J. S69028/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
CHARLES WEBSTER HINTON, III,               :
                                           :
                         APPELLANT         :     No. 356 MDA 2016

            Appeal from the Judgment of Sentence October 6, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003678-2014

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Appellant, Charles Webster Hinton, III, appeals from the Judgment of

Sentence entered by the Court of Common Pleas of Cumberland County after

he pled guilty to kidnapping and related offenses. Appellant challenges the

discretionary aspects of his sentence. After careful review, we affirm.

        On December 9, 2014, Appellant abducted his estranged wife and their

two small children from a custody exchange while in possession of a firearm,

and transported them from Carlisle to Shippensburg.        On September 14,

2015, he pled guilty to one count each of Kidnapping, Carrying a Firearm

Without a License, and Simple Assault.1



*
    Retired Senior Judge Assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2901(a)(3), 6106(a)(1), and 2701(a)(3), respectively.
J. S69028/16


      On October 6, 2015, after consideration of the pre-sentence report and

the information provided at sentencing, the trial court sentenced Appellant

to an aggregate term of 66 to 168 months’ incarceration.2 After the denial

of his Post-Sentence Motion to Modify Sentence, Appellant timely appealed.

He filed a Pa.R.A.P. 1925(b) Statement, as ordered; the trial court filed a

Pa.R.A.P. 1925(a) Opinion.

      Appellant raises the following issue for our review:

      In consideration of the evidence presented at sentencing, did the
      trial court commit an abuse of discretion by sentencing Appellant
      without proper consideration of the Pennsylvania sentencing
      factors, and by running the sentences from all counts
      consecutive to one another?

Appellant’s Brief at 6.

      Appellant concedes that his sentences fall within the permitted

standard ranges, but avers that the trial court abused its discretion “by

sentencing Appellant without proper consideration of the Pennsylvania

sentencing factors enumerated in 42 [Pa.C.S.] § 9721(b), specifically,

Appellant’s rehabilitative needs and potential.” 3 Id. at 11. He contends that



2
  The court imposed standard guideline range sentences, to be served
consecutive to one another, as follows: Kidnapping, 48 to 120 months;
Carrying a Firearm Without a License, 12 to 14 months; and Simple Assault,
6 to 24 months.
3
  Section 9721(b) provides, in relevant part, that in determining an
appropriate 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 the offense as it relates to the impact



                                     -2-
J. S69028/16


by ordering consecutive sentences where “all of the crimes consisted of one

episode of criminal conduct that all occurred at the same time,” the trial

court “contradicted the norms that underlie the sentencing process.” Id.

      In asserting that his sentence was excessive as a result of the

imposition of consecutive terms of imprisonment, Appellant is challenging

the discretionary aspects of his sentence. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to

appeal,   as   the   right   to   pursue   such   a   claim   is   not   absolute.”

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en

banc) (citation and quotation marks omitted). Prior to reaching the merits

of a discretionary sentencing issue:

          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. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted) (emphasis added).




on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b).



                                       -3-
J. S69028/16


      Appellant here timely appealed, preserved his issue in a Post-Sentence

Motion, and provided a Pa.R.A.P. 2119(f) statement.            We next assess

whether Appellant raised a substantial question for 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

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. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      In his Rule 2119(f) statement, Appellant avers that because the court

imposed consecutive sentences without considering his rehabilitative needs

and potential, the sentence “contradicts the norms that underlie the

sentencing process.”     Appellant’s Brief at 11.        This claim presents a

substantial question for review.   See Commonwealth v. Riggs, 63 A.3d

780, 786 (Pa. Super. 2012) (holding that an allegation that a sentence

violates a fundamental norm underlying the sentencing process raises a

substantial question); Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.

Super. 2013) (holding that the appellant’s challenge to the consecutive

nature of his sentence raised a substantial question).




                                     -4-
J. S69028/16


      Having determined that Appellant’s issue on appeal raises a substantial

question for review, we turn to the merits of Appellant’s sentencing

challenge.

      “In reviewing a challenge to the discretionary aspects of sentencing,

we evaluate the court’s decision under an abuse of discretion standard.”

Dodge, 77 A.3d at 1274 (citation omitted).         Additionally, “this Court's

review of the discretionary aspects of a sentence is confined by the statutory

mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. Section 9781(c) provides:

         (c) Determination on appeal.—The appellate court shall
         vacate the sentence and remand the case to the
         sentencing court with instructions if it finds:

         (1) the sentencing court purported to sentence within the
         sentencing   guidelines   but   applied  the   guidelines
         erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application   of  the    guidelines   would  be   clearly
         unreasonable; or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.

         In all other cases the appellate court shall affirm the
         sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

      In reviewing the record, we consider:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.


                                    -5-
J. S69028/16



         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      On appeal, Appellant claims that the trial court abused its discretion in

sentencing him to consecutive rather than concurrent sentences, because he

was “only twenty-two years of age when the incident occurred” and his

“actions occurred within the midst of a frustrating, and to Appellant,

overwhelming marital separation.” Appellant’s Brief at 13. He notes that he

has no criminal history and “remains one hundred percent compliant with

the Court’s Order prohibiting contact with the victim.” Id. at 14.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned opinion of the trial

court, we conclude that there is no merit to Appellant’s issue on appeal. We

find no abuse of discretion in the trial court’s conclusion that “concurrent

standard range sentences would have depreciated from the seriousness of

each offense and any lesser sentence would have taken away from the

seriousness of the crimes inflicted upon the victims.”    Trial Ct. Op., dated

5/5/16, at 4.    Accordingly, we adopt the trial court’s Pa.R.A.P. 1925(a)

Opinion as our own, and affirm Appellant’s Judgment of Sentence.

      The parties are instructed to attach a copy of the trial court’s Rule

1925(a) Opinion to all future filings.

      Judgment of Sentence affirmed.


                                         -6-
J. S69028/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




                          -7-
                                                                              Circulated 12/27/2016 10:40 AM




      COMMONWEAL TH                                                      ·mtp,u
                                                                  ~.                ~11ia
                                                                 (ountp of (umbtrlanb
            v.
                                                      IN THE COURT OF COMMON PLEAS
                                                       OF THE NINTH JUDICIAL DISTRICT

      CHARLES W. HINTON, Ill.                                  CP-21-CR-3678-2014

                       IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a)

      PLACEY, C.P.J., 5 MAY 2016

                       PROCEDURAL HISTORY WITH RELEVANT FACTS

            Appellant was charged with Kidnapping, Theft by Unlawful Taking or Disposition,

      Firearms Not to be Carried \Nithout a License, Unlawful Restraint, Terroristic Threats,

      andSimple Assault out of an incident at on December 9, 2014, where 22-year-old

      Appellant, with use of a firearm, abducted his two small children and his estranged wife

      from a custody exchange in Carlisle and transported them to Shippensburg. On

      September 14, 2015, Appellant pied guilty to a count of Kidnapping, a count of Firearms

      Not to be Carried Without a License, and a count Simple Assault. Appellant was

      sentenced to an aggregate term of incarceration of sixty-six (66) to one-hundred-sixty-

      eight (168) months. Appellant received guideline standard range sentences of forty-

      eight (48) to one-hundred-twenty (120) months of incarceration for the Kidnapping,

      twelve (12) to twenty-four (24) months on the Firearm Not to be Carried Without a

      License, and six (6) to twenty-four (24) months on the Simple Assault. All sentences




...
      were run consecutive to one another, that is to say, they were successive to one

      another to arrive at the total aggregate sentence.

             On October 15, 2015, Appellant filed a Post-Sentence Motion to Modify

      Sentence. Appellant's Post-Sentence Motion was denied in an Order, dated February

      18, 2016, which succinctly stated any lesser sentence for each offense pied would have

      taken away from the seriousness of the crimes inflicted upon the victims and that

      concurrent standard range sentences would have depreciated from the seriousness of

      each offense. On March 2, 2016, Appellant filed a Notice of Appeal and was directed to

      file a Concise Statement of Errors, which was filed on March 15, 2016.

                                             DISCUSSION

             Statement of Jaw. A defendant raising an excessive sentence challenge must

      raise a substantial question specifying how the court erred or abused its discretion.

      Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). "Sentencing ls a matter

      vested in the sound discretion of the sentencing judge and will not be disturbed on

      appeal absent a manifest abuse of discretion." Id. "When imposing a sentence, a court

      is required to consider the particular circumstances of the offense and the character of

      the defendant."   Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). A

      substantial question must elicit a belief that a sentence is manifestly excessive. Id. A

       defendant is required to show "that the court ignored or misapplied the law, exercised

      judgment for reasons of partiality, bias, prejudice, ill-will or a manifestly unreasonable

       decision." Perry, at 602.

              "In determining whether a sentence is manifestly excessive, the appellate court

       must give great weight to the sentencing judge's discretion, as he or she is in the best



                                                    2


...
position to measure factors such as the nature of the crime, the defendant's character,

and the defendant's display of remorse, defiance, or indifference." Commonwealth v.

 Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). In determining sentencing, a court

 retains the discretion to run a sentence concurrently or consecutively to other

sentences. Id. Furthermore, a sentencing court is given "broad discretion in choosing

· the range of permissible confinements which best suits a particular defendant and the

 circumstances surrounding his crime." Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa.

 Super. 2004).

        In sentencing generally "the court has discretion to impose sentences

 consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion

 does not raise a substantial question."   Commonwealth v. Moury, 992 A.2d 442, 171

 (Pa. Super. 2006). In the only the most extreme circumstances can the imposition of

 consecutive, rather than concurrent. sentences raise a substantial question. Id.

        Application of Jaw to the facts. Appellant argues this Court committed an abuse

 of discretion in sentencing Appellant without proper consideration of the Pennsylvania

 Sentencing Factors and by running all counts consecutive to one another. Appellant

 argues that the criminal action was one episode of criminal conduct that occurred at the

 same time and as such the sentences should have run concurrent, especially

 considering Appellant's character and no prior criminal history. While the crimes

 occurred in close temporal proximity to one another and were related, this does not

 mean the sentences were required to run concurrent to one another. The court has

 discretion to impose sentences consecutively or concurrently in cases where the

 criminal actions require a serious sentence based on the nature of the criminal actions.



                                               3
~·   -



                At Sentencing and reflected in the Sentencing Order, Probation's pre-sentence

         report and the information provided at sentencing, together with argument of counsel

         were considered in the imposition of consecutive standard range sentences.

         Furthermore, as stated in the Order denying Appellant's Post-Sentence Motion.

         concurrent standard range sentences would have depreciated from the seriousness of

         each offense and any lesser sentence would have taken away from the seriousness of

         the crimes inflicted upon the victims.

                                                  CONCLUSION

                Appellant is the most dangerous predatory criminal known to man. one who

         preys on his defenseless family with a firearm. No lesser restrictive fix, cure or other

         rehabilitative remedy was presented that would appropriately address the level of

         Appellant's criminality.   Appellant received an appropriate sentence based on the

         traumatic and terrorizing nature of his crimes and it was an appropriate sentence within

         the sound discretion of the court.

                                                           By the Court,


                                                                 v\
                                                           Thomas A. Placey        C.P.J.


         Distribution:
         Charles J. Volkert, Esq.
         Drew F. Deyo, Esq.
         Court Administration




                                                       4
