Com. v. Strouse, L. ( 2023 )

J-S41004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LINDA SUE STROUSE :
:
Appellant : No. 1071 MDA 2022
Appeal from the Judgment of Sentence Entered September 2, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001890-2018
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 3, 2023
Linda Sue Strouse appeals from the judgment of sentence, entered in
the Court of Common Pleas of Lycoming County, following her open guilty plea
to fourteen counts of forgery,1 seven counts of theft by unlawful taking or
disposition,2 two counts of theft by deception,3 and one count each of identity
theft4 and access device fraud.5 After review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 4101.
2 Id. § 3921.
3 Id. § 2933.
4 Id. § 4120.
5 Id. § 4106.
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These offenses stem from Strouse’s misappropriation of funds belonging
to her mother-in-law. The trial court summarized the facts as follows:
Throughout the years 2016 to 2018, [Strouse] came to know the
victim, who was over 80 years old, when [Strouse] married the
victim’s son and began living with them. [Strouse] took over the
management of the victim’s money and began spending it on new
items such as vehicles, a pool, a camper, and an expensive
wedding[,] as well as opening credit cards in the victim’s name.
A total of 63 checks were forged or signed by the victim through
deceit and made payable to [Strouse] with the money being taken
out of the victim’s bank accounts such that the account balances
totaling almost $47,000[.00] in 2016 had balances of $0.00 at the
time this investigation began in 2018. The check amounts
[Strouse] wrote to herself range from $6,000[.00] to $200[.00].
The total amount of the checks [Strouse] wrote herself is over
$60,000[.00]. [Strouse] a[lso] opened a Discover credit card in
[the victim’s] name and charged a total of $5,012[.00] to it.
[Strouse] also purchased furniture and an air conditioning unit in
[the victim’s] name, totaling $3,527.70.
Trial Court Opinion, 1/12/22, at 5 (unpaginated).
On January 4, 2019, Strouse was charged with 124 counts of theft and
forgery related charges. On April 12, 2021, the charges were reduced to 25
counts. On June 7, 2021, Strouse entered an open guilty plea to all 25 counts
and on September 2, 2021, the court sentenced her to an aggregate term of
50 to 100 months’ incarceration. The trial court also ordered Strouse to pay
$72,471.70 in restitution. Strouse filed a timely post-sentence motion, which
was denied. Strouse did not file a direct appeal.
On March 10, 2022, Strouse then filed a motion under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking
reinstatement of her direct appeal rights, nunc pro tunc, and an amendment
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to her sentencing order finding that she is RRRI6 eligible.7 On July 19, 2022,
the court entered an order reinstating Strouse’s appellate rights and amending
her sentence to make her RRRI eligible. This timely appeal followed. Both
Strouse and the trial court have complied with Pa.R.A.P 1925.
Strouse raises one issue for our review: “Whether the sentencing court
abused its discretion by imposing a manifestly excessive sentence without
sufficiently considering the fundamental norms underlying the sentencing
process.” Appellant’s Brief, at 7.
Strouse raises a challenge to the discretionary aspects of her sentence,
from which there is no automatic right to appeal. See Commonwealth v.
Austin, 66 A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant
challenges the discretionary aspects of her sentence, we must consider her
brief on this issue as a petition for permission to appeal. Commonwealth v.
Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of
a discretionary aspects of sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether the 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
____________________________________________
6 Recidivism Risk Reduction Incentive (RRRI) enables non-violent offenders to
reduce their minimum sentences if they complete recommended programs,
maintain good conduct and remain misconduct free during their incarceration.
See Department of Corrections RRRI, Access here:
https://www.cor.pa.gov/About%20Us/Initiatives/Pages/RRRI.aspx, last
visited 2/10/23.
7 The Commonwealth did not oppose the reinstatement of Strouse’s appellate
rights and agreed she is RRRI eligible.
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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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Presently, Strouse filed a timely notice of appeal and preserved her
issues in a post-sentence motion for reconsideration. Further, Strouse’s brief
includes a concise statement of reasons relied upon for allowance of appeal
with respect to the discretionary aspects of her sentence pursuant to Rule
2119(f). Thus, we must determine if Strouse raises a substantial question.
A substantial question exists 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. Austin, 66 A.3d 789, 808 (Pa. Super. 2013). Additionally, “we cannot look
beyond the statement of questions presented and the prefatory Rule 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018).
Strouse’s Rule 2119(f) statement and questions presented on appeal
allege that the sentencing court abused its discretion where the consecutive
nature of the sentence made the sentence excessive and violates the
fundamental norms underlying the sentencing process. Appellant’s Brief, at
13. In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (Dodge
III), this Court stated,
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[A] defendant may raise a substantial question where he believes
consecutive sentences within the guideline ranges of the case
involves circumstances where the application of the guidelines
would be clearly unreasonable []; however, a bald claim of
excessiveness due to the consecutive nature of a sentence will not
raise a substantial question. []
[W]e look to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the guideline
ranges, is clearly unreasonable.
Id. at 1270. Instantly, Strouse’s claim is plausible inasmuch as she avers that
the sentence is manifestly unreasonable due to her history, age, lack of prior
record, rehabilitative needs and mental and physical health issues. Appellant’s
Brief, at 13-14. Accordingly, we conclude she has raised a substantial
question and will proceed to address the merits of this claim.
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
of discretion is not shown merely by an error in judgment. Rather,
an 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Pursuant to 42 Pa.C.S.A. § 9721, it is within a trial court’s discretion to
impose sentences of imprisonment consecutively or concurrently to one
another. That decision will not be disturbed absent a finding of manifest
excessiveness of an aggregate sentence. 42 Pa.C.S.A. § 9721(a).
Additionally, in fashioning a sentence, the trial court shall consider the gravity
of the offense, the defendant’s rehabilitative needs, the impact of the
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defendant’s actions on the victim and the community, and the need to protect
the public. Id. at § 9721(b).
In Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008)
(Dodge II), this Court determined that a minimum sentence of 52½ years’
incarceration for a 42-year-old, making defendant at minimum 100½-years-
old upon release, for 37 theft crimes was excessive. Id. at 1201. The Dodge
II Court stated, “the [trial] court did not acknowledge that its sentence
essentially guarantees life imprisonment.” Id. at 1202. Additionally, although
the defendant was a career criminal and had little success in past rehabilitation
efforts, the property stolen (costume jewelry) had little monetary value, below
$20.00 per item, and all 37 crimes were non-violent. Id. The Court also
acknowledged that the items were of significant sentimental value to the
victims, an appropriate consideration in imposing a sentence. Id.Here, in fashioning Strouse’s sentencing the trial court considered the
following: Strouse pled to only 25 counts from what was originally a 124-
count information; Strouse obtained 63 separate checks from the victim’s
bank account, which were either forged by Strouse or signed by the victim
under deceptive circumstances; Strouse opened two lines of credit in the
victim’s name without the victim’s knowledge or permission; Strouse used the
stolen money to purchase luxuries, such as a pool and a camper, rather than
necessities; and Strouse destroyed the victim’s financial situation, as well as
that of the victim’s family. Trial Court Opinion, supra at 5-6 (unpaginated).
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Similar to Dodge II, Strouse committed various non-violent theft
crimes. However, unlike Dodge II, Strouse’s sentence does not essentially
guarantee life imprisonment. Strouse was sentenced to an aggregate term of
50 to 100 months’ incarceration (roughly 4 to 8 years’), which would make
Strouse at most 71 years old upon release. Additionally, these theft crimes,
taken together, have a significant monetary value. Strouse stole over
$72,000.00 from her mother-in-law, who is over 80 years old. Moreover,
Strouse was entrusted to take care of the victim’s finances and this position
of trust was severely abused where, instead of protecting her mother-in-law’s
finances, Strouse chose to steal the victim’s money and spend it on luxury
items.
In light of the foregoing, we conclude the trial court did not manifestly
abuse its discretion in fashioning Strouse’s sentence. Sheller, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/03/2023
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