Com. v. Blagdan, S. ( 2019 )

J-A05044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEATH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SANDY BLAGDAN :
:
Appellant : No. 634 WDA 2018
Appeal from the Judgment of Sentence April 4, 2018
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000524-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2019
Sandy Blagdan (Appellant) appeals from the judgment of sentence
imposed after she pled guilty to eleven counts of cruelty to animals. 1 We
affirm.
The charges in this case arose from Appellant’s neglect of 10 dogs and
a cat. Based upon the investigation of a humane society police officer, a
private criminal complaint against Appellant was filed on September 11, 2017.
On February 20, 2018, Appellant appeared before the trial court and pled
guilty to the above crimes. Sentencing was delayed for the preparation of a
pre-sentence investigation report, as well as a psychiatric evaluation.
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1 18 Pa.C.S.A. § 5511(c)(1).
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On April 4, 2018, the trial court sentenced Appellant to an aggregate 24
months, 23 days to 11 years of incarceration.2 Appellant filed a timely post-
sentence motion, which the trial court denied. Appellant filed this timely
appeal on April 27, 2018. Both the trial court and Appellant have complied
with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents one issue for our review:
Whether the [c]ourt abused its discretion by handing down
a sentence that is manifestly excessive inflicting too severe a
punishment that is disproportionate to the crimes committed and
is therefore clearly unreasonable when the [c]ourt sentenced at
the aggravated limit, made each of eleven counts consecutive to
one another, and failed to give due consideration on a psychiatric
evaluation.
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of her sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
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2 Appellant’s minimum sentence was originally 33 months. However, as
Appellant was found eligible for the Risk Recidivism Reduction Incentive
(RRRI) program, her minimum sentence was decreased to 24 months, 23
days. See 61 Pa.C.S.A. § 4505.
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(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of this test by raising
her discretionary sentencing claim in a timely post-sentence motion, filing a
timely notice of appeal, and including in her brief a Rule 2119(f) concise
statement. Therefore, we examine whether Appellant presents a substantial
question.
Appellant argues that the trial court erred in fashioning an excessive
sentence where it “made each of eleven counts consecutive to one another,
and failed to give due consideration on a psychiatric evaluation.” Appellant’s
Brief at 22. This argument presents a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This
Court has also held that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
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substantial question.”) (citations omitted). We thus review Appellant’s
sentencing claim mindful of the following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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, 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
The relevant portion of 42 Pa.C.S.A. § 9721(b) states:
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 the life of the victim and on the community, and the
rehabilitative needs of the defendant. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . 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.
Id. Further, “[a] sentencing court may consider any legal factor in
determining that a sentence in the aggravated range should be imposed.”
Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)
(citations omitted). “In addition, the sentencing judge’s statement of reasons
on the record must reflect this consideration, and the sentencing judge’s
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decision regarding the aggravation of a sentence will not be disturbed absent
a manifest abuse of discretion.” Id. (citation omitted).
This Court has also held, “[w]hen a sentencing court has reviewed a
pre-sentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893
A.2d 758, 767 (Pa. Super. 2006)). Additionally:
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors.
Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004)) (some citations omitted).
At Appellant’s sentencing hearing, the trial court specifically stated that
it reviewed Appellant’s pre-sentence investigation report. N.T., 4/4/18, at 5.
Before imposing Appellant’s sentence, the trial court commented:
I’ve reviewed the presentence investigation, considered her
age, her background, her prior record, everything contained in the
presentence and everything necessary for sentencing.
I’ve also considered the psychiatric evaluation of Doctor
Martone. I’ve considered the fact she has pled guilty prior to this
offense to eighteen counts of cruelty to animals.
I don’t know if you pled or were found guilty. I think it was
a summary appeal. She was on probation for summary offenses.
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That involved eighteen different animals, a dog that had
died and a house that was essentially destroyed by [Appellant’s]
neglect.
In that case, although it’s been several years, if I remember,
she would throw a bag of dog food in the house every so often,
and she kept putting dogs in that house.
Now, we certainly know she doesn’t know how to care for
dogs, but she knew very well and nothing in Doctor Martone’s
psychological says different, that she wasn’t allowed to have a
dog. That’s very basic, and she gets dogs and it has puppies, and
now we have more neglectful abuse.
So the probations are on summaries, and there’s ninety
days possible on each of those. So from the date she went into
jail to today’s date, we’re going to take the number of summary
offenses and use all of the time against it for all the credit for time
served . . . and we’ll take no further action on those summary
appeal cases.
But on each of the eleven counts, [Appellant], I don’t know
that I’ve ever seen a situation like this, and there’s nothing that
can be done to control you.
You go out and get more dogs, and not only do you have a
dog, which would have been a violation, but you have dogs that
you ultimately neglected and maltreated again just months,
maybe a year, at most, after your violation where we had dead
dogs and dogs that were chronically ill from your neglect.
So I think, first of all, each of these dogs, as much as I’m
not an animal person, and I’ll say that. I think our society goes
way too far to protect animals. You were the worst offender I’ve
ever seen, period, . . .
I think you knew what you were doing, and I think it shows
that you cannot be controlled on county probation, so each dog
deserves a separate sentence.
Each of them should be in the aggravated range because,
one, you were on probation. Two, you’ve already killed dogs, and
three, you’re not amenable to county probation.
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N.T., 4/4/18, at 5-7.
In its opinion, the trial court further explained:
In this case, neither the individual sentences nor their
aggregate evidenced an abuse of discretion.
As the record reflects, [Appellant] was already on probation
for abusing or neglecting animals when she was charged with
eleven additional counts of the same offense, and a specific
condition of her probation was a prohibition against owning any
more dogs. Yet she was found with several in her home in relation
to the charges that are the subject of this case, there being no
indication that she failed to understand that condition. She simply
was not willing to abide by it. For that reason, and for those
further articulated by the [c]ourt at the sentencing hearing, an
aggregated maximum term of incarceration seemed to be the
most appropriate sentencing alternate [sic] under the
circumstances. As the transcript plainly evidences, moreover, the
[c]ourt was well aware of Dr. Martone’s findings and all other
factors that a court must consider at the time of sentencing.
[Appellant’s] claim thus lacks evidentiary support.
Trial Court Opinion, 6/31/18, at 1-2 (citations to notes of testimony omitted).
Based on our review of the record, we conclude that the trial court
properly considered all relevant factors when imposing Appellant’s sentence.
Along with Appellant’s pre-sentence investigation report, the trial court
specifically discussed Appellant’s psychiatric evaluation, the severity of
Appellant’s crimes, her criminal record, and her probationary status for prior
similar conduct. Ultimately, and in its discretion, the trial court determined
that Appellant’s crimes necessitated aggravated-range sentences to be served
consecutively. Thus, the trial court did not err in refusing to run Appellant’s
sentences concurrently. See Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2014) (“We have stated that the imposition of consecutive rather
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than concurrent sentences lies within the sound discretion of the sentencing
court.”) (citations omitted). For these reasons, we discern no abuse of
discretion by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2019
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