J-S31033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :      IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                   Appellee                    :
                                               :
                   v.                          :
                                               :
MITCHELL GLEN RUNK,                            :
                                               :
                   Appellant                   :      No. 1886 MDA 2015

            Appeal from the Judgment of Sentence September 9, 2015,
                in the Court of Common Pleas of Lancaster County,
               Criminal Division, at No(s): CP-36-CR-0005515-2014

BEFORE:       SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                            FILED JUNE 07, 2016

      Mitchell Glen Runk (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to homicide by vehicle while driving under the

influence (DUI); homicide by vehicle; accidents involving death or injury—

not   properly    licensed;   DUI   (highest   rate   of   alcohol);   DUI   (general

impairment); reckless driving; driving at safe speed; driving while under

suspension—DUI related; and driving without a license.            Upon review, we

affirm.

      The Commonwealth stated the factual basis for Appellant’s plea as

follows.1

      [O]n Saturday, September 21st, 2013, at approximately 0137
      hours, members of the Northwest Regional Police Department


1
  The Commonwealth also incorporated by reference the affidavits of
probable cause contained in the criminal complaint. N.T., 6/16/2015, at 8.

*Retired Senior Judge assigned to the Superior Court.
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     were dispatched to PA Route 230 at Cedar Road for a collision
     involving two ejected occupants of a single vehicle collision.

           Annastasia Leberfinger, age 20, and [Appellant] were the
     occupants of the vehicle at the time of the crash.               Both
     occupants were transported to Hershey Medical Center and
     Leberfinger died as a result of injuries sustained in that collision.

           As a result of the investigation and the collision
     reconstruction investigation performed by Detective Greg Wahl,
     the investigation revealed that Unit 1 was traveling at a high
     rate of speed, traveling on State Route 230, also known as North
     Market Street.

            The first harmful event of the collision occurred between
     Zeager Road and Cedar Road on 230. In that area, it is a two-
     lane macadam roadway, 45 mile an hour speed zone. Unit 1
     failed to negotiate a left curve in the roadway. Unit 1 then failed
     to negotiate the left curve and went into a counterclockwise yaw.

           It went across Cedar Road and struck the road sign and
     stop sign. It then struck an embankment with its right side and
     went up the embankment. It vaulted from the embankment,
     struck a tree, with two occupants being ejected after striking the
     tree. This tree was knocked over.

          Unit 1 continued, landing on its roof back on State Route
     230. The vehicle then rotated 180 degrees several times and
     ended up at a driveway at 1997 North Market Street.

          The speed at the time that Unit 1 left the roadway was
     between 104 and 115 miles per hour according to the
     reconstructed speed performed by Detective Wahl.

          A search warrant was conducted at Hershey Medical Center
     on [Appellant’s] medical records, and that blood result was then
     converted to whole blood and was determined by Dr. Wayne
     Ross that his whole blood alcohol content average was .219
     percent at the time of the crash.

           Essentially, there were witnesses that indicated that they
     had seen both the victim and [Appellant] at a residence, at a
     party, shortly before the crash, that both were highly



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      intoxicated, and that they saw the vehicle leaving that residence,
      which was a few miles away from the ultimate crash scene.

           As indicated by witnesses there, … they believe [Appellant]
      was behind the driver’s wheel in the driver’s seat, and the victim
      was passed out in another area of the vehicle.

            At the time of the collision, [Appellant]’s driving record
      also showed that his operating privileges were suspended and
      not restored at the time of the crash due to prior DUI
      suspension. Specifically, those convictions being January 5 of
      2010 and February 2 of 2010.

N.T., 6/16/2015, at 8-11.

      Appellant pled guilty to the aforementioned crimes on June 16, 2015.

He was sentenced on September 9, 2015, to a term of five to ten years of

imprisonment for the charge of homicide by vehicle while DUI, a concurrent

three-and-a-half to seven years of imprisonment for the charge of homicide

by   vehicle,2   and   a   consecutive   three-and-a-half   to   seven   years   of

imprisonment for the charge of accidents involving death or injury—not

properly licensed.     Appellant was also sentenced to a consecutive 90-day

term of imprisonment for the conviction of driving while under suspension—

DUI related. Thus, Appellant received an aggregate sentence of eight-and-

a-half to seventeen years plus 90 days of imprisonment.3


2
  Pursuant to Appellant’s plea agreement, Appellant was “to receive no
additional exposure” on his conviction for homicide by vehicle, meaning that
sentence “may run concurrent to any other sentence received.” N.T.,
6/16/2015, at 2-3.
3
 The court did not impose a penalty for the remaining charges because they
merged for sentencing purposes.


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         On September 18, 2015, Appellant filed a post-sentence motion to

modify sentence, which the trial court denied on September 24, 2015. This

appeal followed, wherein Appellant’s sole issue challenges the discretionary

aspects of his sentence.

         Challenges to the discretionary aspects of sentencing do not
         entitle an appellant to review as of right.            An appellant
         challenging the discretionary aspects of his sentence must
         invoke this Court’s jurisdiction by satisfying a four-part test:

            We conduct a four-part analysis to determine: (1) whether
            appellant has filed a timely notice of appeal, see Pa.R.A.P.
            902 and 903; (2) whether the issue was properly
            preserved at sentencing or in a motion to reconsider and
            modify sentence, see Pa.R.Crim.P. 720; (3) whether
            appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
            (4) whether there is a substantial question that the
            sentence appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

         Appellant filed timely a notice of appeal, presented his claim in a post-

sentence motion, and included a statement pursuant to Rule 2119(f) in his

brief.     Thus, we consider whether he has raised a substantial question

worthy of appellate review.

         The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.         Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions




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were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

     In his Rule 2119(f) statement, Appellant alleges that the imposition of

consecutive sentences resulted in an aggregate sentence that was facially

excessive in light of the criminal conduct at issue. Appellant’s Brief at 14.

He further argues that

     the imposition of a consecutive sentence of not less than 3 ½
     years [of] incarceration for the offense of accidents involving
     death or personal injury and driving under suspension was
     greatly in excess of the aggravated range of the sentencing
     guidelines,[4] clearly unreasonable and manifestly excessive. In
     any occasion where the [trial c]ourt goes beyond the aggravated
     range of the sentencing guidelines this Court should grant
     allowance of appeal. This is particularly true where the sentence
     was imposed consecutively to a sentence of five to ten years [for
     the conviction of homicide by vehicle while DUI,] which was the
     maximum sentence under the law.”

Id. at 14-15 (emphasis and unnecessary capitalization omitted).

     In determining whether the above claims raise a substantial question,

we bear the following in mind.



4
  To the extent Appellant argues that his sentence for driving while under
suspension—DUI related was greatly in excess of the aggravated range of
the guidelines, we observe that Appellant was convicted pursuant to 75
Pa.C.S. § 1543(b)(1.1)(i), which requires Appellant “to undergo
imprisonment for a period of not less than 90 days.” Thus, we treat
Appellant’s argument in this regard as one challenging only the consecutive
nature of the sentence imposed for that conviction.


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        We have stated that the imposition of consecutive rather
        than concurrent sentences lies within the sound discretion
        of the sentencing court. Long standing precedent of this
        Court recognizes that 42 Pa.C.S.[] § 9721 affords the
        sentencing court discretion to impose its sentence
        concurrently or consecutively to other sentences being
        imposed at the same time or to sentences already
        imposed. A challenge to the imposition of consecutive
        rather than concurrent sentences does not present a
        substantial question regarding the discretionary aspects of
        sentence. …

     However, we have recognized that a sentence can be so
     manifestly excessive in extreme circumstances that it may
     create a substantial question. When determining whether a
     substantial question has been raised, we have focused upon
     whether the decision to sentence consecutively raises the
     aggregate sentence to, what appears upon its face to be, an
     excessive level in light of the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa. Super. 2014)

(citations and internal quotation marks omitted).

     The criminal conduct at issue herein related to Appellant’s driving at an

excessive speed, while highly intoxicated, and while his license was

suspended for previous DUI convictions. Appellant’s actions resulted in the

ejection of both occupants from the vehicle and the death of Ms. Leberfinger.

Pursuant to the plea agreement, Appellant received a concurrent term of

imprisonment   for   his   homicide   by   vehicle   conviction.   He   received

consecutive sentences only with respect to his three-and-a-half to seven

year sentence for accidents involving death or injury—not properly licensed,

and his 90-day sentence for driving while under suspension—DUI related.

Considering the nature of the crimes at issue and the length of imprisonment



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imposed, we conclude that this is not a case wherein the court’s decision to

impose consecutive sentences resulted in a facially excessive sentence.

Thus, Appellant’s claim fails to raise a substantial question.                   See id., 107

A.3d at 134 (concluding that a seventeen-year-and-one-month minimum

sentence was “not so manifestly excessive as to raise a substantial question”

given the charges involved, which included three counts of burglary, three

counts of criminal trespass, one count of criminal mischief, one count of

terroristic threats, and two theft counts).

      Moreover,          although       Appellant   claims    that    the   imposition    of   a

consecutive sentence which was beyond the aggravated range for accidents

involving    death       or   injury—not       properly      licensed     was    unreasonable,

particularly in light of the court’s imposition of the statutory maximum

sentence for homicide by vehicle while DUI, we conclude that such a claim

likewise    fails   to    raise     a    substantial   question      in   this   case.5    See

Commonwealth v. Treadway, 104 A.3d 597, 599-600 (Pa. Super. 2014)

5
  As stated above, Appellant argues that this Court should reach the merits
of a discretionary aspects claim in any occasion where the sentencing court
goes beyond the aggravated range of the guidelines. He cites subsection
9781(c)(3) of the Sentencing Code as the only support for his claim. See
42 Pa.C.S. § 9781(c)(3) (providing that “[t]he appellate court shall vacate
the sentence and remand the case to the sentencing court with instructions
if it finds [that] the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable”). That provision requires this
Court to vacate a sentence that results from an abuse of the trial court’s
sentencing discretion upon merits review; it does not, as Appellant would
have us hold, suggest that any defendant sentenced outside of the
guidelines has a colorable argument that the trial court acted unreasonably.



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(concluding that Treadway’s claim that “the imposition of consecutive

statutory maximum sentences, all but guaranteeing that [Treadway] will

spend the rest of his life in jail, raises his aggregate sentence to an

excessive level,” did not raise a substantial question and that Treadway’s

sentence of 100 to 200 years was not manifestly excessive when viewed in

the context of Treadway’s conduct).6

      Appellant also alleges in his Rule 2119(f) statement that his aggregate

sentence was manifestly excessive and contrary to the fundamental norms

which underlie the sentencing process because the court ignored mitigating

factors present in this case and focused exclusively on the serious nature of

the offense. Appellant’s Brief at 13-14. We conclude that this claim raises a

substantial question.   Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.

Super. 2012) (“[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question.”).

6
  The conduct at issue in Treadway involved Treadway’s repeated sexual
abuse of his stepdaughter:

      This depravity continued for years. The victim testified that the
      abuse began when she was nine or ten years old and that
      [Treadway] first had sexual intercourse with her when she
      turned eleven. By the time the victim was thirteen or fourteen
      years old, [Treadway] had sex with her “every day or multiple
      times a day.” Eventually the victim became pregnant. The
      victim, with [Treadway’s] assistance, obtained an abortion in a
      hospital.

Treadway, 104 A.3d at 598.


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     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.

Zirkle, 107 A.3d at 132.

     In support of his claim, Appellant argues that the trial court “was

obviously offended by the facts of this case and [Appellant]’s prior

convictions involving the abuse of alcohol.”         Appellant’s Brief at 21.

Appellant further argues that

     there are mitigating factors in the sense that he expressed
     remorse for his actions and accepted responsibility by pleading
     guilty and not requiring the family of the victim to go through a
     trial.  Furthermore, as was apparent from the presentence
     investigation [report (PSI)], this criminal offense directly
     resulted from [Appellant’s] addiction to alcohol.

Id. at 20. Appellant also sets forth information regarding his age, criminal

history, education, and history of drug and alcohol abuse. Id. at 19-20.

     At the outset, we observe that, as mentioned by Appellant, the trial

court had the benefit of a PSI. “Where the sentencing court had the benefit

of a [PSI], we can assume the sentencing court ‘was aware of relevant

information   regarding    the   defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors.’” Griffin, 65 A.3d at

937 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

Moreover, at sentencing, Appellant’s counsel noted Appellant’s struggle with



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drug and alcohol abuse and criminal history.          N.T., 9/9/2015, at 10-11.

Appellant’s counsel also explained that Appellant “accepted responsibility …

because he couldn’t bear to put [the victim’s] family through a second

horrific event.” Id. at 12-13.       Appellant also apologized to the victim’s

family, expressed his remorse, and discussed his addiction at sentencing.

Id. at 17-18.

         Based on the foregoing, it is clear that although Appellant claims in his

Rule 2119(f) statement that the trial court ignored mitigating factors in

sentencing Appellant and focused exclusively on the serious nature of the

offense, Appellant’s actual argument instead challenges the weight the

court gave to those factors.       This argument does not entitle Appellant to

relief; indeed, such a claim does not even raise a substantial question. See

Zirkle, 107 A.3d at 133 (“We have held that a claim that a court did not

weigh the factors as an appellant wishes does not raise a substantial

question.”); Commonwealth v. Bowersox, 690 A.2d 279, 281 (Pa. Super.

1997) (“Evidence of these mitigating circumstances was before the judge at

sentencing, and an allegation that the judge failed to consider it is

essentially a claim that the judge failed to give that evidence the weight

appellant thinks proper.        Such a claim does not raise a substantial

sentencing question.”).      Thus, we discern no abuse of discretion on this

basis.




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     Appellant has failed to establish that the trial court abused its

discretion in sentencing Appellant. Accordingly, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/7/2016




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