J-S42027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DRU MICHAEL SMITH FAILOR

                            Appellant                   No. 1664 MDA 2016


             Appeal from the Judgment of Sentence August 23, 2016
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002532-2015


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                        FILED SEPTEMBER 19, 2017

       Dru Michael Smith Failor appeals from the August 23, 2016 judgment

of sentence entered in the Cumberland County Court of Common Pleas after

he pled guilty to arson endangering property (reckless endangerment of

inhabited building), retaliation against witness or victim, and six counts of

recklessly endangering another person.1 We affirm.

       The trial court set forth the following factual and procedural history:

                The underlying incident in this matter began with [the
            Victim] filing for a Protection From Abuse [(“PFA”)] order
            against [Failor].     A final PFA order was entered by
            stipulation against [Failor] on December 24, 2014. On
            June 15, 2015, while Victim was protected by the final PFA
            order, [Failor] elected to travel with several friends to the
            residence where Victim was living. While [Failor]’s friends
            attempted to talk him out of it, [Failor] threw a firework at
____________________________________________


       1
           18 Pa.C.S. §§ 3301(c)(2), 4953(a), and 2705, respectively.
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           Victim’s residence.     The firework failed to ignite, and
           [Failor] left the property.

              Subsequently, [Failor] returned to Victim’s residence
           and threw a second firework at it. The second firework
           landed on the residence’s wooden deck and ignited,
           sparking a fire which caused over $44,000 in damage to
           the residence and drove Victim, as well as friends and
           relatives of Victim also staying at the residence[,] including
           Victim’s infant child, into the streets.

              [Failor] was identified as the responsible party by
           several witnesses, who contacted Victim and the police
           regarding the incident. [Failor] was arrested and charged
           with the underlying offenses.      Prior to trial, [Failor]
           contacted the witnesses in question and, in a consensually
           recorded conversation, threatened to kill each and every
           one of them if [he] was convicted of the charges against
           him.

              On July 11, 2016, the date [Failor] was scheduled to
           appear for trial in this matter, [Failor] entered a plea of
           guilty to the charges of Arson (Endangering Property),
           Retaliation Against a Witness or Victim, and six counts of
           Recklessly Endangering Another Peron. [Under the terms
           of the plea agreement, the court dismissed charges of
           arson (endangering persons), risking catastrophe, criminal
           mischief (damaging property by fire), and loitering and
           prowling at night time.][2]    Following entry of his pleas,
           [Failor] was sentenced on August 23, 2016, to a term of
           incarceration of one to three years for the Arson
           (Endangering Property) charge, and a consecutive two to
           four year term for Retaliation Against a Witness or Victim.
           On the Recklessly Endangering Another Person charges,
           [Failor] was sentenced to concurrent terms of two years of
           probation, set consecutive to the term of incarceration. . . .

              Following sentencing, [Failor] timely filed a pro se post-
           sentence motion for reconsideration on August 30, 2016,
           and a counseled motion for reconsideration on September
____________________________________________


       2
         18 Pa.C.S. §§ 3301(a)(1)(i), 3302(b), 3304(a)(1), and 5506,
respectively.



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         []2, 2016. [Failor]’s motion for reconsideration was denied
         by Order of Court dated September 7, 2016[.]

Opinion Pursuant to Pa.R.A.P. 1925(a), 12/9/16, at 3-4 (“1925(a) Op.”). On

October 7, 2016, Failor filed a timely notice of appeal.

      Failor raises one question on appeal that contains two issues: “Did the

court abuse its discretion by imposing a sentence which was manifestly

excessive, unreasonable, and an abuse of discretion, as the trial court had

no basis for imposing an aggravated range sentence or for imposing

sentences consecutively?” Failor’s Br. at 7 (some capitalization omitted).

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we address such a challenge, we must first

determine:
         (1) whether the appeal is timely; (2) whether Appellant
         preserved his issue; (3) whether Appellant’s brief includes
         a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Failor filed a timely notice of appeal, preserved his discretionary

aspects of sentencing claims in a motion for reconsideration of sentence, and

included a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pennsylvania Rule of Appellate Procedure 2119(f).         We



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must now determine whether Failor’s issue raises a substantial question for

our review.

       We evaluate whether a particular sentencing issue raises a substantial

question on a case-by-case basis.          Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa.Super. 2011).              A substantial question exists where a

defendant raises a “plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa.Super. 2013) (quotation omitted).           A claim that the sentence imposed

was excessive and unreasonable, when that sentence is above the

aggravated range under the Sentencing Guidelines, presents a substantial

question for our review. See Commonwealth v. Sheller, 961 A.2d 187,

190 (Pa.Super. 2008) (finding that appellant’s “contention that the [trial]

court exceeded the recommended range in the Sentencing Guidelines

without an adequate basis raises a substantial question for this Court to

review”). “The imposition of consecutive, rather than concurrent sentences

may raise a substantial question in only the most extreme circumstances,

such as where the aggregate sentence is unduly harsh, considering the

nature of the crimes and the length of imprisonment.” Commonwealth v.

Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010). However, a “challenge to

the imposition of . . . consecutive sentences as unduly excessive, together

with   [a]   claim   that   the   court   failed   to   consider   [the   defendant’s]


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rehabilitative needs and mitigating factors upon fashioning its sentences,

presents a substantial question.”          Commonwealth v. Swope, 123 A.3d

333, 340 (Pa.Super. 2015).

        We conclude that Failor has raised a substantial question as to

whether     his   aggravated-range     sentence    for   retaliation    is    manifestly

excessive. We also conclude that Failor has raised a substantial question as

to whether the court failed to consider his rehabilitative needs and mitigating

factors and in imposing the aggregate sentence. Accordingly, we will review

the merits of his claims.

        “Sentencing is a matter vested within the discretion of the trial court

and will not      be   disturbed absent      a manifest abuse          of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).

        First, Failor argues that he was sentenced to an aggravated-range

sentence based on inappropriate factors. According to Failor, the trial court

“imposed a sentence under the retaliation charge that was . . . motivated by

the allegation that . . . Failor committed an arson endangering persons.”

Failor’s Br. at 16. Failor asserts that “[i]t is manifestly unjust to dismiss the

arson     endangering       persons    charge     and    then    use         that     same

language/conduct       to   impose    an   aggravated    range   sentence           for   the

retaliation charge.” Id. This claim is without merit.

        It is well settled that “[a] sentence is invalid if the record discloses

that the sentencing court may have relied in whole or in part upon


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impermissible   consideration. . . . [including] unreliable information.”

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010)

(quoting Commonwealth v. Karash, 452 A.2d 528, 528-29 (Pa.Super.

1982)). Further, “the evidence upon which a sentencing court relies must

be accurate and there must be evidentiary proof of the factor[] upon which

the court relied.” Id. (internal citations and quotations omitted).

      Here, the trial court cited three factors in support of an aggravated-

range sentence: (1) the amount of damage to the property; (2) the risk of

serious injury to the victims; and (3) Failor’s prior conviction for criminal

mischief on March 15, 2016.     N.T., 8/23/16, at 14-15.    At the guilty plea

hearing, Failor admitted that he threw the firework at the home because the

victim had filed for and received a PFA order against Failor.          Failor’s

retaliation conviction shared the same underlying factual basis that might

have been used to prove the arson endangering persons charge, which was

dismissed as a part of the plea agreement.       The dismissal of that arson

charge did not preclude the trial court from considering the factual basis for

the plea to retaliation.   Therefore, we conclude that the trial court acted

within its discretion in sentencing Failor in the aggravated range for the

retaliation conviction.

      Next, Failor argues that the trial court failed to consider mitigating

factors in imposing the aggregate sentence.      According to Failor, the trial

court “based [its] decision on [its] personal sympathies, [its] rancor towards


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[] Failor, and [its] revulsion of [] Failor’s offenses.” Failor’s Br. at 16. Failor

asserts that the trial court ignored his “potential for rehabilitation [and] his .

. . manifestation of social conscience and responsibility through contrition,

repentance, and cooperation with law enforcement agencies.”             Id. at 18

(quoting Commonwealth v. Frazier, 500 A.2d 158, 160 (Pa.Super. 1985)).

Failor contends that he exhibited these matters by pleading guilty and

apologizing for his actions during his allocution. Failor also asserts that the

trial court failed to consider Failor’s “need to work and maintain employment

in order to pay the significant amount of restitution order by the court,” and

that Failor’s conviction will now make him “virtually unemployable.”          This

claim does not merit relief.

      Section 9721(b) of the Sentencing Code requires that


         in selecting from [sentencing] alternatives . . . 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. § 9721(b). Further, “[w]here pre-sentence reports exist, we . . .

presume that the sentencing judge was aware of relevant information

regarding [the defendant’s] character and weighed those considerations

along with mitigating statutory factors.” Commonwealth v. Gonzalez, 109

A.3d 711, 732 (Pa.Super.) (quoting Commonwealth v. Devers, 546 A.2d

12, 18 (Pa. 1988)), app. denied, 125 A.3d 1198 (Pa. 2015). This Court has

stated that:

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        A pre-sentence report constitutes the record and speaks
        for itself. . . . [S]entencers are under no compulsion to
        employ checklists or any extended of systematic
        definitions of their punishment procedure. Having been
        fully informed by the pre-sentence report, the sentencing
        court’s discretion should not be disturbed.         This is
        particularly true . . . in those circumstances where it can
        be demonstrated that the judge had any degree of
        awareness of the sentencing considerations, and there we
        . . . presume also that the weighing process took place in a
        meaningful fashion.

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (quoting

Devers, 546 A.2d at 18).

     Here, the trial court reviewed the pre-sentence investigation report

and victim impact statements.       The trial court also heard from the

Commonwealth and Failor and heard Failor’s allocution. We are convinced

that the trial court imposed an individualized sentence that took into

consideration any mitigating factors presented and the factors under section

9721(b). Accordingly, we find no abuse of discretion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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