J-S16021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY HOWARD SCHNURE                     :
                                               :
                       Appellant               :   No. 1745 MDA 2018

       Appeal from the Judgment of Sentence Entered August 14, 2018
      In the Court of Common Pleas of Mifflin County Criminal Division at
                       No(s): CP-44-CR-0000629-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

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

       Jeffrey Howard Schnure (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to three counts of aggravated assault,

18 Pa.C.S.A. § 2702. Upon review, we affirm.

       The charges arose from an incident that occurred on August 27, 2017,

when Appellant assaulted three people with a knife. N.T., 6/26/18, at 9. On

June 26, 2018, Appellant appeared before the trial court and pled guilty.1 The

trial court deferred sentencing for the preparation of a pre-sentence

investigation report. On August 14, 2018, the trial court sentenced Appellant

to an aggregate 7 to 30 years of incarceration.2

____________________________________________


1That same day, Appellant pled guilty to two counts of simple assault at two
other criminal dockets.

2The trial court sentenced Appellant to consecutive terms of 3 to 10 years at
Count 1, 3 to 10 years at Count 2, and 1 to 10 years at Count 3.
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      Appellant filed a timely post-sentence motion, which the trial court

denied on September 25, 2018. Appellant filed this timely appeal on October

22, 2018. Both Appellant and the trial court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      I. WHETHER THE IMPOSITION OF CONSECUTIVE SENTENCES
      CREATED A SUBSTANTIAL QUESTION WHERE THE SENTENCING
      COURT FAILED TO ADEQUATELY CONSIDER THE SENTENCING
      FACTORS FOR TOTAL CONFINEMENT AND WHERE THE
      SENTENCING COURT ABUSED ITS DISCRETION IN SENTENCING
      [APPELLANT] TO AN AGGREGATE SENTENCE OF 7 TO 30 YEARS
      IN A STATE CORRECTIONAL FACILITY.

Appellant’s Brief at 4 (underlining omitted).

      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


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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 claims 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 14-15. Therefore, we examine whether

Appellant presents a substantial question for review.

      Appellant argues that the trial court’s sentence was excessive, and

claims that the court “failed to consider the nature and circumstances of the

offense and the      characteristics of [Appellant] in failing to consider

[Appellant’s] mental health treatment, care and prognosis.” Appellant’s Brief

at 13. We will consider this argument to raise 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).       We thus review Appellant’s

sentencing claim 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

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      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. 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 42 Pa.C.S.A. § 9721(b) 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.

Id.

      Additionally:

      [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.

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

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




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     At the August 14, 2018 hearing, before imposing Appellant’s sentence,

the trial court commented:

            Alright. Well I considered everything that everyone has told
     me here today. I’ve read Mr. Baker’s report very thoroughly I
     might add and also Doctor Calvert’s evaluation, and this morning
     [I] listened to what she said. I also listened to the cross-
     examination how she answered the Commonwealth’s questions.
     And I would have to agree with the Commonwealth. I’m not
     gonna keep him [Appellant] local. I think he’s better off going to
     state.

            I just can’t see how I can give him some sort of mitigated
     sentence on an aggravated charge. To me that’s a little bit
     illogical. I’ve wrestled with this for a period of time. I remember
     when it happened. Of course, it was a big story. We’re in a small
     county, probably as much as a double homicide. . . . What
     happened, what was testified by Doctor Calvert, [Appellant]’s
     going to be paranoid always to some extent, he has a history of
     violence that follows him or he makes it, I don’t know much about
     the South Hills incident whether that was him or others. But the
     Fall incident and, of course, this matter.

                                      ***

            So here it is on [Docket] 629. This, and this is the big stuff
     because I’m not gonna keep him local on any of this stuff. I think
     every individual should be counted. I am gonna do consecutive.
     I think he needs a long tail for this. I’m very concerned about the
     people in the area, the county, that I have to look [out] for. I’m
     not even running for re-election; how about that? And just others
     and this is a big deal. This is nothing to be taken lightly. I will
     honor your negotiated plea, I’ll keep [Appellant] within the
     sentence within the standard guidelines.

N.T., 8/14/18, at 58-59, 60.

     In its order denying Appellant’s post-sentence motion, the trial court

further explained:

           [Appellant] entered a plea of guilty to three counts of
     [a]ggravated assault . . . on June 26, 2018. [Appellant’s] plea

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      was conditional on the use of the basic sentencing matrix, and
      that [Appellant] would be sentenced within the standard range
      guidelines with the remaining terms of the plea to be left to the
      discretion of the [c]ourt. The [s]entence imposed on August 14,
      2018, was within the standard range of the Sentencing Guidelines
      and the Pre-Sentence Report was scrutinized by this [c]ourt. The
      [c]ourt considered the testimony of Forensic Psychiatrist, Terri
      Calvert, M.D., the letters from the victims, and testimony of
      [Appellant]. The [c]ourt also considered the mitigating factors, as
      espoused by [Appellant] in paragraph ten (10) of his Post-
      Sentence Motion. The [c]ourt found that a State Correctional
      Facility is best equipped to address [Appellant’s] psychological
      needs.

Order, 9/25/18.

      Based on our review of the record, including the above remarks by the

trial court, we discern no error.   In addition to reviewing Appellant’s pre-

sentence investigation report, the trial court addressed the factors Appellant

advanced at sentencing, specifically referencing the testimony and report of

Appellant’s expert witness, Dr. Terry Calvert, as well as the severity of

Appellant’s crimes and their impact on the victims.     Ultimately, and in its

discretion, the trial court determined that Appellant’s crimes necessitated

consecutive sentences at all three counts. See Commonwealth v. Zirkle,

107 A.3d 127, 133 (Pa. Super. 2014) (“We have stated that the imposition of

consecutive rather than concurrent sentences lies within the sound discretion

of the sentencing court.”) (citations omitted). Thus, the record reflects that

the trial court weighed the appropriate factors and properly fashioned an

individualized sentence for Appellant.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




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