because

the trial court imposed two of her sentences consecutively.          She submits

that this constitutes an abuse of the court’s discretion.         Therefore, she

maintains that she has raised a substantial question, sufficient to invoke our

jurisdiction. Brief for Raskowsky at 4.

         [T]he imposition of consecutive rather than concurrent sentences
         lies within the sound discretion of the sentencing court.
         Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super.
         2005), (citing Commonwealth v. Hoag, 665 A.2d 1212, 1214
         (Pa. Super. 1995)). Long standing precedent of this Court
         recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court
         discretion to impose its sentence concurrently or consecutively

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       to other sentences being imposed at the same time or to
       sentences already imposed. Commonwealth v. Marts, 889
       A.2d 608, 612 (Pa. Super. 2005) (citing Commonwealth v.
       Graham, 661 A.2d 1367, 1373 (Pa. Super. 1995)). A challenge
       to the imposition of consecutive rather than concurrent
       sentences does not present a substantial question regarding the
       discretionary aspects of sentence. Lloyd, 878 A.2d at 873. “We
       see no reason why [a defendant] should be afforded a ‘volume
       discount’ for his crimes by having all sentences run
       concurrently.” Hoag, 665 A.2d at 1214.

       However, we have recognized that a sentence can be so
       manifestly excessive in extreme circumstances that it may
       create a substantial question. Commonwealth v. Moury, 992
       A.2d 162, 171-72 (Pa. Super. 2010).          When determining
       whether a substantial question has been raised, we have focused
       upon “whether the decision to sentence consecutively raises the
       aggregate sentence to, what appears upon its face to be, an
       excessive level in light of the criminal conduct in this case.”
       Commonwealth v. Mastromarino, 2 A.3d 581, 588 (quoting
       Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599
       (Pa. Super. 2010)).

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (some

citations omitted; footnote omitted).

       In Commonwealth v. Dodge (“Dodge I”), 859 A.2d 771, 778 (Pa.

Super. 2004),3 Dodge was sentenced to a minimum of fifty-eight and one-

half years’ imprisonment for “two counts of burglary (neither of which

____________________________________________


3
      Although the Pennsylvania Supreme Court vacated our opinion in
Dodge I, see Commonwealth v. Dodge, 935 A.2d 1290 (Pa. 2007), we
conducted the same analysis and reached the same conclusion regarding the
substantial question inquiry in Commonwealth v. Dodge, 957 A.2d 1198
(Pa. Super. 2008), and again in Commonwealth v. Dodge, 77 A.3d 1263
(Pa. Super. 2013). In each instance, we concluded that Dodge’s consecutive
sentences were manifestly excessive, and, therefore, that he had raised a
substantial question sufficient to invoke our jurisdiction.



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involved violence toward a person), one count each of paraphernalia and

possession of a small amount of marijuana, and [thirty-seven] counts of

receiving stolen property.”    The thirty-seven counts of receiving stolen

property accounted for fifty-two years, or eighty-eight percent, of the

aggregate sentencing total. Id. at 779. Dodge was forty-two years old at

the time of his sentencing.         In concluding that his sentence raised a

substantial question, we reasoned that his sentence effectively was a life

sentence, as Dodge would be in prison until the age of 100.          Id.     When

compared to the nature of the non-violent, petty theft crimes, this Court

found Dodge’s aggregate sentence to be manifestly excessive. Having found

that Dodge raised a substantial question, we then reviewed the merits of his

appeal.

     This case in no way resembles the extreme circumstances in Dodge.

Raskowsky’s sentence is not manifestly excessive given her criminal

conduct, which had fatal consequences. The trial court imposed consecutive

standard-range   sentences    for    homicide   by   vehicle   DUI-related    and

aggravated assault by vehicle DUI-related.           Based upon Raskowsky’s

aggregate sentence of five to sixteen years’ imprisonment, she will be thirty-

one years old when she is eligible for release. This does not equate to the

“life-sentence” that we found problematic in Dodge.

     A trial court’s imposition of consecutive, rather than concurrent,

sentences may raise a substantial question “only [in] the most extreme

circumstances, such as where the aggregate sentence is unduly harsh

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considering the nature of the crimes and the length of imprisonment.”

Moury, 992 A.2d at 171-72.         This case does not present such a

circumstance.   Raskowsky has not raised a substantial question that her

sentence is contrary to the fundamental norms which underlie the

sentencing process, and we do not reach the merits of her appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2015




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