Commonwealth v. Cook
| Decision Date | 16 May 2022 |
| Docket Number | 396 WDA 2021 |
| Citation | 279 A.3d 1253 (Table) |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania v. Charles COOK, Appellant |
Charles Cook appeals from the judgment of sentence, imposed in the Court of Common Pleas of Indiana County, after he pled nolo contendere to five counts of criminal use of a communication facility, 18 Pa.C.S.A. § 7512(a), a felony of the third degree.[1] After careful review, we affirm.
While incarcerated in Indiana County jail, Cook used the jail's phones on seven different occasions between October 12, 2018 and November 14, 2018, to arrange drug deliveries to his girlfriend. As a result, the Pennsylvania State Police filed the instant charges against Cook.
Prior to sentencing, the court ordered a presentence investigation report (PSI). As a result of Cook's criminal history, his prior record score was listed as a repeat felony offender (RFEL). Moreover, under the Pennsylvania Guideline Sentencing Matrix, the crime was determined to have an offense gravity score of five (5). Accordingly, the standard range for each count was 24-36 months' imprisonment.
Cook's sentencing hearing took place on October 30, 2020. In determining Cook's sentence, the sentencing court considered the appropriate guideline range, along with the other factors documented in Cook's PSI, including his ten prior criminal convictions. The sentencing court also considered Cook's poor health, his honorable discharge from the Marine Corps, and the facts of the present case. The sentencing court explicitly stated that it did not consider Cook's recent parole violation committed shortly after Cook was acquitted of homicide charges.
On counts one and two, Cook was sentenced to undergo incarceration for consecutive periods of three to seven years. On counts three through five, Cook was sentenced to a period of incarceration of three to seven years, with the sentences running concurrently to the sentences on the prior counts, resulting in an aggregate sentence of six to fourteen years in prison. Cook was also ordered to pay the costs of prosecution in the amount of $706.78, and $250.00 to have a DNA sample drawn.
Cook filed a timely post-sentence motion to modify sentence alleging that the sentencing court: (1) "imposed a six[-]year (72 month) minimum sentence which falls outside of the minimum sentence of the guidelines and just one year shy of the statutory maximum; [(2)] considered matters outside the probation department's [PSI], including information and matters learned through the defendant's murder trial [and (3)] failed to consider all relevant factors, including [Cook's] age, and relative health, the length of incarceration prior to the charges being filed[, ] and the staleness of [Cook's] prior criminal history." See Motion to Modify Sentence, 11/6/20, at 2-3. The court denied Cook's post-sentence motion on March 5, 2021. In its decision to deny Cook's motion, the court stated, "[d]ue to [Cook's] history of repeated offenses, [the court's] significant concerns about the protection of the public, and [Cook's] pattern of inability to be rehabilitated, the [c]ourt declined to modify [Cook's] sentence and believes that it has provided adequate support on the record for this decision." Trial Court Post-Sentence Motion Opinion, 3/17/2021, at 3; Rule 1925(a) Opinion, 4/15/21 (adopting court's post-sentence motion opinion to fulfil Rule 1925(a) obligation).
On March 19, 2021, Cook filed a timely notice of appeal. On April 9, 2021, Cook filed a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On appeal, Cook claims that the sentencing court "erred as a matter of law in denying [his] [p]ost-[s]entence [m]otion seeking a modification of sentence as the [] [c]ourt improperly imposed consecutive sentences[.]" See Brief for Appellant, at 10. Specifically, Cook claims that the court improperly imposed consecutive sentences where it: (1) "imposed a sentence outside of the standard minimum range and just one year short of the statutory maximum; [(2)] considered matters outside of the [PSI], including information and matters learned through [Cook]'s prior murder trial in which [Cook] was found [n]ot [g]uilty on all counts by a jury; [and (3)] did not give due consideration to [Cook]'s ailing health or his rehabilitative needs." Id. at 10, 14. Cook's claims implicate 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) (citing Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)). "An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence." Id. Specifically, we must determine:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Id. at 1265-66 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
First, we note that Cook has filed a timely notice of appeal. Second, Cook preserved the issues he raises on appeal in his post-sentence motion to modify sentence. Third, Cook's brief contains a Pa.R.A.P. 2119(f) statement of the reasons relied upon for appeal, and, thus, does not have a fatal defect. See id. at 1266. However, we conclude that Cook fails to raise a substantial question as to whether his sentence is appropriate under the Sentencing Code.
A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the [] statement[, ] [known as a Pa.R.A.P. 2119(f) statement, ] must articulate what particular provision of the [C]ode is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132-33 (Pa. Super. 2014) (quoting Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)).
Id. (quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013)). " " Id. at 770 (quoting Dodge, 77 A.3d at 1270).
In addition, Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa. Super. 2000) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995)). However, "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.'" Caldwell, 117 A.3d at 770 (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)).
"When reviewing a challenge to the discretionary aspects of sentencing, we determine whether the trial court has abused its discretion." Id.
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, 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.
Id., quoting Raven, 97 A.3d at 1253.
Cook's claim that the...
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