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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
FRANCIS DENNIS KINNEY,                      :          No. 2480 EDA 2019
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence Entered July 16, 2019,
                  in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0006786-2018


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED APRIL 08, 2020

        Francis Dennis Kinney appeals from the July 16, 2019 judgment of

sentence entered by the Court of Common Pleas of Bucks County following his

conviction of driving under the influence (“DUI”) of alcohol and a controlled

substance and possession of drug paraphernalia.1 After careful review, we

affirm.

        The trial court provided the following factual and procedural history:

              On July 5, 2018, at approximately 3:30 in the
              morning, a [Pennsylvania] State Trooper observed
              [appellant] unconscious and slumped over the
              steering wheel of his car which was located on the side
              of the off ramp of State Route 63 West in Bensalem
              Township. [Appellant] submitted to a blood test which
              tested positive for a combination of alcohol and drugs
              at a level that impaired his ability to safely operate his
              vehicle. His blood alcohol content was .092. His blood

1   75 Pa.C.S.A. § 3802(d)(3) and 35 P.S. § 780-113(a)(32), respectively.
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            also tested positive for both fentanyl and morphine.
            Three empty glassine baggies were recovered from []
            the center console of his vehicle.

            On July 16, 2019, [appellant] entered guilty pleas to
            [DUI] of alcohol and a controlled substance [], in
            violation of 75 Pa.C.S.[A.] § 3802(d)(3),[Footnote 1]
            and possession of drug paraphernalia in violation of
            35 P.S. § 780-113(a)(32). [Appellant] was sentenced
            to a term of incarceration of two months to six months
            for the DUI offense with a consecutive term of
            one year [of] probation for the drug paraphernalia
            offense. On July 26, [2019, appellant] filed a motion
            to modify and reconsider sentence. By order dated
            August 16, 2019, [appellant’s] motion was denied.
            On August 23, 2019, [appellant] filed a timely notice
            of appeal from the judgment of sentence.

                  [Footnote 1] The maximum sentence that
                  can be imposed for this offense is three to
                  six months. The mandatory minimum
                  sentence is 72 hours. [See 75 Pa.C.S.A.
                  § 3804(c)(1)(i).]

Trial court opinion, 10/11/19 at 1-2 (citations to the record and extraneous

capitalization omitted).

      The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant timely

complied.    The trial court subsequently filed an opinion pursuant to

Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

            A.    Did the sentencing court fail to state sufficient
                  reasons on the record to support a sentence in
                  the aggravated range of the sentencing
                  guidelines?




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            B.     Was a minimum sentence of sixty days [of]
                   incarceration for a first offense driving under the
                   influence manifestly excessive, unreasonable,
                   and not in accordance with the sentencing
                   norms set forth in 42 Pa.C.S.[A.] § 9721?

Appellant’s brief at 4 (full capitalization omitted).

      In both of his issues, appellant raises a challenge to the discretionary

aspects of his sentence.

            Challenges to the discretionary aspects of sentence
            are not appealable as of right. Commonwealth v.
            Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
            Rather, an appellant challenging the sentencing
            court’s discretion must invoke this Court’s jurisdiction
            by (1) filing a timely notice of appeal; (2) properly
            preserving the issue at sentencing or in a motion to
            reconsider and modify the sentence; (3) complying
            with Pa.R.A.P. 2119(f), which requires a separate
            section of the brief setting forth “a concise statement
            of the reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of a sentence[;]”
            and (4) presenting a substantial question that the
            sentence appealed from is not appropriate under the
            Sentencing Code. Id. (citation omitted).

Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa.Super. 2019).

      Here, appellant filed a timely notice of appeal and filed a post-sentence

motion in which he alleged that the trial court imposed a manifestly excessive

and unreasonable sentence not in accordance with the sentencing norms set

forth in 42 Pa.C.S.A. § 9721. (See appellant’s post-sentence motion, 7/26/19

at unnumbered page 2.) Appellant also included a Rule 2119(f) statement in

his brief. (See appellant’s brief at 9.)




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      We must now determine whether appellant has raised a substantial

question.

            “The determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis.”
            Commonwealth v. Prisk, 13 A.3d 526, 533
            (Pa.Super. 2011). Further:

                  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.

            Id. (internal citations omitted).

Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super. 2015). This court

has held that a claim that a trial court does not sufficiently state its reasons

for deviating from the sentencing guidelines raises a substantial question.

Commonwealth v. Twitty, 876 A.2d 433, 439 (Pa.Super. 2005), appeal

denied, 892 A.2d 823 (Pa. 2005), citing Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999), appeal denied, 790 A.2d 1013 (Pa. 2001).

This court has also held that a claim that the trial court failed to consider the

factors enumerated in 42 Pa.C.S.A. § 9721 constitutes a substantial question.

Commonwealth v. Derry, 150 A.3d 987, 992 (Pa.Super. 2016), citing

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal

denied, 63 A.3d 776 (Pa. 2013).




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      Here, appellant contends that the trial court “failed to state adequate

reasons on the record as to why an aggravated sentence was warranted when

the case did not differ from any other driving under the influence matter.”

(Appellant’s brief at 9.) Appellant further contends that the trial court failed

“to cite or explain how [a]ppellant’s sentence is in accordance with

42 Pa.C.S.[A.] § 9721(b).” (Id. at 10.) We, therefore, find that appellant has

raised a substantial question as to both of his claims, and we shall consider

this appeal on its merits. Twitty, 876 A.2d at 439; Derry, 150 A.3d at 992.

      When reviewing the merits of appellant’s claim, we are governed by the

following standard of review:

            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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Hoch, 936

A.2d 515, 517-518 (Pa.Super. 2007) (citation omitted).

      On appeal, appellant argues that the trial court failed to adequately state

sufficient reasons on the record to support a sentence in the aggravated range

of the sentencing guidelines. (Appellant’s brief at 9.) Specifically, appellant

contends that he “received an aggravated sentence on the [DUI] case not


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because of aggravating factors surrounding the [DUI], but because of the

[trial] court’s thoughts on the negotiated sentence on the endangering the

welfare [of a child] case.”2    (Id. at 14.)    The record belies appellant’s

argument.

            In every case where the court imposes a sentence
            outside the sentencing guidelines . . . the court shall
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines. Failure to comply shall be grounds for
            vacating the sentence and resentencing the
            defendant.

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015), quoting

Commonwealth v. Rodda, 723 A.2d 212, 215 (Pa.Super. 1999), citing

42 Pa.C.S.A. § 9721(b).    A trial court satisfies this requirement “when the

judge states [her] reasons for the sentence on the record and in the

defendant’s presence.” Commonwealth v. Antidormi, 84 A.3d 736, 760

(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014), quoting

Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995), rev’d.

on other grounds, 689 A.2d 211 (Pa. 1997).

     During the sentencing hearing, as the trial court was imposing

appellant’s sentence, the court made the following remarks for the record:

            For the driving under the influence offense that
            occurred on July 5th of 2018, the mandatory minimum

2 Under a separate docket number not related to this appeal, appellant pled
guilty to one count of endangering the welfare of a child. (See notes of
testimony, 7/16/19 at 30.) Appellant entered guilty pleas on both the instant
case and the endangering the welfare of a child case in open court during the
same hearing.


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           sentence here is 72 hours. The facts of this case, I
           think, warrant a more significant sentence.

           I want to make it very clear that the imposition of this
           sentence is not based on the facts of the subsequent
           case. I have accepted that plea agreement, so I am
           not going to accept that agreement and then punish
           you in this case for something that happened in
           another case.

           However, the facts of this case are very serious. You
           were abusing heroin at the time you were driving and
           then you complicated that -- aggravated that by also
           consuming alcohol. You were in such bad condition
           that you couldn’t get off [interstate] 95. You stopped
           on an off-ramp at 3 o’clock in the morning and
           endangered everybody trying to get on or off of that
           highway.

           ....

           The fact that nobody died is amazing to me. I guess,
           because it was 3 o’clock in the morning, everybody
           had enough time to see that you were obstructing
           their -- the off-ramp, but I think it calls for more than
           72 hours.

           If you had just been pulled over for drunk driving, you
           would have gotten 72 hours. If you had just been
           pulled over and determined to be under the influence
           of something, you would have gotten 72 hours.

           Now, here, you went far beyond the normal “I didn’t
           realize I was drunk, Officer,” kind of case. You knew
           darn well you shouldn’t be anywhere near a car.

           ....

           Based on that, the sentence of the [trial c]ourt is that
           . . . you pay the cost of prosecution and you undergo
           imprisonment for 60 days with a maximum sentence
           of six months.

Notes of testimony, 7/16/19 at 27-29.


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      Here, the record reflects that the trial court provided the reasons for its

imposition of an aggravated sentence and did so on the record and in

appellant’s presence. Accordingly, we find that the trial court did not abuse

its discretion when it imposed an aggravated sentence in this case.

      In his second issue, appellant avers that the trial court imposed an

unreasonable sentence because the court failed to consider the factors set

forth in 42 Pa.C.S.A. § 9721(b). Additionally, appellant contends that the trial

court failed to consider appellant’s rehabilitative needs when imposing his

sentence. (Appellant’s brief at 16.) As noted in detail supra, the trial court

provided its reasons on the record during the sentencing hearing for the

imposition of an aggravated sentence. Therefore, we now turn to whether the

trial court failed to consider appellant’s rehabilitative needs when crafting his

sentence.

      This court has held that, “[w]hen imposing a sentence, the sentencing

court must consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is,

the protection of the public, gravity of offense in relation to impact on []

community, and rehabilitative needs of the defendant. And, of course, the

court must consider the sentencing guidelines.”           Commonwealth v.

Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015), appeal denied, 126 A.3d

1282 (Pa. 2015), quoting Commonwealth v. Fullin, 892 A.2d 843, 847-848

(Pa.Super. 2006). We have further held that a sentencing court may either

expressly or implicitly consider the factors enumerated in Section 9721(b).



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Commonwealth v. Peck, 202 A.3d 739, 746-747 (Pa.Super. 2019), citing

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007). The Peck court

cautioned, however, that this court “should not reweigh the proper sentencing

factors considered by the trial court and impose our own judgment in the place

of the trial court.” Peck, 202 A.3d at 747, citing Commonwealth v. Macias,

968 A.2d 773, 778 (Pa.Super. 2009).

      Here, the record reflects that the trial court considered appellant’s

rehabilitative needs, as the court made rehabilitation part of the sentence it

imposed:

            As a condition of that sentence, you are to obtain a
            drug and alcohol evaluation and abide by any
            recommended treatment. You are to submit yourself
            to random testing twice a week.

Notes of testimony, 7/16/19 at 29. Moreover, the trial court was notified by

appellant’s counsel of other rehabilitative steps undertaken by appellant

before it imposed sentence:

            [Appellant] completed the CRN evaluation[3] back in
            November, just after this DUI happened, so he
            actually took responsibility, got down to get the CRN

3           A CRN evaluation is “[a] uniform prescreening
            evaluation procedure for all [DUI] offenders to aid and
            support clinical treatment recommendations offered
            to the judiciary, prior to sentencing.” 67 Pa.Code
            § 94.2 []; see 75 Pa.C.S.A. § 3816 [] (CRN
            evaluations are used “to assist the court in
            determining what sentencing, probation[,] or
            conditions of Accelerated Rehabilitative Disposition
            would benefit the person or the public.”).

Commonwealth v. Parsons, 166 A.3d 1242, 1244 n.1 (Pa.Super. 2017).


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              evaluation very quickly as opposed to many clients
              who, as you are aware, don’t do it right away. He did
              it.

              Not only did he do the CRN evaluation right away, but
              then he got involved in the alcohol highway safety
              classes and then he completed those and then he
              completed the services for substance abuse treatment
              with     family    services,   both    in    intensive
              outpatient/general outpatient, and continues to
              participate in that treatment.

Id. at 24-25.

      Based on our review of the record, we find that the trial court adequately

considered the rehabilitative needs of appellant when it crafted its sentence.

Indeed, the record reflects that the trial court was notified by appellant’s

counsel of the rehabilitation efforts appellant undertook prior to sentencing,

and the trial court imposed additional rehabilitation requirements as a

condition of appellant’s sentence.       Therefore, we discern no abuse of

discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/8/20




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