J-S40023-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
COREY M. DURRETT KING,                     :
                                           :
                  Appellant                : No. 1909 WDA 2014

         Appeal from the Judgment of Sentence October 17, 2014,
                Court of Common Pleas, Allegheny County,
            Criminal Division at No. CP-02-CR-0010053-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 8, 2015

      Corey M. Durrett King (“King”) appeals from the October 17, 2014

judgment of sentence entered by the Allegheny County Court of Common

Pleas following his convictions of accidents involving death or personal

injury, accidents involving serious bodily injury while not properly licensed,

accidents involving damage to attended vehicle or property, fleeing or

attempting to elude police, driving an unregistered vehicle, driving while

operating privileges are suspended or revoked, turning without required

signal, reckless driving, and operating a vehicle without required financial

responsibility.1 Upon review, we affirm.

      The trial court summarized the relevant facts of the case as follows:




1
  75 Pa.C.S.A. §§ 3742(a), 3742.1(a), (b)(2), 3743(a), 3733(a), 1301(a),
1543(a), 3334(a), 3736(a), 1786(f).

*Retired Senior Judge assigned to the Superior Court.
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                [O]n June 21, 2013, officers from the City of
            Pittsburgh, Bureau of Police were on routine patrol in
            the South Side section of the City of Pittsburgh. The
            officers observed a maroon Lincoln Town Car
            operated by [King] travelling on South 18th Street.
            The officers observed the vehicle turn into a
            motorcycle causing a collision with the motorcycle.
            The officers activated lights and sirens. [King]
            attempted to flee the scene in his vehicle. Without
            signaling, [King] turned into and sped through the
            parking lot of a convenience store. He continued to
            operate his vehicle at a high rate of speed through
            residential streets. During the police chase, [King]
            failed to negotiate a turn in the road and his vehicle
            came to a rest in a yard. [King] refused to comply
            with police commands to exit his vehicle. As a result,
            [King] was forcibly removed from the vehicle and
            taken into custody.

               The driver of the motorcycle was seriously injured
            at the scene. He was transported by medics to the
            hospital in serious, but stable, condition. As a result
            of the accident, the victim suffered three fractured
            ribs, a concussion, a punctured lung and a back
            injury. He lost substantial time from work.

Trial Court Opinion, 3/9/15, at 2.

      A jury convicted King of the aforementioned crimes. On October 17,

2014, the trial court sentenced King, in relevant part, to eighteen to thirty-

six months of incarceration for fleeing and eluding; six to twelve months of

incarceration for accidents involving serious personal injury while not

properly licensed; and six to twelve months of incarceration for accidents

involving death or personal injury. It imposed no further sentence on the

remaining convictions.     The trial court ordered the sentences to run




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consecutively for an aggregate sentence of two and a half to five years of

imprisonment.

      On October 27, 2014, King filed a timely post-sentence motion seeking

reconsideration of his sentence.      The trial court denied the motion on

October 28, 2014.     Thereafter, King filed a timely notice of appeal and

complied with the trial court’s order for the filing of a concise statement of

errors complained of on appeal. The trial court issued a responsive opinion

on March 9, 2015.

      On appeal, King raises one issue for our review:

            Did the trial court err in denying [King]’s motion to
            modify sentence since [King]’s aggregate sentence
            was manifestly excessive since the three counts
            could have been run concurrently with each other,
            rather than consecutively, especially since [King] had
            little prior criminal history and had shown exemplary
            behavior while awaiting trial, and the trial court
            failed to consider all of the factors contained at 42
            Pa.C.S. §§ 9721(b) & 9781(d)?

King’s Brief at 3.

      This issue challenges the discretionary aspects of King’s sentence,

which, as King recognizes, is not subject to our review as a matter of right.

Rather, “[a]n appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.”

Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015) (citation

omitted). This requires the appellant to satisfy all of the following:




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            (1) the appellant preserved the issue either by
            raising it at the time of sentencing or in a post[-
            ]sentence motion; (2) the appellant filed a timely
            notice of appeal; (3) the appellant set forth a concise
            statement of reasons relied upon for the allowance of
            his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
            appellant raises a substantial question for our
            review.

Id. (citation omitted).

      Our review of the record reveals that King adequately preserved the

issues he now seeks to raise on appeal in his post-sentence motion,2 timely

filed his notice of appeal, and included a statement pursuant to Pa.R.A.P.

2119(f) in his brief on appeal, purporting to raise two substantial questions

for our review. We review the claims seriatim.

      First, King asserts that the trial court abused its discretion by running

his sentences consecutively rather       than concurrently,    resulting in a

manifestly excessive sentence.     See King’s Brief at 10-11.     Recently, in

Commonwealth v. Caldwell, __ A.3d __, 2015 WL 3444594 (Pa. Super.

May 29, 2015), an en banc panel of this Court addressed whether this raises

a substantial question:




2
   The Commonwealth contends that King failed to preserve his claim that
the trial court did not consider the factors of section 9721(b) in his post-
sentence motion.        Commonwealth’s Brief at 13-14.         Although the
Commonwealth is correct that King did not cite to section 9721(b) in his
post-sentence motion, our review of the motion reveals that he sufficiently
raised a claim that the trial court did not consider the factors required by
that section in fashioning his sentence. See Motion to Reconsider Sentence,
10/27/14, ¶¶ 5-9.


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               A court’s exercise of discretion in imposing a
            sentence concurrently or consecutively does not
            ordinarily raise a substantial question. Rather, the
            imposition of consecutive rather than concurrent
            sentences will present 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.”

               To make it clear, 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.

Id. at *3 (internal citations omitted, emphasis in the original).

      In his Rule 2119(f) statement, King claims error in the trial court’s

imposition of consecutive sentences because King “had little prior criminal

history and had shown exemplary behavior while awaiting trial[,] … admitted

responsibility for his crimes and expressed remorse at the injuries to the

victim, … and [] was working two jobs to support his son.” King’s Brief at

12. As King couches his claim of an excessive sentence in terms of the trial

court’s failure to consider mitigating factors, he raises a substantial question.

See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014). We therefore proceed to review

this issue on the merits.




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      Initially, we observe that contrary to King’s representations, the trial

court found that King’s prior criminal history was not “little” and that King

did not accept responsibility for his actions, and instead attempted to

“minimiz[e] [his] conduct[.]” N.T., 10/17/14, at 39-42. These findings have

ample support in the record. See id. at 6 (Commonwealth indicating that

King has a prior record score of five “because it stops at five, it doesn’t go

higher than that on the guidelines”), 36 (King stating that he and the victim

were “both at fault”). Furthermore, prior to announcing the sentence, the

trial court provided the following explanation for imposing consecutive,

rather than concurrent, sentences for the three convictions:

               This case is a state sentence all the way. You had
            so many prior chances to conform your conduct to
            armaments of the law that I cannot issue a county
            sentence in this case, and I’m not. But I’m also not
            going to issue the fairly harsh sentence, I should
            say, that [the Commonwealth] asks for, fairly harsh
            in relation to all the factors of this case, including
            [the victim]’s point of view.

               Many of these cases, Mr. King, have charges that
            run together. And you’ve had prior cases where
            charges run together.     Possession with intent to
            deliver, deliver, possession as a misdemeanor, all
            those charges run together. They’re all basically the
            same act.

               But in this case, the charges don’t really run
            together that way. Fleeing and eluding is after the
            fact of crashing head-on into a guy on a motorcycle.
            That’s a separate decision you had to make; as you
            said, a poor decision. Being involved in the accident
            and not stopping to render aid is a separate act from




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            driving while you had no license to do so and being
            involved.

               So you’re driving with no license. You’re in an
            accident. Stop. No. Now you don’t render aid.
            That’s a second, separate event. Then you take off
            at a high speed. The police have to chase you.
            That’s yet another separate event. They don’t –
            while they’re all connected, they are different
            decisions you made.

               You continue to violate the law for your own
            personal interests, to the exclusion not only of the
            community in general, but of a member of the
            community specifically and in particular, [the victim],
            who’s laying on the ground dying. And I’m not
            overstating the case. He’d be dead if it weren’t for
            other people who showed up and took care of him.
            Accordingly, you have to answer for those
            separately.

N.T., 10/17/14, at 41-43.

      We will not reverse a trial court’s sentencing decision absent a

manifest abuse of its discretion. Raven, 97 A.3d at 1253. This is more than

a mere error in judgment.      Id.   “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.” Id.

      The trial court provided a well-reasoned and sound explanation for

imposing consecutive sentences in this case.        King’s good behavior while

incarcerated leading up to sentencing does not translate into an abuse of

discretion by the trial court.   See King’s Brief at 20.      As has often been




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repeated by this Court, King “is not entitled to a ‘volume discount’ because

the various crimes occurred in one continuous spree.” Commonwealth v.

Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014) (quoting Commonwealth v.

Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010)). As such, he is

due no relief on this claim.

      King further asserts that the trial court failed to consider the factors

contained in section 9721(b)3 and King’s nature and characteristics when

fashioning his sentence. King’s Brief at 12. This also raises a substantial

question for our review.       See Commonwealth v. Coulverson, 34 A.3d

135, 143 (Pa. Super. 2011). It does not, however, entitle King to relief, as

the record reflects that the trial court stated on the record at sentencing that

it had reviewed the presentence investigation report prepared regarding

King. N.T., 10/17/14, at 3. It is settled law that in such circumstances, we

presume that the court properly considered and weighed all relevant factors

in fashioning the defendant’s sentence.     Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006). King presents no argument to rebut this

presumption. Therefore, his argument fails.

      Judgment of sentence affirmed.




3
   “[T]he sentence imposed should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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