Com. v. Hinkley, B. ( 2016 )

J-S37010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BETHANY HINKLEY
Appellant No. 768 WDA 2015
Appeal from the Judgment of Sentence March 18, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002385-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 28, 2016
Appellant, Bethany Hinkley, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following her guilty
plea to aggravated assault, recklessly endangering another person (“REAP”),
harassment, and public drunkenness/similar misconduct.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On January 12, 2015, Appellant entered a guilty plea2 (open as to
sentencing) to aggravated assault, REAP, harassment, and public
drunkenness/similar misconduct, stemming from an incident that occurred
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1
18 Pa.C.S.A. §§ 2702(a)(4); 2705; 2709(a)(1); 5505, respectively.
2
On the same day, Appellant also pled guilty to defiant trespass and other
offenses in an unrelated case.
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on February 7, 2014, where Appellant threw a glass bottle at Victim during
an argument, blinding Victim in one eye. Appellant admitted she was drunk
at the time of the incident. Victim testified at the guilty plea hearing
regarding the impact Appellant’s actions had on his life. On March 18, 2015,
with the benefit of a pre-sentence investigation (“PSI”) report, the court
sentenced Appellant to eighteen (18) to thirty-six (36) months’
imprisonment and five (5) years’ concurrent probation for aggravated
assault; the court imposed no further penalty for the remaining convictions.3
Victim testified again at the sentencing hearing regarding the impact of
Appellant’s actions.
On April 16, 2015, Appellant filed a petition to file a post-sentence
motion nunc pro tunc, as well as a post-sentence motion nunc pro tunc. The
court granted Appellant’s request to file a post-sentence motion nunc pro
tunc, and denied relief on April 17, 2015. Appellant timely filed a notice of
appeal on May 15, 2015. On May 18, 2015, the court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Following two extensions, Appellant timely filed her
concise statement on October 30, 2015.
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3
At sentencing in the present case, the court also accepted Appellant’s
negotiated guilty plea to aggravated assault in a third and unrelated case,
and sentenced Appellant to three (3) years’ probation for the aggravated
assault offense. The court imposed no further penalty for Appellant’s defiant
trespass and related convictions.
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Appellant raises one issue for our review:
DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER
AND APPLY ALL OF THE RELEVANT SENTENCING
CRITERIA, INCLUDING THE PROTECTION OF THE PUBLIC,
THE GRAVITY OF THE OFFENSE, AND [APPELLANT’S]
REHABILITATIVE NEEDS, AS REQUIRED UNDER 42
PA.C.S.A. § 9721(B) (SENTENCING GENERALLY)?
(Appellant’s Brief at 5).
Appellant argues the court ignored her rehabilitative needs, character,
and other mitigating evidence in imposing a state sentence of eighteen to
thirty-six months’ incarceration. Appellant avers the court discounted
mitigating factors such as her expression of remorse, the fact that she took
responsibility for her crimes, her military service, plus her substance abuse
and mental health issues. Appellant contends the record shows she was
amenable to rehabilitation, given her prior service in the armed forces,
interest in furthering her education through the GI bill, and prior
employment at grocery stores and restaurants. Appellant claims the court
focused too much on the seriousness of her offenses when it imposed a state
sentence because Appellant did not intend to blind Victim when she threw a
bottle at him. Appellant emphasizes she was intoxicated at the time of her
actions, and suffers from addiction, bipolar disorder, and anxiety, so a
county sentence with a provision to serve some time in alternative housing
would have better met her rehabilitative needs. Appellant complains the
court also improperly considered her aggravated assault conviction in an
unrelated case to justify the excessive sentence in this case. Appellant
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concludes the court abused its sentencing discretion, and this Court must
remand for resentencing. As presented, Appellant’s claims implicate the
discretionary aspects of sentencing. See, e.g., Commonwealth v.
Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc) (explaining claim
sentencing court failed to consider Section 9721(b) factors pertains to
discretionary sentencing matters); Commonwealth v. Clarke, 70 A.3d
1281 (Pa.Super. 2013), appeal denied, 624 Pa. 671, 85 A.3d 481 (2014)
(stating contention court focused solely on serious nature of crime without
adequately considering protection of public and defendant’s rehabilitative
needs concerns court’s sentencing discretion); Commonwealth v. McAfee,
849 A.2d 270 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122
(2004) (explaining claim court considered improper factor upon sentencing
challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating allegation court overemphasized seriousness of
crime without considering mitigating factors challenges discretionary aspects
of sentencing).
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979
(2001). Prior to reaching the merits of a discretionary sentencing issue:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
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902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are waived if they are
not raised at the sentencing hearing or in a timely filed post-sentence
motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot be cured by
submitting the challenge in a Rule 1925(b) statement.” McAfee, supra at
275.
What constitutes a substantial question must be evaluated on a case-
by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).
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. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal
citation omitted). In other words, an appellant’s Rule 2119(f) statement
must sufficiently articulate the manner in which the sentence violates either
a specific provision of the sentencing scheme set forth in the Sentencing
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Code or a particular fundamental norm underlying the sentencing process.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).
On appeal, this Court will not disturb the judgment of the sentencing
court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d
843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to
determine the proper penalty for a particular offense based
upon an evaluation of the individual circumstances before
it. Simply stated, the sentencing court sentences flesh-
and-blood defendants and the nuances of sentencing
decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with
the advent of the sentencing guidelines, the power of
sentencing is a function to be performed by the sentencing
court. Thus, rather than cabin the exercise of a sentencing
court’s discretion, the guidelines merely inform the
sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall follow the general
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principle that the sentence imposed should call for confinement that is
consistent with 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). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id.
See also Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006)
(explaining where sentencing court had benefit of PSI report, we can
presume it was aware of relevant information regarding defendant’s
character and weighed those considerations along with mitigating factors);
Cruz-Centeno, supra at 546 (stating: “Having been fully informed by the
pre-sentence report, the sentencing court’s discretion should not be
disturbed”).
Instantly, Appellant raised the following issues in her post-sentence
motion nunc pro tunc:
[Appellant] respectfully maintains that this Honorable
[c]ourt committed an abuse of sentencing discretion, and
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respectfully requests a modification for the following
reasons:
a) [Appellant] took responsibility for her actions
by pleading guilty;
b) [Appellant] is a high school graduate and a
U.S. Airforce veteran, having worked as a combat
radio operator;
c) [Appellant] has a work history in the hotel and
restaurant industry; and,
d) [Appellant] is willing to participate in
treatment, as evidenced by her participation in
several programs at the Allegheny County Jail since
her incarceration, including the 5MC pod, Moving On,
and Trauma and Addiction.
(Appellant’s Post-Sentence Motion Nunc Pro Tunc, filed April 16, 2015, at 3
¶5). Significantly, Appellant failed to preserve in her post-sentence motion
nunc pro tunc her complaints on appeal that the court failed to consider the
Section 9721(b) sentencing factors, focused too much on the seriousness of
her offenses, ignored her addiction and mental health issues and expression
of remorse, and improperly considered her aggravated assault conviction in
an unrelated case. Thus, these claims are waived. See Griffin, supra.
Appellant’s inclusion of these issues in her Rule 1925(b) statement does not
cure this defect. See McAfee, supra. Regarding the claim Appellant did
preserve, i.e., the allegation that the court ignored various mitigating
factors, Appellant does not present a substantial question warranting review.
See Cruz-Centeno, supra (explaining allegation that sentencing court
failed to consider or adequately consider certain factors does not raise
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substantial question).
Moreover, in analyzing Appellant’s challenge to its sentencing
discretion, the trial court reasoned:
At the sentencing hearing, this [c]ourt noted that it had
read and considered a Pre-Sentence Investigation report.
…
At the time of the plea, this [c]ourt noted that the
maximum sentence for Aggravated Assault by Deadly
Weapon was 10 years and the maximum sentence for
[REAP] was two (2) years, for a maximum possible
sentence of 12 years.
This [c]ourt then placed its reasons for imposing sentence
on the record. It stated:
THE COURT: Well, you know, [Appellant], I’ve
gone over your record, and you have been actually
having problems with alcohol and mental health
issues since 1992.
* * *
THE COURT: You have been in and out of
treatment. Now, 15 years later, here we are. We
have two people that you have physically assaulted.
One of them is [a victim in an unrelated case]; and
the second one is the victim in this case.
So I will note for the record that you are sorry and
you can’t do anything about it[.]
* * *
Well, the guidelines indicate that you are an eight
and a one, which is a standard range sentence of 12
to 18 months. The [c]ourt will note that you did
plead guilty; but your background, as I just stated,
begins in 1992; and you’ve been on and off trying to
rehabilitate yourself, and you have never been
successful.
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You have—you apparently stabbed your boyfriend in
January of 2014, and then a month later caused
[Victim] to lose his eyesight.
You have prior offenses for DUI, for simple assault,
for terroristic threats; and I am particularly beside
myself because you had a beer last night.
[APPELLANT]: I was being honest with the
[c]ourt.
THE COURT: Well, I know; but it leads me to
believe that you have no intention to rehabilitate
yourself.
(Sentencing Hearing Transcript, p. 8-9, 11-12).
As the record reflects, this [c]ourt considered the
circumstances of the present offense[s], evaluated
[Appellant’s] potential for rehabilitation and imposed a
sentence which took all of these factors into consideration.
The sentence imposed—18 to 36 months, was well within
the statutory guidelines and was, therefore, legal. Given
the facts of this case, the sentence imposed was
appropriate, not excessive and well within this [c]ourt’s
discretion. This claim must fail.
(Trial Court Opinion, filed December 1, 2015, at 2-4). We see no reason to
disrupt the court’s sentencing discretion in this case. See Walls, supra;
Crump, supra; Fullin, supra.
The record makes clear the court heard the Commonwealth’s recitation
of the facts at the guilty plea hearing, which Appellant did not dispute. The
court also heard Victim’s impact statement at the guilty plea hearing and
again at sentencing. The court evaluated the arguments of counsel at
sentencing, including but not limited to, defense counsel’s request for a
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county sentence based on Appellant’s alcohol dependence and rehabilitative
needs, and her acceptance of responsibility. Additionally, the court had the
benefit of a PSI report, so we can presume it was aware of relevant
information regarding Appellant’s character and weighed those
considerations along with mitigating factors. See Fowler, supra; Cruz-
Centeno, supra. Therefore, even if Appellant had preserved her claims on
appeal, they would nevertheless merit no relief. See Walls, supra; Fullin,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
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