Com. v. Lawrence, V. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VALENCIA LAWRENCE
Appellant No. 1822 EDA 2013
Appeal from the Judgment of Sentence May 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007521-2010
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 20, 2015
Appellant, Valencia Lawrence, appeals from the May 9, 2013
aggregate judgment of sentence of five to ten years’ imprisonment, plus ten
years’ probation, imposed after Appellant entered an open guilty plea to one
count each of aggravated assault and endangering the welfare of a child
(EWOC).1 After careful review, we affirm.
We summarize the relevant factual and procedural history of this case
as follows. On June 29, 2010, the Commonwealth filed an information,
charging Appellant with the above-mentioned offenses, as well as one count
each of criminal conspiracy, recklessly endangering another person, and two
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1
18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively.
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counts of simple assault.2 On December 19, 2012, Appellant entered an
open guilty plea to one count each of aggravated assault and EWOC. The
remaining charges were nolle prossed. On May 9, 2013, the trial court
imposed an aggregate sentence of five to ten years’ imprisonment, plus ten
years’ probation.3 The trial court sentenced Appellant in absentia as
Appellant had failed to appear for sentencing on numerous occasions. On
May 15, 2013, Appellant filed a timely motion for reconsideration of
sentence, which the trial court denied on May 20, 2013. On June 19, 2013,
Appellant filed a timely notice of appeal.
On appeal, Appellant raises three issues for our review.
[1]. Whether th[e] trial court erred in sentencing
Appellant without obtaining a pre-sentence
investigation report [(PSI)] and a mental health
evaluation [(MHE)] prior to sentencing [A]ppellant in
absentia[?]
[2]. Whether the sentence imposed upon Appellant
was excessive and made without consideration
and/or reference to the applicable sentencing
guidelines[?]
[3]. Whether the trial court committed an abuse of
discretion in vindictively sentencing [A]ppellant to
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2
18 Pa.C.S.A. §§ 903(a)(1), 2705, 2701(a)(1), and 2701(b)(2),
respectively.
3
Specifically, the trial court sentenced Appellant to five to ten years’
imprisonment, plus ten years’ probation for aggravated assault, and three-
and-one-half to seven years’ imprisonment for EWOC. The periods of
incarceration were to run concurrently to each other, but the probationary
period was to run consecutive to the imprisonment term.
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the mandatory minimum sentence and maximum
sentencing allowable under the law for her failing to
appear at sentencing on seven (7) separate
occasions and ultimately sentencing her in absentia,
despite an agreement on the record that the
Commonwealth would not be invoking the
mandatory minimum at sentencing[?]
Appellant’s Brief at 5.4
At the outset, we note that Appellant’s issues on appeal pertain to the
discretionary aspects of her sentence. It is axiomatic that in this
Commonwealth “[t]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards
an argument pertaining to the discretionary aspects of the sentence, this
Court considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, --- A.3d ---, 403 MAL 2014 (Pa.
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Appellant’s brief also contains the issue as to whether this Court should
remand this case for the filing of a concise statement of errors complained of
on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), as
prior counsel did not file one when the trial court ordered her to do so.
Appellant’s Brief at 5. However, on May 30, 2014, this Court provided this
relief in an order remanding this case for the filing of a Rule 1925(b)
statement and a supplemental Rule 1925(a) opinion. Superior Court Order,
5/30/14, at 1. Our order also vacated the briefing schedule and directed the
Prothonotary to establish a new briefing schedule when the certified record
was returned to this Court. Id. On June 2, 2014, Appellant filed his Rule
1925(b) statement, and the trial court filed its supplemental opinion on July
16, 2014. Nevertheless, as Appellant’s Rule 1925(b) statement lists the
same issues previously included in his first brief, we decline to order further
supplemental briefing in this case.
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2014). “Rather, an [a]ppeal is permitted only after this Court determines
that there is a substantial question that the sentence was not appropriate
under the sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030,
1042 (Pa. Super. 2013) (en banc) (internal quotation marks and citation
omitted).
Prior to reaching the merits of a discretionary sentencing issue, this
Court is required to conduct a four-part analysis to determine whether a
petition for permission to appeal should be granted. Specifically, we must
determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[708]; (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. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014).
In the case sub judice, we note that Appellant filed a timely notice of
appeal. We further observe that Appellant has included a Rule 2119(f)
statement in her brief. Appellant also filed a timely motion for
reconsideration of sentence in the trial court. Therefore, we proceed to
determine whether Appellant has raised a substantial question for our
review.
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Instantly, Appellant’s Rule 2119(f) statement avers that the trial
court’s sentence “was excessive, made without any reference to the factors
to be taken into consideration at the time of sentencing and failed to
articulate the reason for the sentence other than [Appellant]’s failure to
appear at sentencing.” Appellant’s Brief at 13-14. Appellant also argues
that the trial court erred in sentencing Appellant “without the benefit of a
[PSI] and a mental health evaluation [MHE] prior to sentencing Appellant in
absentia.” Id. at 14. Finally, Appellant argues that the trial court imposed a
“vindictively” high sentence, equivalent to the mandatory minimum sentence
that could have been sought by the Commonwealth, because Appellant did
not appear for sentencing. Id.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d
75 (Pa. 2013). “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.” Id. (citations omitted). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).
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As noted above, Appellant argues the trial court erred in sentencing
Appellant “without the benefit of a [PSI] and a [MHE] prior to sentencing
Appellant in absentia.” Appellant’s Brief at 14. This Court has held that the
trial court’s dispensation with the preparation of a PSI raises a substantial
question. Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011)
(citation omitted). The same is true with a trial court’s failure to order a
[MHE]. Commonwealth v. Hill, 66 A.3d 365, 369 n.4 (Pa. Super. 2013).
In addition, we have stated that a failure to consider the required sentencing
factors under 42 Pa.C.S.A. § 9721(b) raises a substantial question. See,
e.g., Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)
(stating, “to the extent that [Appellant]’s claim impugns the trial court’s
failure to offer specific reasons for the sentence that comport with the
considerations required in section 9721(b) … we conclude that it raises a
substantial question of the court’s justification in extending Coulverson’s
standard range sentences to the statutory maximum[]”). Finally, we
observe that an argument alleging the trial court considered an improper
factor, raises a substantial question for our review. Commonwealth v.
Dowling, 990 A.2d 788, 792 (Pa. Super. 2010). As a result, we grant
Appellant’s petition for permission to appeal the discretionary aspects of her
sentence, and we proceed to address the merits of Appellant’s claims.
We begin by noting our well-settled standard of review.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
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disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted).
We first address Appellant’s argument that the trial court failed to
order a PSI or MHE before imposing sentence. Appellant’s Brief at 15. The
preparation of these two documents is governed by Pennsylvania Rule of
Criminal Procedure 702, which provides in relevant part, as follows.
Rule 702. Aids in Imposing Sentence
(A) Pre-sentence Investigation Report
(1) The sentencing judge may, in the judge’s
discretion, order a pre-sentence investigation
report in any case.
(2) The sentencing judge shall place on the
record the reasons for dispensing with the pre-
sentence investigation report if the judge fails
to order a pre-sentence report in any of the
following instances:
(a) when incarceration for one year or
more is a possible disposition under the
applicable sentencing statutes;
(b) when the defendant is less than 21
years old at the time of conviction or
entry of a plea of guilty; or
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(c) when a defendant is a first offender
in that he or she has not heretofore been
sentenced as an adult.
(3) The pre-sentence investigation report shall
include information regarding the
circumstances of the offense and the character
of the defendant sufficient to assist the judge
in determining sentence.
(4) The pre-sentence investigation report shall
also include a victim impact statement as
provided by law.
(B) Psychiatric or Psychological Examination.
After a finding of guilt and before the imposition of
sentence, after notice to counsel for both parties, the
sentencing judge may, as provided by law, order the
defendant to undergo a psychiatric or psychological
examination. For this purpose the defendant may be
remanded to any available clinic, hospital, institution,
or state correctional diagnostic and classification
center for a period not exceeding 60 days.
Pa.R.Crim.P. 702.
[While case law does not] require that the trial
court order a pre-sentence investigation report under
all circumstances, the cases do appear to restrict the
court’s discretion to dispense with a PSI report to
circumstances where the necessary information is
provided by another source. Our cases establish, as
well, that the court must be apprised of
comprehensive information to make the punishment
fit not only the crime but also the person who
committed it.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 726 (Pa. Super. 2013),
quoting Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa. Super. 2000)
(en banc), appeal denied, 759 A.2d 920 (Pa. 2000).
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Although Rule 702(A)(2) provides the
requirement to document the reasons for not
ordering a pre-sentence report is mandatory, in
[Commonwealth v. Flowers, 950 A.2d 330 (Pa.
Super. 2008)], this Court made clear that sentencing
courts have some latitude in how this requirement is
fulfilled. Citing to Goggins, we stated that
“technical noncompliance with the requirements of
Rule 702(A)(2) might have been rendered harmless
had the court elicited sufficient information during
the colloquy to substitute for a PSI report, thereby
allowing a fully informed sentencing decision[.]”
[Id.] at 333 (citation omitted).
Carrillo-Diaz, supra at 726-727.
In the case sub judice, the trial court noted that prior to sentencing it
had ordered a PSI and MHE. N.T., 5/9/13, at 17. However, the trial court
also stated that because Appellant was voluntarily absent from the
appointments required to assist in their preparation, the PSI and MHE were
not prepared. Id. We note that, in her brief, Appellant does not challenge
the trial court’s sentencing her in absentia. Appellant’s voluntary choice to
not appear for sentencing resulted in no fewer than five continuances
granted by the trial court.5 In our view, the trial court was not required to
grant further continuances of sentencing in the hope that Appellant would
eventually assist in the preparation of a PSI and MHE for her sentencing
hearing. Additionally, at the May 9, 2013 sentencing hearing, despite
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5
Appellant’s motion for reconsideration of sentence acknowledges that she
failed to appear “for the listing of January 7, 2013, and subsequently failed
to appear for listings of January 30, February 26, March 26, May 1, and May
9, 2013.” Motion for Reconsideration of Sentence, 5/15/13, at ¶ 3.
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Appellant’s absence, defense counsel communicated with the trial court
concerning Appellant’s family history, her children, her family history of
post-partum depression and diabetes. Id. at 18-19. Defense counsel also
had certain mental health records read into the record at sentencing,
pertaining to Appellant’s suicide attempts at age 19, and complaints of
sleeping and eating disorders. Id. at 20. The Commonwealth also
recounted the facts and circumstances of the offense to the trial court. Id.
at 22-28. The record reveals that the trial court substantially considered the
required information. Based on these considerations, we conclude the trial
court did not abuse its discretion in sentencing Appellant without a PSI or
MHE. See Carrillo-Diaz, supra. As a result, Appellant is not entitled to
relief on this argument. See Raven, supra.
Next, Appellant argues that the trial court abused its discretion by
imposing sentence without considering the required factors under Section
9721(b) and the sentencing guidelines. Appellant’s Brief at 20. Section
9721(b) addresses the factors that a sentencing court must consider, and
provides in relevant part, as follows.
§ 9721. Sentencing generally
…
(b) General standards.--In selecting from the
alternatives set forth in subsection (a), 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
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the life of the victim and on the community, and the
rehabilitative needs of the defendant. The court
shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania
Commission on Sentencing and taking effect under
section 2155 (relating to publication of guidelines for
sentencing, resentencing and parole and
recommitment ranges following revocation). In
every case in which the court imposes a sentence for
a felony or misdemeanor, modifies a sentence,
resentences an offender following revocation of
probation, county intermediate punishment or
[s]tate intermediate punishment or resentences
following remand, the court shall make as a 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. In every case where the
court imposes a sentence or resentence outside the
guidelines adopted by the Pennsylvania Commission
on Sentencing under sections 2154 … the court shall
provide a contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines to the commission, as established under
section 2153(a)(14) (relating to powers and duties).
Failure to comply shall be grounds for vacating the
sentence for resentence and resentencing the
defendant.
42 Pa.C.S.A. § 9721(b). We note that “a sentencing judge may satisfy
requirement of disclosure on the record of his reasons for imposition of a
particular sentence without providing a detailed, highly technical statement.”
Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation
omitted), appeal denied, 880 A.2d 1237 (Pa. 2005).
In this case, the trial court gave the following reasons before imposing
sentence.
This is one of those unfortunate situations, assuming
the [trial c]ourt would have liked to have heard more
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and to have heard from [Appellant]. Particularly
given the zero prior record score, the whole dynamic
of the other children being favored and this child
seeming to be dis-favored [sic] and put in danger by
both defendants. So it is an unfortunate situation
that [the trial court does not] have the complete
picture.
But what I do have speaks to a young woman
who abused this child, put this child in danger,
possibility of even death if these injuries had not
been discovered at the time that they were. Again,
not understanding how either of the defendants
could have let this go on. Even the grandmother
who claims to have just been absent and didn’t
know. But given doctor’s testimony about the smell
and all of that, it just seems, how could you miss
that? And most certainly [Appellant]’s behavior
since she pled guilty.
So it’s a sad situation because most certainly
there are things that counsel could have argued on
her behalf. Studies that could have been conducted
to see what was going on with her. But she
voluntarily absented herself from that. So we’re left
with what we have.
N.T., 5/9/13, at 29-30. The trial court’s analysis was made with the benefit
of defense counsel’s submissions to the trial court regarding Appellant’s
family history, her children, her family history of post-partum depression
and diabetes. Id. at 18-19. The trial court also stated that it did consider
the sentencing guidelines. Trial Court Opinion, 7/16/14, at 4. In our view,
this substantially complies with Section 9721(b). As the trial court
adequately stated its reasons for its sentence on the record, Appellant is not
entitled to relief on this issue.
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In her final argument, Appellant avers that the trial court vindictively
imposed a higher sentence in absentia because Appellant did not appear for
sentencing.6 Appellant’s Brief at 24. Specifically, Appellant likens her
argument to one raised in North Carolina v. Pearce, 395 U.S. 711 (1969).
In Pearce, the Supreme Court held that the Due Process Clause is violated
“[w]here … an original conviction has been set aside because of a
constitutional error, [and] the [trial court imposes] … a [higher] punishment,
[to] ‘penalize[e] those who choose to exercise’ constitutional rights[.]” Id.
at 724.
Due process of law, then, requires that
vindictiveness against a defendant for having
successfully attacked his first conviction must play
no part in the sentence he receives after a new trial.
And since the fear of such vindictiveness may
unconstitutionally deter a defendant’s exercise of the
right to appeal or collaterally attack his first
conviction, due process also requires that a
defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing
judge.
Id. at 725.
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6
To the extent that Appellant argues that the trial court imposed a
mandatory minimum sentence under Section 9718(a)(2) of the Sentencing
Code, we note that the record confirms the Commonwealth agreed, as part
of the plea agreement, not to seek said mandatory minimum. N.T., 5/9/13,
at 15. We further note that the Commonwealth did not file a notice that it
was requesting a mandatory minimum sentence, nor did the trial court at
any time purport to rely on such a statute in imposing sentence. See Trial
Court Opinion, 7/16/14, at 4 (stating, “the sentence was not vindictive[]”).
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In this case, Appellant was not exercising any constitutional right as
Appellant does not have any right, constitutional or otherwise, to fail to
appear for sentencing. We also note that Appellant’s characterization of the
trial court imposition of sentence as “vindictive” due to her failure to appear
for sentencing is belied by the record. As noted above, the trial court’s
references to Appellant’s failure to appear, when taken in the appropriate
context, reveal disappointment, rather than anger or vindictiveness, that the
trial court was not able to hear more from Appellant during the sentencing
process. See generally N.T., 5/9/13, at 29-30. Therefore, we conclude the
trial court did not abuse its discretion. See Raven, supra.
Based on the foregoing, we conclude that all of Appellant’s issues on
appeal are devoid of merit. Accordingly, the trial court’s May 9, 2013
judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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