J-S29030-14



                                  2014 PA Super 168

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WALTER PAUL RAVEN

                            Appellant                  No. 1341 MDA 2013
                                                       No. 1342 MDA 2013

            Appeal from the Judgments of Sentence of June 10, 2013
               In the Court of Common Pleas of Luzerne County
              Criminal Division at Nos.: CP-40-CR-0003415-2012
                                         CP-40-CR-0003629-2012

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.:                                 FILED AUGUST 12, 2014

       Walter Raven appeals his June 10, 2013 judgments of sentence. We

affirm.

       On September 18, 2012, Raven was charged at CP-40-CR-0003415-

                -                                                          ury



privileges suspended or revoked

offenders, careless driving, tampering with or fabricating physical evidence,




____________________________________________



*
          Retired Senior Judge assigned to the Superior Court.
J-S29030-14



and several related summary offenses.1           The sentencing court2 aptly has

summarized the factual history of 3415-2012 as follows:

       On September 2, 2012, at approximately 12:19 a.m., law
       enforcement officers were dispatched to 304 State Route 315,
       Pittston Township, Luzerne County, Pennsylvania to investigate a
       motor vehicle accident. Two individuals, Donnie Pizano and
       Robin Walsh, were killed in the accident. They had been riding a
       motorcycle. The vehicle which struck the motorcycle fled the
       scene.

       Further investigation revealed that [Raven] had been operating
       the vehicle which struck the motorcycle and fled the scene.
       Within twelve hours of the accident, [Raven] power washed his
       vehicle along with the assistance of another individual. After
       obtaining a search warrant, police officer
       vehicle and observed damage consistent with the accident.
       Witnesses were interviewed and identified [Raven] as the driver
       of the vehicle involved in the accident. At the time of the
       accident, [Raven] was operating his vehicle with a license that
       had been suspended due to driving under the influence of a
       controlled substance.



       At the time of this incident, Raven also had a pending criminal case at

CP-40-0003629-              3629-

occurred on February 8, 2011. On that date, Sergeant Leonard Galli of the

Exeter Borough Police Department contacted Raven through a confidential

____________________________________________


1
      75 Pa.C.S. §§ 3742, 3742.1, 1543(b), 6503.1, 3714(b), and 18
Pa.C.S. § 4910, respectively.

2

of his sentence, we refer to the trial court as the sentencing court.



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                                                                 ption narcotics.

Thereafter, Raven met with the CI and delivered eight morphine sulfate pills

to him in exchange for $100. Sergeant Galli subsequently filed a criminal

complaint charging Raven with possession of a controlled substance and

delivery of a controlled substance.3

       On May 3, 2012, Raven entered into negotiated plea agreements at

both 3629-2012 and 3415-2012.              At 3415-2012, Raven pleaded guilty to

AUDI, AIDPI while not properly licensed, DWS DUI related, habitual

offenders, careless driving, and tampering with or fabricating evidence. At

3629-2012, Raven pleaded guilty to one count of delivery of a controlled

substance.

       On June 10, 2013, Raven was sentenced at both cases.              At that

hearing, the court sentenced Raven within the standard range of the

sentencing guidelines for each offense.4           Imposed consecutively, those

sentences resulted in an aggregate term of seventy-eight to three hundred

                                                                                -

____________________________________________


3
       35 P.S. §§ 780-113 (a)(16) and (a)(30).
4
      Specifically, the sentencing court imposed separate twenty-one to
eighty-four-month terms of imprisonment for delivery of a controlled
substance, AIDPI, and AIDPI while not properly licensed. The court imposed
separate sentences of six to twenty-
offenders, and for tampering with physical evidence.       The court also
                                                         DUI related. Each
sentence was ordered to run consecutively to the others.



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J-S29030-14


sentence motion seeking to modify his sentence.               Therein, Raven argued,

inter alia, that his AIDPI and AIDPI while not properly licensed convictions

should have merged for the purposes of sentencing. Raven also argued that

the sentencing court failed to consider the mitigating evidence that he

presented at the June 10, 2013 sentencing hearing. On June 28, 2013, the

                                               -sentence motion without a hearing.

       On July 16, 2013, Raven filed notices of appeal at both 3629-2012 and

3415-2012. On July 17, 2013, the sentencing court ordered Raven to file

concise statements of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Raven timely complied. On September 12, 2013, the sentencing

court issued an opinion pursuant to Pa.R.A.P. 1925(a).5

       Raven presents the following issues for our consideration:


       1. Whether, based upon the elements of the crimes and the
          underlying facts, the consecutive sentence imposed relative to
          [AIDPI] while not properly licensed, [DWS DUI related], and
          habitual offenders should have been merged?[6]

       2. Did the [sentencing c]ourt impose a manifestly excessive and
          unreasonable sentence as a result of failing to consider the
          relevant sentencing criteria, including protection of the public,
          the gravity of the underlying offense[,] and the rehabilitative
____________________________________________


5
                                                                     sua sponte.
6
      In his post-sentence motion, Raven argued that the sentencing court
erred in failing to merge his convictions for AIDPI and AIDPI while not
properly licensed. Evidently, Raven has abandoned this claim on appeal,
because he now argues that DWS DUI related and habitual offenders merge
with AIDPI while not properly licensed.



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          needs of [Raven,] and thereby fail[] to impose an
          individualized sentence when the [c]ourt sentenced [Raven]
          to the highest sentence allowable of the standard range of the
          sentencing guidelines and ran each and ever[y] sentence,
          under 3415-2012 [and] 3629-2012, consecutive[ly] to one
          another?

Brief for Raven at 6 (citations omitted).



question implicating the legality of his sentence.7        Consequently, our

standard of review is de novo and the scope of our review is plenary. See

Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001).

       The merger doctrine is a rule of statutory construction designed to

determine whether the legislature intended for the punishment of one

offense to encompass that of another offense.            Commonwealth v.

Davidson, 938 A.2d 198, 217 (Pa. 2007). The objective of the doctrine is

to prevent a defendant from being punished more than once for the same

criminal act. Id.

       In 2002, the Pennsylvania Legislature enacted Section 9765 of the

Sentencing Code, which provides:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the
       other offense. Where crimes merge for sentencing purposes, the
____________________________________________


7
      Challenges to the legality of sentence are non-waivable.      See
Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007). For this
                                                  en has waived his first
claim is without merit. See Brief for Commonwealth at 5.



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       court may sentence the defendant only on the higher[-]graded
       offense.

42 Pa.C.S. § 9765.          Accordingly, merger is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other. Id.



Court and the Pennsylvania Supreme Court historically have struggled to

articulate and apply the proper test for merger claims. In Commonwealth

v. Jones, our Supreme Court addressed the issue of merger pursuant to

section 9765, but was unable to reach a consensus.          912 A.2d 815 (Pa.

2006); see Commonwealth v. Williams, 920 A.2d 887, 889 (Pa. Super.

                         Jones
                                                  8



       In the lead plurality opinion in Jones, Justice Castille (now Chief




____________________________________________


8
      As the Jones Court itself notes, jurisprudence on this issue has often
created fractured plurality opinions. In Jones, Chief Justice Cappy and
Justice Baer joined Justi
dissent, joined by Justice Eakin. Justice Saylor generally agreed with Justice

because the criminal acts at issue in Jones pre-dated the effective date of
section 9765. Justice Nigro did not participate.



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J-S29030-14



                                                                        t in

accordance with Section 9765. Id.

elements of these two crimes differ, and sentencing thus cannot be merged

pursuant to our jurisprudence and the legislative intent as evidenced by 42

Pa.C.S. §

      One year after Jones, a panel of this Court addressed the merger

doctrine in Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007).

In Williams, the appellant contended that the trial court erred in imposing

consecutive sentences following his guilty plea to firearms possessed by a

felon and carrying a firearm without a license.     We began by noting that,

with respect to offenses occurring after the effective date of section 9765,

neither the plurality opinion nor the dissenting opinion in Jones garnered

the support of more than half of the Justices.       This Court then adopted



doctrine jurisprudence and the legislative intent of section 9765. Williams,

920 A.2d at 891.

      The Pennsylvania Supr

                                      Jones plurality and held that the plain

language of Section 9765 precludes courts from merging sentences when

each offense contains a statutory element that the other does not.

Commonwealth v. Baldwin, 985 A.2d 830, 834 (Pa. 2009). In Baldwin,

Chief Justice Castille articulated the scope of this approach:




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      The General Assembly has taken it upon itself to choose the
      merger test that allows for the most expansive sentencing
      exposure without accounting for any of the refinements and
      nuances in our prior jurisprudence in this area. But, there is
      more to the jurisprudence of sentencing than such simple,
      procrustean dictates. Although the statute allows for maximum
      exposure for criminal sentences as a constitutional matter, there
      still exists substantive review of individualized sentencing
      decisions. Thus, I would caution both trial courts and the
      Superior Court, as the frontline appeals court reviewing
      sentences, to be cognizant of the fact that, while the statute
      may put a draconian end to merger claims, it does not
      supplant the review for reasonableness which is independently
      commanded by Section 9781 of the Judicial Code.

Baldwin, 985 A.2d at 839 (Castille, C.J., concurring).

      Instantly, Raven contends that the sentencing court erred in failing to

merge his sentences for DWS DUI related and habitual offenders with his

sentence for AIDPI while not properly licensed. There is no dispute that all

three of these offenses arose out of the same set of facts, constituting a

single criminal act.   See S.C.O. at 2.   Therefore, the only issue for our

review is whether all of the statutory elements of one of the offenses are

included within the statutory elements of another. See Baldwin, supra at

837; 42 Pa.C.S. § 9765.     Raven argues that they are so included.       We

disagree. The specific crimes relevant to our review are defined as follows:

      [AIDPI] while not properly licensed: A person whose
      operating privilege was disqualified, canceled, recalled, revoked
      or suspended and not restored or who does not hold a valid

      class of vehicle being operated commits an offense under this
      section if the person was the driver of any vehicle and caused an
      accident resulting in injury or death of any person.

75 Pa.C.S. § 3742.1.

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      [DWS DUI Related]: A person who drives a motor vehicle on a
      highway or traffic[-]way of this Commonwealth at a time when
                                                     voked[:]

         (1)   as   a   condition   of   acceptance    of   Accelerated

               section 3802 (relating to driving under influence of
               alcohol or controlled substance) or the former
               section 3731,

         (2)   because of a violation of section 1547(b)(1) (relating
               to suspension for refusal) or 3802 or former section
               3731[,] or

         (3)
               License Compact) for an offense substantially similar
               to a violation of section 3802 or former section 3731

75 Pa.C.S. § 1543(b)(1) (formatting modified for clarity).

      Habitual offenders: A habitual offender under section
      1542 . . . who drives a motor vehicle on any highway or

      operating privilege is suspended, revoked or canceled commits a
      misdemeanor of the second degree.




person whose driving record demonstrates that they have accumulated three

convictions for any of the statutorily enumerated traffic offenses within a

period of five years. 75 Pa.C.S. § 1542.



Commonwealth to demonstrate that Raven caused an accident that resulted

in the injury or death of a person, and that his operating privilege was either

disqualified, canceled, recalled, revoked or suspended (and not restored), or

                                                      See 75 Pa.C.S. § 3742.1.

                               DUI related required the Commonwealth to

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condition of acceptance of ARD (for driving under influence, or for a similar

offense that occurred outside of the Commonwealth), or for a refusal to

submit to chemical testing. A review of the plain language of these statutes

demonstrates      that    DWS DUI       related    clearly   imposes   an   additional

requirement that a license suspension be related to DUI or ARD.9 Such an

element is not contemplated by the AIDPI statute.

       Raven also contends that a DUI related suspension           as is required by

Section 1543(b)



statute. Therefore, according to Raven, the DUI related suspension element



review of our case law demonstrates that this argument is unavailing.              In

Commonwealth v. Rhoades, this Court addressed the issue of whether an

                   ictions for two separate counts of aggravated assault should

merge.     8 A.3d 912 (Pa. Super. 2010).              The two subsections of our

aggravated assault statute at issue in Rhoades provided as follows:

____________________________________________


9



of a motor vehicle by an indiv
22. This is incorrect. Although Raven pleaded guilty to a violation of DWS
DUI related, his argument erroneously relies upon the statutory language
contained within the non-DUI related subsection. See id. at 21; 75 Pa.C.S.
§ 1543(a).



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       A person is guilty of aggravated assault if he:

       (1)    attempts to cause serious bodily injury to another, or
              causes such injury intentionally, knowingly or recklessly
              under circumstances manifesting extreme indifference to
              the value of human life;

                                          ***

       (4)    attempts to cause or intentionally or knowingly causes
              bodily injury to another with a deadly weapon;

18 Pa.C.S. § 2702.

       In finding that the subsections did not merge, we explained as follows:

       [T]he charges for aggravated assault at counts [six] and
       [seven],    18   Pa.[C.S.]  §§ 2702(a)(1)     and    2702(a)(4),
       respectively, did not share identical statutory elements. . . .
       [W]hen the two subsections are read together it is apparent that
       subsection [four] contains an element that is not found in the
       greater offense of subsection [one]. Specifically, subsection
       [four] requi

       [one], which prohibits any attempt to cause or the causing of
       serious bodily injury but which does not limit itself to any
       particular mode of causing such an injury.        It is therefore
       possible that a subsection [one] assault may be proved in some
       cases without necessarily proving a subsection [four] assault.

Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010).                As in

Rhoades, it is entirely possible that a conviction for AIDPI while not

properly licensed could be sustained without necessarily proving a Section

1543(b) violation.10 As discussed supra,

____________________________________________


10
       See generally 75 Pa.C.S. § 1532 (enumerating certain offenses for

privilege).



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J-S29030-14



not properly licensed did not require any particular category of license

suspension, whereas his conviction for DWS DUI related did. Because each



sentences do not merge.

      Raven also maintains that his habitual offenders conviction should

merge with his conviction for AIDPI while not properly licensed. This claim is

similarly meritless.    A conviction for habitual offenders requires the

Commonwealth to demonstrate that a person has accumulated three

separate convictions for serious traffic offenses within a five-year period.

See 75 Pa.C.S. § 1542.      AIDPI while not properly licensed has no such

element, and additionally requires that a person cause an accident resulting

in injury or death.    Because these two offenses each require proof of an




challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

            Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004).

      To obtain review on the merits of a challenge to the discretionary

aspects of his sentence, Raven must meet two requirements. First, Raven




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must include a Pa.R.A.P. 2119(f) statement in his brief.11 Second, he must

show that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code.              42 Pa.C.S. § 9781(b).     A



specific provision of the sentencing scheme set forth in the Sentencing Code



Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Our inquiry

must focus upon the reasons for which the appeal is sought, in contrast to

the facts underlying the appeal, which are necessary only to decide the

appeal on the merits. Id.

                                               sary Rule 2119(f) statement, and

therefore, is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence. Therein, Raven contends that the trial

                                                                     eing a non-

violent person, and his willingness to assist others, even when it placed him


____________________________________________


11
       In pertinent part, Rule 2119 provides:

       An appellant who challenges the discretionary aspects of a
       sentence in a criminal matter shall set forth in his brief a concise
       statement of the reasons relied upon for allowance of appeal
       with respect to the discretionary aspects of a sentence. The
       statement shall immediately precede the argument on the merits
       with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).



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question because it resulted in a sentence that was manifestly excessive to

his crimes. Id.

      It is well-

mitigating factors raises a substantial question.        See Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). However, a sentencing

court generally has discretion to impose multiple sentences concurrently or

consecutively, and a challenge to the exercise of that discretion does not

ordinarily raise a substantial question. Commonwealth v. Pass, 914 A.2d

442, 446 47 (Pa. Super. 2006); Commonwealth v. Hoag, 665 A.2d 1212,

1214 (Pa. Super. 1995) (stating that an appellant is not entitled to a



                                                 ey to resolving the preliminary

substantial   question   inquiry   is    whether   the    decision   to   sentence

consecutively raises the aggregate sentence to, what appears upon its face



Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An

appellant making an excessiveness claim raises a substantial question when



specific provision of the sentencing scheme set forth in the Sentencing Code



Mouzon, 812 A.2d at 627. Applying Mouzon, this Court has held that an

excessive sentence claim    in conjunction with an assertion that the court

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failed    to   consider   mitigating   factors   raises   a   substantial    question.

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). Because



Felmlee and Mastromarino, we grant Raven

appeal and consider the merits of his claim.

         Our standard of review in this context 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 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Additionally, our review of the discretionary aspects of a sentence is confined

by the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).                 Subsection

9781(c) provides:

         The appellate court shall vacate the sentence and remand the
         case to the sentencing court with instructions if it finds:

            (1)   the sentencing court purported to sentence within
                  the sentencing guidelines but applied the guidelines
                  erroneously;

            (2)   the sentencing court sentenced within the sentencing
                  guidelines but the case involves circumstances where
                  the application of the guidelines would be clearly
                  unreasonable; or

            (3)    the sentencing court sentenced             outside the
                  sentencing   guidelines and the             sentence  is
                  unreasonable.


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J-S29030-14


      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

      In reviewing the record, we consider:

      (1)     The nature and circumstances of the offense and the
              history and characteristics of the defendant.

      (2)     The opportunity of the sentencing court to observe the
              defendant, including any presentence investigation.

      (3)     The findings upon which the sentence was based.

      (4)     The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).



guidelines.   He, therefore, must demonstrate that the application of those

guidelines would be clearly unreasonable. Id. § 9781(c)(2). Raven submits

that the sentencing court did not weigh the nature and circumstances of his

crimes, or his mitigating history and characteristics.   To this end, Raven



that he was unaware he had caused an accident, and that he fled from the

scene to obtain medication from his home.       Brief for Raven at 30.   The



allegation that the court failed to consider this information.   See Notes of




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J-S29030-14




                                                   nd.   The court heard testimony



himself.    Id. at 11-

conditions, his reputation for being a non-violent person, and his willingness

to assist others.     The sentencing court also reviewed letters submitted on

behalf of Raven, and several victim impact statements presented by the

Commonwealth.         Id. at 7.     Finally, the court had the benefit of a pre-

sentence     investigation    report,    and   considered   all   of   the   mitigating

information contained therein.12 N.T. at 5.

       Based upon all of this evidence, the court imposed consecutive



not that the court failed to consider the pertinent sentencing factors, but

rather that the court weighed those factors in a manner inconsistent with his

wishes.    Accordingly, we conclude that the record supports the sentencing

                                                                                   The



____________________________________________


12
      Raven argues that the mere fact that the sentencing court was
provided with his pre-sentence investigation report does not demonstrate
that the court properly considered the mitigating circumstances contained
within it. Brief for Raven at 34. We disagree. See Commonwealth v.
Devers, 546 A.2d 12 (Pa. 1988) (holding that when a sentencing court has
the benefit of a pre-sentence report, we must presume that the sentencing
judge was aware of, and duly considered, any character-related information
contained therein).



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range of the sentencing guidelines, and the record reflects that the court

carefully considered all of the evidence presented at the sentencing hearing.

As such, we discern no abuse of discretion, nor can we conclude that the

sentencing court arrived at a manifestly unreasonable decision.          See

Shugars, 895 A.2d at 1275.

     Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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