J-S51024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAYMOND LEON ENDERLE

                            Appellant                 No. 73 MDA 2014


           Appeal from the Judgment of Sentence December 2, 2013
                In the Court of Common Pleas of Tioga County
             Criminal Division at No(s): CP-59-CR-0000371-2013


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 19, 2015

        Raymond Leon Enderle appeals from the judgment of sentence

imposed on December 2, 2013, in the Court of Common Pleas of Tioga

County. Enderle pled guilty to the charge of stalking, a misdemeanor of the

first degree.1 The charge arose as a result of Enderle’s engaging in repeated

acts of driving by or near the work place and residence of the victim. 2 The

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1
    18 Pa.C.S. § 2709.1(a)(1).
2
    By way of background, we note:

        Prior to December, 2011, [Enderle] became romantically
        involved with the victim in this case[.] The two of them have a
        daughter who resides with [the victim]. In 2011, a domestic
        altercation occurred between [Enderle] and [the victim] resulting
        in [Enderle’s] pleading guilty to burglary, graded as a felony of
        the first degree, and reckless endangerment, graded as a
        misdemeanor of the second degree. [Enderle] was sentenced to
(Footnote Continued Next Page)
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trial court sentenced Enderle to a sentence of intermediate punishment,

Phase 1 of which involves incarceration as a community service/work release

inmate for 12 months, followed by four years’ probation.       In this timely

appeal, Enderle (1) challenges the discretionary aspects of the sentence

imposed by the trial court, and (2) contends the trial court’s opinion

demonstrates the trial court improperly relied upon “alleged arrests” in

sentencing him. Enderle’s Brief, at 4.3 For the following reasons, we affirm.

      Enderle’s first argument is a challenge to the discretionary aspects of

the sentence. The principles that guide our review are 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.

      The right to appellate review of the discretionary aspects of a
                       _______________________
(Footnote Continued)

      two months to one year and eleven months on the burglary
      followed by two years of probation for the reckless
      endangerment. On March 3, 2012, [Enderle] was found guilty of
      violating a Protection From Abuse Order and was directed to pay
      a fine.

Enderle’s Brief at 6 (footnote omitted).
3
  Enderle preserved the first issue by timely complying with the trial court’s
order to file a Pa.R.A.P. 1925(b) statement of error complained of on appeal.
The second issue was not known to Enderle until the trial court filed its Rule
1925(b) opinion, and therefore we will not deem it waived.



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      sentence is not absolute, and must be considered a petition for
      permission to appeal. An appellant must satisfy a four-part test
      to invoke this Court’s jurisdiction when challenging the
      discretionary aspects of a sentence.

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant's brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

                                     ****

      A substantial question will be found where an appellant advances
      a colorable argument that the sentence imposed is either
      inconsistent with a specific provision of the Sentencing Code or is
      contrary to the fundamental norms which underlie the
      sentencing process. At a minimum, the Rule 2119(f) statement
      must articulate what particular provision of the code is violated,
      what fundamental norms the sentence violates, and the manner
      in which it violates that norm.

Commonwealth v. Zirkle, ___ A.3d ___, ___ [2014 Pa. Super. LEXIS

4563] (Pa. Super. 2014) (citations omitted).

      Here, Enderle preserved his discretionary aspects of sentencing

challenge by filing a motion to modify sentence within 10 days of sentencing,

and a timely appeal. See Pa.R.Crim.P. 720(A).       Enderle has also included

in his brief a concise statement pursuant to Pa.R.A.P. 2119(f).             See

Enderle’s Brief at 10–11.   The only remaining question is whether Enderle

has raised a substantial question.

      Enderle asserts:

      The Sentencing Code requires the Court to consider a number of
      factors including protection of the public, gravity of the offense
      as it relates to the impact on the life of the victim and on the

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      community, and the rehabilitative needs of the defendant. 42
      Pa.C.S.A. § 9721(b). In the instant case, the Trial Court failed
      to apply those mandatory standards when it imposed a sentence
      of total confinement for a period of 12 months. This appeal
      raises a specific statutory violation inasmuch as the Court seems
      to indicate that pleading guilty to the offense itself establishes
      guilt and authorizes the imposition of a sentence of total
      confinement for a substantial period of time. There was no
      indication that the public needed to be protected or that the
      offense was grave as it related to the impact on the life of the
      community nor is there any indication that incarceration
      accomplished any rehabilitative needs of [Enderle].

Enderles’s Brief at 10–11 (Rule 2119(f) Statement).

      It is well settled that “a claim of inadequate mitigating factors does not

raise a substantial question for [] review.” Commonwealth v. DiSalvo, 70

A.3d 900, 903 (Pa. Super. 2013) (citation and quotations omitted).

Furthermore, “‘[A]rguments that the sentencing court failed to consider the

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question

whereas a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721 has been rejected.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(citation omitted), appeal denied, 104 A.3d 1, 2014 Pa. LEXIS 3131 (Pa.

2014). It appears that Enderle’s claim is that the trial court did not consider

facts of record, which does not raise a substantial question.          See id.

However, even if Enderle’s Rule 2119(f) Statement could be said to present

a substantial question, no relief would be due.

      Prior to sentencing, on November 20, 2013, Enderle, through counsel,

filed a “Statement in Support of Mitigated Sentence.”       Enderle requested



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that the court impose a mitigated range sentence. Enderle pointed out that,

at the time of the filing of the charges in this case, he was in the process of

attempting to reestablish a relationship with his daughter, who was residing

with the victim. He noted that the charges were filed just days before there

was to be a hearing in Domestic Relations with regard to his request for

supervised visitation. Enderle pointed out that all acknowledge that one of

the incidents recited in the criminal complaint was a coincidental meeting

when the victim entered the store while he and his wife were ordering ice

cream. He also acknowledged that he and his wife routinely go to the Kwik

Fill gasoline station and that, in so doing, he had occasion to glance down

the victim’s street to attempt to get a glimpse of his daughter. He noted his

wife was with him on those occasions. Enderle asserted he was employed,

pays support for his daughter, has reunited with his wife, and enjoys a good

relationship with his sons. Enderle requested a probationary sentence.

      At the sentencing hearing held on November 25, 2013, the court

indicated that it had reviewed the presentence report and Enderle’s

statement in support of a mitigated sentence.         At the hearing, Eberle

declined to make a statement on the record. N.T., 11/25/2013, at 2–3.

However, counsel for Eberle presented argument on Eberle’s behalf. The trial

court also heard the argument of the Commonwealth’s attorney.

      The court, at the conclusion of the hearing, stated the following

reasons in support of its sentence:




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     THE COURT: Alright. Mr. Enderle, first of all the Court has
     already adopted all the information in the presentence report
     and I’m not going to go through that line by line, the facts of
     your culpability or guilt for the offense is established by your
     plea.

     The harm to the victim in this case is certainly evident from the
     trauma that she’s related in her letters and the fear that you’ve
     placed her in, and frankly, anybody would have been placed in
     the same position based upon your actions.

     I would have to say that there was certainly no grounds that
     would excuse or minimize or justify your actions in this case and
     the concern, of course, is that there have -- you have a prior
     record that involves certain crimes including violating a PFA and
     Recklessly Endangering Another Person, and we have this, of
     course, the crime here of Stalking Causing Repeated Acts To
     Threaten Bodily Injury. So, there’s a history here and given,
     given the mental health concerns there's a concern that this sort
     of thing is still going to recur.

     I believe you’ve tried to take some steps to alleviate that and I -
     - hopefully you will understand in the future what is and is not
     acceptable.

     The Court's decided that in this case a standard range
     Intermediate Punishment Sentence is the only appropriate
     sentence that the Court can impose with certain other
     restrictions included as part of that sentence and therefore the
     Court’s going to issue a sentence that would include a period of
     incarceration in the standard range under the guidelines as an
     Intermediate Punishment Sentence[.]

N.T., 11/25/2013, at 4–5. The court then issued a standard range sentence

of intermediate punishment, Phase 1 of which involves incarceration as a




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community service/work release inmate for 12 months, followed by four

years’ probation.4

       Where the sentencing court has had the benefit of a presentence

report, “it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and [] where the court is informed, its discretion

should not be disturbed.”         Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988)), appeal denied, 987 A.2d 161 (Pa. 2009).                   Further, the

suggestion that a defendant must be sentenced to the minimum amount of

confinement that is consistent with the protection of the public, gravity of

the   offense,    and    rehabilitative    needs   of   the   defendant    has   been

rejected.    See Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007).

Finally, “where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (citation omitted).

In light of these principles, and based upon our careful review of the record,

had a substantial question been raised, we would conclude the court




____________________________________________


4
  With Enderle’s prior record score of three, and offense gravity of four, the
guideline ranges were as follows: a mitigated range of restorative sanctions
to three months, a standard range of three to fourteen months’
imprisonment, and an aggravated range of fourteen months to seventeen
months. See N.T., 11/25/2013, at 2.



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considered all relevant Section 9721(b) factors, and fully and properly

justified the sentence imposed.

        The second issue raised by Enderle does not involve the discretionary

aspects of the sentence.          Rather, Enderle contests the fact that the trial

court specifically noted in its opinion that Enderle was “arrested once or

twice on [PFA] violations.”5 Enderle cites Commonwealth v. Johnson, 481

A.2d 1212, 1214 (Pa. Super. 1984), for the principle that a sentencing court

may consider a defendant’s prior arrests which did not result in conviction,

as long as the court recognizes that the defendant had not been convicted of

the charges.       Enderle argues, “In noting one or two arrests for PFA

violations, the Court was improperly considering factors in violation of

positive Pennsylvania law.”         Enderle’s Brief at 15.   Enderle claims, “The

matter should be remanded for re-sentencing consistent with the mandate

that a court may mention prior arrests but must also articulate that those

arrests did or did not result in convictions.” Id.

        We find this argument presents no basis upon which to disturb the

judgment of sentence.            The trial court’s reference to Enderle’s arrests

occurred subsequent to sentencing. In fact, at the time of the sentencing

hearing, the court relied on Enderle’s prior convictions.6 Moreover, the trial
____________________________________________


5
    Trial Court Opinion, 2/28/2014, at 2.
6
  At sentencing, the Commonwealth’s attorney stated that Enderle had “at
least one conviction for a PFA [and] [h]e may have been arrested on that
(Footnote Continued Next Page)


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court’s opinion reflects that the criminal history considered by the court in

fashioning the sentence was Enderle’s prior convictions.7    Accordingly, we

conclude the sentence was legal and appropriate, and no relief is due.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




                       _______________________
(Footnote Continued)

once or twice.” N.T., 11/25/2013, at 3–4. However, the trial judge, in his
on-the-record statement in imposing the sentence, specifically referenced
only Enderle’s PFA and Recklessly Endangering Another Person convictions,
and there is no indication the court relied on the Commonwealth’s attorney’s
statement. See id. at 4–5.
7
  See Trial Court Opinion, 2/28/2014, at 3 (“[Enderle’s] prior record involves
crimes including violation of a PFA and Recklessly Endangering Another
Person. Viewing [Enderle’s] current crime in light of his criminal history and
given concerns about his mental health caused the court to have significant
concern that his behavior would reoccur.”).



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