Com. v. Arnold, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RITA JO ANN ARNOLD,
Appellant No. 108 EDA 2014
Appeal from the Judgment of Sentence October 15, 2013
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001421-2013
BEFORE: BOWES, MUNDY, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 17, 2015
Rita Jo Ann Arnold appeals from the aggregate judgment of sentence
of one year and four months to two years and eight months incarceration
imposed by the court after she pled guilty to tampering with public records
and obstruction of justice. We affirm.
Appellant is a former magisterial district judge. The criminal conduct
in this matter stems from her actions in that capacity. On January 19, 2010,
Appellant’s two adult sons were involved in an altercation at her home.
Pennsylvania State Police responded and issued a summary citation to one
of Appellant’s sons. That son was on probation at the time. The citation
was received in Appellant’s office on January 20, 2010, and placed in the
docketing bin.
*
Former Justice specially assigned to the Superior Court.
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That same day, Appellant placed a telephone call to the Pennsylvania
State Police. She informed Sergeant Brandon Daniels that the incident
occurred at her house with her son and asked why a citation had been
issued. Sergeant Daniels was not involved in issuing the citation and
indicated that he would inquire about it. Before Sergeant Daniels responded
to Appellant’s inquiry, he received the citation from Appellant’s district court
in an envelope with his name on it. He then called Appellant and informed
her that the citation was properly issued and needed to be filed. He
returned the citation to Appellant’s court. The citation was stamped as
received on February 8, 2010, but Appellant failed to have the citation
docketed.
Subsequently, on February 15, 2010, Appellant provided an employee
with the citation and instructed that individual that Appellant would advise
the employee when to docket it. She indicated that her son had a probation
hearing approaching and that she did not know if the citation would affect
his probation. Approximately one month later, the trooper who had written
the citation informed Sergeant Daniels that the citation had not yet been
docketed. Accordingly, Sergeant Daniels called Appellant’s office. Appellant
personally spoke with Sergeant Daniels. She informed Sergeant Daniels that
her court was backlogged and that the citation would be filed soon.
Subsequently, on April 5, 2010, Appellant docketed the citation and
transferred the case to another district magistrate. In doing so, however,
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Appellant did not follow proper protocol for transferring cases in Chester
County and incorrectly filled out the docket information. Specifically,
Appellant entered an incorrect birthdate and indicated that the defendant
was a black female.
The irregularities with the citation were discovered by the Chester
County Court Administration during a routine review. President Judge James
P. MacElree II directed Appellant to provide a written explanation for the
unusual handling of the citation. Appellant responded that the delay in the
docketing occurred because her courtroom had been closed due to noxious
fumes for a period beginning on February 8, 2010, and that her courtroom
was moved to a different location. The Chester County Court Administration
reviewed if any other citations received on the first day Appellant’s
courtroom was closed was similarly delayed. That review revealed that all
other citations received on February 8, 2010 were docketed by February 23,
2010.
As a result of these actions, a Judicial Conduct Board investigation
occurred. As part of that investigation, Appellant’s office manager testified
that Appellant had told her in February not to docket the citation. She also
submitted that Appellant asked her to testify before the Judicial Conduct
Board that the office manager did not learn of the citation until Appellant
gave it to her to transfer to another magistrate. The Judicial Conduct Board
suspended Appellant for three months, after which Appellant resumed her
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judicial duties. Prior to being reinstated, Appellant asked that her office
manager be relieved of her duties and requested that she be replaced. The
Commonwealth ultimately filed criminal charges as a result of Appellant’s
actions. Appellant resigned her position and, on June 24, 2013, entered an
open guilty plea to the aforementioned charges.1
Thereafter, the court conducted a sentencing hearing on October 15,
2013. After considering a pre-sentence report, the court heard testimony
from several character witnesses, argument from counsel, and Appellant’s
own statement. At the time, Appellant was suffering from breast cancer,
and the court was aware of that fact. The court imposed a sentence of one
to two years incarceration for the tampering count and a consecutive
sentence of four to eight months imprisonment for the obstruction charge.
Appellant filed a timely post-sentence motion seeking reconsideration
of the sentence as well as a motion for bail pending appeal. The court
conducted a hearing on December 19, 2013, and denied Appellant’s post-
sentence motion. This timely appeal ensued. The trial court directed
Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant complied, and the matter is now ready
for our review. Appellant raises three issues for this Court’s consideration.
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1
The entire Chester County Court of Common Pleas bench recused.
Accordingly, the Pennsylvania Supreme Court assigned Senior Judge John L.
Braxton to handle this matter.
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A. Whether the trial court abused its discretion by imposing a
sentence twice the outer end of the aggravated range under
the sentencing guidelines for tampering with public records
and in the aggravated range for obstruction of law, thus
ignoring significant mitigating factors especially the
Appellant’s lack of prior criminal record, her otherwise
exemplary decades of judicial service, her acceptance of
responsibility/remorse and resignation as a judge, and her
grave cancerous condition, which is a manifestly excessive
sentence and too harsh a punishment?
B. Whether the trial court further abused its discretion by
ordering that Appellant’s two individual sentences run
consecutively, thereby resulting in a total aggregate sentence
of 16 to 32 months’ incarceration, which is a manifestly
excessive sentence and too harsh a punishment?
C. Whether the trial court failed to articulate sufficient reasons
on the record for imposing the sentences (one beyond the
aggravated range and the other in the aggravated range) as
mandated by the sentencing code?
Appellant’s brief at 4.
Each of Appellant’s issues challenges the discretionary aspects of her
sentence. To preserve such a sentencing claim, the defendant must raise
the issue either in a post-sentence motion or during the sentencing
proceedings. Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa.Super. 2013) (en banc). In addition, a defendant must “preserve the
issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement.” Id. Further, “There is no absolute right to
appeal when challenging the discretionary aspect of a sentence.” Id.Instead, “an appeal is permitted only after this Court determines that there
is a substantial question that the sentence was not appropriate under the
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sentencing code.” Id. In considering the merits of a discretionary
sentencing matter, we review the sentencing court’s decision for an abuse of
discretion. Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.
2013). In performing this review, we consider the statutory requirements of
42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court
shall vacate a sentence and remand under three circumstances:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). Further, we examine:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Appellant timely filed a post-sentence motion asserting her claims
therein. She further preserved the issue by including it in her Rule 1925(b)
concise statement and has provided Rule 2119(f) statement. Accordingly,
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we must examine whether her three issues present substantial questions for
our review. Appellant’s initial contention is that the sentencing court abused
its discretion and imposed an excessive sentence by sentencing her outside
the aggravated range of the sentencing guidelines and ignoring mitigating
factors. This issue presents a substantial question for our review.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.Super. 2012);
Commonwealth v. Hernandez, 755 A.2d 1, 13 (Pa.Super. 2000);
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005); but see
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008)
(“Appellant's assertion of abuse of discretion for imposing consecutive
sentences without properly considering mitigating factors fails to present a
substantial question to justify this Court's review of his claim.”).
Appellant’s second issue is that the court erred in imposing
consecutive sentences resulting in an excessive sentence. Appellant relies
on Dodge, supra, and Commonwealth v. Gonzalez-Dejusus, 994 A.2d
595 (Pa.Super. 2010), in support. However, in Dodge the defendant was
sentenced to forty years and seven months to eighty-one years and two
months imprisonment. Similarly, in Gonzalez-Dejusus, the court
sentenced the defendant to twenty to forty years incarceration. Moreover,
the Gonzalez-Dejusus Court found no substantial question. Here, the
aggregate sentence of one year and four months to two years and eight
months is not, on its face, excessive in light of Appellant’s conduct. We add
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that Appellant is also incorrect that Dodge denied allowance of appeal.
Rather, the Dodge Court reached the merits of the sentencing issues and
denied relief. To the extent that Appellant highlights that one of her
sentences was outside the aggravated sentencing guideline range and
another was in the aggravated range, and the sentences in Dodge and
Gonzalez-Dejusus were within the standard ranges, those cases involved
imposition of consecutive sentences resulting in lengthy prison sentences
and not two consecutive sentences resulting in an aggregate sentence of
less than three years. Therefore, we hold that Appellant’s allegation that the
sentences imposed consecutively resulted in a harsh and excessive sentence
does not present a substantial question for our review. See Gonzalez-
Dejusus, supra; Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.
2005). The final claim Appellant levels is that the court erred in failing to
provide sufficient reasons for its sentence. This position presents a
substantial question. Commonwealth v. Wagner, 702 A.2d 1084, 1086
(Pa.Super. 1996).
Having determined that two of Appellant’s issues present substantial
questions, we now proceed to examine their merits. First, we consider
Appellant’s argument that the court abused its discretion by sentencing her
outside the sentencing guidelines and allegedly failing to consider certain
mitigating factors. Appellant maintains that the court did not impose an
individualized sentence and focused only on the aggravating fact that she
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committed her crimes in her capacity as a judicial official. She asserts that
the court did not give any weight to her rehabilitative needs or potential for
redemption.
Appellant also submits that the court did not address the protection of
the public or the gravity of the offense. According to Appellant, the court
“harped on the fact that the Appellant had violated her judicial oath in
committing the crimes of tampering and obstruction[.]” Appellant’s brief at
29. She adds that the court focused extensively on Appellant’s attempt to
remove her office manager from her job and construed Appellant’s efforts as
an attempt to fire the office manager. Appellant argues that the sentencing
court did not consider her aggressive breast cancer and need for
chemotherapy treatment as mitigation evidence.
In addition, Appellant points out that her sentence for tampering was
outside the aggravated range of the sentencing guidelines. Appellant had no
prior record score and the standard sentencing guideline range for the
tampering offense was restorative sanctions, i.e., probation, to three months
incarceration. The aggravated range was three to six months imprisonment.
Accordingly, Appellant’s tampering sentence was twice the aggravated
range.
Appellant continues that the court did not mention these ranges, which
she posits was a “blatant violation of the Sentencing Code.” Appellant’s brief
at 32 (emphasis removed). Further, Appellant argues that the court did not
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note that it reviewed the presentence report and ignored her “lack of any
prior criminal record as well as her age, personal characteristics and life
situation.” Id. at 36. Appellant does acknowledge that the sentencing court
was aware of her cancer condition, but she contends that the court ignored
that factor.
Additionally, Appellant complains that the sentencing court did not
consider her prior distinguished service as a public servant, her remorse and
acceptance of guilt, and the forfeiture of her pension and health insurance.
In Appellant’s view, “the [c]ourt exhibited a certain vindictiveness and
mean-spiritedness when sentencing Ms. Arnold, which is buttressed by its
conduct in connection the bail pending appeal.” Id. at 41. In this respect,
the court sua sponte set Appellant’s bail pending appeal at one million
dollars. This Court, in another appeal, reversed that decision.
The Commonwealth responds that there is no requirement that a
sentencing court state that it has read a presentence report in order to
presume that the court was aware of the information provided therein. It
posits that this Court has frequently concluded that a court is assumed to be
aware of the information in a presentence report where such a report has
been prepared. The Commonwealth adds that the sentencing court did
consider Appellant’s lack of a prior record because it was factored into the
sentencing guidelines and that the court found it insignificant since
Appellant’s conduct took place over three years.
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The Commonwealth notes that Appellant undertook extensive and
“protracted efforts” to prevent her son from being prosecuted for a summary
offense and then attempted to cover up those efforts. Commonwealth’s
brief at 15. It highlights that Appellant lied to Sergeant Daniels and to the
President Judge of Chester County. Further, Appellant lied under oath
before the Judicial Conduct Board and attempted to persuade an employee
to lie on her behalf before that same tribunal.
The Commonwealth continues that Appellant’s age, 57, was not a
mitigating factor and that the court did consider her personal characteristics,
but was unpersuaded by her arguments for a lighter sentence. It points out
that the sentencing court did not find Appellant’s claim that she did not
attempt to fire her office manager for not lying on her behalf to be credible.
The Commonwealth also disputes Appellant’s assertion that the sentencing
court did not adequately consider her medical situation. Indeed, the court
expressly stated that it considered her illness. See N.T., 10/15/13, at 34.
The Commonwealth maintains that the court did consider Appellant’s health;
it simply did not afford it the weight that Appellant wished.
With respect to Appellant’s service as a public servant, the
Commonwealth provides that the sentencing court stated that it was “very
sensitive to [Appellant’s] years of service.” Commonwealth’s brief at 30
(quoting N.T., 10/15/13, at 25). It argues, however, that the sentencing
court considered her years of service as an aggravating factor warranting
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harsher treatment since Appellant should have known, as a judicial official,
that she was held to a higher standard.
As to Appellant’s assertion that the sentencing court ignored her
expressions of remorse, the Commonwealth maintains that the court
disbelieved her claim of remorse and instead was concerned that she
attempted to retaliate against a subordinate by seeking that person’s
removal. Further, the Commonwealth rejects Appellant’s claim of
acceptance of responsibility. In this respect, it repeats the lengths to which
Appellant went to delay the filing of the citation against her son and to cover
up her actions. The Commonwealth submits that Appellant’s actions
spanned a three year period and that “[h]er claims that she accepted
responsibility border on offensive.” Commonwealth’s brief at 36.
The Commonwealth further disputes Appellant’s position that the court
acted in a vindictive and mean-spirited manner. It sets forth that
Appellant’s only support for her position is what occurred with respect to
bail, which transpired two months after her sentence. Relying on the
sentencing transcript, the Commonwealth proffers that the sentencing court
accorded Appellant and her witnesses respect and took no pleasure in
sentencing her.
We find that Appellant is entitled to no relief. Contrary to Appellant’s
assertions, it is evident that the sentencing court considered the factors that
Appellant alleges were mitigating. The sentencing court simply did not
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afford those facts more weight than what it considered were aggravating
circumstances. Specifically, the court was aware and repeatedly
acknowledged Appellant’s medical condition. Further, it noted Appellant’s
years of judicial service. It also acknowledged that its tampering sentence
was outside the guideline ranges, but set forth reasons for imposing such a
sentence. Notably, the court considered Appellant’s position as a magisterial
district judge, her attempts to cover up her misconduct, including repeated
lies, and found that Appellant did attempt to have her office manager fired.
These factors, it reasoned, all warranted departing from the guideline
ranges. We discern no abuse of discretion in finding that a judicial officer is
held to high ethical and legal standards and that a continuing course of
conduct in derogation of those duties justified a sentence outside the
guidelines. The sentence herein was not unreasonable.
Having disposed of Appellant’s initial issue, we now address her
remaining position that raised a substantial question.2 Appellant asserts that
the trial court failed to articulate sufficient reasons for sentencing beyond
the aggravated range for the tampering crime and in the aggravated range
for the obstruction charge. Portions of Appellant’s position are largely
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2
Even assuming arguendo that Appellant’s second claim regarding the
consecutive nature of her sentences presents a substantial question for our
review, it would fail for the same reasons outlined with respect to her first
issue.
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repetitive of earlier arguments; namely, that the court did not indicate it
reviewed a presentence investigation report or provide an on-the-record
statement of its reasons for deviating from the standard guideline ranges.
Appellant submits that the court’s brief acknowledgment that it had
sentenced her outside the aggravated range was insufficient to support her
aggregate sixteen to thirty two month sentence of imprisonment.
The Commonwealth rejoins that the sentencing court was aware that it
had exceeded the sentencing guideline range for tampering and provided
that it had set forth its reasons for doing so. In addition, the Commonwealth
submits that Appellant’s motion for reconsideration included the guideline
ranges and counsel argued at a hearing that the sentence exceed the
aggravated range. The court, nonetheless, despite being well aware of the
ranges, elected to retain its original sentence. We find Appellant is not
entitled to relief. Compare Commonwealth v. Rodda, 723 A.2d 212, 214
-215 (Pa.Super. 1999) (en banc) (“we have affirmed sentence where the
record demonstrated that the sentencing court considered the guidelines and
was aware that the sentence it imposed exceeded the guidelines range,
though it did not, in fact, recite the range.”).
The sentencing court provided lengthy reasons for its sentence. It
highlighted that Appellant concocted a story to the President Judge, provided
a different story and lied to the Judicial Conduct Board, violated her oath of
office, and attempted to retaliate against a person with whom she had
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worked for over thirty years. The court noted the disrepute Appellant’s
conduct placed on the judicial system as a whole. Appellant’s position that
the sentencing court did not provide reasons for its sentence is belied by the
record.
Judgment of sentence affirmed.
Fitzgerald, J. joins the Memorandum.
Mundy, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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