J-S11020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK GREGORY DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2781 EDA 2022

Appeal from the Judgment of Sentence Entered August 17, 2022

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

No(s): CP-09-CR-0004094-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 03, 2023

Mark Gregory Davis appeals from the judgment of sentence entered 

following his open guilty plea to driving under the influence (“DUI”) –

controlled substance, recklessly endangering another person, possession of 

paraphernalia, and illegally operating a vehicle without ignition interlock.1

Davis argues the court abused its discretion by imposing an excessive 

sentence. We affirm. 

On April 16, 2021, Falls Township police officers and fire fighters 

responded to an accident that caused a vehicle to catch fire on Route 13 North 

in Bucks County. N.T., 2/1/22, at 6-7, 17; N.T., 8/17/22, at 3. The first 

responders blocked off a portion of the road with a barricade consisting of 30

flares, 75 to 80 cones, and six or seven police and fire vehicles, all with 

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1 75 Pa.C.S.A. § 3802(d)(2); 18 Pa.C.S.A. § 2705; 35 P.S. § 780-113(a)(32); 

and 75 Pa.C.S.A § 3808(a)(1), respectively.
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flashing lights. N.T., 2/1/22, at 7-10. The barricade and lights were about 600 

yards away from the accident. Id. at 10. As a result of the barricade, oncoming 

traffic had to exit Route 13. Id.

Davis failed to exit Route 13 and drove through the barricade at an 

estimated speed of 70 miles per hour. Id. at 18. Davis brought his vehicle to 

a stop once he reached the firetrucks that had the roadway completely blocked 

off. Id. Officer Michael Parnes approached the stopped vehicle and directed 

Davis to get out of his vehicle. Id. at 19. Officer Parnes detected the odor of 

alcohol and marijuana. Id. Additionally, as Davis was pulled out of his vehicle, 

officers observed a glass smoking device, previously on Davis’s lap, fall to the 

ground. Id. at 20. At that point in time, Officer Parnes believed that Davis was 

under the influence of a controlled substance and alcohol, such that Davis was 

unable to safely operate his vehicle. Id. at 24. Davis refused to submit to a 

blood draw and no field sobriety tests were conducted because of safety 

concerns related to the vehicle fire. Id. at 21, 24-25. Officer Parnes conducted 

a search of Davis’s driving history and learned that Davis was required to have 

an ignition interlock device in his vehicle. Id. at 26. Davis’s vehicle did not 

have an ignition interlock device at the time of the incident. N.T., 8/17/22 at 

10. 

On June 13, 2021, Davis pleaded guilty to the above-referenced 

offenses. At sentencing, on August 17, 2022, Davis stated that he had been

speeding on the night of the incident, but that he was confused about what 

had occurred on the roadway during his incident. Id. at 6. Davis also said he 
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did not know he was required to have an ignition interlock device in his vehicle. 

Id. at 10. Davis spoke about his addiction issues, his decision to have his 

parents adopt his daughter, and his past drug treatment success. Id. at 8, 

13-14. Davis concluded by speaking about his desire to get back to his family, 

friends, passions, hobbies, and work. Id. at 13-14. Davis also submitted a 

letter to the court.

Before imposing Davis’s sentence, the court stated: 

Okay. Let’s not forget what charges are here. Third offense driving 

under the influence, recklessly endangering four different people, 

all of whom I assume are first responders trying to protect the 

safety of the community, having the paraphernalia with you. . . 

driving a vehicle that you were prohibited from operating because 

it did not have an ignition interlock control because of your prior 

drunk driving charges. 

You have provided me with a 13-page, small-writing statement in 

which at no time did you accept responsibility for your conduct, 

did you at no time show any remorse for your conduct, at no time 

did you show any sympathy or understanding of the harm you put 

other people in. All you talked about was how you had been picked 

on throughout your life. 

You don’t care about anybody but yourself. You profess to have 

this love for your child. I’m not saying you don’t, but you seem to 

think that means that you can do as you please and have no 

responsibility and that your daughter is your keep-out-of-jail-free 

card. It ain’t happening. 

You’ve been through the system. You’ve been through jail. You’ve 

been on probation. You’ve been in treatment. At times you 

successfully completed it.

But you are a danger to the community. I have no doubt in my 

mind that when you walk out of a state correctional institution in 

the future the first opportunity you have to get high, to get behind 

the wheel of the car and go out and do as you please, you’ll do. 

You won’t even hesitate to think about the repercussions to 
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yourself should you get caught driving or what you might do to 

other people. 

I am going to impose a sentence in the aggravated range of the 

DUI, and I’m doing that, one, because of those issues I just 

mentioned: the lack of remorse, the lack of an acceptance of 

responsibility, the multiple persons in jeopardy. But I’m doing it 

also because I won’t put – impose sentences on the other open 

counts.

Id. at 14-16. 

At the conclusion of sentencing hearing, the court imposed a sentence 

in the aggravated range of 27 to 60 months’ incarceration on the DUI offense, 

with no further penalty on the other charges.

Davis filed a motion for reconsideration of sentence. At a hearing on the 

motion, Davis apologized and explained that the goal of his letter to the court 

was to paint a broad picture of himself and factors of his personal life. N.T.,

9/26/22, at 3-7. After hearing testimony from Davis, the court denied the 

motion. Id. at 7. 

Before denying the motion, the court stated: 

Let me say this, Mr. Davis. I don’t question your remorse and your 

apology. I don’t challenge that . . .

But, look, I hear what you’re saying. But all those various factors 

were taken into consideration at the time of sentencing.

Id. at 5, 7. 

Davis filed a timely appeal. Davis raises the following issue: 

Did the trial court abuse its discretion in sentencing [Davis] by 

imposing a manifestly excessive sentence at the high end of the 

aggravated range, relying on improper factors and the nature of 

the offense and failing to consider all relevant factors? 

Davis’s Br. at 7. 
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Davis challenges 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. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits 

of Davis’s claim, we must determine whether: “(1) the appeal is timely; (2) 

the appellant has preserved his issue; (3) his brief includes a concise 

statement of the reasons relied upon for allowance of an appeal with respect 

to the discretionary aspects of his sentence; and (4) the concise statement 

raises a substantial question whether the sentence is inappropriate under the 

Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 

2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who challenges 

the discretionary aspects of a sentence “shall set forth in a separate section 

of the brief a concise statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of a sentence”). 

Here, Davis has complied with the first three requirements: his appeal 

is timely, he preserved the issue in a post-sentence motion, and his brief 

includes a statement of the reasons for allowance of appeal. We now turn to 

whether Davis has raised a substantial question. 

A substantial question exists when the appellant makes a colorable 

argument that the sentencing judge’s actions were either inconsistent with a 

specific provision of the Sentencing Code or contrary to the fundamental 

norms underlying the sentencing process. Commonwealth v. Moury, 992 

A.2d 162, 170 (Pa.Super. 2010). Davis’s Rule 2119(f) statement claims that 
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the sentencing court failed to consider relevant factors such as family history, 

age, or rehabilitative needs and considered improper factors. Davis’s Br. at 9-

10. This presents a substantial question. See Commonwealth v. Raven, 97 

A.3d 1244, 1253 (Pa.Super. 2014) (stating “an excessive sentence claim—in 

conjunction with an assertion that the court failed to consider mitigating 

factors—raises a substantial question”); see also Commonwealth v. 

Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023) (finding an excessive 

sentence claim coupled with a claim of disregard for appellant’s “rehabilitative 

potential” raises a substantial question); Commonwealth v. Crawford, 254 

A.3d 769, 782 (Pa.Super. 2021) (stating that a claim that the sentencing court 

relied on improper factors raises a substantial question). Thus, we proceed to 

the merits of Davis’s claim.

Davis argues that the sentencing court relied on improper factors, 

focused on the nature of the offense that was already addressed by the 

Sentencing Guidelines, and failed to consider all relevant factors. Davis’s Br. 

at 11-16. With respect to improper factors, Davis argues that the court 

justified its sentence, in part, “on the inappropriate and unfounded belief that 

[Davis] will use drugs and commit another DUI, as soon as possible” and 

“[Davis’s] lack of remorse.” Id. at 14. Davis further argues that the sentencing 

court focused on factors related to the nature of the offenses that were already 

contemplated in the Sentencing Guidelines, namely, elements of the offense 

to which Davis entered his guilty plea. Id. at 15. He contends that the 

sentencing court failed to consider relevant factors, including his history and 
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character and his rehabilitative needs. Id. at 15-16. Additionally, Davis argues 

that the sentencing court’s statements during the hearing on his motion for 

reconsideration of sentence indicates acknowledgment of his remorse, such 

that the sentencing court should be precluded from relying on lack of remorse 

to justify sentencing Davis in the aggravated range. Id. at 15. 

“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.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super. 

2018) (citation omitted). An abuse of discretion occurs where “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. (citation omitted). However, we may not reweigh the sentencing 

factors and impose our own judgment in place of that of the trial court. See 

Commonwealth v. Peck, 202 A.3d 739, 747 (Pa.Super. 2019). 

In imposing a sentence, the sentencing court must consider, “the 

protection of the public, the gravity of the offense as it relates to the impact 

on the life of the victim and on the community, and the rehabilitative needs 

of the defendant.” 42 Pa.C.S.A. § 9721(b). Moreover, “[a] sentencing court 

may consider any legal factor in determining that a sentence in the aggravated 

range should be imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592-

93 (Pa.Super. 2015). Further, the sentencing judge’s reasons for sentencing 

in the aggravated range must reflect this consideration. Id. at 593.

Additionally, the Sentencing Guidelines “are merely one factor among many 
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that the court must consider in imposing a sentence.” Commonwealth v. 

Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). 

Here, although the court sentenced Davis in the aggravated range, it is 

still within the Sentencing Guidelines. The court conducted the sentencing 

without any improper considerations. The record reflects that, at the time of 

sentencing, the court considered the fact that Davis’s actions posed a threat 

to the public and to the safety of the public officials at the scene who 

themselves are tasked with ensuring the safety of the public. The record also 

indicates that the court considered the absence of the required ignition 

interlock, the fact that it was Davis’s third offense, and the lack of remorse, 

sympathy, or responsibility in Davis’s letter. Those facts clearly relate to public 

safety and the gravity of the offense. Further, the sentencing court referenced 

the letter and stated that, despite the trials and tribulations outlined in the 

letter, Davis posed a danger to the community to such a degree that the 

aggravated sentence was appropriate. The court also considered Davis’s 

rehabilitative needs and he was given the opportunity, in his letter and 

testimony at sentencing, to touch upon his struggles with addiction, drug use 

at the time of the incident, and past success in drug treatment. At no point 

did the sentencing court deprive Davis of informing it of his history of addiction 

and past treatment. 

With respect to the court’s comments that Davis would reoffend when 

released from prison, which Davis claims the court improperly considered, 

there is no information in the record to indicate that the hyperbolic statement 
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is indicative of a founded belief that Davis would reoffend immediately 

following the conclusion of his incarceration. Rather, the court’s stated 

reasoning in imposing the aggravated sentence, coupled with the history of 

committing the same offense, reflects a concern that, given his history, Davis 

may commit the same crime, at any point in time, and pose a threat to the 

safety of the community. 

Second, the court did not focus solely on factors already contemplated 

by the sentencing guidelines. The fact that Davis drove under the influence of 

a controlled substance for the third time and jeopardized the lives of first 

responders as a result, is not merely an element of the crime of DUI. The 

crime of DUI – impaired ability provides, in relevant part, that, “[a]n individual 

may not drive, operate or be in actual physical control of the movement of a 

vehicle,” when “[t]he individual is under the influence of a drug or combination 

of drugs to a degree which impairs the individual’s ability to safely drive, 

operate or be in actual physical control of the movement of the vehicle.” 75 

Pa.C.S.A. § 3802(d)(2). 

The factors considered by the court, including the presence of a 

barricade that all the other motorists followed, the presence of officers, and 

the fact that it was a third offense, are not elements of the offense. Rather, 

those factors were considered, in conjunction with all other legally relevant 

factors and the elements of the above offense, to decide that the aggravated 

range sentence was appropriate. Additionally, the Sentencing Guidelines serve 

as a guide and are not controlling. See Yuhasz, 923 A.2d at 1118 (stating 
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that the Sentencing Guidelines “are purely advisory in nature”). The fact that 

the number of convictions is factored into Sentencing Guidelines is not 

determinative. Rather, it is one factor that the court considered, and that it 

was the third conviction was not the sole basis of the sentence. On the issue 

of consideration of all relevant factors, the court expressly stated, at the 

motion for reconsideration of sentence hearing, that it considered Davis’s work 

history, parental struggles, and treatment needs. 

The court’s reasons for its sentence expressed an appropriate 

consideration of the protection of the public, the gravity of the offense as it 

related to the impact on the life on the victims and on the community, and 

the rehabilitative needs of Davis. See 42 Pa.C.S.A. § 9721(b). We discern no 

abuse of discretion. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/3/2023