Com. v. Maurer, D. ( 2014 )

J.S43035/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWAYNE EDWARD MAURER, :
:
Appellant : No. 565 EDA 2014
Appeal from the Judgment of Sentence January 17, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division No(s).: CP-46-CR-0008967-2010
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 29, 2014
Appellant, Dwayne Edward Maurer, appeals from the judgment of
sentence entered in the Montgomery County Court of Common Pleas after he
entered an open guilty plea to two counts of criminal solicitation to
intimidate a witness.1 He challenges the discretionary aspect of his
sentence. Appellant claims the trial court failed to consider substantial
mitigating factors and manifestly abused its discretion in imposing the
sentence in the instant case to run consecutively to the sentence he was
serving in the underlying case. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 902(a) (“Criminal Solicitation”), 4952(a)(2) (“Intimidation of
Witnesses or Victims”).
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The trial court summarized the facts and procedural history of this
case as follows:
On June 7, 2011, [Appellant] appeared in this court
with counsel and entered an open guilty plea to two counts
of Criminal Solicitation to intimidate a witness . . . .
[Appellant] admitted to soliciting Trooper Paul Carr, who
posed undercover as someone else, to take witnesses in
another case out of the area so they could not testify
against [him]. These witnesses were [M.L.] and Connie
Maurer, and it was a possibility that they were going to
offer testimony against [Appellant] in case number CP-46-
CR-0001986-2010. Maurer is [Appellant’s] wife and he
ultimately plead guilty to twice performing oral sex on
[M.L.], his stepdaughter who was less than 13 years of
age.
At the plea hearing in the instant case, [Appellant] was
made aware that it was an open plea and thus there was
no agreement between the defense and the
Commonwealth. Additionally, he was made aware that the
standard range of sentencing was 36-54 months.
Thereafter, the court sentenced him on October 5, 2011,
to 41/2 to 9 years for both counts concurrently. The court
also imposed this sentence to run consecutively to case
number 1986-2010, in which he received a sentence of 10-
20 years for Involuntary Deviate Sexual Intercourse with a
child [and 10 years’ consecutive probation].
[Appellant] did not take a direct appeal from the
Judgment of Sentence. On October 5, 2012, [Appellant]
filed a pro se Post-Conviction Collateral Relief Act
[(“PCRA”)] Petition. [Counsel] was appointed to represent
[Appellant]. PCRA counsel filed an Amended PCRA Petition
on behalf of [Appellant] on January 25, 2013. At the time
the PCRA hearing was scheduled, the Commonwealth
indicated they discovered trial counsel actually recited the
wrong sentencing guidelines during the initial sentencing
hearing. After a conference, both parties agree[d] that the
correct sentencing guideline for the instant crimes is
actually 22-36 months. Thus, defense counsel filed a
Second Amended PCRA Petition on April 15, 2013,
requesting allowance to file a Petition for Reconsideration
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of Sentence Nunc Pro Tunc, and reinstatement of
[Appellant’s] direct appeal rights.
A brief hearing was held on June 20, 2013, and
reflected by an order dated August 23, 2013, [Appellant’s]
relief was granted in that the Commonwealth and defense
agreed to vacate [his] sentence and remand it for
resentencing by this court. Thereafter, on January 17,
2014, [Appellant] was resentenced to 3-9 years on both
counts concurrently, and again consecutive to his sentence
on case number 1986-2010.
Trial Ct. Op., 4/10/14, at 1-2 (citations and footnote omitted). Appellant
filed a post sentence motion which was denied. This timely appeal followed.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal and the trial court filed a responsive opinion.
Appellant raises the following issue for our review:
I. Did the learned trial court manifestly abuse its discretion
when it ordered [Appellant’s] sentence of three to nine
years on the instant matter to run consecutive to [his] ten
to twenty year sentence that he was serving on Docket No.
1986-[20]10 despite the wishes of one of the victims,
thereby resulting in an aggregate sentence of thirteen to
twenty-nine years.
Appellant’s Brief at 3.
Appellant challenges the discretionary aspect of his sentence.
Initially, we must determine whether Petitioner has the
right to seek permission to appeal the sentencing court’s
exercise of its discretion. Where a defendant pleads guilty
without any agreement as to sentence, the defendant
retains the right to petition this Court for allowance of
appeal with respect to the discretionary aspects of
sentencing. . . .
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Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)
(citation omitted). Instantly, there was no agreement as to sentencing; thus
Appellant has the right to seek permission to appeal. See id.
This Court has stated,
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to appellate review as of
right. Prior to reaching the merits of a discretionary
sentencing issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some
citations and punctuation omitted).
Instantly, Appellant timely appealed, preserved his issue in his post
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
See id. Accordingly, we ascertain whether Appellant has presented a
substantial question. Id.
Appellant contends that in imposing the consecutive sentence the trial
court failed to consider all mitigating factors, viz., his accomplishments while
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incarcerated and the letter from his wife.2 He avers that he has obtained his
high school diploma and has been baptized. Appellant’s Brief at 13.
Appellant claims the court erred in ignoring the letter from his wife in which
she requested the sentence in the instant case run concurrently to the
sentence he was serving in the underlying case. Appellant’s Brief at 14.
Appellant contends the court “continued to make the sentences consecutive
despite the wishes of the victims and, therefore, the [c]ourt manifestly
abused its discretion.” Id. at 15.
Generally, where the sentence is in the standard range, as in the case
sub judice, “a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.”3 See Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). However, in
Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014), this Court stated that in Commonwealth
v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005), “this Court found that an
2
See Appellant’s Mot. Recons. of Sentence, 1/23/14, D-1.
3
We note that where a defendant claims “that the court erred by imposing
an aggravated range sentence without consideration of mitigating
circumstances[,]” a substantial question is raised. Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). In Commonwealth v.
Raven, 97 A.3d 1244 (Pa. Super. 2014), the defendant contended the court
failed to consider mitigating factors and that his consecutive sentence was
manifestly excessive. Id. at 1253. This Court opined: “It is well-established
that a sentencing court’s failure to consider mitigating factors raises a
substantial question. See [Felmlee, 828 A.2d at 1107.]” Id.
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excessive sentence claim, in conjunction with an assertion that the
court did not consider mitigating factors, raised a substantial
question.”4 Dodge, 77 A.3d at 1272 (emphasis added); see also Raven,
___ A.3d at ___, 2014 WL 3907103 at *6, (citing Perry with approval).
We find that Appellant’s Rule 2119(f) statement presents a substantial
question. See Dodge, 77 A.3d at 1272. Therefore, we will review the
merits of Appellant’s challenge to the discretionary aspects of his sentence.
Our standard of review is as follows:
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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to 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.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he 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.
42 Pa.C.S.A. § 9721(b).
4
This Court in Dodge noted “that it is apparent that this Court’s
determination of whether an appellant has presented a substantial question
in various cases has been less than a model of clarity and consistency, even
in matters not involving excessive sentence claims.” Dodge, 77 A.3d at
1272 n.8.
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Furthermore,
section 9781(c) specifically defines three instances in
which the appellate courts should vacate a sentence
and remand: (1) the sentencing court applied the
guidelines erroneously; (2) the sentence falls within
the guidelines, but is “clearly unreasonable” based
on the circumstances of the case; and (3) the
sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
Pa.C.S. § 9781(d), the appellate courts must review
the record and consider the nature and
circumstances of the offense, the sentencing court’s
observations of the defendant, the findings that
formed the basis of the sentence, and the sentencing
guidelines. The weighing of factors under 42 Pa.C.S.
§ 9721(b) is exclusively for the sentencing court,
and an appellate court could not substitute its own
weighing of those factors. The primary
consideration, therefore, is whether the court
imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for
sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some citations omitted).
Our Supreme Court has stated:
Where pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any
lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
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report, the sentencing court’s discretion should not
be disturbed. This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. . . .
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
“Long standing precedent of this Court recognizes that 42 Pa.C.S.A.
section 9721 affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed.” Commonwealth v. Gonzalez-
Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).
Instantly, at re-sentencing, the court stated that it incorporated the
remarks it made at the October 5, 2011 sentencing hearing. At the October
5th hearing, the court stated, inter alia, as follows:
The [c]ourt has to put certain reasons for sentencing on
the record. Obviously, this [c]ourt has had the time to
consider the presentence investigation[5] of
[Appellant] in that it was considered at the time of the
original sentencing on March 18th of 2011. And all of the
information contained therein would not have changed in
that he has been incarcerated continuously on the
underlying case at 1986 of 2010 since March 5th of 2010.
N.T., 10/5/11, at 16.
5
The court noted at the outset of the sentencing hearing that “a previous
presentence investigation dated January 28th of 2011 had been done on
[Appellant] in order to aid this [c]ourt in sentencing for a previous case in
which he was sentenced on two counts of [involuntary deviate sexual
intercourse] IDSI . . . . Following this open plea, there was no further
presentence investigation done.” N.T., 10/5/11, at 3, 4.
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At the resentencing hearing, the trial court opined:
. . . This is an unusual resentencing in that the original
crime [ ] which initiated the course of events that led to
the [instant] charges . . . ─the original crime which was at
1986 of ‘10─was a horrific, horrible, destruction of a child’s
childhood. . . .
I do incorporate because it will have some purpose as
to my sentencing, . . . and note that 1986 of ’10 was an
open plea; however, there was an agreement as to the
sentencing for which he has been sentenced for that
behavior of 10 to 20 years. I note that the 10 years
consecutive probation is also in place.
But, again, this all initiated with a horrific rape
perpetrated by [Appellant] upon someone that was in his
trust and care and obviously the daughter of someone
who’s now written a letter to this Court and has been part
of the testimony as to how to deal with a case that arose
from it.
Now, what is important, and it is important to this
[c]ourt’s sentencing, is that he pled guilty to two counts of
criminal solicitation. And on this particular case there was
no agreed sentence. There was just guidelines that came
in. And this [c]ourt has utilized those guidelines,
specifically noted on the record I used the guidelines to
sentence [Appellant].
But I do recognize that the two counts that he entered
his plea to [in the instant case] involved the solicitation of
others to intimidate the child who is now an adult . . . .
And the second count was the solicitation of someone to
intimidate Connie Maurer all for the specific purposes of
preventing them from testifying in [the underlying case]
which ultimately ended up in the guilty plea, and again I’m
referring to 1986.
* * *
[Appellant] became incarcerated and began, like many,
to begin to change, to transition into a person of a spiritual
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connection. And that’s important. And I am going to have
to take that into account because we did discuss it. I am
resentencing a man today who has put testimony on that
he claims he is different than he was when he perpetrated
the crime and also these intimidations.
* * *
Now, you have, [Counsel for Appellant], made very
compelling arguments regarding Connie Maurer, his wife,
who has clearly forgiven him, it appears, for what he did to
her daughter and is involved with him in ministry and the
same spiritual connections that [Appellant] is making to try
to better his life for the long prison sentence that he is
serving for the rape of ML.
And he is to be credited with that and the [c]ourt has to
recognize that I am sentencing him for that, but I do note
that she can clearly speak on behalf of herself. At this
stage she is not authorized to speak on behalf of ML. And
that’s an important distinction in this case.
And I think appropriately you made your notes as to
Connie Maurer, and clearly we don’t have a letter from ML
or what her present status is and, you know, what this
trauma has done in her life and what treatment she’s in
and what she wants. Clearly she’s of age now that can─so
I don’t have that voice here in this courtroom today.
And besides being the victim of the rape, she was a
victim of a separate solicitation. And that’s an important
distinction, that Ms. Maurer does not get to speak for her
daughter in that regard.
So I do recognize . . . that since [Appellant] has entered
into prison he has no prison record that would indicate that
he is doing anything other than trying to change his life,
follow a spiritual course . . . . And that is important, so I
will tend to give credit to those changes that he has made
in his life since the original sentencing by this Court.
Nonetheless, this was a severe, horrific, life-changing
rape of this child. And then the attempt to intimidate
witnesses is an egregious crime in its own right.
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N.T., 1/17/14, at 30-31, 32, 33-34.
Appellant’s argument that the trial court ignored all mitigating factors
and his accomplishments while incarcerated is belied by the record. See id.
The court considered mitigating factors in imposing the consecutive
sentence. See id. Similarly, the claim that the court ignored the wishes of
the victim, viz., Connie Maurer, is unsupported by the record. See id.
Furthermore, the court considered the presentence report. See id.;
Devers, 546 A.2d at 18. Accordingly, after examining the record as a
whole, we find that the trial court’s sentence was not manifestly excessive.
We discern no abuse of discretion. See Bricker, 41 A.3d at 875-76.
Judgment of sentence affirmed.
Judge Allen joins the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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