OPINION BY WECHT, J.:
Walter Raven appeals his June 10, 2013 judgments of sentence. We affirm.
On September 18, 2012, Raven was charged at CP-40-CR-0003415-2012 ("3415-2012") with accidents involving death or personal injury ("AIDPI"), AIDPI while not properly licensed, driving while operating privileges suspended or revoked-DUI related ("DWS-DUI related"), habitual offenders, careless driving, tampering with or fabricating physical evidence, and several related summary offenses.
Sentencing Court Opinion ("S.C.O."), 9/12/2013, at 1 (unnumbered).
At the time of this incident, Raven also had a pending criminal case at CP-40-0003629-2012 ("3629-2012"). That case arose from an incident that occurred on February 8, 2011. On that date, Sergeant Leonard Galli of the Exeter Borough Police Department contacted Raven through a confidential informant ("CI") and arranged for the purchase of prescription narcotics. Thereafter, Raven met with the CI and delivered eight morphine sulfate pills to him in exchange for $100. Sergeant Galli subsequently filed a criminal complaint charging Raven with possession of a controlled substance and delivery of a controlled substance.
On May 3, 2012, Raven entered into negotiated plea agreements at both 3629-2012 and 3415-2012. At 3415-2012, Raven pleaded guilty to AUDI, AIDPI while not properly licensed, DWS-DUI related, habitual offenders, careless driving, and tampering with or fabricating evidence. At 3629-2012, Raven pleaded guilty to one count of delivery of a controlled substance.
On June 10, 2013, Raven was sentenced at both cases. At that hearing, the court
On July 16, 2013, Raven filed notices of appeal at both 3629-2012 and 3415-2012. On July 17, 2013, the sentencing court ordered Raven to file concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Raven timely complied. On September 12, 2013, the sentencing court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Raven presents the following issues for our consideration:
Brief for Raven at 6 (citations omitted).
Whether Raven's convictions merge for the purposes of sentencing is a question implicating the legality of his sentence.
The merger doctrine is a rule of statutory construction designed to determine
In 2002, the Pennsylvania Legislature enacted Section 9765 of the Sentencing Code, which provides:
42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two distinct criteria are satisfied: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included within the statutory elements of the other. Id.
Despite Section 9765's codification of our merger doctrine, both this Court and the Pennsylvania Supreme Court historically have struggled to articulate and apply the proper test for merger claims. In Commonwealth v. Jones, our Supreme Court addressed the issue of merger pursuant to section 9765, but was unable to reach a consensus. 590 Pa. 356, 912 A.2d 815 (2006); see Commonwealth v. Williams, 920 A.2d 887, 889 (Pa.Super.2007) (noting that "Jones generated a `lead opinion' approach to merger and a `dissenting opinion' approach to merger").
In the lead plurality opinion in Jones, Justice Castille (now Chief Justice) adopted a "practical, hybrid approach" that requires courts to "evaluate the statutory elements [of each crime], with an eye to the specific allegations leveled in the case." 912 A.2d at 822. Justice Newman wrote a dissent favoring the adoption of a strict "statutory elements" test in accordance with Section 9765. Id. at 827 (Newman, J., dissenting) ("[T]he elements of these two crimes differ, and sentencing thus cannot be merged pursuant to our jurisprudence and the legislative intent as evidenced by 42 Pa.C.S. § 9765.").
One year after Jones, a panel of this Court addressed the merger doctrine in Commonwealth v. Williams, 920 A.2d 887 (Pa.Super.2007). In Williams, the appellant contended that the trial court erred in imposing consecutive sentences following his guilty plea to firearms possessed by a felon and carrying a firearm without a license. We began by noting that, with respect to offenses occurring after the effective date of section 9765, neither the plurality opinion nor the dissenting opinion in Jones garnered the support of more than half of the Justices. This Court then adopted Justice Newman's approach as more accurately reflective of our merger doctrine jurisprudence and the legislative intent of section 9765. Williams, 920 A.2d at 891.
The Pennsylvania Supreme Court has since rejected the "practical, hybrid approach"
Baldwin, 985 A.2d at 839 (Castille, C.J., concurring).
Instantly, Raven contends that the sentencing court erred in failing to merge his sentences for DWS-DUI related and habitual offenders with his sentence for AIDPI while not properly licensed. There is no dispute that all three of these offenses arose out of the same set of facts, constituting a single criminal act. See S.C.O. at 2. Therefore, the only issue for our review is whether all of the statutory elements of one of the offenses are included within the statutory elements of another. See Baldwin, supra at 837; 42 Pa.C.S. § 9765. Raven argues that they are so included. We disagree. The specific crimes relevant to our review are defined as follows:
75 Pa.C.S. § 3742.1.
75 Pa.C.S. § 1543(b)(1) (formatting modified for clarity).
75 Pa.C.S. § 6503.1. Section 1542 defines a "habitual offender" as any person whose driving record demonstrates that they have accumulated three convictions for any of the statutorily enumerated traffic offenses within a period of five years. 75 Pa.C.S. § 1542.
Raven's conviction for AIDPI while not properly licensed required the Commonwealth to demonstrate that Raven caused an accident that resulted in the injury or death of a person, and that his operating privilege was either disqualified, canceled, recalled, revoked or suspended (and not restored), or that Raven did not hold a valid driver's license. See 75 Pa.C.S. § 3742.1. Raven's conviction for DWS-DUI related required the Commonwealth to demonstrate that Raven's operating privilege was suspended or revoked as a condition of acceptance of ARD (for driving under influence, or for a similar offense that occurred outside of the Commonwealth), or for a refusal to submit to chemical testing. A review of the plain language of these statutes demonstrates that DWS-DUI related clearly imposes an additional requirement that a license suspension be related to DUI or ARD.
Raven also contends that a DUI-related suspension — as is required by Section 1543(b) — is necessarily included within the terms "disqualified, canceled, recalled, revoked or suspended," contained within the AIDPI statute. Therefore, according to Raven, the DUI related suspension element is "included" within the elements of AIDPI while not properly licensed. A review of our case law demonstrates that this argument is unavailing. In Commonwealth v. Rhoades, this Court addressed the issue of whether an appellant's convictions for two separate counts of aggravated assault should merge. 8 A.3d 912 (Pa.Super.2010). The two subsections of our aggravated assault statute at issue in Rhoades provided as follows:
A person is guilty of aggravated assault if he:
18 Pa.C.S. § 2702.
In finding that the subsections did not merge, we explained as follows:
Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa.Super.2010). As in Rhoades, it is entirely possible that a conviction for AID-PI while not properly licensed could be sustained without necessarily proving a Section 1543(b) violation.
Raven also maintains that his habitual offenders conviction should merge with his conviction for AIDPI while not properly licensed. This claim is similarly meritless. A conviction for habitual offenders requires the Commonwealth to demonstrate that a person has accumulated three separate convictions for serious traffic offenses within a five-year period. See 75 Pa.C.S. § 1542. AIDPI while not properly licensed has no such element, and additionally requires that a person cause an accident resulting in injury or death. Because these two offenses each require proof of an element that the other does not, Raven's imposed sentences do not merge.
Raven next challenges the discretionary aspects of his sentence. "A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004).
To obtain review on the merits of a challenge to the discretionary aspects of his sentence, Raven must meet two requirements. First, Raven must include a Pa.R.A.P. 2119(f) statement in his brief.
Raven's brief contains the necessary Rule 2119(f) statement, and therefore, is in technical compliance with the requirements to challenge the discretionary aspects of his sentence. Therein, Raven contends that the trial court failed "to consider his health concerns, his reputation for being a non-violent person, and his willingness to assist others, even when it placed him in danger." Brief for Raven at 25. Raven also argues that the sentencing court's decision to impose his sentences consecutively raises a substantial question because it resulted in a sentence that was manifestly excessive to his crimes. Id.
It is well-established that a sentencing court's failure to consider mitigating factors raises a substantial question. See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super.2003). However, a sentencing court generally has discretion to impose multiple sentences concurrently or consecutively, and a challenge to the exercise of that discretion does not ordinarily raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.2006); Commonwealth v. Hoag, 445 Pa.Super. 455, 665 A.2d 1212, 1214 (1995) (stating that an appellant is not entitled to a "volume discount" for his crimes by having his sentences run concurrently).
We are mindful, however, that "the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010). An appellant making an excessiveness claim raises a substantial question when he "sufficiently articulates the manner in which 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." Mouzon, 812 A.2d at 627. Applying Mouzon, this Court has held that an excessive sentence claim — in conjunction with an assertion that the court failed to consider mitigating factors — raises a substantial question. Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005). Because we interpret Raven's arguments as raising substantial questions under both Felmlee and Mastromarino, we grant Raven's petition for allowance of appeal and consider the merits of his claim.
Our standard of review in this context is as follows:
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006). Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d). Subsection 9781(c) provides:
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
42 Pa.C.S. § 9781(d).
Instantly, Raven's sentence falls within the strictures of our sentencing guidelines. He, therefore, must demonstrate that the application of those guidelines would be clearly unreasonable. Id. § 9781(c)(2). Raven submits that the sentencing court did not weigh the nature and circumstances of his crimes, or his mitigating history and characteristics. To this end, Raven argues that the sentencing court disregarded Raven's testimony to the effect that he was unaware he had caused an accident, and that he fled from the scene to obtain medication from his home. Brief for Raven at 30. The sentencing court's statements prior to imposing sentence belie Raven's allegation that the court failed to consider this information. See Notes of testimony ("N.T."), 6/10/2013, at 25 ("I don't see any way, based upon the physical condition of that vehicle, that you didn't know you were involved in an accident.").
Despite Raven's assertions to the contrary, the sentencing court was unquestionably aware of Raven's background. The court heard testimony from two of Raven's close friends, from Raven's sister, and from Raven himself. Id. at 11-17. This testimony detailed Raven's various medical conditions, his reputation for being a non-violent person, and his willingness to assist others. The sentencing court also reviewed letters submitted on behalf of Raven, and several victim impact statements presented by the Commonwealth. Id. at 7. Finally, the court had the benefit of a presentence investigation report, and considered all of the mitigating information contained therein.
Based upon all of this evidence, the court imposed consecutive standard range
Judgments of sentence affirmed.
Pa.R.A.P. 2119(f).