J-S05010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM DAVID SIRBAUGH, JR.                :
                                               :
                       Appellant               :   No. 845 WDA 2018

                 Appeal from the Order Entered April 23, 2018
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000723-2016,
                                         CP-11-CR-0001781-2015,
                                         CP-11-CR-0001852-2016


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 15, 2019

        William David Sirbaugh, Jr. appeals from the judgment of sentence

entered in the Cambria County Court of Common Pleas, following his

negotiated guilty plea to receiving stolen property, unsworn falsifications to

authorities, and possession of drug paraphernalia.1 Appellant argues the court

failed to consider his need for drug rehabilitation and therefore imposed an

excessive sentence. We affirm.

        On March 23, 2017, Appellant entered a guilty plea to the above crimes,

all three of which stemmed from separate incidents. In exchange, the


____________________________________________



    Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3925(a), 4904(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.
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Commonwealth nolle prossed a number of other related charges against him.

At the plea hearing, the Commonwealth gave a brief recitation of the relevant

facts pertaining to each crime: Appellant and accomplices sold brass vases

stolen from a cemetery for scrap metal; Appellant submitted forged

prescriptions to his probation officer as explanation for several positive drug

tests; and, Appellant was caught in possession of drug paraphernalia. At

Appellant’s request, the trial court ordered a pre-sentence investigation report

(“PSI”) to determine Appellant’s eligibility for enrollment in rehabilitative

facilities. Ultimately, Appellant did not qualify for enrollment prior to

sentencing.

      At sentencing, Appellant’s counsel explained that Appellant’s criminal

history stemmed from a lengthy battle with drug addiction and noted efforts

to get Appellant into a rehabilitation facility. The trial court ultimately imposed

an aggregate sentence of 16 to 48 months’ incarceration, followed by 12

months’ probation. In explaining the sentence, the trial court specifically

expressed a hope that Appellant would utilize the rehabilitative services

available to him while incarcerated.

      After a successful petition filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-9546, Appellant’s direct appeal rights were

reinstated.   Appellant   filed   a   timely   post-sentence   motion   requesting

reconsideration of his sentence. Following a hearing, the court denied the

motion. In doing so, the court explained that it stayed within the sentencing


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guidelines, and even imposed a sentence on the lower end of the guideline

range. This timely appeal is now before us.

      Appellant raises one issue for our review: that the trial court abused its

discretion when it imposed a manifestly excessive sentence and failed to

consider mitigating factors. Specifically, Appellant believes the court failed to

take into account Appellant’s need for drug rehabilitation.

      “It is well-settled that appeals of a discretionary aspect of a sentence

are not reviewable as a matter of right.” Commonwealth v. Miller, 965 A.2d

276, 277 (Pa. Super. 2009) (citation omitted). To invoke this Court’s

jurisdiction, an appellant challenging the discretionary aspects of his sentence

must first satisfy a four-part test. See Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa. Super. 2013). We consider:

      (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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

      Here, Appellant has filed a timely notice of appeal. His issue was

properly preserved in a motion to reconsider and modify sentence. Appellant

has included a concise statement of reasons relied on for allowance of appeal,

pursuant to Pa.R.A.P. 2119(f). As his issue has been properly preserved, we




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must       decide   whether   he   has   raised   a    substantial   question.   See

Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super. 2019).

       “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. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation

and internal quotation marks omitted). “A claim that a sentence is manifestly

excessive such that it constitutes too severe a punishment raises a substantial

question.” Id., at 995 (citation and internal quotation marks omitted). This

Court has held that a challenge to the imposition of consecutive sentences as

unduly excessive, together with a claim that the sentencing court failed to

consider a defendant’s rehabilitative needs when fashioning his sentence, does

present a substantial question. See Commonwealth v. Caldwell, 117 A.3d

763, 770 (Pa. Super. 2015).

       Based on the above, we find Appellant raises a substantial question.

Thus, we proceed to the merits of his claim.

       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.

Gonzalez, 109 A.3d at 731 (citation omitted).


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      “In fashioning a sentence, 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 offense as it relates to the impact

on [the] life of the victim and on the community, and the rehabilitative needs

of the defendant.” Miller, 965 A.2d at 277 (citation and internal quotation

marks omitted). Though the Pennsylvania Sentencing Guidelines are

nonbinding, “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 (Pa. Super. 2010)

(citation omitted). And where the sentencing court had the benefit of a PSI,

we may assume the court was aware of relevant sentencing factors. See id.

      Here, Appellant believes the court imposed an unduly harsh consecutive

sentence, and failed to consider his need for drug rehabilitation. That claim,

however, is belied by the record.

      At the plea hearing, the court ordered a PSI report. The court specified

that the report should assess Appellant’s eligibility for a drug rehabilitation

program as a diversion from incarceration. See N.T. Plea, 3/23/17, at 10. At

sentencing, Appellant’s counsel informed the court that Appellant had been

given a state sentence on other criminal charges before sentencing in this

case, and would therefore be ineligible for the county’s drug rehabilitation

program. See N.T. Sentencing, 5/18/17, at 2-3. Appellant instead requested




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that his sentence on the instant charges run concurrent to his state sentence

in the other, unrelated case. See id., at 3.

      The court stated that it read Appellant’s PSI, and took special note of

Appellant’s “massive” prior record. Id., at 5. The court also repeatedly

mentioned its extensive consideration of Appellant’s drug problem. See id.,

at 5-8. Ultimately, the court imposed a standard range sentence of 14-36

months’ incarceration on the receiving stolen property conviction, a

consecutive sentence of 2-12 months’ incarceration on the unsworn

falsifications conviction, and a 12-month probationary sentence on Appellant’s

conviction for possession of drug paraphernalia. See id., at 6-7. The court

declined to make this sentence concurrent with Appellant’s state sentence on

his other, unrelated criminal charges. The court then informed Appellant of

the accessibility of drug rehabilitation programs in state prison, and

encouraged Appellant to avail himself of these while incarcerated. See id., at

5, 7-8.

      Appellant himself acknowledges his sentence is within the standard

range of the Sentencing Guidelines. See Appellant’s Brief, at 6. The sentencing

court also had the benefit of a PSI. And the court recognized Appellant’s

struggles with drug addiction, acknowledging these when imposing his

sentence. Indeed, it was Appellant’s conviction on other charges in an

unrelated criminal case and receipt of a state sentence that divested the

sentencing court of its ability to order his participation in a county drug


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rehabilitation program. Based on the foregoing, we find no grounds for

disturbing Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2019




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