J-S50038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RONALD LEE BAUN,

                            Appellant                       No. 449 WDA 2014


       Appeal from the Judgment of Sentence entered January 28, 2014,
                in the Court of Common Pleas of Mercer County,
             Criminal Division, at No(s): CP-43-CR-0001010-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                                  FILED AUGUST 11, 2014




offense within ten years, with a BAC of .188%; resisting arrest; and driving

during suspension/DUI-related.1

        On July 4, 2013, Officer Jack Taggart of the Grove City Police

Department observed Appellant driving his vehicle, and from the sound the

vehicle was making, and Officer Ta



Officer Taggart followed the vehicle, which stopped at a stop sign and then

turned right onto Stewart Avenue.              Id. Officer Taggart then observed the

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1
    75 Pa.C.S.A. § 3802(c); 18 Pa.C.S.A. § 5104 and 75 Pa.C.S.A. § 1543(b).
J-S50038-14



vehicle turn left onto West Main Street, where the officer activated his

emergency overhead lights.     Id.   Appellant did not stop but continued to

travel approximately 20 feet without slowing, and turned right on Kinder

Avenue, at which point Officer Taggart activated his siren. Id. The vehicle

continued to travel away from the officer until it reached a dead end, where

Appellant exited and fled on foot. Id. Officer Taggart pursued Appellant on

foot, identifying himself as a police officer and directing Appellant to stop.

Id. When Officer Taggart caught up with Appellant after a chase of several

hundred yards, the officer tasered Appellant and took him into custody. Id.

The officer immediately detected the odor of alcohol on Appellant, and saw

that Appellant was unsteady on his feet. Appellant was transported to Grove

City Medical Center where his blood was drawn. Id.

      Appellant was subsequently charged with driving under the influence

of alcohol (75 Pa.C.S.A. § 3802); fleeing or attempting to elude a police

officer (75 Pa.C.S.A. § 3733)(a)); resisting arrest (18 Pa.C.S.A § 5104);

driving while his operating privileges were suspended or revoked (75

Pa.C.S.A § 1543(b)(1.1)); operating a vehicle with unsafe tires (75

Pa.C.S.A. § 4525(a); and unauthorized use of an automobile (18 Pa.C.S.A. §

3928(a)).

      On November 14, 2013, Appellant pled guilty to driving under the

influence, resisting arrest, and driving with a suspended license. Following a

hearing on January 28, 2014, the trial court sentenced Appellant to a term




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of imprisonment of 18 months to five years for DUI, and a concurrent six to

12 months for resisting arrest, and 90 days for driving during suspension.

     Appellant filed a motion to modify sentence nunc pro tunc on February

14, 2014, which the trial court denied that same day. This appeal followed.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

     Appellant presents two issues for our review:

     I.    DID THE SENTENCE COURT ABUSE ITS DISCRETION BY
           IMPOSING A SENTENCE OF INCARCERATION IN A STATE
           CORRECTIONAL FACILITY FOR A PERIOD OF NOT LESS
           THAN EIGHTEEN MONTHS NOR MORE THAN FIVE YEARS
           FOR THE OFFENSE OF DRIVING UNDER THE INFLUENCE
           OF ALCOHOL, A SECOND OFFENSE, WITH A BLOOD
           ALCOHOL LEVEL OF 0.188%, ALONG WITH THE
           CONCURRENT SENTENCES OF INCARCERATION FOR NOT
           LESS THAN SIX NOR MORE THAN TWELVE MONTHS FOR
           THE OFFENSE OF RESISTING ARREST AND NINETY DAYS
           FOR THE OFFENSE OF DRIVING DURING SUSPENSION-DUI
           RELATED IN THAT SAID SENTENCES ARE MANIFESTLY
           EXCESSIVE IN LENGTH AND NOT SPECIFICALLY TAILORED
           TO THE REHABILITATIVE NEEDS TO THE APPELLANT OR
           THE ENDS OF JUSTICE AND SOCIETY?

     II.   DID THE SENTENCE COURT ERR IN IMPOSING
           RESTITUTION IN THE AMOUNT OF $570.26 IN THAT SAID
           RESTITUTION WAS NOT SUPPORTED BY THE RECORD?




     Appellant challenges the discretionary aspects of his sentence. In our

analysis, we must first determine whether Appellant has the right to seek

                                                                             In



                                                        Commonwealth v.


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Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994).            However, we noted in

Dalberto                                                    cretionary aspects of

sentencing may be challenged after a guilty plea is entered depends upon

the actual terms of the plea bargain, specifically, to what degree a sentence

                                   Id. at 18.

are specific penalties outlined in the plea agreement, [i.e. negotiated plea]

                                                                          Id. at

20.

agreement [i.e., an open plea,] the entry of a guilty plea will not preclude a

                                                              Id. Where the plea



our task is to determine the effect of this hybrid plea agreement on the right

                                                              Id. at 21. In such



aspects of sentencing which have not been agreed upon during the

                           Id.



Trial   Court   Opinion,    4/17/14,   at   1.   However,    the   Commonwealth

                                                                              -7.

Appellant does not specify whether his plea was negotiated or open.          See




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       We discern from our review of the certified record that Appellant



agreed upon, but restitution was. At the November 14, 2013 plea hearing,




will nol-

Commonwealth did not recommend a sentence.               However, within the

certified record is a document dated November 14, 2013, signed by both
                                                                           2
                                                                               It

reads:

                                       PLEA OF GUILT

       I, Ronald Lee Baun, defendant named in the within Information
       in the above-captioned case, hereby enter a plea of Guilty to the
       charges of

       Ct 1: DUI (2nd offense) 75 Pa.C.S.A. § 3802(c)       M-1

       Ct 3: Resisting Arrest 18 Pa.C.S.A. § 5104           M-2

       Ct 4: DDS (DUI) 75 Pa.C.S.A. § 1543 (b)(1.1)(i)      Summ

       Restitution $570.26

____________________________________________


2



was represented by Dana Flick, Esquire, while the notes of testimony from
sentencing on January 28, 2014 indicate that Appellant was represented by
Ted Isoldi, Esquire.



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Plea of Guilt, 11/14/13.




Furthermore, our review of the sentencing transcript indicates that although

the Commonwealth was silent regarding the length of Appell

it was unequivocal on the amount of restitution.      The following discussion

occurred:

      Assistant District Attorney:   I [forgot] to request restitution in the
                                     amount of $570.26

      Trial Court:

      Assistant District Attorney:

      Trial Court:                   Do you object        to   the   restitution,
                                     [Appellant]?

      Appellant:                     The amount I do.

      Trial Court:                   How much do you think you owe?

      Appellant:                     I would have to have estimates on it, but
                                     I believe --




                                     the other $265 is.

      Assistant District Attorney:   Actually, Your Honor, I believe as part
                                     of   the    plea,   we    agreed    the
                                     restitution would be $570.26.

      Trial Court:                   Is that on your plea sheet?

      Assistant District Attorney:   It is, Your Honor.



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        Trial Court:
                                     Counsel]?

                                            have a copy of the plea sheet, but
                                     I see [Appellant] and [his] attorney
                                     [at the plea] signed that on the plea
                                     sheet, so it was apparently agreed of
                                     $570.26.

        Trial Court:                 [Appellant]   shall   make   restitution   to

                                     $570.26.

N.T, 1/28/14, at 23-24 (emphasis supplied).

        Based on the foregoing, and in accordance with Dalberto, supra, we



restitution was negotiated, but the length of the sentence was left to the



challenge his restitution, he is precluded from doing so because that portion

of his sentence was negotiated. Id. at 20. However, because the length of

                ntence was not negotiated, Appellant may raise a discretionary

challenge with respect to the length of his sentence.

        A discretionary challenge is not appealable as of right.         Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781.     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

              Before we reach the merits of this [issue], we must engage
        in a four part analysis to 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

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     discretionary aspects of sentence; and (4) whether the concise
     statement raises a substantial question that the sentence is
     appropriate under the sentencing code. The third and fourth of
     these requirements arise because Appellant's attack on his
     sentence is not an appeal as of right. Rather, he must petition
     this Court, in his concise statement of reasons, to grant
     consideration of his appeal on the grounds that there is a
     substantial question. Finally, if the appeal satisfies each of these
     four requirements, we will then proceed to decide the
     substantive merits of the case.

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

omitted).

     Here, Appellant preserved his discretionary claim in a post-sentence

motion, and filed a timely notice of appeal.      In addition, Appellant has

included a concise statement in his brief. See              Brief at 9-10. We

therefore proceed to determine whether Appellant has raised a substantial

question for our review.



that the sentence imposed was an abuse of discretion because it was

excessive in length and not tail



Appellant essentially claims that his sentence was too harsh. Id. at 11-14.

                                                               constitutes too

                                                         Commonwealth v.

Kelly, 33 A.3d 638, 640 (Pa. Super. 2011). We will address the merits of




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with mandatory rehabilitation would more appropriately meet both the needs




testimony from the sentencing hearing.       N.T., 1/28/14, at 14-22.      In



which explained:


     day minimum term of incarceration for the DUI-related driving
     during suspension offense as well as a term of incarceration of
     not less than 18 months nor more than five years in a state
     correctional facility for the DUI offense, and a term of
     incarceration of not less than six months nor more than 12
     months for the resisting arrest offense, all of which were to be
     served concurrent with each other and concurrent with any other


                               ccordingly directed the Department of
     Corrections to place [A]ppellant in a therapeutic community.
     Appellant was also given credit time served of 209 days in the
     Mercer County Jail.

                                      ***

           Appellant [asserts] that the sentence was manifestly
     excessive in length because it was not specifically tailored to the
     nature of the offense, the ends of justice and society and the
     rehabilitative needs of [A]ppellant. It is submitted, however,
     that the minimum sentence of 18 months of incarceration in a
     state correctional facility was appropriate and was not excessive
     in length for various reasons. First, [A]ppellant was on parole
     for DUI at the time of this offense and had no legal right to be
     behind the wheel of a car in the first instance because he was

     was .188%, which demonstrated a high level of intoxication and
     his actions that night of operating a vehicle that he was not
     permitted to use and driving it on the rim with a flat tire was an

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     additional egregious act.     To top it all off, when he was
     confronted by police, he was combative and fled on foot
     resulting in the need to be tased by the police which resulted in
     him being charged with resisting arrest. Guilty Plea Tr. at p. 7
     (Nov. 14, 2013).

           The   record   further   establishes   that   while   this   was

     conviction for DUI before his 39th birthday. Obviously, he is a
     chronic alcoholic as indicated by the Mortimer Filkins score on his



     offense and second resisting arrest conviction. Sentence Tr. at
     p. 15. Appellant admitted that he was in a blackout when this
     DUI occurred. Id. at 19.

           Appellant had a prior record score of 5 and an offense
     gravity score of 5 for the DUI, resulting in standard range
     guidelines of 12 to 18 months.      The aggregate minimum
     sentence on all three charges was at the top of the standard
     range, which will be reduced under the Recidivism Risk
     Reduction Incentive Program (RRRI). 61 Pa. C.S.A. §§ 4501 et

     months and fifteen days.       Moreover, the Sentence Court took
     into consideration that his    criminal activity was a result of his
     alcoholism and therefore        did not impose any consecutive
     sentence for the resisting      arrest and DUI-related suspension

     treatment and directed the Department of Corrections to place
     him into a therapeutic community.

           Simply stated, the sentence was designed to protect the
     public from a chronic alcoholic with multiple DUIs who drove a
     motor vehicle even though he had no driving privileges. It was
     also designed to factor in his disease as the root cause of his
     criminal offenses by keeping his sentence in the standard range,
     giving him a RRRI reduction and not imposing consecutive
     sentences.

Trial Court Opinion, 4/17/14, at 1-4.         Given the foregoing, we reject




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s




restitution on the record at the time of app



                                           Id. at 16-17.     As explained above, we

disagree with this claim. Our review of the record reveals that on the guilty




confirmed that agreement at the sentencing hearing.                See Plea of Guilt,

11/14/13; N.T., 1/28/14, at 24.3               Therefore, Appellant is precluded from

raising a discretionary challenge to this portion of his sentence.

       For the foregoing reasons, we affirm the judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


3
  Again, the record indicates that Attorney Flick represented Appellant at his
plea, while Attorney Isoldi represented Appellant at sentencing.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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