Com. v. Coulson, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEPHEN PAUL COULSON
Appellant No. 699 WDA 2014
Appeal from the Judgment of Sentence March 10, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008360-2013
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 05, 2016
Appellant, Stephen Paul Coulson, appeals from the judgment of
sentence of seven and one-half (7½) to fifteen (15) years of incarceration
entered on March 10, 2014, after Appellant pled guilty to aggravated
assault, burglary, criminal trespass, and recklessly endangering another
person (REAP).1 Upon review, we affirm.
On January 22, 2014, Appellant appeared before the trial court and
entered his plea to the above charges.2 The Commonwealth stated it was
withdrawing a charge of criminal attempt – homicide, in exchange for the
plea. N.T., 1/22/14, at 2. The trial court ordered a pre-sentence report.
____________________________________________
1
18 Pa.C.S.A. §§ 2702, 3502, 3503 and 2705, respectively.
2
The facts underlying Appellant’s convictions are detailed below in our
analysis.
*Retired Senior Judge assigned to the Superior Court.
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On March 10, 2014, the trial court convened a sentencing hearing.
The trial court heard from counsel, Appellant, and the victim’s two
daughters. The trial court additionally considered written statements from
the victim’s other daughter and son. At the conclusion of the hearing, the
trial court sentenced Appellant to seven and one-half (7½) to fifteen (15)
years of incarceration for the aggravated assault conviction. The trial court
sentenced Appellant to a consecutive five (5) years of probation for the
burglary conviction, and imposed no further penalties for the criminal
trespass and REAP convictions.
On March 17, 2014, Appellant filed a timely post-sentence motion to
modify sentence, which, after conducting a hearing on April 3, 2014, the trial
court denied on April 9, 2014. Appellant filed this timely appeal on May 2,
2014. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents four sentencing issues for our review:
1. Should the sentence imposed upon Appellant
Coulson be vacated, and his case remanded for
re-sentencing, owing to the fact that the
sentencing court in this case, in imposing a
beyond-the-aggravated-range non-guidelines
sentence, purported to sentence within the
sentencing guidelines but applied those guidelines
erroneously (a situation that 42 Pa.C.S. §
9781(c)(1) indicates requires the granting of
sentencing relief)?
2. Should the sentence imposed upon Appellant
Coulson be vacated, and his case remanded for
re-sentencing, owing to the fact that the
sentencing court’s 42 Pa.C.S. § 9721(b)
statement of sentencing rationale indicated that
Appellant was sentenced as he was because the
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nature of the offense that he committed (a
situation that § 9721(b) itself indicates
constitutes grounds for the awarding of
sentencing relief)?
3. Should the sentence imposed upon Appellant
Coulson be vacated, and his case remanded for
re-sentencing, owing to the fact that the non-
guidelines sentence imposed upon him was
unreasonable in view of the totality of the
circumstances (a situation that 42 Pa.C.S. §
9781(c)(3) indicates requires the granting of
sentencing relief)?
4. Are not all of the foregoing legal theories properly
before th[e Superior] Court owing to the fact that
defense counsel in the sentencing court expressly
and repeatedly argued that a shorter prison
sentence should be imposed upon Appellant than
was imposed?
Appellant’s Brief at 3-4.
All of Appellant’s four issues are interrelated, such that we address
them together. In each issue, Appellant objects to the length of his
sentence, and thus challenges the discretionary aspects of his sentence.
Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (claim
that sentence is excessive is a challenge to the discretionary aspects of a
sentence). It is well-settled that “sentencing is a matter vested in the sound
discretion of the sentencing judge, whose judgment will not be disturbed
absent an abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d
1183, 1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant
does not have an automatic right to appeal the discretionary aspects of his
sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition
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this Court for permission to appeal the discretionary aspects of his sentence.
Id.
Recently, this Court reiterated:
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. See
[Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007)] (citation omitted). An appellant must
satisfy a four-part test to invoke this Court's
jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether 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 the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citations omitted).
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.
2013) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014).
“A substantial question exists only when the
appellant advances a colorable argument that the
sentencing judge's actions were either: (1)
inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.”
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.
Super. 2012) (citations and internal quotation marks
omitted).
Buterbaugh, 91 A.3d at 1266.
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Instantly, Appellant filed a timely notice of appeal, preserved his
sentencing challenge in his post-sentence motion to modify sentence, and
included a separate Rule 2119(f) concise statement in his appellate brief.
See Appellant’s Brief at 17-22. To the extent Appellant argues that the trial
court failed to consider certain factors, his assertion that the trial court failed
to consider mitigating facts of record does not raise a substantial question.
Buterbaugh, 91 A.3d at 1266. However, with regard to Appellant’s
contention that the trial court sentenced him beyond the guidelines to what
the trial court “mistakenly believed was an aggravated range guideline
sentence,” and misapplied the sentencing guidelines “in view of the totality
of the circumstances,” such claims present substantial questions. See
Appellant’s Brief at 3; Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super.
2007) (claim that the sentencing court misapplied the sentencing guidelines
presents a substantial question); Commonwealth v. Eby, 784 A.2d 204,
206 (Pa. Super. 2001) (claim that the sentencing court imposed an
unreasonable sentence by sentencing outside the guideline ranges presents
a substantial question). This, we will consider those claims.
In examining the merits of Appellant’s claims, we recognize that the
primary consideration in our review of the discretionary aspects of a
sentence imposed by a trial court is whether the court imposed an
individualized sentence, and whether the sentence was nonetheless
unreasonable for sentences falling outside the guidelines. Commonwealth
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v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). Also, “[a] trial court need
not undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).
Here, our thorough review of the record as a whole reveals that the
sentence imposed by the trial court – albeit outside of the guidelines, and
with a misstatement by the trial court – was not unreasonable, and reflected
the trial court’s consideration of the facts of the crime and the character of
Appellant. We recount our review of the record in detail below because of its
relevance to our analysis.
At sentencing, the Commonwealth explained that the victim hired
Appellant and worked with him on the day of the attack. N.T., 3/10/14, at
17. That evening, while the victim was asleep in his home, Appellant
attacked him with a hammer, causing the victim to receive sixty-two (62)
stitches and to suffer from continuing dizziness until the present day. Id.“At the hospital, [the victim] was told if the hammer had hit his temple, it
would have killed him.” Id. The Commonwealth stated that the standard
guideline sentence for Appellant was thirty-six (36) to fifty-four (54) months
of incarceration, and indicated it was looking for a sentence that was at least
within the standard range. Id.-6-
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Appellant’s counsel noted that although Appellant was a veteran and
served two combat tours, he was rejected from both Veterans Court and
Mental Health Court “because of the seriousness of this crime.” Id. at 5.
Appellant’s counsel explained:
Because of the seriousness of this crime, Your
Honor. It was an attempted homicide. He’s now
pled guilty to the crime of aggravated assault. He
struck a sixty-five-year-old man in the head with a
hammer, so I believe that’s why it was rejected from
the specialty court programs, like Mental Health
Court, Drug Court, Veterans Court.
Id. at 5-6. Appellant’s counsel requested that the trial court sentence
Appellant in the mitigated range of the guidelines to a minimum of
twenty-four (24) months of incarceration.
Thereafter, the trial court commented:
That’s the amazing part of it to me. Here’s
somebody who has a past, who has a criminal
record. You use drugs. You abuse drugs. You’ve
been thrown out of the [A]rmy. You’ve been
basically cast to the side by basically everyone over
your years, and the hand that [the victim has]
extended to you, what do you do? You smash some
man in the head while he sleeps in his bed.
***
How do you do that to a friend, someone who
extends the hand of help to you, someone who offers
you a job, someone who pays you, someone who has
extended that random act of kindness to you?
Id. at 7.
Appellant responded that there was “no excuse” for what he did. Id.
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Although the victim was present, the Commonwealth stated that he
“was too upset to speak.” Id. at 8.
Two of the victim’s daughters testified. Ms. Dana Valerio stated that
Appellant’s attack on her father “changed her life forever” and “has been the
most difficult time of [her] life.” Id. at 9. Ms. Valerio detailed the impact of
the crime on the victim and his family:
May 30, the day before the crime, was spent at
Kennywood Park as a family, watching my dad take
turns riding rides with seven of his ten young
grandchildren all under the age of nine. The next
time I would speak to my dad would be in the early
morning hours of June 1st at 2:09 a.m. when I
received a call from my father who notified me of the
home invasion and the brutal attack that took place
and that he needed our help. That conversation I
will never forget. I told him that I would drive him
to the hospital and my brother-in-law Scott would
stay at his house with the police as they processed
the crime scene. I will always remember the
shakiness in his voice when he said, “I want Scott to
take me. I don’t want you girls to see me like this.”
However, nothing could have prepared me for the
violent scene I was about to witness.
I was met at my childhood home by police officers
and detectives who walked me through my father’s
house pointing out evidence of the attack … The
blood-spattered walls and floors, the light switch and
the wall … covered in blood and the obvious signs of
the struggle that took place … are images I will never
forget. … My siblings and I feel that our childhood
home has forever been changed. A place that once
held so many wonderful memories has been
overshadowed by the horrific events of that night.
In the weeks following the attack, I watched my
father struggle with many different emotions, anger,
frustration and confusion, about why a person he
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tried to help would carry out such a malicious attack
as he slept defenselessly in his bed. We, as his
children, were worried for his health and safety. My
sister Diana and I shared the task of having him stay
with us for over two months as he recovered from
his injuries. In addition to his physical injuries, we
observed him having difficulty sleeping. He would
wake frequently during the night with nightmares of
the attack. Trying to shield his grandchildren from
the details of the attack, coordinating doctors’
appointments and cleaning up his home were equally
challenging.
Our family’s summers are usually spent at my dad’s
house swimming at the pool, taking boat rides and
going on trips. Instead, we spent most of that
summer calling, e-mailing and meeting with
biohazard removal teams, a carpet company, home
security system installers, a door replacement
company and a homeowners insurance agent to
repair his home from the damage. All of these tasks
were very time-consuming and many times required
us to be absent from work until the process was
completed.
The events that transpired on June 1st, 2013, did not
only change my father’s life, it changed the lives of
our entire family.
Id. at 10-12.
A second daughter, Mrs. Diana Seabol, testified that she felt
responsible for “bringing [Appellant] into our lives” because she and her
husband had hired Appellant to perform contracting work on their home and
rental properties. Id. at 13. Mrs. Seabol also detailed the impact of the
crime:
The overwhelming amount of guilt and anger has led
me to many sleepless and restless nights. On those
same nights my thoughts shift to my father. I lay
awake and think of how he feels trying to sleep in
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the same house, in the same room and in the same
bed where he was awoken to the smashing of a
hammer to his temple.
My father is a hard-working businessman whose only
fault was wanting to help a guy who was down on his
luck. My dad is the rock of our family. He is the
person we all go to when we need help with
anything, and after his attack he was the one that
needed my help. My sisters and I had to shuffle my
father between our houses to monitor his recovery
and to lessen our own missed days of work. He
stayed at my house most of the time while he
recovered from his injuries. He lived at my house for
at least two months because I was so concerned for
his health and safety. He lives alone and was
suffering from debilitating headaches. He
complained of how the light and noise were so
bothersome to him. He also mentioned a constant
ringing in his ears that lasted for weeks. He suffered
from dizziness and blurred vision. He could not be
left alone.
I had to take off numerous days of work without pay
to monitor him and to drive him to many of his
follow-up doctors’ appointments. I have twin nine-
year-old boys and a four-year-old daughter who I
had to lie to about what had happened to their
grandfather because I didn’t want to scare them.
We had to be careful of what we said around them
when we were calling doctors or family to update
them on my father’s condition. My boys have since
overheard and discovered what happened to their
grandfather and continue to ask questions and worry
about his well-being.
My father had no health insurance. He is self-
employed. In the weeks following the attack, he
constantly agonized over how he was going to pay
for his financially overwhelming medical bills. He
only allowed us to get the treatment the doctors
deemed absolutely necessary and skipped the rest
because he [didn’t know] how he was going to pay
for it.
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I can describe those weeks as emotionally and
physically draining for my entire family. We were
still in shock that this happened. The array of
emotions are overwhelming; anger, guilt, pain,
sadness, shock, wondering how someone could do
such a horrific thing, mixed with joy, happiness,
thankfulness and love that my dad was still alive. I
could not imagine my life without him in it.
I have taken steps to insure his safety by
immediately calling to have his home security
system updated to the latest technology. I continue
to worry about him so much that I had the
monitoring system set up so I am e-mail-alerted
every time his alarm arms or disarms. Since he has
returned to his home, I vigilantly check it every
morning and every evening and sometimes in the
middle of the night just to make sure he’s locked in
and secure in his home.
I ask that Your Honor invoke the maximum sentence
allowed by law to [Appellant] for his violent and
vicious attack on my father. This attack has taken
away my family’s sense of security. [Appellant] has
taken away my father’s willingness to help others,
and I think that’s the most tragic thing of all, and my
family will never be the same. Thank you.
Id. at 13-15.
After Mrs. Seabol’s testimony, the Commonwealth provided the trial
court with written statements from the victim’s daughter, Maureen Loyer,
and his son, Mark Winzek, who did not speak on the record. Id. at 16.
Appellant spoke on his behalf, and apologized to the victim and his
family:
I wrote a statement, but I memorized it. I’m sorry
Joe. I have problems with it too. I have issues with
it too. When I replay what I did in my head, I have
problems with it myself.
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Scott, I am sorry. I was in your dad’s house. You
guys did give me work when I needed work. I can’t
understand why I did what I did, to be honest with
you.
Joe’s business is a block from my house, and I’ve
been down there in the mornings – every morning
for coffee. I take my little boy down there, and Joe
puts him on the counter. He slices up watermelon
and gives me food when I need it. I’m sorry, but as
his father – I’m so sorry, man. I really am. And I
can’t understand why I did what I did. Joe is a good
man, and he’s helped me a lot of times, and so has
Scott. I’m just sorry. I look at you, and I really am.
I don’t even know why I did what I did. I can’t even
recall it, and I think about it all the time. I think
about what you guys had to go through too, because
I think about if it was my father, what I would feel,
and I don’t have [any] excuse, and I can’t use drugs
as an excuse because I know what they do, and I
can’t use that as an excuse, and I’m not going to.
That’s all I have.
Id. at 18.
After hearing from the victim’s family and Appellant, the trial court
offered the following detailed rationale for its sentence:
I’ve considered the sentencing guidelines, the nature
of the charges, the fact that [Appellant has]
accepted responsibility by pleading guilty. I’ve
considered [Appellant’s] statement to the [trial
c]ourt, [Appellant’s] apologies to the victim in open
court. I’ve considered also [Appellant’s] lawyer’s
statements and arguments on [Appellant’s] behalf.
I’ve considered the Commonwealth’s attorney’s
arguments on behalf of the Commonwealth and the
victim. I’ve considered the contents of the
presentence report, including [Appellant’s counsel’s]
amendments and – or corrections, rather, to a
subsection with page six, the third block regarding
an incident on January 31st of 1999 while [Appellant]
apparently was in the military, the Army. I’ve also
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considered the letters that have been written on
behalf of the victim; his daughter, Maureen Loyer;
Mark Winzek; Dana Valerio, who testified in open
court today; Diana Seabol, who also testified in open
court. I’ve considered the viciousness and the
nature and seriousness of this offense, the apparent
lack of provocation or any reasonable or rational
basis for this, and as well and as importantly, the
impact on the victim and his family that continues as
well as the financial impact. I have a proposed
Order of Court for $6,068.56 and $1,000 for
restitution. And the punitive, rehabilitative and
deterrent aspects of sentencing. I’ve also considered
[Appellant’s] long history of drug abuse that’s
apparently been interwoven with [Appellant’s] life in
the military and even after [Appellant had] gotten
out which continues up to and through the events of
this criminal episode.
For all those reasons, it’s the judgment and sentence
of the [trial c]ourt at Count 2 that [Appellant] be
sentence to not less than seven and [one-]half nor
more than fifteen years at a state correctional facility
to be determined by the Department of Corrections.
***
This is in the aggravated range of the sentencing
guidelines, and the reasons are the seriousness of
the offense, the unprovoked nature of the attack, the
long-standing impact on the victim and his family,
and [Appellant’s] history. Even though [Appellant
has] a prior record score of zero, [Appellant has] had
a lot of contact with the criminal justice system both
as a civilian and the military that seems to be a
common thread also with drug abuse that [Appellant
has] neglected to get under control in all of these
years.
Id. at 18-20.
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Although the trial court misspoke when explaining that its sentence
was “in the aggravated range,” it later acknowledged that the sentence was
outside of the guidelines, and stated:
The [trial] court misspoke when it stated the
sentence was in the aggravated range. (N.T. 1, p.
20). The sentence, in fact, exceeds the aggravated
range of the applicable sentencing guidelines. The
[trial c]ourt intended to sentence [Appellant] to 7½ -
15 years plus probation, and placed its reasons on
the record.
Trial Court Opinion, 3/24/15, at 5.
In addition, as noted above, Appellant filed a motion to modify
sentence, and the trial court convened a hearing on April 3, 2014. At the
hearing, Appellant’s counsel’s reiterated Appellant’s prior record score of
zero, and asserted that the attack was an “isolated incident,” and Appellant’s
“first run-in with any crime of violence.” N.T., 4/3/14, at 3. Appellant’s
counsel argued, “While the facts of this case are not mitigated, the person
is. There’s a lot of mitigating circumstances about [Appellant].” Id.
Appellant’s counsel recounted Appellant’s military tours of duty in Somalia
and Haiti, his diagnosis of Post-Traumatic Stress Syndrome, and his
demonstrated remorse. Id. at 4. Again, Appellant apologized to the victim
in open court. Id. at 4-5.
The Commonwealth responded that it did not seek “only a standard
range sentence,” and repeated the victim’s continued health challenges. Id.
at 5-6. Subsequently, and significantly, the trial court commented:
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I feel that the sentence – I gave it a lot of thought,
especially with the presentence investigation, [and]
all the testimony entered at that time. I felt it was
an appropriate sentence then. I still feel it’s an
appropriate sentence.
Id. at 7.
In assessing the reasonableness of an extra-guidelines sentence, we,
as a reviewing court, must look at the nature and circumstances of the
offense, the history and characteristics of the defendant, the opportunity of
the sentencing court to observe the defendant, the presentence investigation
report, the findings on which sentence was based, and the sentencing
guidelines. Commonwealth v. Septak, 518 A.2d 1284 (Pa. Super. 1986).
Here, our review of the entire record confirms that the trial court, after
careful and thorough consideration of the relevant factors, tailored
Appellant’s sentence to the particular circumstances of this case. Hence, we
do not find that Appellant’s sentence is unreasonable. Given the foregoing,
we discern no abuse of discretion by the trial court, and conclude that
Appellant’s sentencing issues are without merit.
Judgment of sentence affirmed.
Judge Stabile joins this memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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