J-S20032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MARTIN HOUDESHELL,

                            Appellant                No. 1294 WDA 2015


              Appeal from the Judgment of Sentence July 14, 2015
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0003289-2006


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 04, 2016

        Appellant, David Martin Houdeshell, appeals from the judgment of

sentence entered after his guilty plea to one count each of defiant trespass

and false identification to law enforcement. 1 Specifically, he argues that his

sentence was manifestly excessive. We affirm.

        We take the facts and procedural history from our review of the

certified record.    In November 2006, Appellant was arrested and charged

with criminal trespass and false identification to law enforcement after

entering his former paramour’s apartment without her consent.        Appellant



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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3503(b)(1)(i), 4914(a).
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absconded from bail in 2007, prior to trial, and fled to Texas, where he

remained until 2015.

     On May 6, 2015, Appellant pleaded guilty, pursuant to a negotiated

plea agreement; in exchange the Commonwealth reduced count one from

criminal trespass to defiant trespass. On July 14, 2015, the trial court

sentenced Appellant and stated its reasons on the record as follows:

     The court has considered the Pennsylvania Sentencing Code, the
     Presentence [Investigation] Report [(PSI)], and the Pennsylvania
     Guidelines on Sentencing.

          The court has also considered the statements of defense
     counsel, the defendant, and the attorney for the Commonwealth.

           The court has considered this defendant’s age, his
     background, his character and rehabilitative needs, the nature,
     circumstances, and seriousness of the offense, the protection of
     the community and the impact that the offense has had on the
     victim.

           The court will note that the defendant has [pleaded] guilty
     and accepted responsibility in accordance with a very favorable
     plea bargain that his attorney worked out with the District
     Attorney’s office reducing the charge from . . . a felony of the
     third degree to a misdemeanor of the third degree.

            The court would note this is the defendant’s fifth conviction
     for criminal trespass. The other four having occurred after this
     offense occurred.

           The court also is concerned because the victim obviously
     was frantic to keep [defendant] away from her and out of the
     home, indicating she changed the locks, doors, did everything
     she could and he still came back and got into the house and she
     has, or was at the time, very concerned about her safety.

            The defendant does also have and had, prior to this
     offense, one, two, three, four, five ICC [protection from abuse]
     violations and convictions.



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              The defendant has a prior record score of zero but he has .
       . . [twenty] convictions, [fourteen] of which were subsequent to
       this offense.

              The defendant also fled the jurisdiction of this court, was a
       fugitive for eight years, and has, in the recent past, within the
       last three years, committed [thirteen] new offenses while he was
       a fugitive and has been incarcerated over the years a total of
       [sixteen] times. He’s been placed on probation four times. He’s
       been revoked from supervision two times. It’s pretty obvious
       that the defendant continues, despite numerous incarcerations,
       to commit offenses and is unsupervisable when he’s given an
       opportunity on probation.

                                      *        *   *

             The court having considered all those things will order the
       following sentence which is outside and above the guideline
       ranges. The defendant on each count will be ordered to pay the
       cost of prosecution, pay a fine of [twenty-five dollars] on each
       count. Counts one and two, he will be ordered incarcerated a
       minimum period of which will be six months, a maximum of
       which will be [twelve] months. Sentence on count two will be
       consecutive to the sentence on count one.

            He will receive credit for time served in the amount of 220
       days. He is RRRI eligible and that will reduce the minimum
       sentence from six months to four months on each of those
       counts. . . .

(N.T. Sentencing, 7/14/15, at 5-7, 9) (unnecessary capitalization omitted).

       On July 22, 2015, the court denied Appellant’s timely post-sentence

motion to reconsider his sentence. This timely appeal followed.2

       Appellant raises one issue on appeal:

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2
  Appellant filed a timely Rule 1925(b) statement on August 26, 2015. See
Pa.R.A.P. 1925(b). The court filed an opinion on September 15, 2015, which
relied on the record from the sentencing hearing as the court’s basis for
sentencing. See Pa.R.A.P. 1925(a).



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        Did the [trial] court violate the fundamental norms which
        underlie the sentencing code in sentencing [Appellant] in the
        aggravated range, without placing sufficient reasons on the
        record?

(Appellant’s Brief, at 1) (most capitalization omitted).3

        In his sole issue, Appellant claims that the trial court erred in imposing

a sentence that was above the guideline ranges without setting forth on the

record sufficient reasons for its sentence. (See id. at 4-5). He argues that

the court could have sentenced him to a lesser sentence, which would have

served his rehabilitative needs and the protection of the public. (See id.).

We disagree.

        Appellant’s issue challenges the discretionary aspects of his sentence,

which    “must    be   considered      a   petition   for   permission   to   appeal[.]”

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013) (citation

omitted).     To preserve claims relating to the discretionary aspects of a

sentence properly, an appellant must first raise them with the trial court.

See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),

affirmed, 17 A.3d 332 (Pa. 2011).



____________________________________________


3
  We note that the trial court did not sentence Appellant in the aggravated
range, but rather, sentenced Appellant above the guideline ranges to the
maximum sentence provided by statute. (See N.T. Sentencing, at 9).
Although misstated in his question presented, Appellant correctly states this
later in his brief. (See Appellant’s Brief, at 5) (“[Appellant] was sentenced
to the maximum allowable sentence of six to twelve months of incarceration
on each count.”).



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      When challenging the discretionary aspects of the sentence
      imposed, an appellant must present a substantial question as to
      the inappropriateness of the sentence. Two requirements must
      be met before we will review this challenge on its merits. First,
      an appellant must set forth in his brief a concise statement of
      the reasons relied upon for allowance of appeal with respect to
      the discretionary aspects of a sentence. Second, the appellant
      must show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. That is,
      [that] the sentence violates either a specific provision of the
      sentencing scheme set forth in the Sentencing Code or a
      particular fundamental norm underlying the sentencing process.

Hill, supra at 363-64 (citations omitted).

      In this case, Appellant preserved his issue by raising it in his post-

sentence motion, and filed a Rule 2119(f) statement, in which he alleges

that the trial court failed to individualize his sentence and sentenced him to

the maximum allowable sentence. (See Appellant’s Brief, at 3). “A claim

that the sentencing court imposed an unreasonable sentence by sentencing

outside the guideline ranges presents a ‘substantial question’ for our

review.”   Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002),

appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148

(2005) (citation omitted).   Accordingly, we will review his challenge on its

merits.

      Our standard of review for challenges to the discretionary aspects of a

sentence is well-settled:

            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and 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,


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     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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

     Additionally,

     The sentencing guidelines are not mandatory, and sentencing
     courts retain broad discretion in sentencing matters, and
     therefore, may sentence defendants outside the [g]uidelines. In
     every case where the court imposes a sentence . . . outside the
     guidelines . . . the court shall provide a contemporaneous
     written statement of the reason or reasons for the deviation
     from the guidelines. However, [t]his requirement is satisfied
     when the judge states his reasons for the sentence on the record
     and in the defendant’s presence. Consequently, all that a trial
     court must do to comply with the above procedural requirements
     is to state adequate reasons for the imposition of sentence on
     the record in open court.

           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. Where [PSIs]
     exist, we shall . . . presume that the sentencing judge was
     aware of relevant information regarding the defendant’s
     character and weighed those considerations along with
     mitigating statutory factors. A [PSI] constitutes the record and
     speaks for itself.

Id. at 760-61 (citations and quotation marks omitted).

     Here, in imposing sentence, the trial court considered the sentencing

code and sentencing guidelines as well as the PSI and the particular

circumstances of this case, including the impact that the offense has had on

the victim. (See N.T. Sentencing, at 5-6). It then stated on the record, in




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open court, its reasons for imposing a sentence above the guideline ranges.

(See id. at 6-9).

      Based on the trial court’s stated reasons, our independent review of

the record, and the fact that the court had the benefit of a PSI, we discern

no abuse of discretion on the part of the trial court in imposing an aggregate

sentence of not less than twelve nor more than twenty-four months’

incarceration. See Antidormi, supra at 760-61. Appellant’s claim does not

merit relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




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