J-A32015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT ANTHONY KOLOVICH                    :
                                               :
                       Appellant               :   No. 290 MDA 2017

            Appeal from the Judgment of Sentence January 12, 2017
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0002818-2014,
                            CP-22-CR-0004099-2014


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 03, 2018

        Robert Anthony Kolovich appeals from the judgment of sentence

imposed on January 12, 2017, in the Court of Common Pleas of Dauphin

County, following his conviction by jury of two counts of theft by deception.1

He received an aggregate sentence of 48 to 96 months’ incarceration plus

$24,550.00 restitution.        Kolovich is RRRI eligible, resulting in a possible

minimum time of incarceration of 36 months. In this timely appeal, Kolovich

raises a single claim that the trial court imposed a manifestly excessive

sentence, that was outside of guidelines ranges, and which was based solely

upon the nature of the crimes. After a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm.
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 3922(a)(1).
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       Kolovich was a contractor who took substantial amounts of money from

two separate victims for home repairs, and then failed to fulfill his contractual

duties. See Trial Court Opinion, 5/8/2017, at 3-4. He had committed similar

crimes in several other counties,2 although he had not been convicted of those

crimes at the time of his arrest. He was apprehended in Dauphin County only

when one of his victims, the Verbecken family, told him they had an additional

$4,000 to pay him. When he arrived to collect that money, he was arrested

by the police, who were waiting for him. As noted above, he was convicted

by a jury of two counts of theft by deception, both third degree felonies, and

was sentenced to 24 to 48 months’ incarceration for each count, to run

consecutively.     The standard range applicable to Kolovich was restorative

sanctions to 9 months’ incarceration.            The aggravated range minimum

sentence provided for 12 months’ incarceration. Accordingly, the 24-month

minimum sentences imposed represent twice the minimum range aggravated

sentence.

       Before we begin a substantive analysis of Kolovich’s claim, we note that

he has challenged the discretionary aspect of his sentence. Such a challenge

requires the appellant demonstrate his or her claim raises a substantial

question. In order to do so, “appellant need only make a plausible argument

that a sentence is contrary to the Sentencing Code or the fundamental norms

____________________________________________


2 By the time of sentencing in this matter, Kolovich had been convicted in
Snyder, Bradford and Mifflin Counties. He had similar charges pending in
several other counties. We are unaware of the resolution of those charges.

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underlying the sentencing process.” Commonwealth v. Mouzon, 812 A.2d

627-28 Pa. 2002) (quoting Commonwealth v. Goggins, 748 A.2d 721 (Pa.

Super. 2000).

       Here, Kolovich raises two reasons why his sentence violates the

fundamental norms of the sentencing process. First, he claims the two to four

year sentences for each count are each double the aggravated range sentence

and are accordingly manifestly excessive.3            That the sentences are

consecutive to each other only serves to heighten the excessive nature of

them. Next, he claims the trial court focused solely on the nature of the crime,

rather than considering all the appropriate sentencing factors. Each of these

reasons provides a substantial reason,4 thereby allowing this Court to address

the substance of Kolovich’s claims.

       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

____________________________________________


3 In his Pa.R.A.P. 2119(f) statement, Kolovich lists other reasons, however
they are essentially restatements of this first reason. See Appellant’s Brief,
Rule 2119(f) Statement at 15-19. Accordingly, we need not address them
separately.

4  See Commonwealth v. Gibson, 716 A.2d 1275 (Pa. Super. 1998)
(allegation sentence is outside of the guidelines and unreasonable is
reviewable); Commonwealth v. Wise, 848 A.2d 932 (Pa. Super. 2004)
(when a sentencing court makes the decision to deviate from the sentencing
guidelines, it is especially important that the court consider all factors relevant
to the determination of a proper sentence).

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      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. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005).

      Further, pursuant to statute, upon review, our Court is required to

vacate a sentence and remand with instructions, if the trial court has imposed

a sentence “outside the sentencing guidelines and the sentence                   is

unreasonable.” 42 Pa.C.S. § 9781(c)(3).

      Although Kolovich presents two arguments why his sentence is

improper, those arguments are intertwined. If the trial court considered the

proper factors in issuing the sentence, then it stands to reason that the

sentence is not, by itself, excessive to the point of requiring that it be vacated.

      A review of the certified record belies Kolovich’s assertion that the trial

court based the sentence only on the nature of the crime. We begin by noting

that the trial court was supplied with and was familiar with a presentence

investigation report (PSI).

      “Where [a PSI] exist[s], we [ ] presume that the [trial court] was
      aware of relevant information regarding the defendant's character
      and weighed those considerations along with mitigating statutory
      factors. A [PSI] constitutes the record and speaks for itself.”

Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016) quoting

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014). This

fact, alone, puts to rest Kolovich’s claim regarding the failure to consider

appropriate factors.




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        However, the certified record further demonstrates the trial court’s

proper consideration of Kolovich’s circumstances.         We note the trial court

heard from one victim in each case, who briefly described how Kolovich’s

crimes had adversely impacted their lives.5         Although the trial court noted

Kolovich’s modus operandi was to collect money from the elderly and then fail

to perform the home repairs,6 no sentencing enhancement regarding crimes

against the elderly was applied. Accordingly, it was proper for Judge Cherry

to consider the ages of the victims and the effect the crimes had upon their

quality of life. The trial court was aware Kolovich avoided his victims until one

of them lured Kolovich into responding.          Further, the trial court knew and

properly considered the fact that Kolovich had been convicted of similar crimes

in three other counties. Because of the timing of the convictions, they did not

affect his prior record score, which was zero at sentencing.          Accordingly,

consideration of those crimes does not represent a double counting of factors.

The trial court heard Kolovich’s statement made at sentencing (in which he

essentially blamed being prosecuted in other jurisdictions as the reason for


____________________________________________


5 Mr. Verbecken testified at sentencing that he was 71 years old, had been
retired for 23 years, and was forced to obtain part-time work to help make up
for the lost funds. He was also unable to take his grandchildren on a return
trip to Disney World. See N.T. Sentencing, 1/12/2017, at 3-4. Arlene
Stottlemeyer testified as to her anger at having been defrauded, but was
grateful he had only obtained a deposit from them. Nevertheless, she noted
the crimes had affected her plans, dreams and goals for herself, her children
and grandchildren. Id. at 4-5.

6   See Trial Court Opinion at 4.

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his failure to perform the contracts or return funds). See N.T. Sentencing,

1/12/2017 at 6-7. The trial court also noted a lack of remorse for his actions

and found nothing in the PSI to indicate any level of mitigation. Id. at 13.

      Our review of the certified record demonstrates the trial court properly

considered relevant factors, not simply the nature of the crime, in imposing

sentence upon Kolovich. While the sentence is undisputedly well above the

aggravated range, the trial judge demonstrably weighed the relevant

information before him and issued a sentence that was supported by the

record. As such, Kolovich’s argument must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




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