J-S47042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN JOSEPH LUSE,                          :
                                               :
                        Appellant              :       No. 184 MDA 2019

      Appeal from the Judgment of Sentence Entered December 19, 2018
                 in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0004275-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN JOSEPH LUSE,                          :
                                               :
                        Appellant              :       No. 185 MDA 2019

      Appeal from the Judgment of Sentence Entered December 19, 2018
                 in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0003255-2018

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: SEPTEMBER 20, 2019

        In these consolidated appeals, Sean Joseph Luse (“Luse”) appeals from

the judgment of sentence imposed following his guilty pleas to one count each

of terroristic threats,1 at CP-67-CR-3255-2018 (“No. 3255”), and burglary,2

at CP-67-CR-4275-2018 (“No. 4275”). We affirm.
____________________________________________


1   18 Pa.C.S.A. § 2706(a)(1).

2   Id. § 3502(a)(2).
J-S47042-19


       Concerning the guilty plea at No. 3255, Luse admitted that, in January

2018, he communicated several threats of physical harm to the female victim

via phone calls and text messages. Four months later, regarding No. 4275,

Luse broke into the residence of the mother of his son, while the residence

was vacant, and caused extensive damage to the residence and contents

therein.3

       Following the entry of Luse’s open guilty pleas, the trial court ordered

the preparation of a pre-sentence investigation report (“PSI”). On December

19, 2018, the trial court sentenced Luse, at No. 3255, to 9 to 18 months in

prison. At No. 4275, the court sentenced Luse to 36 to 72 months in prison,

and ordered this sentence to run consecutively to the sentence at No. 3255.

Notably to the instant appeal, the sentence at No. 4275 was in the aggravated

range of the sentencing guidelines.

       On December 26, 2018, Luse filed a post-sentence Motion for

reconsideration of sentence, asserting that it was excessive, where the trial

court had failed to appropriately consider certain mitigating factors. After a

hearing,    the   trial   court   denied       Luse’s   Motion.   Luse   timely   filed




____________________________________________


3 Both instances involved Luse’s acting in retaliation to perceived wrongs that
the victims committed against Luse.

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J-S47042-19


Notices of Appeal,4 followed by court-ordered Pa.R.A.P. 1925(b) Concise

Statements of errors complained of on appeal. The trial court then issued a

Rule 1925(a) Opinion.

       Luse presents the following question for our review:

       Did the sentencing court abuse its discretion in imposing an
       aggravated-range term of incarceration after not only failing to
       consider strong mitigation—[]Luse’s employment and lack of
       infractions during presentence incarceration, as well as his
       addiction and mental health problems—but even using this as
       aggravation?

Brief for Appellant at 4.

       Luse challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal.5 See Commonwealth v. Sunealitis,

153 A.3d 414, 420 (Pa. Super. 2016). Rather, where, as here, the appellant

has preserved the sentencing challenge for appellate review, by raising it in a

timely post-sentence motion, he must (1) include in his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to



____________________________________________


4 Luse complied with the dictates of our Supreme Court in Commonwealth
v. Walker, 185 A.3d 969, 971, 977 (Pa. June 1, 2018) (holding that,
prospectively from the date of the Walker decision, “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case[,]” and that a failure to do so will result in quashal).
See also Pa.R.A.P. 341, note.

5 The open guilty pleas Luse entered permit him to challenge his sentence.
See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005)
(explaining that, when the plea agreement is open, containing no bargain for
a specific or stated term of sentence, the defendant will not be precluded from
appealing the discretionary aspects of his sentence).

                                           -3-
J-S47042-19


the discretionary aspects of his sentence, pursuant to Pa.R.A.P. 2119(f); and

(2) demonstrate that there is a substantial question that the sentence imposed

is not appropriate under the Sentencing Code. Id.

      Here, Luse included a Rule 2119(f) Statement in his brief. See Brief for

Appellant at 16. Accordingly, we will examine the Rule 2119(f) Statement to

determine whether a substantial question exists. Luse asserts as follows:

      In sentencing [] Luse to an aggravated-range term of
      incarceration, the court cited Luse’s employment and lack of
      infractions in presentence incarceration as evidence that he only
      functioned in a controlled environment, and similarly cited his
      mental health and addiction struggles as aggravation instead of
      mitigation. But employment and a lack of infractions while
      incarcerated show rehabilitative potential, and mental health and
      addiction struggles are properly viewed as mitigation as opposed
      to aggravation.

Brief for Appellant at 16.

            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation

omitted); see also 42 Pa.C.S.A. § 9781(b).

      Luse’s claim presents a substantial question for our review.         See

Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (stating

that a claim that the sentencing court considered improper factors in placing

a sentence in the aggravated range presents a substantial question on


                                    -4-
J-S47042-19


appeal); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (noting that although an allegation that the sentencing court failed to

consider certain mitigating factors generally does not necessarily raise a

substantial question, a substantial question is raised where an appellant

alleges that the sentencing court imposed sentence in the aggravated range

without adequately considering mitigating circumstances). Accordingly, we

will address the merits of Luse’s claims.

      We review discretionary aspects of sentence claims under the following

standard:   “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.” Commonwealth v. Barnes, 167 A.3d 110,

122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court

has broad discretion in choosing the range of permissible confinement that

best suits a particular defendant and the circumstances surrounding his or her

crime. Commonwealth v. Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004).

      The Sentencing Code sets forth the considerations a sentencing court

must take into account when formulating a sentence, stating that

      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.

42 Pa.C.S.A. § 9721(b).

      Moreover, this Court has observed that


                                      -5-
J-S47042-19


      although the sentencing guidelines are an important factor in
      sentencing, they are but only one factor when determining an
      individualized sentence: The guidelines have no binding effect,
      create no presumption in sentencing, and do not predominate
      over other sentencing factors – they are advisory guideposts that
      are valuable, may provide an essential starting point, and that
      must be respected and considered; they recommend, however,
      rather than require a particular sentence.

Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (citation,

paragraph break, and brackets omitted).

      Finally, where, as here, the sentencing court had the benefit of a PSI,

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

and considerations, and that where the court has been so informed, its

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

1128, 1135 (Pa. Super. 2009) (citation omitted); see also id. (stating that

“[t]he 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 [PSI]; thus properly considering and weighing all relevant

factors.”).

      Here, Luse argues that the trial court considered certain factors as

aggravating factors, which the court should have viewed as mitigating factors.

See Brief for Appellant at 18-20. Specifically, Luse points to his (1) lack of

infractions while confined prior to sentencing; (2) mental health issues and

drug/alcohol addiction; and (3) employment while in prison. See id.; see

also id. at 18, 19 (asserting that these considerations “plainly showed

rehabilitative potential, and thus should have been viewed as mitigation

                                    -6-
J-S47042-19


warranting a lesser sentence[,]” but the trial court instead “gave Luse a longer

sentence … because of this good behavior.”).

      In its Opinion, the trial court stated its reasons for imposing an

aggravated-range sentence, elaborated upon the nature of the crimes and

Luse’s history, and opined that the sentence was appropriate under the

circumstances. See Trial Court Opinion, 5/2/19, at 2-6. Briefly, the trial court

emphasized the following sentencing considerations:

         Luse’s history reveals an inability to conform to society in an
          unstructured environment;

         Luse has mental health issues and refuses to take prescribed
          psychiatric medications, which compounds these issues;

         The trial court did not, in fact, consider Luse’s lack of infractions
          in prison and mental health issues as aggravating factors;

         Even though Luse had remained crime-free for a period of ten
          years, he otherwise had an extensive criminal history, and
          other factors outweighed the crime-free mitigating factor;

         The consequences of the crimes upon the victims were severe,
          and caused one of the victims to become homeless;

         Luse showed no remorse for the crimes;

         Luse’s extreme actions in preying upon two female victims
          shows his vindictiveness and desire to inflict extreme harm;

         The sentence recommended by the probation department was
          merely a recommendation, and was insufficient under the
          circumstances.

Id. at 3-6; see also N.T. (sentencing), 12/19/18, at 22, 23 (wherein the trial

court stated as follows: “[t]he [c]ourt can deduce from the pattern of [Luse’s]

prior [criminal] conduct[,] and the conduct in this case[,] that when [Luse] is

                                        -7-
J-S47042-19


using substances[, i.e., alcohol and/or drugs], when [he] is off his

[psychiatric] medication, and because of his behavioral health issues, [he] is

a threat to public safety and he’s a threat to people with whom he has a

grudge[,]” and “[Luse’s] desire to intimidate others[] and his preying upon

females is also a relevant consideration[.]”). The trial court’s sound analysis

is supported by the record, and we thus adopt it for the purposes of this

appeal, see Trial Court Opinion, 5/2/19, at 2-6, and conclude that the court

did not abuse its discretion in imposing an aggravated-range sentence at No.

4275.     Accordingly, Luse’s challenge to the discretionary aspects of his

sentence entitles him to no relief.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2019




                                      -8-
                                                                                        Circulated 08/21/2019 02:41 PM




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                SEAN LUSE                                                                       r-        .._,:::     c....
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                     OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 192S(a} OF THE
                                   RULES OF APPELLATE PROCEDURE

                I.     Introduction

                       The Defendant has timely appealed to the Superior Court of Pennsylvania from his

                sentence of 45 to 90 months' incarceration for burglary and terroristic threats. The Court

                directed the Defendant to file a Pa. R.A.P. 1925(b) statement ( .. Statement"), and he has done

                so. In his Statement, the Defendant challenges his sentence, arguing that that the Court

                abused its discretion in sentencing the Defendant to 45 to 90 months incarceration; 9 to 18

                months for terroristic threats in case CR-3255-2018, followed by a consecutive 3 to 6 years

                for burglary in case CR-4275-2018. After carefully reviewing the Statement, record, and

                governing law, the Court finds the Defendant's argument lacks merit. The Court therefore

                urges affirmance of the judgment of sentence.
            II.     Background

                                                 Plea and Sentencing

                    On November 5th, 2018 the Defendant pied guilty in both cases. He was then
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            sentenced on December l 91h, 2018 to 9 to 18 months' incarceration for CR-3255-2018 and a

            consecutive 3 to 6 years' incarceration for CR-4275-2018.

                   The Defendant timely filed notice of appeal, and then submitted his Statement as

            directed.

            III.    Matters Complained of on Appeal

                    In his Statement, the Defendant challenges his sentence, arguing that the Court

            abused its discretion in sentencing the Defendant to 9 to 18 months' incaceration for the

            crime of terroristic threats in case CR-3255-2018, followed by a consecutive 3 to 6 years for

            burglary in CR-4275-2018. (Statement at 1-4.) Appellate Courts accord the sentencing

            judge great deference, as the sentencing judge is in the best position to view the defendant's

            character, displays of remorse, defiance, indifference, and the overall effect and nature of the

            crime. Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000). A sentencing court will

            not have abused its discretion unless the record discloses that the judgment exercised was

            manifestly unreasonable, or the result of partiality, prejudice, or ill will. Commonwealth v.

            Moury, 992 A.2d 162 (Pa.Super. 2010). Under this standard, there is no basis to disturb the

            Defendant's sentences.

                    With respect to the Defendant's conduct in these cases, his sentences are appropriate

            for his actions and the harm they caused. In CR-3255-2018, the terroristic threats he

                                                           2
             expressed to the victim were 'in a series of threating text messages over a couple days.

             Among the various messages where he called the victim various derogatory names, he stated

             to the victim: "Your fucking days are numbered. Your days are numbered. I know where you
 ...
   �....:,
,,.. f-·"    live." (Notes of Testimony 12/19/18 at 11 ). In case CRA275-2018, at the Defendant's
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             sentencing hearing, the Commonwealth presented to the court photographs of the damage he

             caused to the residence of the burglary victim. (Commonwealth's Exhibits 1-8). The

             pictures showed the extensive damage that the Defendant caused to multiple rooms of the

             victim's residence. The Defendant ransacked her bedroom, kitchen, living room, and

             bathroom. Among the damage, the Defendant flipped over the victim's bed, knocked a

             television to the ground, destroyed a toilet, and ripped numerous items from cabinets and

             threw them to the ground. (Id).

                    The Court expressly stated on the record its reasons for sentencing the Defendant.

             The Defendant's history reveals an inability to conform to society in an unstructured

             environment. The Defendant raises issue with the Court citing his addiction and mental

             health issues as aggravating factors. Issues such as these when examined individually and in

             the abstract could potentially be seen as mitigating factors. However, when examining them

             together within the context of the Defendant's history, they reflect on his lack of

             rehabilitative potential. With respect to his mental health issues, the Defendant compounds

             the effect they have on him, as he wilfully disregards taking the medication he is prescribed

             to control them.




                                                            3
          The Defendant misstates that the court cited his lack of write ups while incarcerated

as an aggravating factor. The Court did not cite his lack of write ups as an aggravating factor.

The Court noted the Defendant's lack of write ups as they showed that when he is in a

controlled environment, the Defendant is able to control himself. The Defendant's lack of

write ups while incarcerated taken in context with his extensive criminal history reveal his

inability to function outside of a rigid, structured environment that one finds in prison.

          The Defendant argues that while the Court claimed to recognize the large gap from

the Defendant's prior convictions to the cases at hand as mitigation, it was not reflected in

the sentences imposed. However, while acknowledging that this nearly ten year gap in

crimes reflects positively on the Defendant, it is outweighed by the other factors the Court

considered in crafting an appropriate sentence. What this ten year gap suggests is that the

Defendant was able to control his behavior when he was either on his mental health

medication or not abusing drugs. When he wilfully decided to stop taking his medication or

abuse drugs, he becomes a threat to society and a danger to those against whom he holds a

grudge.

          The Defendant further argues that his sentences reflect no consideration for the

Defendant pleading guilty and cooperating with authorities. Much like his ten year gap in

offenses, while accepting responsibility for his actions is a positive for sentencing

consideration, those positives were outweighed by the substance abuse, neglect of his

medications, and the consequences suffered by his victims.




                                                 4
                  The Defendant also raises issue with the fact that the Court's sentence greatly exceed

           the recommendation of the probation department. This argument is unpersuasive. While the

           recommendation from the probation department can certainly aid the Court in determining an
      ,1
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           appropriate sentence, by no means is the Court bound by what the recommendation may be.

           While the Pre-Sentence Investigation is very thorough, taking into account interviews with

           the Defendant and other actors in the case, the recommendation is made prior to the

           sentencing hearing, and thus does not take into consideration potential arguments and facts

           presented at the hearing. The recommendation does not take into consideration the photos

           presented by the Commonwealth at the sentencing hearing, which reflect the extreme level of

           vindictiveness and cruelty of the Defendant's conduct to his victims.

                  As presented by the Commonwealth at the sentencing hearing, the harm caused by the

           Defendant's actions was sufficient to make one of the victim's become homeless. Severity of

           the harm to a victim is relevant for the consideration of a Court in sentencing. The

           Defendant's extreme actions reflect his cruelty and vindictiveness and a desire to inflict

           extreme harm and intimidation upon his victims. In both of his cases, the Defendant preyed

           upon female victims, and reflected an attitude that his victims got what they deserved, as he

           was merely reacting to perceived wrongs they committed against him. For these and his lack

           of genuine remorse, it was appropriate for the Court to sentence the Defendant in the

           aggravated range.

                  With respect to the Court's decision to run the Defendant's sentences consecutively,

           this is appropriate as the Defendant continued his destructive behavior between the two


                                                          5
     r·
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             separate incidents. The Defendant had an opportunity to correct his behavior and to seek

             help and treatment for his substance abuse and mental health issues after committing his first

             crime. Rather, he made the wilful decision to continue his cruel and vindictive behavior and
    �...:,
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t·,.!.r'·    cause harm to another victim.

                    In light of the Defendant's criminal character, lack of remorse, and lack of

             rehabilitative potential, and in light of the devastating effect of the crime on his victims, the

             Defendant's sentence was not manifestly unreasonable.

             IV.    Conclusion

                    For the reasons stated above, this Court respectfully urges affirmance of the

             Defendant's conviction and judgment of sentence.



                                                            BY THE COURT,


                         'I yr'
             DATED: May _,_, 2019                           C:A�lLCOCK, JUD:E




                                                              6
