J-S29011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANNA BEVERLY DAVIDOWSKI

                            Appellant                 No. 2639 EDA 2016


              Appeal from the Judgment of Sentence July 22, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000321-2016,
                            CP-15-CR-0003572-2015


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 09, 2017

        Anna B. Davidowski appeals from her judgment of sentence, entered

in the Court of Common Pleas of Chester County, following her conviction of

two counts of driving under the influence (DUI).1 After careful review, we

affirm.

        The facts and procedural history of this case have been set forth by

the trial court as follows:



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Driving under influence of alcohol or controlled substance, 75 Pa.C.S.A. §
3802(a), a misdemeanor of the second degree, and driving under influence
of alcohol or controlled substance, 75 Pa.C.S.A. § 3802(a), a misdemeanor
of the first degree.
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     On March 20, 2013, [Davidowski] was arrested in Berks County
     for [DUI]. She ultimately received [accelerated rehabilitative
     disposition (ARD)] for that conviction. She was incident-free until
     January 14, 2015. On that date, [Davidowski] was pulled over
     by police in Chester County after she was seen driving on [two]
     flat tires. When the police officer approached her, he detected a
     strong odor of alcohol on her breath. He also noticed that she
     had glassy, bloodshot eyes, slurred speech[] and was completely
     unaware that there was a problem with her vehicle. She was
     charged with DUI under term 3572-15.

     During the next [eleven] months, [Davidowski] was arrested in
     Berks County for DUI on three separate occasions.       Those
     incidents occurred on April 18, 2015, September 25, 2015, and
     November 23, 2015. During these incidents, [Davidowski’s]
     driving was beyond reckless. She was very lucky that she did
     not seriously injure either herself or anyone else.

     On November 24, 2015, the day after her fourth arrest for DUI
     in Berks County, [Davidowski] was again arrested in Chester
     County for DUI. In that case, she crossed over the double
     yellow lines of Route 10, which is a very heavily travelled road,
     and she hit a tractor-trailer head-on, causing extensive damages
     to both vehicles.     Luckily, the truck driver was not hurt.
     [Davidowski], on the other hand, suffered a broken sternum and
     a bloody lip. The truck driver stated that [Davidowski’s] head
     was down immediately prior to the accident as if she was passed
     out. Following the accident, [Davidowski] was abrasive and
     aggressive toward the truck driver and to police officers who
     arrived on the scene. She was charged with DUI under term
     number 321-16 for this incident and her bail was revoked.

     On June 2, 2016, [Davidowski] entered an open guilty plea to
     the two counts of DUI occurring in Chester County. Sentencing
     was deferred until July 22, 2016.     On that date, she was
     sentenced to [one to two] years’ imprisonment for the January
     14, 2015 incident[] and a consecutive [two to four] years’
     imprisonment for the November 24, 2015 incident. Both of
     these sentences were to run consecutively to the [one to five]
     year sentence she received in Berks County for the charges
     pending against here there.




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      On July 29, 2016, [Davidowski] filed a [p]etition for
      [r]econsideration and [r]eduction of [s]entence. Her [p]etition
      was denied by court [o]rder dated August 3, 2016.

Trial Court Opinion, 12/14/16, at 1-3 (internal citations omitted).

      On July 29, 2016, Davidowski filed a petition for reconsideration and

reduction of sentence, which the trial court denied.    See Commonwealth

v. Mann, 820 A.2d 788, 794 (Pa. Super 2003) (issues challenging

discretionary aspects of sentencing must be raised in post-sentence motion

to   modify sentence        imposed or    by raising claim during sentencing

proceedings). The instant, timely appeal followed, and pursuant to Pa.R.A.P.

1925(b), Davidowski filed a court-ordered concise statement of errors

complained of on appeal on September 13, 2016.          Davidowski raises the

following question for our review:

      Did the trial court abuse its discretion when it imposed an
      aggregate sentence of not less than three (3) years[’] nor more
      than six (6) years’ state incarceration to be served consecutively
      to a one (1) year to five (5) year sentence imposed by the Berks
      County Court of Common Pleas? In imposing the foregoing
      sentence, did the trial court fail to give appropriate weight to
      mitigating factors?

Brief of Appellant, at 4.

      Our standard upon review of a decision of a sentencing court is well

settled:

      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 abused 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,


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       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Bowen, 975 A.2d 1120, 1122 n.3 (Pa. Super. 2009)

(citation omitted).

       Davidowski raises a challenge to the discretionary aspects of her

sentence.    When the discretionary aspects of a judgment of sentence are

questioned, an appeal is not guaranteed as of right.      Commonwealth v.

Moore, 617 A.2d 8, 11 (Pa. Super. 1992).        Rather, appellant must meet

four criteria before an appeal may be taken: (1) the appeal must be timely;

(2) appellant must have preserved his issue(s); (3) appellant must set forth

in his brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied upon

for allowance of appeal with respect to the discretionary aspects of a

sentence, and (4) the concise statement must raise a substantial question

that   the    sentence   is   appropriate   under   the    sentencing      code.

Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013).            This Court

will find a “substantial question” and review the discretionary aspects of a

sentence only where an aggrieved party can clearly articulate why the

sentence imposed by the trial court compromises the sentencing scheme as

a whole. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). See also

Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (“We will

be inclined to recognize a substantial question where an appellant advances

a colorable argument that the trial court’s actions are inconsistent with a

specific provision of the Sentencing Code or contrary to the fundamental

norms which underlie the sentencing process”).

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       Here, Davidowski has included in her brief a statement pursuant to

Rule 2119(f), setting forth the reasons in support of her appeal. She claims

that the trial court abused its discretion by fashioning a sentence that is

outside of the sentencing guidelines, above the applicable mandatory

minimum      sentences      and    unreasonable    pursuant   to   42    Pa.C.S.A.   §

9781(c)(3).2      We find that this issue raises a substantial question, and

therefore, proceed to review its merits. See Commonwealth v. Cook, 941

A.2d 7, 11 (Pa. Super. 2007) (claim that sentencing court misapplied

sentencing guidelines presents substantial question, as required for appellate

court to reach merits of discretionary sentencing issue).

       Section 9781(c) of the Sentencing Code provides, in relevant part, that

“[t]he appellate court shall vacate the sentence and remand the case to the

sentencing court with instructions if it finds . . . (3) the sentencing court

sentenced     outside     the     sentencing   guidelines   and    the   sentence    is

____________________________________________


2
  Davidowski also appears to challenge The Honorable Patrick Carmody’s
order that her sentence was ordered to run consecutively to her Berks
County sentence. Brief of Appellant, at 15. It is well established that under
42 Pa.C.S.A. § 9721 the sentencing court has the discretion to impose its
sentence concurrently or consecutively to other sentences imposed at the
same time or to existing sentences. Commonwealth v. Mastromarino, 2
A.3d 581, 586 (Pa. Super. 2010). Any challenge to the exercise of this
discretion does not ordinarily raise a substantial question unless the overall
sentence is excessive. Id. (citing Commonwealth v. Marts, 889 A.2d 608,
612 (Pa. Super. 2005)). The consecutive nature of Davidowski’s sentences
does not render her overall sentence excessive. Thus, we decline to find
that this issue raises a substantial question for our review. Mastromarino,
supra.



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unreasonable.    In all other cases the appellate court shall affirm the

sentence imposed by the sentencing court.” 42 Pa.C.S.A. § 9781(c)(3). In

making an unreasonableness inquiry, this Court is to consider four factors:

(1) the nature and circumstance of the offense and the history and character

of the defendant; (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) the finding upon

which the trial court based defendant’s sentence; and (4) the sentencing

guidelines. See 42 Pa.C.S.A. § 9781(d).

     A permissible and legal sentence under statutory law is not rendered

improper simply because the sentence exceeds the sentencing guidelines;

the guidelines do not supersede the statutes. Commonwealth v. Johnson,

873 A.2d 704, 709 (Pa. Super. 2005).      The trial court, while required to

consider the sentencing guidelines and the individual whose liberty is at

stake, must also consider other factors, including the protection of the

public, the gravity of the offense in relation to impact on victims and

community, and the rehabilitative needs of the defendant. Id.

     Davidowski’s underlying convictions were for her fourth and fifth DUI

offenses, which are collectively punishable by an aggregate term of

imprisonment not to exceed seven years. See 18 Pa.C.S.A. § 106(b)(6) and

(7). Accordingly, the trial court could have imposed a statutory maximum

term of imprisonment of seven years.       Here, the trial court sentenced

Davidowski to three to six years’ imprisonment, a sentence that falls outside

the sentencing guidelines, but falls short of the statutory maximum.

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       In fashioning Davidowski’s sentence, the sentencing court took into

consideration all relevant factors, including the protection of the public, the

gravity of the offense, Davidowski’s rehabilitative needs and the information

set forth in Davidowski’s memorandum in aid of sentencing.3         Trial Court

Opinion, 12/14/16, at 5. The trial court, in a written statement, also noted

that two of Davidowski’s five arrests occurred on back-to-back days and that

she had five DUI arrests in a timespan of less than one year, most of which

occurred while on bail for her January 14, 2015 DUI arrest in Berks County. 4

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (if trial court imposes

sentence outside of sentencing guidelines, it must provide written statement

setting forth reason for deviation, and failure to do so is grounds for

resentencing). Moreover, at Davidowski’s sentencing hearing, the Honorable

Patrick Carmody explained the sentencing court’s reasons for imposing a

sentence deviating upward from the Sentencing Guidelines as follows:

       Sentencing guidelines are simply guidelines.       They’re totally
       inadequate to cover the situation involved here.

                                           ...

       [You are] using [your car] like a personal bumper car when [you
       are] driving around drunk. And there by the grace of God you
       stand here today.
____________________________________________


3
 Davidowski waived her right to a pre-sentence investigation (PSI) report.
N.T. Sentencing, 12/20/2016, at 4-5.
4
 Trial Court Order Denying Petition for Reconsideration and Reduction of
Sentence, 8/3/16, at 1.



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      The protection of the public in this case is extremely
      needed because you did everything – each one of these arrest
      is what could be called a wake-up call. And you just kept getting
      back in the car and driving and endangering people . . . I will tell
      you that I’ve been in the criminal justice system for over [thirty]
      years. [It is] rare that [I have] ever seen a case with such
      horrifically reckless behavior, extended behavior for such a
      period of time.

N.T. Sentencing Hearing, 6/22/16, at 33-34 (emphasis added). In light of

the foregoing, we can discern no abuse of discretion in the court’s sentence.

Johnson, supra.

      Davidowski also raises the issue of whether in imposing her sentence,

the trial court failed to give appropriate weight to mitigating factors. “This

court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Disalvo, 70 A.3d at 903 (citing Commonwealth v. Downing,

990 A.2d 788, 794 (Pa. Super. 2010)).              Accordingly, we conclude

Davidowski’s argument that the sentencing court failed to give adequate

weight to mitigating factors does not raise a substantial question appropriate

for our review. See Id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017


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