Opinion
J-S03018-16 No. 920 EDA 2015
04-18-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. REINALDO FANTAUZZI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 20, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003898-2005 BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.:
Reinaldo Fantauzzi appeals, pro se, from the judgment of sentence imposed on February 20, 2015, in the Court of Common Pleas of Northampton County, following his resentencing on charges of two counts of attempted homicide, four counts each of aggravated assault and reckless endangerment, and one count each of possession of a firearm prohibited and firearms not to be carried without a license. Fantauzzi received an aggregate sentence of 28-56 years' incarceration. Fantauzzi filed a timely post-sentence motion for reconsideration, which was denied. He then filed a timely appeal. Subsequently, Fantauzzi's counsel filed a motion to withdraw from representation with our Court, which was granted. The matter was remanded for a Grazier hearing, which was held on May 22, 2015, after which Fantauzzi was allowed to proceed pro se. He filed a new Pa.R.A.P. 1925(b) statement of matters complained of on appeal challenging the discretionary aspects of his sentence. Fantauzzi claims the trial court erred in: (1) failing to order a pre-sentence report prior to resentencing or to state on the record why a presentence report was unnecessary; (2) deviating from the sentencing guidelines without stating the reasons and without filing a contemporaneous written statement supporting the deviation; and (3) imposing a manifestly excessive sentence, specifically due to the consecutive sentence structure. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm on the basis of the Pa.R.A.P. 1925(a) opinion authored by the Honorable Jennifer Sletvold.
Fantauzzi was resentenced because his original sentence, imposed in 2006, was illegal due to application of a mandatory minimum pursuant to 42 Pa.C.S. § 9712, which has been declared unconstitutional. See Alleyne v. United States , 133 S.Ct. 2151 (2013); Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc).
18 Pa.C.S. §§ 2502, 2702, 2705, 6105(a.1)(1), and 6106, respectively.
Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
Fantauzzi was convicted of shooting at four people in a drive-by incident. One person was sitting in a car; three were on a porch of a nearby house. One of the individuals on the porch, who was already wheelchair bound, was struck in the leg, thereby constituting serious bodily injury.
Regarding Fantauzzi's first claim, we rely on the trial court's opinion at pages 3-5. Our independent review of the certified record confirms the trial court possessed sufficient relevant information regarding Fantauzzi to determine a sentence. The trial court was in possession of the original presentence report, Fantauzzi had been incarcerated the entire time between the imposition of the original sentence and the new sentence, and the parties were given the opportunity to provide any updated information. Accordingly, Fantauzzi's first claim is meritless.
Next, Fantauzzi asserts his new sentence for attempted homicide, serious bodily injury caused, is improper because the sentence of 180-360 months' incarceration was based on an incorrect understanding of the applicable guidelines. Fantauzzi argues the offense gravity score (OGS) was a 14 and his prior record score (PRS) was 4. That combination produced a standard range minimum sentence between 168-240 months. However, at resentencing, Judge Sletvold stated in open court that the standard range minimum sentence range was between 186 to 240 months. See N.T. Resentencing, 2/20/2015, at 11. Accordingly, he argues his 180 month minimum sentence is a deviation from the guidelines and Judge Sletvold provided no reasoning for that deviation.
This does not represent a deviation from the guidelines. Based upon a standard range minimum sentence of 186 to 240 months, a 180 month sentence would represent a mitigated range sentence. The guidelines include both aggravated and mitigated range sentences.
Fantauzzi is correct that under the basic sentencing matrix applicable at the time (6th edition), the standard range minimum sentence for an OGS 14, PRS 4 was 168-240 months. However, he fails to recognize that he was subject to the deadly weapon used enhancement, which raised the standard range minimum sentence to 186-240 months, as announced in court. See 204 Pa.Code § 303.18. We have reviewed the certified record and understand Fantauzzi's confusion on this issue. While the enhancement was noted on the original sentencing form filled out in 2006, it was inadvertently omitted from the 2015 sentencing form. From the paperwork, it appears that the deadly weapon used enhancement was not applied. However, the certified record confirms that the deadly weapon used enhancement was applicable; Fantauzzi shot at four people, hitting one of them. As noted, Fantauzzi was subject to the enhancement in his original sentence. Therefore, he was clearly on notice the enhancement applied. The standard range sentence announced in open court accurately reflected the application of the deadly weapon used enhancement, and no objection was raised regarding the announced standard range. See N.T. Resentencing Hearing, 2/20/2015, at 11-12. Accordingly, even though sentencing form failed to note application of the deadly weapon used enhancement, our review demonstrates the enhancement was properly applied. Therefore, the sentencing court began its sentencing analysis considering the correct standard range minimum sentence. See Trial Court Opinion at 6-7.
We note that application of the deadly weapon enhancement does not run afoul of the Alleyne v. United States , supra , line of cases regarding the application of mandatory minimum sentences. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc).
Nonetheless, if we interpret Fantauzzi's claim as an argument that his sentence is a deviation from the standard range, he would be correct. The 180 months minimum sentence is 6 months below the standard range minimum sentence of 186 months. He is correct that no explanation for this mitigated range sentence has been provided by the sentencing court. However, where the Commonwealth has not objected to or appealed the imposition of a mitigated range sentence nor the failure to explain the mitigated range sentence, and Fantauzzi cannot demonstrate any prejudice at having received a mitigated range sentence, we will neither vacate the sentence nor remand for further explanation.
Next, we briefly address Fantauzzi's allegation that because all the shootings took place at one time, he is only subject to punishment for one crime, not four. This is a tired argument that was properly laid to rest decades ago.
Therefore, if five individuals are robbed in a room at gunpoint, five separate robberies have occurred since each victim was placed in apprehension by the acts of the assailant. We have previously held that where separate crimes are committed against different individuals, a defendant is not placed in double jeopardy by being tried for each crime, even though the crimes took place at the same place and approximately the same time.Commonwealth v. Szulczeweski , 335 A.2d 810, 813 (Pa. Super. 1975) (citation omitted). Similarly, shooting at four people in one incident represents four separate crimes. As the four shootings are properly considered to be four separate crimes, it is well settled that the decision to impose consecutive or concurrent sentences is within the sound discretion of the sentencing court.
[Defendant] argues that, because the crimes happened in close temporal proximity to one another, the court should have ordered the sentences to be concurrent. We have stated that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court ... We see no reason why [a defendant] should be afforded a 'volume discount' for his crimes by having all sentences run concurrently.Commonwealth v. Zirkle , 107 A.3d 127, 133 (Pa. Super. 2014) (citations omitted).
Judgment of sentence affirmed. Parties are directed to attach a copy of the trial court opinion in the event of further proceedings. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/18/2016
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