Com. v. Tutko, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KIMBERLY A. TUTKO
Appellant No. 213 MDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005680-2014
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED FEBRUARY 09, 2017
Kimberly Tutko appeals from the judgment of sentence imposed on
December 16, 2015, in the Court of Common Pleas of Dauphin County
following her guilty plea to charges of third-degree murder, aggravated
assault and two counts of endangering the welfare of a child (EWOC),1
regarding the death by starvation of her nine-year-old son, and near death
by starvation of her ten-year-old daughter. The only condition of sentencing
pursuant to the plea was that the sentences associated with the death of her
son (murder and EWOC) run concurrent with the charges associated with the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(c), 2702(a)(9), and 4304(a)(1), respectively. EWOC
was classified as a third-degree felony pursuant to § 4304(b) regarding
course of conduct.
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harm caused to her daughter (aggravated assault and EWOC). Tutko
received an aggregate sentence of 20 to 40 years’ incarceration. 2 In this
timely appeal, Tutko challenges the discretionary aspect of her sentence,
claiming her sentence for murder is manifestly excessive in that the
sentencing court failed to give adequate weight to the mitigating
circumstances presented. After a thorough review of the submissions by the
parties, relevant law, and the certified record, we affirm.
The facts underlying the charges against Tutko 3 are truly disturbing
and well-known to the parties. We state, in general terms, that her son,
nine-years-old at the time of his passing, weighed less than 17 pounds and
was covered in his own waste. He was kept locked in a room without a
working light or sanitary facilities. He suffered extreme dental neglect,
which a forensic dental expert concluded caused significant pain. Tutko’s
daughter, who had previously suffered a debilitating brain injury, was
similarly neglected and covered in filth; ear wax flowed from her ears to her
face and her eyes were so encrusted she could not open them. Her body
____________________________________________
2
Specifically, 18 to 36 years’ incarceration for third degree murder and two
to four years’ incarceration, consecutive, for EWOC. Tutko’s sentence for the
crimes against her daughter, aggravated assault, five to years’ incarceration,
followed by two to four years’ incarceration for EWOC, are to be served
concurrently with the sentence for murder.
3
Tutko’s husband was similarly charged, with an additional charge of
concealing the death of a child. We are unaware if he has filed an appeal; if
he has filed an appeal, it is not before this panel.
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was so twisted from neglect and malnutrition that her spine impinged upon
her lungs. She was near death when taken from the Tutko home.4
Tutko now claims that the 18-36 year sentence imposed for the
murder of her son was manifestly excessive in that the sentencing court
failed to give proper weight to the fact that her husband abused her. 5 This
claim represents a challenge to the discretionary aspect of her sentence.
This Court has held, “[w]here an appellant challenges the
discretionary aspects of a sentence, there is no automatic right
to appeal and an appellant's appeal should be considered a
petition for allowance of appeal.” Commonwealth v. Crork,
966 A.2d 585, 590 (Pa. Super. 2009).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant's brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.
Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super.
2013) (citing Commonwealth v. Malovich, 903 A.2d 1247,
1250 Pa. Super. 2006)).
***
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists “only when the appellant
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4
All underlying facts are taken from the notes of testimony of the guilty
plea, see N.T. Guilty Plea, 10/26/2015 at 5-10, and the Grand Jury Report,
see Grand Jury Report # 3, 5/28/2015 at 2-3, 29-32.
5
Tutko does not challenge the sentence imposed regarding the crimes
against her daughter, which run concurrent to the murder sentence.
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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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(internal citations omitted).
Commonwealth v. Johnson, 125 A.3d 822, 825-26 (Pa. Super. 2015).
Here, the appeal is timely and the issue has been preserved in both a
post-sentence motion for reconsideration and Pa.R.A.P. 1925(b) statement.
The final question is whether the claim represents a substantial question.
Case law is split as to whether an assertion that a sentence is excessive due
to the failure to properly consider and weigh the mitigating circumstances
represents a substantial question. Compare Commonwealth v. DiSalvo,
70 A.3d 900 (Pa. Super. 2013) (failure to give adequate weight to mitigating
circumstances does not present a substantial question), Commonwealth v.
Rhoades, 8 A.3d 912 (Pa. Super. 2012) (same), with Commonwealth v.
Gonzalez 109 A.3d 711 (Pa. Super. 2015 (failure to consider mitigating
circumstance presents a substantial question), Commonwealth v. Raven,
97 A.3d 1244 (Pa. Super. 2014) (same).
Given that the plea was to third-degree murder and other related
charges, we will accept Tutko’s claim as presenting a substantial question.
Having made this determination, we are mindful that,
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
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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.
***
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Kearns, ___ A.3d ___, 2016 PA Super. 238, at *4,
(November 7, 2016) (citations omitted).
The certified record in this matter is replete with details of the crimes
committed. Said details are found in the affidavit of probable cause in the
arrest warrant, the notes of testimony of the guilty plea, the pre-sentence
report, the report from the indicting grand jury, as well as from the
sentencing hearing. Details of Tutko’s life are also found throughout the
record, especially in the pre-sentence report and sentencing hearing. During
the sentencing hearing, the trial judge demonstrated his familiarity with said
details by recounting an episode in which one of Tutko’s sons stood between
her and husband, absorbing abuse intended for her. See N.T. Sentencing
Hearing, 12/16/2015 at 14. The trial judge also agreed that Tutko had
suffered domestic violence at the hands of her husband. Id. at 22. Before
issuing the sentence, the trial judge stated:
As I’ve indicated, I’ve reviewed the presentence report, all of the
notes, listened to the testimony. As I indicated earlier, I’ve had
an intimate knowledge of this case. I’ve handled both the
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dependency/Children and Youth side and criminal side. I’ve
listened to all the background. I’ve listened to this woman being
involved and taking part in for six [sic] of them – five of them,
excuse me, the termination of her parental rights to her children.
And that is the speaker that is blaring to this Court – nine
children taken away, and, worse, one taken away by third
degree murder. She bears that same responsibility.
Id. at 31.
The 18-36 year sentence for third degree murder is a standard range
sentence.
Since the sentencing court had and considered a presentence
report, this fact alone was adequate to support the sentence,
and due to the court's explicit reliance on that report, we are
required to presume that the court properly weighed the
mitigating factors present in the case.
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006).
The certified record amply demonstrates that not only did the trial
court read and consider the presentence report, it read, listened to and
considered other relevant factors, which, as noted above, included additional
information about the abuse suffered by Tutko. We have discovered nothing
in the certified record to support Tutko’s claim that the trial court failed to
give the proper weight to the mitigating circumstances applicable to Tutko’s
situation. Therefore, we find the trial court neither abused its discretion nor
committed an error of law in passing sentence. Accordingly, Tutko’s claim
must fail.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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