J-S63019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN JAY DECROIX                         :
                                               :
                       Appellant               :   No. 254 WDA 2018

            Appeal from the Judgment of Sentence January 23, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0006128-2017

BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 25, 2018

        Justin Decroix (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to three counts of person not to possess a firearm

and one count of simple assault.1 We affirm.

        On May 5, 2017, Jefferson Hills Police received “reports of a male with

an automatic rifle who was threatening suicide.” N.T., 10/30/17, at 7. When

officers arrived on the scene, they encountered Appellant, who “ultimately was

able to be apprehended and was taken into custody and delivered to Western

Psychiatric Hospital.” Id. at 8. On May 7, 2017, the officers returned to where

they located Appellant “in the woods” and recovered an operable firearm. Id.

at 9.    Additionally, the officers executed a search warrant for Appellant’s

residence.    When the officers arrived to serve the warrant, Appellant was

____________________________________________


1   18 Pa.C.S.A. §§ 6105(a), 2701(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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present and became agitated, rushed the officers, and struck one officer with

his shoulder and knocked him to the ground.       The officers recovered two

operable firearms from the residence. Id. at 8-9. As a result, Appellant was

charged with the aforementioned crimes.

      On October 30, 2017, Appellant appeared before the trial court and

entered his guilty plea.     Appellant’s sentencing was deferred for the

preparation of a pre-sentence investigation report. On January 23, 2018, the

trial court sentenced Appellant to an aggregate 3 to 15 years of incarceration.

Appellant filed a timely post-sentence motion on January 25, 2018. The trial

court denied his post-sentence motion that same day. On February 20, 2018,

Appellant filed this timely appeal.   Both the trial court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
      SENTENCING [APPELLANT] TO A MANIFESTLY EXCESSIVE
      AGGREGATE SENTENCE OF 3 TO 15 YEARS’ INCARCERATION
      WITHOUT MAKING ANY OF THE REQUIRED FACTUAL FINDINGS
      FOR A SENTENCE OF TOTAL INCARCERATION UNDER 42 PA.C.S.
      § 9725, OR CONSIDERING THE REQUIRED SENTENCING
      CRITERIA UNDER 42 PA.C.S. § 9721(b)?

Appellant’s Brief at 5.

      Appellant challenges the discretionary aspects of his sentence.     “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

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



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appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (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
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction by raising his issue in a

timely post-sentence motion, filing a timely notice of appeal, and including in

his appellate brief a Rule 2119(f) concise statement. See Appellant’s Brief at

14-18.     Additionally, by asserting that the trial court’s sentence violated

provisions of the Sentencing Code, specifically for failing to take into

consideration the requirements of 42 Pa.C.S.A. § 9725 and 42 Pa.C.S.A. §

9721(b), Appellant has raised a substantial question. See Commonwealth


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v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (“An averment that the trial

court failed to consider relevant sentencing criteria, including the protection

of the public, the gravity of the underlying offense and the rehabilitative needs

of Appellant, as 42 PA.C.S. § 9721(b) requires[,] presents a substantial

question for our review[.]”).

      Because Appellant has satisfied each of the criteria for invoking our

review of a discretionary aspects of sentencing claim, we turn to the merits of

his argument. The relevant standard of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      Appellant alleges two specific errors by the trial court. Appellant first

argues that the “trial court did not make any of the required factual findings

pursuant to § 9725, and the records of the plea and sentencing hearings do

not support such findings.” Appellant’s Brief at 26. Section 9725 provides:




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      The court shall impose a sentence of total confinement if, having
      regard to the nature and circumstances of the crime and the
      history, character, and condition of the defendant, it is of the
      opinion that the total confinement of the defendant is necessary
      because:

      (1) there is undue risk that during a period of probation or partial
      confinement the defendant will commit another crime;

      (2) the defendant is in need of correctional treatment that can be
      provided most effectively by his commitment to an institution; or

      (3) a lesser sentence will depreciate the seriousness of the crime
      of the defendant.

42 Pa.C.S.A. § 9725.

      The trial court made the following factual findings at Appellant’s

sentencing hearing:

      This is the second case involving very concerning behavior and
      weapons. And [Appellant] seems to have mastered the art of
      convincing WPIC that he’s not homicidal or suicidal, even though
      he has threatened to kill himself and others with guns. He also
      has a violation pending at 2012-14201 . . . he’s a convicted
      violator of his probation on the 2012 case by virtue of the new
      case. . . . Unfortunately though, this has been an ongoing pattern.
      He has a 2007 conviction for prohibited offensive weapons other
      than a knife/switchblade. And when the police were called on the
      2012 case, he had weapons. And then he was taken on the other
      2012 case to Jefferson Hospital, he was aggressive and violent at
      that point. He seems to do well for the period of time, but the
      problem with [Appellant] is when he goes off the rails, he really
      goes off the rails. Certainly the evidence revealed firearms,
      ammunition, brass knuckles. This is somebody who he himself,
      and his mother know cannot possess weapons. . . . I just don’t
      think [Appellant] has demonstrated a complete understanding of
      the significance of his mental health issues and treatment.

N.T., 1/23/18, at 5-6, 8-9, 10. Additionally, while imposing Appellant’s

sentence in open court, the trial court stated:




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      So [Appellant], at the new conviction, I am going to the
      aggravated range of guidelines, because of the seriousness of
      each of these incidences and your inability to deal with the mental
      health issues that you [] have, before the safety of the community
      as well as your own safety. . . . I will let you demonstrate through
      your treatment course in the state, whether you’ve reached a
      point where you’re safe to return to the community and under
      what supervision or conditions. And I do this with compassion for
      your serious mental illness, but also in recognition of the very
      serious danger that you present to the community.

Id. at 15-16.

      Consistent with the foregoing, we conclude that the trial court made the

required factual findings under Section 9725 of the Sentencing Code, and

therefore, Appellant’s assertion that it failed to do so is meritless. Our review

reveals that the trial court made the requisite findings at the time of

Appellant’s sentencing with regard to the risk Appellant poses to the

community if he is not incarcerated, his need for mental health treatment

while incarcerated, as well as a thorough analysis of the nature and

circumstances of the crimes to which Appellant pled.         The trial court also

addressed Appellant’s history, character, and current condition. We therefore

determine that the trial court appropriately applied Section 9725.

      Appellant additionally asserts that the “trial court abused its discretion

by failing to place adequate reasons on the record and failing to consider

[Appellant’s] nature and character, particularly his mental health history and

plans for future treatment, before imposing a manifestly excessive sentence

of 3 to 15 years’ incarceration.” Appellant’s Brief at 26.

      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:


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      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the 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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      This Court has also held that, “When a sentencing court has reviewed a

pre[-]sentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Baker, 72 A.3d at 663, (citing Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006)). Additionally:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. 42
      Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
      requirement that reasons for imposing sentence be placed on the
      record by indicating that he or she has been informed by the pre-
      sentencing report; thus properly considering and weighing all
      relevant factors.

Fowler, 893 A.2d at 767-68, (citing Commonwealth v. Boyer, 856 A.2d

149, 154 (Pa. Super. 2004)) (some internal citations omitted).




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      At Appellant’s sentencing, the trial court specifically stated on the

record, “[w]e do have a PSI here, which I have read.” N.T., 1/23/18, at 3.

As the trial court indicated on the record that it was informed by Appellant’s

pre-sentence investigation report, it properly satisfied the requirement of

Section 9721(b) that the reasons for the imposition of his sentence be placed

on the record.   Moreover, the trial court provided an in-depth analysis of

Appellant’s mental health issues, violence towards police officers during the

instant criminal episode, as well as his proclivity for possessing weapons – all

of which factored in the trial court’s imposition of Appellant’s sentence. The

trial court explained:

      Appellant had engaged in nearly identical conduct previously and
      was given a sentence of probation to address his mental health
      needs. This Court sentenced Appellant in the aggravated range
      of the Sentencing Guidelines, “because of the seriousness of each
      of these incidences and [Appellant’s] inability to deal with the
      mental health issues” and to ensure the safety of the community
      as well as Appellant’s own safety. The sentence imposed was
      designed to protect the community while allowing the possibility
      for Appellant to address his mental health needs and reenter
      society as a rehabilitated man.

Trial Court Opinion, 4/9/18, at 6 (citations to record omitted).

      For the reasons discussed above, Appellant’s assertion that the trial

court’s sentence failed to comply with Section 9721(b) is without merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2018




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