J-S41023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AUSTIN EUGENE GROSSNICKLE, II              :
                                               :
                       Appellant               :   No. 2040 MDA 2018

      Appeal from the Judgment of Sentence Entered November 13, 2018
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001759-2017


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 16, 2019

       Austin Eugene Grossnickle, II (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to fleeing or attempting to elude a police

officer, possession of a small amount of marijuana, possession of drug

paraphernalia, driving under the influence of a controlled substance (DUI),

recklessly endangering another person (REAP), tampering with or fabricating

physical evidence, resisting arrest, disorderly conduct,1 and other related

summary offenses. Upon review, we affirm.

       Appellant’s charges arose from an incident that occurred on October 17,

2017, when Appellant fled from Pennsylvania state troopers in his vehicle at

speeds in excess of 110 miles per hour while under the influence of a

____________________________________________


1 75 Pa.C.S.A. § 3733(a), 35 P.S. § 780-113(a)(31)(i), 35 P.S. § 780-
113(a)(32), 75 Pa.C.S.A. § 3802(d)(1)(i), 18 Pa.C.S.A. § 2705, 18 Pa.C.S.A.
§ 4910(1), 18 Pa.C.S.A. § 5104, and 18 Pa.C.S.A. § 5503(a)(4).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S41023-19



controlled substance.        See Trial Court Opinion, 4/11/19, at 1.     When

apprehended, Appellant admitted to troopers “that he ate a marijuana roach

during the chase.” Id.

       On September 28, 2018, Appellant appeared before the trial court and

entered his guilty plea. The trial court sentenced Appellant to two-and-a-half

to eight years of incarceration on November 13, 2018.2       Appellant filed a

timely post-sentence motion, which the trial court denied on November 27,

2018. Appellant filed this appeal on December 14, 2018.

       Appellant presents the following issue on appeal:

       I.     DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
              IMPOSING CONSECUTIVE SENTENCES AGGREGATING TO
              TWO AND ONE HALF (2 1/2) TO EIGHT (8) YEARS IN A
              STATE CORRECTIONAL INSTITUTION FOR FLEEING, DUI (A
              FIRST OFFENSE), POSSESSION OF A SMALL AMOUNT OF
              MARIJUANA    AND     PARAPHERNALIA,   RECKLESSLY
              ENDANGERING [ANOTHER PERSON], RESISTING ARREST,
              AND TAMPERING WITH EVIDENCE BASED UPON THE
              APPELLANT’S    HISTORY    AND   CHARACTERISTICS,
              EXTENSIVE TIME SERVED, AND THE NATURE OF THE
              OFFENSES?

Appellant’s Brief at 4.
____________________________________________


2 The original November 13, 2018 sentencing order accurately reflected
Appellant’s individual sentences, but erroneously calculated Appellant’s
aggregate minimum sentence as 3 years. See Order, 11/13/18, at 3. The
Supreme Court has held that “under limited circumstances, even where the
court would normally be divested of jurisdiction, a court may have the power
to correct patent and obvious mistakes.” Commonwealth v. Klein, 781 A.2d
1133, 1135 (Pa. 2001). During the pendency of this appeal, the trial court
recognized its mathematical error and on March 12, 2019, issued an order
reflecting that Appellant’s “aggregate period of state incarceration is two and
a half (2½) years and the maximum is eight (8) years.” Order, 3/12/19.
Neither Appellant nor the Commonwealth take issue with the corrected order.

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      Appellant challenges the discretionary aspects of his sentence.          “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post-sentence motion; (2) the appellant
      filed a timely notice of appeal; (3) the appellant set forth a concise
      statement of reasons relied upon for the allowance of appeal
      pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
      substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth 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) (citations

omitted).

      Here, Appellant has complied with the first three prongs of the test by

raising his discretionary sentencing claim in a timely post-sentence motion,

filing a timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement.   See Appellant’s Brief at 7-8.     Therefore, we examine whether

Appellant presents a substantial question for review.




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      Appellant argues that his sentence is excessive. He claims that the court

“improperly afforded no more than a perfunctory consideration to the

Appellant’s history, characteristics, and rehabilitative needs,” and that it

“failed to properly consider the Appellant’s struggles with substance abuse as

part of a self-medicating regiment [sic] for adverse mental conditions.”

Appellant’s Brief at 11-12. This argument raises a substantial question. See

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This

Court has also held that an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial question.”) (citations omitted). Appellant also argues that the trial

court failed to cite “legitimate factors” in imposing an aggravated-range

sentence at his REAP conviction. Appellant’s Brief at 12. This claim likewise

raises a substantial question.    See Commonwealth v. Booze, 953 A.2d

1263, 1278 (Pa. Super. 2008) (“[A]n allegation that the court failed to state

adequate reasons on the record for imposing an aggravated-range sentence .

. . raises a substantial question for our review.”) (citations omitted).

      We review Appellant’s claims mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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

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     arrived at a manifestly unreasonable decision. We must accord
     the sentencing court’s decision great weight because it was in the
     best position to review the defendant’s character, defiance or
     indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

     The relevant portion of the Pennsylvania Sentencing Code states:

     In selecting from the alternatives set forth in subsection (a), 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. . . . In every case in which
     the court imposes a sentence for a felony or misdemeanor . . . the
     court shall make as a part of the record, and disclose in open court
     at the time of sentencing, a statement of the reason or reasons
     for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

     The Sentencing Code directs that when a trial court imposes an

aggravated range sentence, “it shall state the reasons on the record.” 204

Pa. Code § 303.13. We have explained:

     The [trial] court is not required to parrot the       words of the
     Sentencing Code, stating every factor that must      be considered
     under Section 9721(b). However, the record as         a whole must
     reflect due consideration by the court of            the statutory
     considerations enunciated in that section.

Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)

(citations omitted). Further, “[w]hen a sentencing court has reviewed a pre-

sentence investigation report, we presume that the court properly considered

and weighed all relevant factors in fashioning the defendant’s sentence.”



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Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 A.2d 758, 767

(Pa. Super. 2006)). We instructed:

     [i]n imposing sentence, the trial court is required to consider the
     particular circumstances of the offense and the character of the
     defendant. The trial court should refer to the defendant’s prior
     criminal record, age, personal characteristics, and potential for
     rehabilitation. However, where the sentencing judge had the
     benefit of a presentence investigation report, it will be presumed
     that he or she was aware of the relevant information regarding
     the defendant’s character and weighed those considerations along
     with mitigating statutory factors. Additionally, the sentencing
     court must state its reasons for the sentence on the record. 42
     Pa.C.S.A. § 9721(b). The 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 pre-
     sentencing report; thus properly considering and weighing all
     relevant factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (citations omitted).

     At sentencing, the trial court stated that it had reviewed the entirety of

Appellant’s pre-sentence investigation report. N.T., 11/13/18, at 4. Before

imposing Appellant’s sentence, the trial court commented at length:

           I did receive a pre-sentence report and I reviewed the entire
     report. I’ll note, [Appellant has] been committed for over a year
     at the Lycoming County Prison. He’s 30 years old, he has no
     dependents, he has a GED education, he’s single. A Risk Needs
     Assessment was done. He is a maximum risk. 44 percent. I
     really don’t know what the percentages mean or what the
     numbers mean. I know what maximum and minimum and
     medium mean and I’ll talk about that a little bit later.

           He did say that he got into a fight with his girlfriend and left
     the house. He didn’t pull over. He went on a high speed chase,
     he had THC and cocaine in his system, maybe alcohol.




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           His prior record includes a conspiracy to commit robbery by
     a threat of serious bodily injury, a felony one offense. That was
     back in 2007. He did time at -- if I remember correctly, three
     separate state correctional facilities and we’ll get to that as -- as
     well. He did indicate that he has alcohol problems, narcotics
     problems, and psychiatric indicating he was diagnosed at
     Rockview -- SCI Rockview with bi-polar, manic depression, and
     ADHD.

           He’s -- he’s got an employment history, which isn’t
     necessarily bad. He worked three years in the landscaping
     business and then, if I remember correctly, he got some
     automobile skills or mechanic skills in prison and he was working
     as a mechanic. He indicated that he had a normal childhood
     growing up. He doesn’t remember his parents abusing any
     controlled substances or alcohol.

           In 2001 he was charged with criminal trespass and was
     placed on juvenile probation. He began using marijuana at the
     age of 12 and then progressed to alcohol and cocaine when he
     was 25. In 2007, that was when he was sent to SCI Pine Grove
     for the robbery, conspiracy, and possession with an instrument of
     crime. He did three years and then was released to state parole.

           He started using drugs and alcohol daily. Violated after
     being out for only five months. Then he was sent to Rockview
     where he was given the diagnosis of bi-polar, manic-depressive,
     and ADHD. He spent some time in their mental health unit and
     then was transferred to Waymart where he was receiving mental
     health treatment. He was prescribed some medications two
     months prior to him maxing out his five year sentence, but
     according to the pre-sentence report, he stated, after I maxed
     out, I stopped taking my meds because nobody was supervising
     me. That’s when I started medicating with alcohol and marijuana.
     I weaned myself off of alcohol by switching to cocaine.

           He did receive vocational training at Pine Grove as a
     mechanic. While he’s been incarcerated, he attends AA/NA, he
     completed anger management and some drug and alcohol
     treatment that the prison offers. The recommendation is that he
     be placed in some sort of dual diagnosis treatment.

           Looking at the LSI-R, it has the risk as a maximum, the
     possibility of recidivism as a maximum, and he’s got needs with

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     alcohol and controlled substances, financial education, and
     employment. Criminal history, medium. With a prior record score
     of three, the offense gravity score of a five on the fleeing, it’s a
     six to 16 month standard range; 15 days on a small amount, that’s
     really an RS; paraphernalia is RS to three; DUI controlled
     substance is RS to three; recklessly endangering another person
     is RS to less than 12; tampering with evidence, RS to four;
     resisting arrest, RS to four; disorderly conduct, RS to three. And
     it’s an open plea.

           The CRN and assessment indicate that he has a problem
     drinking and a problem -- elicit [sic] controlled substance problem.
     Serious evidence that the controlled substances -- his use was a
     pattern that affected his mental health.           He was smoking
     marijuana every day, using LSD one to two days a week, once or
     twice a month using oxycodone, cocaine every day.

           As I said, he’s presently 30 years old. Looks like he’s been
     using controlled substances since -- for 18 years, although it
     progressed.

                                 *      *     *

            [Appellant], this is -- well, all sentences are -- are difficult,
     but there are a couple things here that -- that concern me and
     that I can’t ignore. I can’t ignore the fact that when you went to
     jail and you were released, you went back to controlled substances
     and -- and alcohol. When you went to jail the second time and
     they gave you your diagnosis and they put you on medications,
     you eventually maxed out and then you stopped taking them
     because nobody was supervising you, and then you went back to
     self-medicating.

            And that was over a -- a period of time. If -- if I look at
     this, 2007 -- let me see when [you] were sentenced. Sentenced
     on -- on October 17th of 2007, so even if I went five years from
     there, that takes us to 2012, so this happens in 2017, almost five
     years later, and during that -- I’m assuming during that five year
     period of time, you didn’t do anything to address your substance
     abuse, which you admitted you went to almost immediately, nor
     did you do anything to address any mental health issues.

           The other thing that I can’t ignore is the fact that I don’t --
     don’t have anything that says your mental health issues

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     contributed or somehow caused you to act a certain way. Dr.
     Calvert has testified in court for me on a [handful] of occasions
     and she differentiates mental health issues, some which she calls
     serious mental health issues which cause a person to act a certain
     way, and others that would not necessarily cause somebody to act
     a certain way, but might give them some -- some issues. There’s
     no evidence here that you were in some bi-polar manic phase or
     some bi-polar incident that then caused you to do this. As your
     mom said, you know, you just -- it’s almost this impulse that you
     can’t control. And sometimes that’s associated with Bi-polar
     Disorder, but -- so that -- that concerns me significantly.

           I can’t ignore the facts of this incident. I mean, I can’t
     ignore that, you know, on a Tuesday at 9:00 in October, where
     people are going to be out, people might be riding their bikes,
     people use that bike path all the time. You know, I’m not a
     fisherman so I don’t know if people are down there fishing. But
     you’re going over 100 miles an hour up on, you know, 180, and
     then you’re flying through down in that area and then you actually
     go on the bike path. I mean, we’re really lucky. When I say we,
     I mean you, me, the community. We’re lucky you didn’t kill, you
     know, a bunch of people.

            I mean, this type of behavior is very, very, very serious.
     And it’s very, very, very dangerous. It’s -- it’s not something in
     which I am willing or do I think I should give you a time served
     county sentence. I do agree with [defense counsel] that you
     might be better served having county resources available to you,
     but it’s not like I have an option where I can give you Drug Court,
     it’s not like I have an option where you apply or I can give you
     DUI Treatment Court, something along those lines. But at this
     point, I have to be concerned about protecting the public and I
     have to be concerned about the nature of this offense.

                               *     *     *

            In addressing the purposes of sentencing, the [c]ourt is
     primarily concerned with the nature of this offense and protecting
     the public. In addressing [Appellant’s] rehabilitation needs, the
     [c]ourt notes that [Appellant] has had a substantial period of time
     to address his rehabilitation needs, but chose not to address such.
     He had opportunities while on state parole, he had opportunities
     when he was released after maxing out his state prison sentence,
     and he had opportunities continuing through the date of the

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      offense. [Appellant] has shown through his prison conduct that
      he can participate in treatment successfully. Unfortunately, when
      [Appellant] is left to his own devices, he choose not to participate
      in treatment. As he admitted, he stopped taking his medications
      because nobody was supervising him and he started to self-
      medicate. [Appellant’s] choice not to address his substance abuse
      issues and his mental health issues creates a huge dilemma to the
      [c]ourt -- I mean, for the [c]ourt. Because of [Appellant’s]
      choices, he is a clear danger to the public. In this particular case,
      the dangers were of a significant extent and degree. The [c]ourt
      is greatly concerned that if the proposed treatment and if prior
      sanctioning did not work to change [Appellant’s] behaviors and
      choices, there’s no reason to think that they would work at this
      time. The [c]ourt is hopeful that the minimum sentence with
      credit for time served would be sufficient and that [Appellant]
      could successfully “walk off” his parole, but is still concerned given
      [Appellant’s] history. Finally, offenses of this magnitude are of
      such a significant impact on the community that a lesser sentence
      would diminish the seriousness of the offense.

N.T., 11/13/18, at 4-7, 13-16, 18-19.

      Our review of the record — including the trial court’s detailed remarks

— leads us to conclude that the court considered the appropriate factors when

imposing Appellant’s sentence.       In addition to stating it had reviewed

Appellant’s pre-sentence investigation report, the court specifically discussed

Appellant’s age, education, criminal history, mental health and substance

abuse problems, employment history, high recidivism risk, and rehabilitative

needs. The court further noted the applicable standard range sentences, and

discussed the facts attendant to Appellant’s underlying convictions and the

serious nature of Appellant’s crimes, concluding that Appellant posed a danger

to the community.




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         In sum, the record belies Appellant’s contention that the court’s

consideration was “perfunctory.”    Rather, the record reflects that the trial

court weighed the appropriate factors and provided adequate reasons for

Appellant’s sentence. We discern no error or abuse of discretion by the trial

court.

         Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/16/2019




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