J-S68012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL FREMAN MOYER, JR.                     :
                                               :
                       Appellant               :   No. 2064 MDA 2016

             Appeal from the Judgment of Sentence March 10, 2015
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001050-2014,
              CP-41-CR-0001387-2014, CP-41-CR-0002061-2014


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

MEMORANDUM BY LAZARUS, J.:                           FILED NOVEMBER 15, 2017

       Carl Moyer, Jr., appeals nunc pro tunc from the judgment of sentence,

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

conviction for three counts of driving under the influence (DUI) – highest rate

of alcohol. 75 Pa.C.S. § 3802(c).1 Following a hearing, the court accepted

Moyer’s open guilty pleas, reviewed a presentence report, and sentenced

Moyer to Intermediate Punishment (IP) for a period of fifteen (15) years, with

the first seventeen and one-half (17½) months to be served at the Lycoming

____________________________________________


1 Moyer’s three DUI offenses occurred within a six-month period, on March
15, 2014, May 3, 2014 and August 30, 2014. Each offense yielded a blood
alcohol content (BAC) over twice the legal limit, .22%, .21% and .22%,
respectively. Moyer was not eligible for the Recidivism Risk Reduction
Incentive (RRRI) program due to a prior conviction in 1990 for attempted
homicide and aggravated assault. 61 Pa.C.S. § 4501 et seq.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S68012-17



County Prison Pre-release facility.            That same day, the court vacated the

sentence and imposed three consecutive sentences of two (2) to five (5) years’

incarceration, for an aggregate sentence of six (6) to fifteen (15) years’

incarceration.    On appeal, Moyer argues the court abused its discretion in

sentencing him to state incarceration.2 After our review, we affirm.

        A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa. Super. 2001). 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.A. § 9781(b).

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

omitted). Here, Moyer’s direct appeal rights were reinstated nunc pro tunc

and a timely notice of appeal was filed.             Moyer filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, and has included in his brief a

Pa.R.A.P. 2119(f) statement. In his Rule 2119(f) statement, Moyer states that

his sentence is manifestly excessive in relation to his conduct, the sentencing




____________________________________________


2   We note the Commonwealth has not filed a brief.

                                           -2-
J-S68012-17



factors, and disproportionate to similarly situated offenders. His Rule 2119(f)

statement reads:

       The sentencing proceedings and presentence investigation reports
       establish that [Moyer] had a problem drinking pattern, he met
       criteria for counseling, and his attitude, insight, and willingness to
       follow recommendations were good. Further, the presentence
       report indicated that [Moyer] was receiving outpatient counseling
       through White Deer Run where he was attending individual and
       group sessions on a weekly basis. [Moyer] was also attending
       Alcoholics Anonymous meetings and working through the twelve
       steps and currently had a sponsor.            Other important facts
       established at the sentencing proceeding include that [Moyer]
       maintained employment as a welder at ACF Industrial and that a
       big reason for his high prior record score was a 1990 conviction
       for criminal attempt-homicide.

Appellant’s Brief, at 7-8.3

       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

____________________________________________


3  We note that there is no indication in the record that Moyer filed a post-
sentence motion. However, we are not inclined to find waiver on this ground
because Moyer’s direct appeal rights were reinstated nunc pro tunc by order
dated December 13, 2016, which required Moyer to file a timely notice of
appeal within thirty (30) days. See Order, 12/13/16. Moyer filed his notice
of appeal on December 19, 2016, and, on December 23, 2016, the court
ordered Moyer to file a Rule 1925(b) statement on June 2, 2017. The appeal
was dismissed by this Court for failure to comply with Pa.R.A.P. 3517
(Docketing Statement). That dismissal order was ultimately vacated and this
Court entered an order on February 15, 2017 reinstating the appeal; Moyer
filed a Pa.R.A.P. 1925(b) statement by June 2, 2017. The trial court notes
that it did not receive a copy of this Court’s reinstatement order, which
breakdown explains the delay in the filing of the Rule 1925(b) statement. See
Trial Court Opinion, 6/19/17, at 6-7.

                                           -3-
J-S68012-17



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)

(citations omitted). We find Moyer has raised a substantial question. See

Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (where

defendant asserted imposition of consecutive sentences was disproportionate

to crimes and that sentencing court disregarded rehabilitation and nature and

circumstances of offense in handing down sentence, court found substantial

question).

       Moyer argues that the sentencing court abused its discretion in

sentencing him to three consecutive sentences of 24 to 60 months’

imprisonment, for an aggregate sentence of incarceration of 6-15 years.4 The

parties stipulated that Moyer’s prior record score is RFEL (repeat felony

offender) and his offense gravity score is a five. The standard range for the

minimum sentence is 24 to 36 months’ imprisonment for each DUI conviction.

Although Moyer acknowledges that each of the three sentences falls within the

range of the standard sentencing guidelines, he claims the sentencing court’s

application of the guidelines resulted in an unreasonable sentence, and the

circumstances here warranted a sentence in the mitigated range.          See

Appellant’s Brief, at 11


____________________________________________


4 We note that the heading of the Argument portion of Moyer’s brief
misidentifies both Moyer’s crimes and sentences. See Appellant’s Brief, at 10.

                                           -4-
J-S68012-17



      This Court reviews sentencing determinations as follows:

      [S]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias or
      ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252–53 (Pa. Super. 2006)

(citations omitted). Moreover, an 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. Kitchen, 162 A.3d

1140, 1146 (Pa. Super. 2017). Further, when imposing sentence, a court is

required to consider “the particular circumstances of the offense and the

character of the defendant.     In considering these factors, the court should

refer to the defendant's prior criminal record, age, personal characteristics

and potential for rehabilitation.”    Commonwealth v. Antidormi, 84 A.3d

736, 760–61 (Pa. Super. 2014) (internal citations and quotation marks

omitted).

      Our review of the two March 10, 2015 sentencing transcripts indicates

that the court acted within its discretion. At the hearing, the court stated that

it had struggled over this case, noting Moyer’s danger to the public and

recurrent misconduct, but also noting his rehabilitation efforts, his work

history, his church attendance, his home support and the fact that were it not

for his conviction 25 years ago, his risk/needs assessment “would be minimal.”



                                       -5-
J-S68012-17



N.T. Sentencing Transcript I, 3/10/15, at 17.         The court questioned the

Commonwealth’s attorney, asking, “What good do we accomplish by

sentencing this man to state prison?” Id. at 18. The court, after considerable

and dispassionate reflection, sentenced Moyer to an aggregate term of 15

years of IP with the first seventeen and one-half (17½) months to be served

in the Lycoming County’s Pre-release Program. The court noted that it was

“acutely aware” that the sentence was well below the standard sentencing

guideline range, but justified the sentence as follows:

      First, defendant’s criminal record and prior record score of a RFEL
      is based solely on convictions which are twenty-five years old.
      Accordingly, the Court is of the opinion that defendant’s prior
      record score overstates his criminal culpability. Furthermore,
      defendant has taken extraordinary steps in addressing his alcohol
      abuse as set forth in the presentence report, as well as the White
      Deer Run notification of defendant’s completion of treatment. The
      defendant regularly attends AA meetings, he has a sponsor, he is
      working The Big Book, he is steadily employed, he has a church
      support group, he has a home group, and he still attends
      individual and family group counseling.         The Court is also
      considering defendant’s age of sixty (60) years old. The court is
      of the opinion that defendant’s age caused him to be less likely of
      a risk going forward. Finally, the court has extensively reviewed
      the risk needs assessment as set forth in the presentence report.
      Of 28 points, 23 of them are attributed solely to defendant’s
      conviction of 25 years ago. But for those points, defendant’s
      supervision status would be a risk of 5, which is close to the
      administrative risk, and his need would fit into the administrative
      category.

Sentencing Order I, 3/10/15.

      Thereafter,   the    court   learned   that   Moyer   had   made   several

misrepresentations.       Contrary to Moyer’s assertions that he has been



                                       -6-
J-S68012-17



attempting to address his behavior to ensure that he is not a danger to the

community, the court learned that Moyer had, despite his representations

otherwise, attended only one AA meeting and admitted to drinking as recently

as the Friday before his sentencing hearing. See Sentencing Transcript II,

3/10/15, at 2. As a result, the court vacated the IP sentence and imposed

the current sentence of six to fifteen years’ incarceration. The court stated in

its order:

      [B]ecause it is apparent to the court that the defendant continues
      to drink and has not accepted responsibility for his extremely
      dangerous conduct, and has, in fact, made misrepresentations to
      the court regarding his steps at recovery, and while the court was
      willing to give the defendant more of a break than perhaps he has
      given any other defendant in the past six (6) years, the Court is
      of the opinion that a sentence of state prison is warranted.

Sentencing Order II, 3/10/15.

      Moyer did not address his drinking problem after his first or second

offenses, resulting in a third conviction where his BAC was again over twice

the legal limit, and his misleading statements to the court indicated that he

was unwilling or incapable of addressing his behavior. The sentencing court

properly considered Moyer’s characteristics as well as the nature and

circumstances of his offenses.    Additionally, there is no question that the

sentencing court observed Moyer and considered his presentence report. See

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“[w]here pre-

sentence reports exist, we shall continue to presume that the sentencing judge




                                     -7-
J-S68012-17



was aware of the relevant information regarding the defendant's character

and weighed those considerations along with mitigating statutory factors.”).

      We conclude, therefore, that the sentencing court imposed a sentence

that was consistent with the protection of the public, taking into account the

gravity of the offenses as it related to community. See 42 Pa.C.S. § 9721(b);

42 Pa.C.S. § 9781(d)(1). See also Commonwealth v. Moury, 992 A.2d

162, 171 (Pa. Super. 2010) (“[W]here a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.”).   We find no abuse of discretion. Malovich, supra.

      Judgment of sentence affirmed.

      Judge Dubow joins the Memorandum.

      Judge Strassburger concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




                                    -8-
