Com. v. Coolbaugh, R. ( 2023 )

J-S44038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD ALAN COOLBAUGH :
:
Appellant : No. 845 MDA 2022
Appeal from the Judgment of Sentence Entered November 1, 2021
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000234-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 6, 2023
Ronald Alan Coolbaugh (Coolbaugh) appeals the judgment of sentence
entered in the Court of Common Pleas of Perry County (trial court) where he
entered a counseled plea to one count of stalking with intent to cause fear (18
Pa.C.S. § 2709.1(a)(2)). He was sentenced by the trial court to a prison term
of one to five years, which exceeded the sentencing guidelines range.
Coolbaugh then filed a timely post-sentence motion challenging the
discretionary aspects of sentencing. The motion was denied by operation of
law and Coolbaugh timely appealed. He now argues that the trial court abused
its discretion by imposing a manifestly excessive sentence and ignoring
mandatory sentencing factors. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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As Coolbaugh agreed to the factual basis of the charge at the plea
hearing, the facts of this case are undisputed. It was alleged by the
Commonwealth that Coolbaugh had sent a series of anonymous and sexually
explicit communications to his step-daughter. See Plea Hearing, 8/12/2021,
at p. 2. These harassing messages persisted for a span of several years and
included the posting of photos of the victim’s bedroom on social media.
The offense gravity score of the crime was four, and the standard
guidelines sentence was a period of restorative sanction or incarceration for a
term of up to three months, with an aggravated range of an additional three
months. The statutory maximum sentence was two and one-half to five years.
Coolbaugh stated at the plea hearing that he understood the nature of
the offense to which he was pleading, as well as the range of punishments
that could be imposed as the result of his plea. After the trial court completed
a plea colloquy with Coolbaugh, he entered an open plea of guilty. The trial
court then ordered a pre-sentence investigation report (PSI). The victim of
the offense also submitted an impact statement.
At the subsequent sentencing hearing, the Commonwealth summarized
the victim’s impact statement to the trial court:
I’d note, of significance when I went through her statement, she
referenced several times where she actually changed phone
numbers to try to avoid the repeated conduct – the repeated
communications that were causing her some severe emotional
distress only to have those numbers – that conduct resurface.
Looking back on it, I’m sure that all makes sense now why the
[Coolbaugh] had access to her phone numbers to be able to do
that repeatedly. And then, you know, probably the most
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concerning thing, quite frankly, and I’ll try not to get too involved
or vulgar with my description, but after this incident came to light
and she identified the defendant was actually the source of this -
- these messages, photos, naked photos and comments, he more
or less doubled down on situation and sent more messages
indicating that he was, essentially, pleasuring himself with her
underwear and telling – describing in vivid detail how he did that.
Given the extreme conduct, for lack of a better way to put it, the
extreme nature of what [Coolbaugh] did, the extreme mental
distress that this put the victim under for a prolonged period of
time, [the Commonwealth] was asking for a max sentence in this
case, two and a half to five. That is the request being made by
the Commonwealth. We’d ask the Court to consider that in light
of just the totality of the circumstances here.
Sentencing Hearing Transcript, 11/1/2021, at pp. 2-3.
In response, Coolbaugh’s counsel requested the trial court to impose a
term of six months, which was within the aggravated guidelines range, as the
higher end of the standard range was three months. Counsel stressed that
Coolbaugh was 53 years old, that he had no prior criminal record and that he
was remorseful. Additionally, counsel asserted that Coolbaugh was a good
candidate for rehabilitation, and that he was a caregiver for both of his elderly
parents. Coolbaugh himself gave a brief statement in which he expressed
remorse for his crime and the grief it had caused his family.
The trial court indicated that it was not receptive to Coolbaugh’s request
for a sentence within the guidelines, reasoning that the circumstances of the
offense were far more severe and harmful than when the crime is typically
committed:
This goes so far beyond what I normally see in a stalking case that
it’s a little bit hard to comprehend. And then to find out it was her
stepdad, someone who should be looking out for her; somebody
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that should be out looking for the guy who was doing this to her,
one of the people who should have been in charge of making sure
she was safe, she felt safe and doing everything he could to make
her happy. Instead, you used all that personal information you
had about her to basically terrorize her for years. The real
question in this case is not whether the guidelines apply — excuse
me, is not whether this should be an aggravated sentence but
whether the guidelines even apply. As your attorney pointed out,
you have no — you know, criminal history, which makes this even
more of an anomaly because what possessed you to go through
this type of behavior for years.
****
This is above and beyond what would normally be called for to
commit the crime of stalking; and it’s for that reason I don’t think
a standard-range sentence applies; and it’s that reason I don’t
think that six months, which would be the aggravated range, does
this justice.
Id. at pp. 5-6.
Accordingly, the trial court imposed a prison term of one to five years.
Coolbaugh filed a post-sentence motion in which he argued that the sentence
was manifestly excessive, purely punitive, and contrary to statutory
requirements that the trial court consider the totality of the circumstances in
the case. See Post Sentence Motion, 11/12/2021, at p. 2. The motion was
denied by operation of law, and after Coolbaugh timely appealed, the trial
court drafted a memorandum outlining why the sentence should be upheld.
See Trial Court Opinion, 8/29/2021, at pp. 1-3.
Since Coolbaugh’s claim concerns a discretionary aspect of his sentence,
and such claims are not reviewable as a matter of right, we must first
determine whether our jurisdiction has been properly invoked. See
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). In
order to invoke this Court’s jurisdiction to review such claims, an appellant
must satisfy a four-part test:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant[’s brief] set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
A substantial question concerns whether the sentence imposed is (1)
appropriate under the Sentencing Code or (2) otherwise contrary to the
fundamental norms which underlie the sentencing process. See
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the present case, Coolbaugh preserved his appellate claim by raising
it in a post-sentence motion; he timely filed a notice of appeal; and there is
no defect in his brief. Coolbaugh has also raised a substantial question by
claiming that the trial court imposed a purely punitive sentence outside of the
guidelines range without stating on the record its consideration of all
mandatory sentencing factors. See Commonwealth v. Rodda, 723 A.2d
212 (Pa. Super. 1999). We now review the merits of Coolbaugh’s claim.
“Sentencing is vested in the discretion of the trial court, and will not be
disturbed absent a manifest abuse of that discretion.” Commonwealth v.
Downing, 990 A.2d 788, 792 (Pa. Super. 2010). An abuse of discretion may
be proven where the record demonstrates that the trial court “ignored or
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misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision.” Rodda, 723
A.2d at 214.
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 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. Fullin, 892 A.2d
843, 847 (Pa. Super. 2006). The trial court must also take into account the
applicable sentencing guidelines. See Fullin, 892 A.2d at 847. On appeal, a
sentence outside of the guidelines must be upheld by the reviewing court as
long as the sentence is “reasonable.” 42 Pa.S.C. § 9781(c).
Where a trial court is informed by a PSI, “it is presumed that the court
is aware of all appropriate sentencing factors and considerations, and that
where the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Here, Coolbaugh argues that his sentence is excessive because the trial
court considered only the nature and severity of the offense, ignoring other
mandatory considerations, such as his rehabilitative needs, remorse, lack of
a prior criminal record and the care he provided to his parents. According to
Coolbaugh, the trial court imposed an unreasonable sentence which exceeded
the guidelines range warranting a resentencing.
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We find that the trial court did not impose an unreasonable sentence.
At the sentencing hearing, the trial court indicated that it had reviewed the
PSI, which had included a recommendation of a sentence in the aggravated
range due to the prolonged period during which Coolbaugh had harassed the
victim. Moreover, the trial court correctly recounted the standard and
aggravated ranges of the guidelines. A sentence of one to five years was
imposed, well above the aggravated guidelines range of six months.
The trial court reasoned that the guidelines were not applicable because,
despite Coolbaugh’s lack of a criminal history, he had engaged in a pattern of
harmful conduct toward his step-daughter for several years. See Sentencing
Hearing Transcript, 11/1/2021, at pp. 5-6. Further, the trial court stated on
the record the various and atypical ways in which the victim had been
impacted by Coolbaugh’s offense during that span. It is of no moment that
the trial court put little emphasis on mitigating circumstances and other
required considerations because the trial court had the benefit of the PSI. It
must, therefore, be presumed that the trial court was “aware of all appropriate
sentencing factors and considerations.” Ventura, 975 A.2d at 1135.
Thus, because the trial court did not violate any provision of the
Sentencing Code or any fundamental norm of the sentencing process, and the
sentence was reasonable, no relief is due.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/06/2023
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