J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 737 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001159

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 738 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001161

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 739 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001163

- 2010

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

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- 2

- v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

: No. 740 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001164

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 741 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0000364

- 2011

COMMONWEALTH OF PENNSYLVANIA

v.

DIMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 742 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001158

- 2010

COMMONWEALTH OF PENNSYLVANIA

v. :

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

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- 3

-

DMITRIY V. LITVINOV

Appellant :

:

: No. 760 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0000462

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 761 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0000464

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 762 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001090

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 763 MDA 2020J

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- 4

-

Appeal from the Judgment of Sentence Entered November 26, 2019 In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001139

- 2010

COMMONWEALTH OF PENNSYLVANIA

v.

DMITRIY V. LITVINOV

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 764 MDA 2020

Appeal from the Judgment of Sentence Entered November 26, 2019

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP

- 14

- CR

- 0001157

- 2010

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2021

Appellant, Dmitriy V. Litvinov, appeals from the judgment of sentence

entered on November 26, 2019 following resentencing , as made final by the

order entered on April 23 , 20 20 disposing of p ost

- s entence m otion s . We

affirm.

The trial court summarized the facts and relevant procedural history of

this case as follows:

Beginning in January of 2010, [Appellant] and his accomplices began a spree of, among other things: burglary, armed robbery, and kidnapping. Through March of the same year, [Appellant] robbed numerous individual persons and establishments [in Centre County , Pennsylvania]

. In carrying out several of these crimes, [Appellant] brandished firearms

- including a stolen

WASR

- 10

- AK sty le a ssault rifle. In several instances, [Appellant] and his accomplices physically assaulted victims and threatened their lives at gunpoint. When [Appellant] and his ac complices were finally apprehended, the Commonwealth chargedJ

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[Appellant] with numerous crimes, including [r] obbery, [k] idnapping, and [c] riminal [m] ischief. [Appellant] was sentenced to several mandatory minimum sentences which were legally permissible when imposed [] in 2010. Following the United States Supreme Court's holding in Alleyne v. U.S. , 570 U.S. 99 (2013), those mandatory minimum sentences were deemed to be

unlawful. [Appellant] was subsequently resentenced by [the trial court] in November of 2019, for an aggregate sentence [] of
twenty

- eight (28) to fifty

- six (56) years [of imprisonment]

. Importantly, [Appellant] was also issued a [f] inal [r] emoval [o] rder dated February 23, 2013 [directing deportation] following [Appellant’s] ori ginal sentencing.

Trial Court Opinion, 4/ 23 /2020, at 2.

The trial court resentenced Appellant on November 26, 2019 . Appellant

filed a post

- sentence motion on December 4, 2019. Following the grant of an

extension, the trial court denied relief by order and opinion dated April 2 3

,

2020 . These timely appeals resulted

. 1

_________________ __________ ______ ____ _______

1 On May 15, 2020, Appellant filed 11 notices of appeal, each bearing , in its caption, the 12 trial court docket numbers at which the Commonwealth filed the original charges in this case . Upon review of each individual certified record, a different docket number is check

- marked on each corresponding

notice of appeal

. I t does not appear , however, that a notice of appeal was

included within the certified record of the twelfth case, trial court docket n o. CP

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- 2010. The last recorded entry which appears on that trial

court docket is the order den ying Appellant’s post

- senten ce motion. Our Supreme Court “ in Commonwealth v. Walker , 185 A.3d 969 ( Pa. 2018 ) [...] held that an appeal must be quashed if an appellant fails to file separate notices of appeal at each docket number implicated by an order resolving

issues that involve mo re than one trial court docket [as] indicated in the Note

to Pa.R.A.P. 341. ” Commonwealth v. Stansbury , 219 A.3d 157, 159 ( Pa. Super. 2019), appeal denied , 235 A.3d 1073 (Pa. 2020)

. I n Stansbury

, however, this Court declined to quash an appeal in which t he appellant’s notice

list ed two docket numbers whe re the trial court misinformed Stansbury that

he could perfect appellate jurisdiction by fil ing a single notice of appeal. We determined that the trial court's failure to properly advise Stansbury of his appellate rights amounted to a “breakdown in the court system,” and

,J

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On appeal, Appellant presents the following issues 2 for our review:

I. Whether the trial court abused its discretion in accepting or potentially accepting, in whole or in part, the prosecution's legally incorrect, unsubstantiated, and speculative claim that the final order of removal, i.e.

, deportation order, to the country of Kazakhstan that was issued by an administrative law judge from the United States Immigration Court due to [A ppellant’s] multiple convictions for "aggravated felonies" might possibly be disregarded by the birth country and [,] as such, there remained a strong "need for confinement that is consistent with the protection of the public" such that the [trial] court la cked both sufficient and accurate information necessary to impose its global sentence ?

II. Whether the trial court [improperly disregarded the explicit statutory commands at 42 Pa.C.S.A. § 9721(b) and committed legal error by imposing a sentence which focused exclusively upon the "need for confinement that is consistent with the protection of the public" where the issuance of a f inal deportation order against Appellant substantially diminished the need to consider that sentencing factor]?

Appellant’s Brief at 4 (superfluous capitalization omitted).

_________________ __________ ______ ____ _______

therefore

, excused his failure to comply with Walker

. See Stansbury , 219

A.3d at 160 ; see also Commonwealth v. Larkin , 235 A.3d 350, 354 (Pa. Super. 2020) ( en banc ) . Similarly , here, at resentencing, the trial court misinformed Appellant that he could file a sing le notice of appeal. See N.T., 11/26/2019, at 45. Thus, we excuse Appellant’s non

- compliance with

Walker

. On July 16, 2020, this Court granted Appellant’s motion to consolidate the appeals

. Finally, we note our review is not hampered because

the certified record for trial court docket n o. CP

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- CR

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- 2010 lacks a notice of appeal . As discussed, Appellant ’s claims do not focus upon trial court

docket no. CP

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- CR

- 1 162

- 2010 and, instead, challenges the factors relied upon by the trial court in imposing his overall aggregate sentence. Thus, the

certified record contains all of the materials, including the transcripts and exhibits from the resentencing hearing, the pa rties’ briefs on the issue, as well

as the trial court ’s opinions, needed to conduct a proper review of Appellant’s overarching appellate claim.

2 Although presented as two appellate issues, Appellant’s claims are

inter

- related and we will examine them together.J

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Appellant contends, “the [r]e

- [s]entencing [c]ourt did not place

sufficient emphasis on the reality that [Appellant] will someday be deported

and inevitably returned to [his home country,] Kazakhstan [,] because, as a

non

- citizen [of the United States], he was convicted of several "[c]rimes [o]f

[v]iolence" and multiple "[a]ggravated [f]elonies" as defined by federal law[.]”

Appellant’s Brief at 18. Appellant contends that the trial court impermissibly

relied upon t he Commonwealth’s suggestion that Appellant may not be

deported despite a removal order dated February 23, 2013 , which was

presented to the trial court at resentencing. Id. at 23. Appellant claims that

“if, after being paroled, [Appellant] were ever found to be in the United States,

it would be mandatory that he serve his remaining sentence” in a Pennsylvania

prison. Id. at 33. As such, Appellant argues:

The required balancing between the three main Section 9721(b) [sentencing] factors necessarily must change, mathematically speaking, whenever a [d] efendant is subject to a non

- waivable mandatory [d] eportation [o] rder such as [Appellant

, ] the need for "public protection" is effectively nullified when the person being

sentenced will be exi led as soon as he is paroled. This singular

fact should have resulted in a different sentencing scheme being utilized by the [r] e

- [s] entencing [c] ourt.

Id. at 24. 3

It is well

- established that:

_________________ __________ ______ ____ _______

3 While Appellant objects that his overall, aggregate sentence is excessive,

this Court notes that Appellant does not explicitly challenge the consecutive

nature of h is sentences.J

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The right to appeal the discretionary aspects of a sentence is not absolute. To determine whether an appellant has properly preserved the discretionary aspects of sentencing for appellate review, we must conduct the following four[

- ]part analysis: (1) whether appellant has filed a timely notice of appeal; (2) wheth er 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 t he Sentencing Code. The determination of whether a particular issue raises a substantial question is to be evaluated on a case

- by

- case basis. Generally, however, in order to establish a substantial question, the appellant must show actions by the sentenci ng court inconsistent with the [s]entencing [c]ode or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Derrickson , 242 A.3d 667, 679 (Pa. Super. 2020)

.

Here, Appellant filed a timely post

- sentence motion and notice of appeal

which preserv ed the sentencing issue raised above. In addition, Appellant’s

brief complies with our rules. Furthermore , we have previously determined:

an averment that the [trial court imposed a sentence ] based solely

on the seriousness of the of fense and failed to consider all relevant factors raises a substantial question and an allegation that the court considered an impermissible sentencing factor raises a substantial question. Moreover, a claim that the trial court failed

to consider relevan t sentencing criteria, including the protection of the public, the gravity of the underlying offense and the

rehabilitative needs of [an a] ppellant, as 42 Pa.C.S.A. § 9721(b) requires, presents a substantial question for our review.

Id. at 680 (internal c itations, quotations, and original brackets omitted).

Based on the foregoing, we will proceed to the merits of Appellant’s claim s

.

Our standard of review 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 abuseJ

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of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing co urt ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.

Deference is accorded to the trial court's pronouncement of

sentence because the trial cour t is in the best position to determine the proper penalty for a particular offense based upon

an evaluation of the individual circumstances before it.

When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721( b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant.

Commonwealth v. Wallace , 244 A.3d 1261, 1278

– 1279 (Pa. Super. 2021)

(internal citations, quotations, and brackets omitted). “The balancing of th e

Section 9721(b) sentencing factors is the sole province of a sentencing judge.”

Commonwealth v. Lekka , 210 A.3d 343, 353 (Pa. Super . 2019) (citation

omitted). “Generally, our review of a sentence is limited in these

circumstances to whether the sentencing court explicitly or implicitly

considered the [S] ection 9721(b) factors, and we may not re

- weigh the

significance placed on each f actor by the sentencing judge.” Commonwealth

v. Williams , 69 A.3d 735, 742 (Pa. Super. 2013) (citation omitted).

Initially, we reject Appellant’s suggestion that deportation must be

considered specifically when fashioning an individualized sentence. The re is

no legal authority to support that proposition. Instead, the trial court was

required to consider all of the factors set forth in Section 9721(b) , including

the protection of the public

. Moreover, t here is no legal requirement that the

sentencing c ourt reevaluate the balancing of factors of Section 9721(b)

, orJ

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that the sentencing matrices change mathematically

, whenever a criminal

defendant is subject to deportation. Here, upon review of the certified record

,

the deportation issue was squarely addr essed by the parties and the trial court

devoted substantial consideration to Appellant’s claim during resentencing

. At

the resentencing hearing , the trial court recognized Appellant’s remorse

during allocution and that approximately 40 people were present to support

Appellant. N.T., 11/26/2019, at 26

- 27 and 44. However, the trial court found

that the “very brazen acts” of Appellant “absolutely terrorized the victims of

the various crimes over a period of several months [.]” Id. at 4 4

. In its

subs equent opinion, the trial court emphasized that Appellant “and his

accomplices robbed several establishments and individuals at gunpoint, and

in several instances physically assaulted his victims.” Trial Court Opinion,

4/ 23 /2020, at 5. As such, the trial court believed that its sentence was

necessary not only to protect the public, but also because of the gravity of the

offenses and the effect on the victims and community. Id. at 3. Based upon

our deferential standard of review, we may not reweigh the s ignificance placed

on each factor by the sentencing judge.

Moreover, as Appellant acknowledges, deportation is determined after

parole

. 4 When fashioning an individual sentence, t he trial court is required to

_________________ __________ ______ ____ _______

4 Appellant may also be paroled into “the custody of the United States Immigration and Customs Enforcement for deportation prior to the expiration of [his] minimum term of imprisonment” if he qualifies under 61 Pa.C.S.A. § 6143.J

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address the current need to protect the publi c at large 5 and should not

consider imminent or prospective consequences that follow parole.

For all of the foregoing reasons, we discern the trial court did not abuse

its discretion in balancing the three factors set forth in Section 9721(b) in

imposing an individualized sentence. As such, there is no merit to Appellant’s

appellate sentencing claim.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/27/2021

_________________ __________ ______ ____ _______

5 Appellant’s argument that the trial court should consider deportation as an

alternative means of protecting the public baldly supposes that the term “public,” as defined in Section 9721 , refers only to people in the United States. Appellant does not cite any relevant authority in support, and we decline to

read Section 9721 so narrowly.