Com. v. Harvey, S. ( 2014 )

J. A14012/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHERRY LYNN HARVEY, : No. 1778 MDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, August 14, 2013,
in the Court of Common Pleas of Wyoming County
Criminal Division at No. CP-66-CR-0000229-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014
This is an appeal from the judgment of sentence entered by the Court
of Common Pleas of Wyoming County. On July 12, 2013, appellant,
Sherry Lynn Harvey, entered a guilty plea to one count of introducing
contraband into a correctional facility and one count of simple assault.
Appellant was sentenced on August 14, 2013, to an aggregate term of
imprisonment of 50 months to 132 months. Appellant challenges the
discretionary aspects of her sentence. Upon review, we affirm.
The trial court summarized the details of this case as follows:
On July 5, 2013 a Criminal Information was filed in
the Court of Common Pleas of Wyoming County
setting forth that between January 21, 2013 and
May 2, 2013 in Tunkhannock Township, Defendant
Sherry Lynn Harvey (hereinafter “Defendant”) did
sell, give, transmit or furnish to a convict in a prison
owned or leased by the Commonwealth or a county a
* Retired Senior Judge assigned to the Superior Court.
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controlled substance without a written permit signed
by the physician of such institution. More
specifically, Defendant unlawfully furnished
suboxone, a Schedule III controlled substance, to
Wyoming County Correctional Facility inmate,
Shawn Miller and Eric Simonson, by opening the
stitching on the tongue of a sneaker and inserting
the suboxone inside and sealing it shut with super
glue. As a result, Defendant was charged with
Contraband, 18 Pa.C.S.A. §5123(a) and Possession
of a Controlled Substance, 35 Pa.C.S.A.
§ 13(a)16[sic]. That same day, July 5, 2013, a
separate Criminal Information was filed in Wyoming
County charging Defendant with Simple Assault,
18 Pa.C.S.[A.] §2701(a)(1), Disorderly Conduct,
18 Pa.C.S.A. §5503(a)(1) and Harassment,
18 Pa.C.S.A. §2709(a)(1). On or about May 31,
2013, while an inmate at the Wyoming County
Correctional Facility on the Contraband charge,
Defendant engaged in fighting by striking another
inmate with a closed fist, requiring the victim to seek
medical attention from the local hospital.
Defendant’s actions caused much disorder for the
Wyoming County Facility and jeopardized the safety
of the staff and inmates. Immediately following the
assault, Defendant was relocated to the
Susquehanna County Correctional Facility.
On July 12, 2013 Defendant pleaded guilty to
one count of Introducing Contraband into a
Correctional Facility and one count of Simple Assault.
On August 14, 2013 Defendant appeared before this
Court for sentencing with a prior record score of
two (2). Pursuant to 18 Pa.C.S.A. §5123, Defendant
was subject to a twenty four (24) month mandatory
minimum sentence in docket 2013-CR-229.
After comments from counsel for the
Commonwealth and the Defendant, in 2013-CR-229,
Defendant was sentenced to forty eight (48) months
to one hundred twenty (120) months on the charge
of Contraband, 18 Pa.C.S.A. §5123(a), a felony of
the second degree. Defendant was further
sentenced in docket number 13-CR-259 to two (2) to
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twelve (12) months on the charge of Simple Assault,
18 Pa.C.S.A. § 2701(a)(1), a misdemeanor of the
third degree, to run consecutive to the previous
sentence. Defendant is not eligible for an RRRI
minimum sentence due to the mandatory minimum
sentence. The aggregate sentence imposed on
Defendant was fifty (50) months to one hundred and
thirty two (132) months.
Trial court opinion, 10/28/13 at 1-3.
A motion to modify sentence was filed on August 23, 2013. By order
filed on September 16, 2013, the motion was denied. Appellant filed a
timely appeal on October 1, 2013. Appellant was ordered to file a concise
statement of errors raised on appeal ,and she timely complied.
Appellant raises one issue for our consideration:
1. THIS HONORABLE COURT ERRED IN
SENTENCING THE APPELLANT FOR A SINGLE
COUNT OF INTRODUCING CONTRABAND TO A
SECURE FACILITY, TO A SENTENCE OF 48 TO
120 MONTHS IN A STATE CORRECTIONAL
INSTITUTION WHEN SUCH A SENTENCE WAS
IN VIOLATION OF THE FUNDAMENTAL NORMS
OF THE SENTENCING PROCESS AND WAS NOT
SUPPORTED BY REASONS STATED ON THE
RECORD THAT WERE SUFFICIENT AS A
MATTER OF LAW TO SUPPORT THE
IMPOSITION OF SUCH A SENTENCE.
Appellant’s brief at 4.
Appellant’s claim challenges the discretionary aspects of her sentence.
Challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of
right. An appellant challenging the discretionary
aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 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).
Objections to the discretionary aspects of a sentence
are generally waived if they are not raised at the
sentencing hearing or in a motion to modify the
sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citations
omitted).
Instantly, appellant filed a post-sentence motion for reconsideration
and then filed a timely notice of appeal. In addition, appellant has complied
with the briefing requirements of Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987), and Pa.R.A.P. 2119(f) by including a concise statement of her
reasons for challenging the discretionary aspects of her sentence. Last,
appellant presents a substantial question for our review. We have held that
“when a sentence exceeds the aggravated range of the guidelines and there
is an allegation of excessiveness, this Court must review the record to
determine whether there was an abuse of discretion.” Commonwealth v.
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Monahan, 860 A.2d 180, 182 (Pa.Super. 2004), appeal denied, 878 A.2d
863 (Pa. 2005).
Appellant argues her sentence was in violation of the fundamental
norms of the sentencing process because the trial court did not follow the
statutory mandate of Section 9721(b) as it did not consider the gravity of
the offense, or the rehabilitative needs of appellant. According to appellant,
the result is a sentence that is clearly excessive in that it ranges far beyond
that which is necessary to address the Section 9721(b) factors. Additionally,
appellant contends the trial court failed to set forth logical and legally sound
reasons for the deviation from the guidelines.
Our standard of review for sentencing claims is as follows:
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. [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, our Court recently offered:
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.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012)
(quotation omitted).
In exercising its discretion, the trial court must
consider the character of the defendant and the
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particular circumstances of the offense in light of the
legislative Guidelines for sentencing, and the court
must impose a sentence that is consistent with the
protection of the public, the gravity of the offense
and the rehabilitative needs of the defendant.
Commonwealth v. Guth, 735 A.2d 709, 711 (Pa.Super. 1999), appeal
denied, 743 A.2d 915 (Pa. 1999), quoting Commonwealth v. Burkholder,
719 A.2d 346, 350 (Pa.Super. 1998), appeal denied, 747 A.2d 364 (Pa.
1999); see 42 Pa.C.S.A. § 9721(b).
Our review is guided by 42 Pa.C.S.A. § 9781(c) and (d) which provide:
§ 9781. Appellate review of sentence
(c) Determination on appeal.--The appellate
court shall vacate the sentence and remand
the case to the sentencing court with
instructions if it finds:
(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.
In all other cases the appellate court shall
affirm the sentence imposed by the sentencing
court.
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Section 9781(d) provides that when we review the record, we must
have regard for:
(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.A. § 9781(c), (d).
Our supreme court in Commonwealth v. Walls, 926 A.2d 957 (Pa.
2007), observed that under this statute, we must review a sentence that is
outside of the guidelines in terms of whether it is unreasonable. It stated
that the term “unreasonable,” while not defined, generally means a decision
that is either irrational or not guided by sound judgment. It continued that
the context of the term’s use in Section 9781 also indicates that the
legislature “intended the concept of unreasonableness to be inherently a
circumstance-dependent concept that is flexible in understanding and lacking
precise definition.” Id. at 963. Our supreme court indicated that a sentence
can be found to be unreasonable after review of the four elements contained
in Section 9781(d) or if the sentencing court failed to take into account the
factors outlined in 42 Pa.C.S.A. § 9721(b). However, the court concluded
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that when the proper standard of review is utilized, “rejection of a
sentencing court’s imposition of sentence on unreasonable grounds [should]
occur infrequently, whether the sentence is above or below the guideline
ranges.” Id. at 964.
Here, appellant pled guilty to a single count of introducing contraband
to a secure facility, a second-degree felony, with a mandatory two-year
minimum sentence. The trial court imposed a sentence of 48 to 120 months
that fell beyond the aggravated range of the guidelines, but below the
statutory maximum.1 The trial court offered the following seven reasons for
its departure:
[O]ne, the serious nature of this offense.
Two, the sentence includes a mandatory minimum.
Three, the defendant engaged her younger sister
and through deception and without her sister’s
knowledge, involved her in the commission of this
crime.
Four, the actions of the defendant directly affected
the sobriety and treatment plans of the inmates in
the Wyoming County Correctional Facility.
Five, the actions of the defendant placed the
corrections officers at the Wyoming County
Correctional Facility at risk by having illegal
substances and items brought into the Wyoming
County Correctional Facility.
Six, the actions of the defendant affected the
integrity of the Wyoming County Correctional Facility
Drug and Alcohol Treatment Programs administered
1
The statutory maximum for this crime is 60 to 120 months.
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by A Better Today as funded by the taxpayers of
Wyoming County.
Seven, the crime was not of one time, but an event
that occurred five to seven times based upon the
admissions of the defendant showing a continued
course of conduct and intent.
Notes of testimony, 8/14/13 at 7-8.
Appellant argues that the trial court’s first and second reasons
regarding the serious nature of the offense and mandatory minimum are
both taken into account by the Pennsylvania Sentencing Guidelines and are
already calculated into the guidelines. Appellant also takes issue with the
trial court’s fourth, fifth, and sixth reasons for its sentence which concern
the consequences of bringing drugs into a prison.
Appellant also contends the facts of this case do not support the trial
court’s conclusions. The trial court voiced its concern that other inmates and
correctional officers were put at risk by appellant’s actions. Appellant claims
there was no evidence that any individual at the prison other than the
intended target of the drugs, Shawn Miller, who was appellant’s paramour,
and his cellmate, Eric Simonson, received any of the drugs. The record
shows that the contraband introduced into the correctional facility consisted
of two eight-milligram suboxone strips hidden in the tongue of a sneaker
that was intended for Miller. Miller’s cellmate, Simonson, tested positive for
the drug; Miller refused to take a drug test. Appellant points out there was
no evidence of record that the amounts delivered were of such quantity to
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give rise to an inference of further distribution beyond the intended
recipient.
In light of our standard of review, we cannot conclude that the trial
court abused its broad discretion in sentencing. While appellant may have
pled guilty to one count of introducing contraband into a correctional facility,
the record indicates a continuing course of conduct. In its opinion, the trial
court opined, “Defendant’s actions, which based on her own admission
occurred at least five (5) to seven (7) times, placed numerous individuals
and programs in jeopardy.” (Trial court opinion, 10/28/13 at 5). According
to the affidavit of probable cause, “[Appellant] admitted to doing this 5 to
7 times with various amounts of strips secreted inside.” (Certified record,
document #1). The criminal information filed by the district attorney states
“that between January 21, 2013 and May 2, 2013, in Tunkhannock
Township, [appellant] did sell, give, transmit or furnish to any convict in a
prison . . . .” (Certified record, document #5).
Additionally, the trial court noted appellant used her sister to deliver to
the prison the sneakers containing contraband. Appellant’s sister was
interviewed and stated she had no knowledge that appellant had placed
illegal contraband in the sneakers or that she was facilitating a crime. (See
trial court opinion, 10/28/13 at 5.)
Despite appellant’s arguments for a two-year sentence, the sentencing
court supported its sentence by noting appellant has a long criminal record;
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she involved her sister in facilitating a crime on more than one occasion; she
delivered drugs to two inmates; and she endangered prison staff and other
inmates with those drugs as she cannot say for certain that the drugs never
left her paramour or his cellmate. Despite several attempts at in-patient
and out-patient treatment, appellant suffers from severe addiction and
mental health issues. Thus, the sentencing court took into account the
factors outlined by 42 Pa.C.S.A. § 9721(b)(“the court shall follow the general
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). The court had and considered
appellant’s presentence report. We cannot conclude appellant’s sentence of
50 to 132 months was unreasonable. We, therefore, affirm.
Judgment of sentence affirmed.
Olson, J. joins the Memorandum.
Strassburger, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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