J-S38043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL J. WARE

                            Appellant               No. 2931 EDA 2015


            Appeal from the Judgment of Sentence August 20, 2015
               In the Court of Common Pleas of Wayne County
             Criminal Division at No(s): CP-64-CR-0000029-2015


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JULY 11, 2016

        Appellant Michael J. Ware appeals from the judgment of sentence

entered in the Wayne County Court of Common Pleas following his open

guilty plea to three counts of involuntary manslaughter and three counts of

recklessly endangering another person (“REAP”).1 We affirm.

        On August 30, 2014, Appellant allowed his unlicensed 15-year-old

daughter (“J.W.”) to drive his vehicle with another minor, R.A.K. J.W. and

R.A.K. subsequently picked up four teenage boys as passengers. J.W. lost

control of the vehicle on a turn and crashed. Three of the teenage boys died

as a result of the accident.

____________________________________________


1
    18 Pa.C.S. §§ 2504 and 2705, respectively.
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       The trial court further provides:

          [Appellant] stood at the scene of a vehicular accident that
          left three teenage boys dead and told police that he did
          not know his underage daughter took his vehicle. Despite
          his daughter taking full responsibility for the accident,
          [Appellant] did not confess to investigating officers that he
          had given his underage daughter permission to drive his
          vehicle. It was not until two and a half months after the
          accident when police learned the truth. In a signed written
          statement from [J.W.],[2] police learned that [Appellant]
          had given his underage daughter permission the day of the
          accident to drive his vehicle with her friend. It is uncertain
          whether [Appellant] would eventually have divulged the
          truth; however, the likelihood is low based on [Appellant’s]
          self-seeking behavior and lack of remorse.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 24, 2015, at 2-3.

       On July 9, 2015, Appellant pled guilty to the aforementioned

convictions in exchange for the seven additional charges against him being

nolle prossed. In his written guilty plea colloquy, Appellant indicated that he

understood the judge had the power to sentence him to a maximum of five

years’ incarceration for each of his involuntary manslaughter convictions and

a maximum of two years’ incarceration for each of his REAP convictions. He

also indicated that he understood the judge had the power to impose his

sentences consecutively, resulting in a possible aggregate sentence of 21

years’ incarceration.


____________________________________________


2
 The trial court indicated at sentencing that R.A.K., not J.W., incriminated
Appellant.



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       On    August    20,   2015,     after   reviewing     Appellant’s   pre-sentence

investigation (“PSI”) report, a letter from Appellant, letters from Appellant’s

friends and family, and letters from the victims’ families, the trial court

sentenced Appellant to 20-40 months’ incarceration for each of his

involuntary manslaughter convictions and 6-24 months’ incarceration for

each   of    his   REAP    convictions.        The   court    imposed   the   sentences

consecutively, which resulted in an aggregate sentence of 78-192 months’

(6½-16 years’) incarceration.

       On August 31, 2015, Appellant filed a motion to modify sentence, 3

which the trial court denied the same day.                   On September 30, 2015,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant raises the following issues for our review:

            WHETHER THE TRIAL COURT ERRED AS A MATTER OF
            LAW, ABUSE[D] ITS DISCRETION, AND VIOLATE[D]
            GENERAL   SENTENCING    PRINCIPLES,  WHEN[]   IT
            SENTENCED [APPELLANT], FOLLOWING A GUILTY PLEA,
            TO THE MANIFESTLY EXCESSIVE 20 MONTHS TO 40
            MONTHS [OF] INCARCERATION ON EACH OF THREE
            COUNTS OF INVOLUNTARY MANSLAUGHTER TO BE
            SERVED CONSECUTIVELY, AND SIX MONTHS TO 24
            MONTHS [OF] INCARCERATION ON EACH OF THREE
            COUNTS OF RECKLESSLY ENDANGERING ANOTHER
            PERSON TO BE SERVED CONSECUTIVELY FOR A TOTAL OF
            78 MONTHS TO 192 MONTHS[’ INCARCERATION]?

____________________________________________


3
 Because August 30, 2015 fell on a Sunday, Appellant’s post-sentence
motion, filed Monday, August 31, 2015, was timely. See 1 Pa.C.S. § 1908.



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         WHETHER THE [TRIAL] COURT ERRED BY SENTENCING
         [APPELLANT] IN THE AGGRAVATED RANGE OF THE
         SENTENCING GUIDELINES BASED ON [APPELLANT’S]
         FAILURE TO COOPERATE WITH THE POLICE, WHICH IS
         HIS CONSTITUTIONAL RIGHT UNDER THE 5TH AMENDMENT
         AGAINST SELF INCRIMINATION[?]

Appellant’s Brief at 5.

      In his combined issues, Appellant challenges the discretionary aspects

of his sentence.   Challenges to the discretionary aspects of sentencing do

not entitle a petitioner to review as of right. Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).           Before this Court can address such a

discretionary challenge, an appellant must invoke this Court’s jurisdiction by

satisfying the following four-part test:

      (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.

Id.

      Instantly, Appellant preserved his issue in a post-sentence motion,

filed a timely notice of appeal and included in his brief a concise statement

of reasons relied upon for allowance of appeal with respect to the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).       See

Appellant’s Brief at 12.   Thus, we must determine whether Appellant has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.


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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”            Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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.

Id. (internal citations omitted).

      We observe:

         a defendant may raise a substantial question where he
         receives consecutive sentences within the guideline ranges
         if the case involves circumstances where the application of
         the guidelines would be clearly unreasonable, resulting in
         an excessive sentence; however, a bald claim of
         excessiveness due to the consecutive nature of a sentence
         will not raise a substantial question. See Commonwealth
         v. Moury, 992 A.2d 162, 171–172 (Pa.Super.2010) (“The
         imposition of consecutive, rather than concurrent,
         sentences may raise a substantial question in only the
         most extreme circumstances, such as where the aggregate
         sentence is unduly harsh, considering the nature of the
         crimes and the length of imprisonment.”)

Commonwealth         v.   Dodge,      77    A.3d    1263,   1270   (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(internal citations omitted) (emphasis in original).

      “[O]rdinarily, a claim that the sentencing court failed to consider or

accord proper weight to a specific sentencing factor does not raise a

substantial question.”    Commonwealth v. Berry, 785 A.2d 994, 996-97

(Pa.Super.   2001)    (internal     citation     omitted)   (emphasis   in   original).



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However,     “reliance   on   impermissible   sentencing   factors   can   raise   a

substantial question.” Dodge, 77 A.3d at 1273 (citing Commonwealth v.

Roden, 730 A.2d 995 (Pa.Super.1999)).

      Additionally:

           In determining whether a substantial question exists, this
           Court does not examine the merits of whether the
           sentence is actually excessive. Rather, we look to whether
           the appellant has forwarded a plausible argument that the
           sentence, when it is within the guideline ranges, is clearly
           unreasonable.    Concomitantly, the substantial question
           determination does not require the court to decide the
           merits of whether the sentence is clearly unreasonable.

Id.

      Appellant argues the trial court relied on unreasonable and inaccurate

findings in sentencing Appellant. He claims the consecutive imposition of his

aggravated range sentences resulted in an aggregate term of imprisonment

that is clearly unreasonable based on the nature and circumstances of his

offense.    He avers the court ignored certain mitigating factors, such as

Appellant’s lack of intent to harm anyone and his statements that he was

extremely sorry when it stated its reasons for sentencing him in the

aggravated range. He further contends the court improperly considered his

failure to cooperate with police in determining his sentence.          Appellant’s

combined claims raise a substantial question for our review. Thus, we grant

his petition for allowance of appeal and address the merits of his claims.

      We review Appellant’s sentencing claim under the following standard:




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         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. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en

banc), appeal denied, 104 A.3d 1 (Pa.2014).

      The standard range sentence for involuntary manslaughter is 6-14

months’ incarceration, and the aggravated range is 20 months.           The trial

court sentenced Appellant to the aggravated range sentence of 20 months

for each of his involuntary manslaughter convictions, and imposed the

sentences consecutively with his REAP sentences, which were in the

standard range.    The court stated at the sentencing hearing and in its

written sentencing order that its reasons for sentencing Appellant in the

aggravated range was that Appellant “showed no remorse and failed to

cooperate with police and lied to them.” Sentence, 8/20/2015.

      Appellant claims the trial court ignored his displayed remorse.         He

directs us to the sentencing transcript, where he stated:

         I cannot begin to say how sorry I am that three young
         children, Ryan, Shamus, and Cullen were lost to this world
         last August 30th. I will never be able to feel the loss that
         the families of the boys will forever feel. I can only say
         that hopefully today brings some form of closure for
         everyone affected by this horrible tragedy. Neither I [n]or
         my daughter, [J.W.], ever meant any harm to anyone that
         day. May the boys rest in peace.

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N.T. Sentencing, August 20, 2015, at 27-28.

     Appellant also directs us to the following, where the court later stated:

        The probation officer tells me on page 14 that the
        defendant was cooperative in the [PSI] and you appeared
        remorseful. I’ll talk more about that in a while, too.

Id. at 30-31.

     Appellant claims the trial court ignored the fact that he was remorseful

when it stated that he “showed no remorse.” We disagree.

     At sentencing, the court explained:

        I read your account of the events that day and your two
        page letter to me dated August 10, 2015. Ten days before
        today, ten days before your sentencing. Given the facts in
        this case I would have thought that the first sentences in
        such a letter would have been, “I’m so very, very sorry for
        what I have done. I’ve set in motion the deaths of three
        young and vibrant men in the primes of their lives, I’ve
        caused such pain to their family, friends, and loved ones.
        I’m truly remorseful and take full responsibility for the
        deaths and pain I’ve caused”… Instead… you wrote… “Care
        for our 85 year old mom is a very difficult subject to
        discuss for several reasons…” Sir, I’m sorry that your
        mom aged and [is] suffering from infirmities, but where is
        your common decency to express remorse and sympathy
        for your victims?...

        The probation officer asked you how specifically you felt
        about this offense.       This was your response to the
        probation officer, “It’s horrible. Three lives were lost. I’m
        crushed. The families, it’s horrible, I don’t know how to
        say it. It’s so sad I think about it daily, every waking
        hour.” Not once did you say I’m sorry. Not once did you
        say I’m responsible.          It was all so preventable,
        irresponsible, reckless, stupid, selfish, and criminal.

Id. at 35-36.


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      The record shows the trial court considered that Appellant said he was

sorry and that he did not mean to cause any harm. The trial court, however,

did not find Appellant took full responsibility for his actions.      It further

considered that Appellant lied to police officers about giving his permission

to his daughter to drive the vehicle:

         Now let’s talk about your lying both explicitly and
         implicitly. What is it within you, sir[,] that allows your
         15[-] year[-]old daughter take all the blame for this
         horrific manslaughter? How could any parent sit [] with
         [his] daughter and not speak the truth when your
         daughter tries to protect you and says that she took the
         car without your knowing it. How?! How does any parent
         do that?     What does that say about the potential of
         rehabilitation of you? I suggest it says a great deal.

         And then as if that isn’t [abhorrent] enough, your daughter
         continues to take on the full weight of this manslaughter
         for 60 days, 60 days, 24 hours a day before her friend, not
         [J.W.], her friend, and certainly not you, tell the police the
         truth.   You never spoke the truth and you left your
         daughter to bear this alone. What kind of father does
         this?! You denied you gave [J.W.]… that car [to take] to
         Dunkin Donuts. You denied you knew she took the car on
         this [fateful] trip. You walked out and said goodbye to
         them. You asked them to bring you back the bacon, egg,
         and cheese sandwich found at the wreck. If you lied in a
         situation like this, which you most certainly did, I hope you
         understand I do not believe a word you say.

Id. at 34-35.

      Although Appellant claims he had a right not to incriminate himself to

police officers, the transcript reveals the trial court considered specifically

that Appellant let his daughter take the blame for his actions. The court was

free to consider this factor in sentencing.


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      We do not find the trial court abused its discretion in sentencing

Appellant to the aggravated range sentence or in imposing his sentences

consecutively. The record reflects it considered the PSI report, Appellant’s

testimony and letters written by Appellant, Appellant’s family and the

victims’ families.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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