J. S64038/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                                             :
                    v.                       :
                                             :
DAVID L. KINNEY,                             :
                                             :
                          Appellant          :      No. 406 MDA 2015

           Appeal from the Judgment of Sentence September 9, 2013
               In the Court of Common Pleas of Clinton County
              Criminal Division No(s).: CP-18-CR-0000043-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED NOVEMBER 09, 2015

        Appellant, David L. Kinney, appeals nunc pro tunc from the judgment

of sentence entered in Clinton County Court of Common Pleas after he

pleaded guilty to two counts of aggravated assault,1 and one count each of

terroristic   threats2   and   simple   assault.3     Appellant   challenges   the

discretionary aspects of the aggregate sentence of seventy-one to two

hundred twenty-eight months’ imprisonment. We affirm.

        On December 18, 2012, Appellant was charged with numerous crimes

for four incidents of domestic violence, which occurred between September



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1), (a)(4).
2
    18 Pa.C.S. § 2706(a)(1).
3
    18 Pa.C.S. § 2701(a)(1).
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and December of 2012.    The incidents were described in the affidavit of

probable cause, which we reproduce below:

        [Incident #]1. [Appellant] SHOVED [Complainant] INTO
        A CHAIR AND PUT A BIG KITCHEN KNIFE UP TO HER
        THROAT AND TOLD HER THAT SHE WAS A WHORE AND
        THAT HE WANTED TO KILL HER DUE TO AN ARGUMENT
        THAT OCCURED WEEKS EARLIER.

        [Incident #]2. A FEW WEEKS AFTER THE FIRST INCIDENT
        [Appellant] PUT A KNIFE TO [Complainant’s] THROAT AND
        KNOCKED HER AROUND SHOVING HER OFF CHAIRS.
        [Appellant] KICKED AND HIT [Complainant] IN THE HEAD.
        [Appellant] PUT A CIGARETTE OUT ON [Complainant’s]
        LEFT SHOULDER AND SPIT ON HER FACE. [Appellant]
        PUNCHED [Complainant] IN THE RIBS AND THE BACK OF
        THE ARMS. [Appellant] “RIPPED” [Complainant] AROUND
        THE LIVING ROOM BY HER HAIR AND TOLD HER THAT HE
        WAS GOING TO BURY HER.         [Complainant] BEGGED
        [Appellant] TO STOP. [Appellant] RESPONDED TELLING
        [Complainant] THAT IF SHE CALLS THE POLICE HE WILL
        MAKE HER SUFFER. THAT HER KIDS, PARENTS, NIECES
        NEPHEWS AND BROTHERS WOULD ALL DIE AND THAT HE
        WOULD LEAVE HER ALIVE TO SUFFER.             [Appellant]
        STATED THAT HE PERSONALLY WOULD NOT DO IT BUT HE
        HAS PEOPLE THAT WOULD IF THEY DID NOT HEAR FROM
        HIM. [Appellant] ALSO HIT [Complainant] IN THE BACK
        WITH A METAL TOWEL RACK.

        [Incident #]3. A FEW WEEKS AFTER THE SECOND ACT
        [Appellant] AGAIN PULLED A KNIFE ON [Complainant] AND
        CHOKED HER.

        [Incident #]4.   ON WEDNESDAY 12-12-12 [Appellant]
        WAS INTOXICATED AND TOLD [Complainant] IT WAS HER
        OR HER KIDS BUT SOMEONE WAS GOING TO DIE THAT
        NIGHT.      [Appellant] TRIED TO KEEP [Appellant]
        CONCENTRATED ON HER. [Appellant] PULLED A KNIFE TO
        [Complainant’s] THROAT AND [Complainant] PUT HER
        HAND UP TO STOP HIM. THE KNIFE CUT [Complainant’s]
        HANDS CAUSING A DEEP LACERATION TO THE PINKY
        FINGER OF [her] LEFT HAND. [Complainant] BEGGED
        [Appellant] TO LET HER STOP THE BLEEDING AND THEY
        WENT INTO THE BEDROOM. ONCE IN THE BEDROOM

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         [Appellant] STUCK THE KNIFE IN HER MOUTH AND MOVED
         IT BACK AND FORTH. [Complainant] TRIED TO MOVE
         AWAY AND [Appellant] THRATENED TO HURT HER KIDS
         SO SHE LET HIM PROCEED. [Appellant] BROUGHT THE
         KNIFE BACK AND HAD [Complainant] SIT IN THE CORNER
         WHERE HE KICKED HER AND KNEED HER IN THE LEGS
         AND STOMACH. [Appellant] THEN ATTEMPTED TO PUT A
         CIGARETTE OUT ON [Complainant’s] HEAD AND SPAT ON
         HER FACE AND FORCED HER TO BURN A PICTURE OF HR
         AND HER CHILDREN CALLING HER A TERRIBLE MOTHER.
         [Appellant] THEN CHOKED HER TO THE POINT OF ALMOST
         PASSING OUT. [Complainant] KICKED [Appellant] TO GET
         HIM OFF OF HER.       [Appellant] PUT THE KNIFE TO
         [Complainant’s] HEART WHO PUSHED HIM AWAY.
         [Appellant] AGAIN CHOKED [Complainant] AND TOLD HER
         IT WAS HER OR HER KIDS. [Complainant] PLEADED WITH
         [Appellant] TO CALM HIM DOWN AND TOLD HIM THAT HE
         CAN HIT HER JUST TO LEAVE THE KIDS ALONE AND NOT
         CHOKE HER OR USE THE KNIFE. [Appellant] BEGAN TO
         CALM DOWN AND FORCED [Complainant] TO HER KNEES
         AND URINATED IN HER MOUTH AND ON HER FACE.
         [Appellant] THEN DUMPED A SODA BOTTLE FULL OF
         URINE ON HER HEAD AND SPAT ON HER.

         AT APPROXIMATELY 0100 AM I WENT WITH [Complainant]
         TO BUCKTAIL MEDICAL CENTER FOR AN EVALUATION.
         DURING    THE   EVALUATION   I   OBSERVED      AND
         PHOTOGRAPHED ALL INJURIES BRADLEY HAS SUSTAINED.
         THE DOCTOR CONCLUDED THE THE INJURIES DO
         COINCIDE WITH THE REPORT GIVEN BY [Complainant].

Aff. of Probable Cause, 12/18/12 (capitalization in original).

      Appellant negotiated a plea bargain to enter guilty pleas to the

following charges:

         COUNT 5: AGGRAVATED ASSAULT—(FELONY 1)

            [Appellant committed acts constituting the crime, when
            he did] during incident #4, hold a knife to the throat of
            [Complainant], and when trying to stop [Appellant,
            Complainant] received lacerations to her hands . . . .

                                  *    *    *

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           COUNT 10: AGGRAVATED ASSAULT—(FELONY 2)

              [Appellant committed acts constituting the crime, when
              he did] during incident #2, hold a knife to the throat of
              [Complainant] . . . .

                                   *    *    *

           COUNT 14: TERRORISTIC THREATS—(MISDEMEANOR
           1)

              [Appellant committed acts constituting the crime, when
              he did] during incident #1, hold a knife to the throat of
              [Complainant] and stated he wanted to kill her . . . .

                                   *    *    *

           COUNT 25: SIMPLE ASSAULT—(MISDEMEANOR 2)

              [Appellant committed acts constituting the crime, when
              he did] during incident #3 choke [Complainant] with his
              hands . . . .

Information, 2/15/13, Counts 5, 10, 14 & 25; N.T., 4/22/13, at 5-7.

        The Commonwealth agreed to withdraw the remaining forty-five

counts, including charges for spitting on Complainant and burning her with a

cigarette in Incident #2,4 and placing a knife in her mouth, urinating on her,

and attempting to burn her with a cigarette in Incident #4.5        The parties

agreed to sentencing within the Sentencing Guidelines, 6 but reserved their



4
    See Information, Count 22 (simple assault).
5
  See id., Count 6 (aggravated assault), Count 19 (indecent assault) &
Count 27 (simple assault).
6
  Pursuant to the plea agreement, the “deadly weapon used” enhancement
applied to Counts 5 and 14, and the “deadly weapon possessed”
enhancement applied to Count 25. The deadly weapon enhancement did not

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rights to argue for consecutive or concurrent sentences. N.T., 4/22/13, at 3,

10-12.

      At a guilty plea hearing on April 22, 2013, Appellant admitted the facts

alleged in “the charging documents.” Id. at 7. The trial court conducted a

colloquy on Counts 5, 10, 14, and 25, apprised Appellant of the possible

minimum and maximum sentences under the agreement, and accepted

Appellant’s pleas. Id. at 7-13.

      On September 9, 2013, the trial court convened a sentencing hearing.

Appellant addressed the court, referred to his “addiction and poor decision-

making,”   expressed   remorse,    and   apologized   “to   the   [c]ourt,   the

community, the victim, and her family.” N.T., 9/9/13, at 9-10. He stated he

took “full responsibility for the careless crimes I have committed.”     Id. at

10.

      After Appellant’s allocution, the trial court stated it reviewed a

presentence investigation report, the victim impact statements, and a

psychological evaluation obtained by Appellant.    Id. at 10-11.     The court

noted Appellant was thirty years old, had two children,7 had a poor



apply to Count 14, because use of a deadly weapon was an element of the
offense charged.       The Commonwealth apprised Appellant that the
Sentencing Guideline’s minimum sentence ranges were (1) 40 to 54 months
for Count 5, (2) 9 to 16 months for Count 10, (3) 6 to 7 months for Count
14, and (4) 3 to 4 months for Count 25. N.T., 4/22/13, at 2-3. Appellant
was also informed that the maximum sentences were 20 years for Count 5,
10 years for Count 10, 5 years for Count 14, and 2 years for Count 25. Id.
at 5-6.
7
  It is unclear whether Complainant was the mother of Appellant’s children.

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employment record, and had a prior record for simple assault and a

protection from abuse violation in another county.     The court prefaced its

sentence by stating, “The incident that we’re here for today . . . involved

[Appellant] violently assault [Complainant] over a course of time, cutting

[Complainant], putting a knife in the mouth of [Complainant], urinating on

[Complainant], [and] putting cigarettes out on the [Complainant’s] body.”

Id. at 11-12.   The court found Appellant “needs to be incarcerated[, and

a]ny lesser sentence would depreciate the seriousness of the offense.” Id.

at 12.   It imposed the following sentences of imprisonment in accordance

with the plea agreement: (1) 50 to 120 months for Count 5; (2) 12 to 60

months for Count 10; (3) 6 to 24 months for Count 14; and (4) 3 to 24

months for Count 25. The court ordered the sentences to run consecutively,

resulting in an aggregate term of imprisonment of 71 to 228 months, or 5

years and 11 months to 19 years.

     Appellant timely filed a post-sentence motion seeking reconsideration

in light of his history of mental health illness and substance abuse, his

acceptance responsibility for his actions, and his expressions of remorse.

Appellant’s Mot. to Recons. Sentence, 9/19/13, at ¶¶ 5-6, 8. He referred to

his own history of being sexually and physically victimized as a child and

acknowledged his need for treatment. Id. at ¶¶ 7, 8.     Appellant stated the

sentence exceeded the probation office’s presentence recommendation,




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which the Commonwealth adopted at the sentencing hearing.8 Id. at ¶ 10.

He argued the trial court “ignored [his] response to treatment and potential

for rehabilitation going forward[,]” and a sentence with “less incarceration

and lengthier supervision . . . would have been more appropriate in light of

the crimes committed, would have sufficiently protected society and better

facilitated his rehabilitative needs and reintegration into the community.”

Id. at ¶ 11.     The court, on October 30, 2013, denied Appellant’s post-

sentence motion. No direct appeal was filed.

     Appellant, on July 2, 2014, timely filed a pro se Post Conviction Relief

Act (PCRA) petition.     See 42 Pa.C.S. §§ 9541-9546.        The PCRA court

appointed counsel, who filed an amended petition seeking, inter alia,

reinstatement of Appellant’s direct appeal rights.      The PCRA court on

February 5, 2014, reinstated Appellant’s direct appeal rights and appointed

counsel.     Appellant timely filed a notice of appeal nunc pro tunc and

complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)

statement.

     Appellant presents the following question for our review:

              Whether the [trial] Court abused its discretion in
           sentencing [Appellant] to a cumulative sentence of seventy
           -one (71) months to two hundred twenty–eight (228)

8
   Although the Commonwealth agreed with the “well thought out”
recommendation in the presentence report, N.T., 9/9/13, at 6, the record
does not contain the presentence investigation report or otherwise indicate
the specific recommendation set forth by the investigator. Neither Appellant
nor the Commonwealth refer to the specifics of the recommendation in their
briefs.

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          months, where the Court a) relied on facts contained in
          Counts for which [Appellant] did not plead guilty and
          where there was no finding that he committed those acts,
          b) failed to properly consider[ ] that [Appellant] suffered
          from a mental health disorder which went largely
          untreated and for which he responded positively to
          psychotropic medication greatly enhancing his potential for
          rehabilitation, c) failed to adequately consider that
          [Appellant] accepted responsibility for his acts and
          expressed significant remorse, and d) exceeded the
          sentencing recommendations of the Clinton County Adult
          Probation office and the District Attorney?

Appellant’s Brief at 5.

      Preliminary, we note that the imposition of a specific sentence

pursuant to a plea bargain will not be reviewed on appeal.              See

Commonwealth v. Dalberto, 648 A.2d 16, 18, 20-21 (Pa. Super. 1994).

Instantly, the trial court retained discretion to affix the minimum 9 and

maximum terms of each sentence and to order the individual sentences to

run consecutively or concurrently. Therefore, Appellant may challenge the

sentence notwithstanding the sentencing terms of his plea agreement.

See id.

      However,

            [c]hallenges to the discretionary aspects of
            sentencing do not entitle an appellant to appellate
            review as of right. Prior to reaching the merits of a
            discretionary sentencing issue:



9
  Arguably, the agreement to limit the trial court’s discretion to minimum
sentences within the Sentencing Guidelines could preclude further challenge.
Nevertheless, because the court retained discretion to run the sentences
consecutively, Appellant may still challenge the aggregate minimum
sentence imposed.

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                [W]e 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. 1410 [now Rule 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).

         “Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.”

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations omitted).

      Appellant filed a post-sentence motion, a timely notice of appeal nunc

pro tunc, and a Pa.R.A.P. 2119(f) statement as part of his brief. However,

the record reveals that he did not object to the trial court’s reliance on

charges to which he did not plead guilty at sentencing. See N.T., 9/9/13, at

16-17.   Moreover, he did not preserve this claim in his post-sentence

motion. See Appellant’s Mot. to Recons. Sentence, 9/19/13. Therefore, this

claim is waived.      See Evans, 901 A.2d at 533-34; cf. Pa.R.Crim.P.

720(B)(1)(a).

      As to Appellant’s remaining challenges, we reiterate, “Where the

sentencing court had the benefit of a presentence investigation report

(“PSI”), we can assume the sentencing court ‘was aware of relevant

information   regarding   the   defendant’s   character   and   weighed   those

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considerations along with mitigating statutory factors.’” Commonwealth v.

Griffin, 65 A.3d 932, 937 (Pa. Super.) (citations omitted), appeal denied, 76

A.3d 538 (Pa. 2013).     Reference to the presentence report satisfies the

requirement that the trial court state its reason for a sentence on the record.

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). Further,

a defendant is generally not entitled to a “‘volume discount’” for separate

acts   committed   during   a   “continuous   spree.”    Commonwealth        v.

Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010) (citation

omitted).     The imposition of consecutive sentences         “will present a

substantial question in only ‘the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.’” Commonwealth v. Caldwell, 117 A.3d

763, 768-69 (Pa. Super. 2014) (en banc) (citation omitted).

       Instantly, the individual minimum sentences fell within the agreed-to

Sentencing Guideline ranges. The individual maximum sentences were one-

half or less than the statutory limit, except for the second-degree

misdemeanor in Count 25, for which the trial court imposed a statutory

maximum sentence. On its face, the aggregate minimum sentence of five

years and eleven months to nineteen years’ imprisonment was not unduly

harsh in light of the criminal conduct specifically admitted to by Appellant.

The aggregate maximum sentence of nineteen years fell within the statutory

maximum for Count 5 alone and was just over half Appellant’s possible

sentencing exposure.

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      We acknowledge that Appellant argues that a lesser term of

incarceration in conjunction with less restrictive forms of supervision, could

better reflect his rehabilitative needs without endangering Complainant or

the public. However, our review of Appellant’s sentencing claims is limited

to a “clearly unreasonable” standard, and a claim that a lesser sentence is

preferable or better tailored to the defendant is not a basis for affording

appellate relief.   See 42 Pa.C.S. § 9781(c)(1); cf. Commonwealth v.

Walls, 926 A.2d 957, 961, 963-64 (Pa. 2007).

      In light of the foregoing, we conclude the sentencing claims preserved

by Appellant for review—i.e., that the trial court ignored mitigating factors or

failed to set forth a sufficient explanation of its sentence—do not raise

substantial questions. Therefore, we have no basis to disturb the sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2015




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