Com. v. Hetrick, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JEREMY MATTHEW HETRICK, :
:
Appellee : No. 1202 MDA 2013
Appeal from the Judgment of Sentence January 30, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division No(s).: CP-38-CR-0000855-2012
BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 24, 2014
This appeal by the Commonwealth is from the discretionary aspects of
a sentence imposed upon Appellee, Jeremy Matthew Hetrick. We affirm.
Appellee was charged with various offenses in connection with the
following events, which we have gleaned from the affidavit of probable
cause. At a -
sixteen-year-old daughter, hereinafter the victim, arrived home, changed
into her pajamas, and fell asleep on the living room floor while watching
television. The victim awoke when Appellee rubbed her stomach. Appellee
pulled down her pajama bottoms, touched her vagina, and engaged in
sexual intercourse with her. Appellee then placed his tongue on her vagina
*
Former Justice specially assigned to the Superior Court.
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and touched her breasts. After Appellee ceased his sexual assault, the
victim immediately telephoned her boyfriend, who retrieved the victim from
her home. The boyfriend woke up his parents to inform them about the
crime, and they took the victim to the state police barracks.
The victim arrived at the police station at 4:30 a.m. on May 16, 2011,
and told police about the sexual assault. She also stated that her father
drank alcohol and that he was drinking when she arrived at home on
May 15th. Police took the victim to a local hospital where evidence was
gathered to confirm the occurrence of the sexual assault. Sperm was
recovered from an external genitalia swab and a stain on the pajama
bottoms.
At 12:20 p.m. on May 16, 2011, Pennsylvania State Police Troopers
Appellee agreed to accompany them to the police barracks, but advised
officers that he needed a ride since he had been drinking alcohol. Appellee
told police that he started drinking beer and vodka at 1:00 p.m. on May 15,
2011. Appellee did not remember the v
night. After being advised that the victim accused him of raping her,
Appellee gave the identical response when asked if he was so intoxicated
that he could not remember sexually assaulting the victim. Appellee then
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told police that he was an alcoholic and could not remember anything.
of the sperm recovered from the victim at the hospital after the sexual
assault.
On October 25, 2012, Appellee pled guilty to rape, involuntary deviate
sexual intercourse, two counts of sexual assault, incest, corruption of a
minor, endangering the welfare of a child, and two counts of indecent
assault. An assessment by the Sexual Offenders Assessment Board was
ordered, and Appellee was determined not to be a sexually violent predator.
The matter proceeded to sentencing on January 30, 2013.
was not charged with any crimes until one year after the events transpired.
being an alcoholic for basically
his entire adult life, he began treatment at AA and . . . through his church,
the bible study, developing a group of friends who could support him so he
could finally kick the disease of alcoholism that haunted him for yea Id.
at 2-3. Appellee also engaged in treatment at a facility called Triad, which is
an agency that deals with sexual issues and the type of offenses committed
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Id. at 3. After Appellee was charged, he immediately consulted
wished to plead guilty to the charges, to get through them as quickly as
possible and not cause any more pain to his fam Id. at 2.
sentencing court and were present at sentencing. They indicated that they
have seen an amazing improvement [in] the person he has become in the
past two years since he got over alcohol addiction and started to address
Id. at 4. Appellee was separated from his wife prior
to the events in question, and he had primary physical custody of the
children before June 2011, when he moved in with his parents.
He had a problem with alcohol
Id. at 5. After the incident,
d
Id. at 5. The employer
continued that he concluded that the horrible events of May 15, 2011, would
not have occurred but for the alcohol.
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in his
support his children and to be in their lives no matter how simplistic the
Id. at 6. Prior to May 2011, Appellee spent many hours with his
children, including camping, attending their sporting events, speaking with
them on the telephone, hiking, bowling, shopping, and going to the movies.
Six nights a week he
Id. at 9.
Christopher A. Goodling, another witness for Appellee, was involved
with Triad. Appellee was involved with that agency since July 2012.
Id. at 11. Appellee admitted that his behavior, after consuming alcohol, was
unsavory. Mr. Goodling indicated that Triad would continue to work with
Appellee until he successfully finished the program, which normally took two
to five years. Appellee suffered depression and child abuse, which
contributed, along with his intoxication, to his commission of the offense in
question. Id. at 13.
applicable guideline ranges. Id. at 21. It indicated that, in addition to the
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-in-law, co-workers, his
sponsor at AA, and other people who attende
Jeremy Hetrick that we see now who is decidedly different than the old
Id. at 21. All the people, including those who wrote
letters and those who testified at sentencing, believed that alcohol was a
Id.
The district attorney responded that Appellee did not immediately
accept responsibility for his actions and had not done so until the results of
failure to immediately acknowledge the misdeed was directly the result of
the fact that Appellee was too intoxicated to remember the events. Id. at
22.
The sentencing court delineated that, based upon the evidence it
longstanding
alcohol abuse, being an alcoholic, being really kind of an unfortunate integral
Id. at 24. The court stated that it had often
sentenced for these types of crimes and its reaction typically had been that
Id. at 25.
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The sentenci
case different and why it believed Appellee should be accorded leniency, as
receive the type of letter that I received from your daughter who was the
victim in this case, the very rare circumstance in terms of her forgiveness of
Id
were the result of his alcohol abuse. Second, the court considered that
immediately after the crime, Appellee addressed his alcoholism and was
attending AA meetings daily. Third, the court took into account the reports
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dramatically since he ceased consuming alcohol. Finally, the court
on his behalf at the sentencing.
that the sentencing guideline ranges indicate would not be appropriate in
this case. I have considered those guidelines. I have rejected those
Id
Id. First,
impact from the victim in this case. I took to heart her words and her
Id. at 27. Second, the court credited the representations in the
letters and from witnesses that Appellee had cured his alcoholism and was a
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different man from the one who committed the horrific crimes at issue.
Third, the court believed a lenient sentence was appropriate in that the
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Id
Id. Fifth, the court weighed the fact that Appellee had an
Id. Sixth, the court concluded that
the steps that Appellee took by treating his alcoholism and attending the
Id.
Accordingly, the court fashioned a sentence below the guidelines that
enabled Appellee to continue to support his family while ensuring that
Appellee continued to avoid alcohol and to address any other problems that
led to his crimes. Appellee was sentenced to jail for eleven and one-half
months to two years less one day, with work release privileges, followed by
ten years special state probation. After release from prison, Appellee was
subject to house arrest with electronic monitoring. As a condition of
probation, Appellee had to attend four AA meetings a week and continue
with psychological counseling at Triad. He was ordered to have no contact
with the victim unless she wanted it.
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The Commonwealth filed a timely post-sentence motion for
modification of the sentence. This timely appeal followed denial of that
Sentencing Court abused its discretion when it imposed a sentence below
the mitigated sentencing range violating the fundamental norms of the
We have articulated on numerous occasions that:
Before this Court may reach the merits of a challenge to
the discretionary aspects of a sentence, 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 see Pa.R.A.P. 2119(f); and (4)
whether the concise statement raises a substantial question that
the sentence is appropriate under the sentencing code. If the
appeal satisfies each of these four requirements, we will then
proceed to decide the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation
omitted).
Herein, the claim was preserved in a post-sentence motion and a
timely Pa.R.A.P. 1925(b) statement was filed and contained the issue. The
R.A.P. 2119(f)
The sentence in question is not within the guidelines ranges, and the
Commonwealth complains that the reasons proffered by the court for the
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deviation were insufficient. Id. The Commonwealth has therefore raised
the existence of a substantial question, permitting appellate review of the
sentence in question. Commonwealth v. Hill, 66 A.3d 365 (Pa.Super.
2013).
cts of
sentencing, we evaluate the court's decision under an abuse of discretion
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.
2013) (quoting Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.Super.
2011)). In the seminal case of Commonwealth v. Walls, 926 A.2d 957,
have abused its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-
[I]n the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it . . . the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that should
not be lightly disturbed. Even with the advent of sentencing
guidelines, the power of sentencing is a function to be performed
by the sentencing court . . . the guidelines merely inform the
sentencing decision.
Id., at 965.
. § 9781,
which authorizes the appellate court to vacate the sentence and remand the
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outside the sentencing guidelines and the sentence is unreasonable. In all
other cases the appellate court shall affirm the sentence imposed by the
Id. at § 9781(c)(3) (emphasis added). Section 9781(d)
provides that when reviewing a sentence, we must consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation
(3) The findings upon which the sentence was based
(4) The guidelines promulgated by the commission
42 Pa.C.S. § 9781(d). Simply put, the guidelines have no binding effect;
they are merely advisory guideposts.
Even further, our Supreme Court in Walls noted that the term
guided by sound judgment. It held that a sentence can be defined as
unreasonable either upon review of the four elements contained in
§ 9781(d), or if the sentencing court failed to take into account the factors
outlined in 42 Pa.C.S. § 9721(b). Walls, supra at 964. Section 9721(b)
states in pertinent part:
[T]he 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
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the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.
Section 9721 also mentions that if a court imposes a sentence outside the
statement of the reason or reasons for the deviation . . . [and] his
Herein, the sentencing court clearly considered the factors outlined in
§ 9721(b) and gave overwhelmingly compelling reasons for its decision to
deviate from the guidelines, as follows. Appellee had addressed the
alcoholism and psychological issues that were the root of the crime. He
quickly acknowledged guilt once evidence was presented to him as to a
crime that he could not remember committing. Appellee immediately sought
to plead guilty to avoid further harm to the victim. Appellee needed to
support his family financially and the sentence of county imprisonment with
work release permitted him to continue to do so. All of his family members,
including the victim, forgave Appellee, wanted him to be afforded leniency,
and recognized that the consumption of alcohol caused the behavior in
question. These reasons are neither irrational nor unguided by sound
judgment. The factors of § 9781(d) warrant affirmance.
We routinely affirm sentences that fall outside the recommended
guidelines ranges where the reasons for the deviation were logical and
compelling. See, e.g., Commonwealth v. Hoch, 936 A.2d 515 (Pa.Super.
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2007 (affirming sentence that fell below mitigated range where it was
adequately supported by logical justifications).1 We reject the
court in imposing this mitigated sentence were insufficient.
On appeal, the Commonwealth focuses on the seriousness of the
crime. It also insists that the sentence sent a bad message to the
community that alcohol can be used as an excuse for criminal behavior and
that the sentence will inhibit victims of sexual abuse from reporting crimes.
These positions are nothing more than a request for us to hold that these
two factors, i.e., the protection of the public and the gravity of the offense,
outweigh the ones relied upon by the court. However, this type of allegation
cannot form the basis for reversal of the present sentence.
It is clear that the sentencing court considered all of the pertinent
factors. It acknowledged the seriousness of the offenses at the sentencing
hearing. It also concluded that Appellee, who had no prior record score, was
no longer a danger to the community since he had addressed the root of the
criminal behavior in that he had not consumed any alcohol for a significant
period of time and was enrolled in the Triad program. We simply are not
permitted to reverse a sentence based upon the weight that the court gave
to the various factors involved in a sentencing decision. Commonwealth v.
1
There are myriad cases affirming an upward guideline departure.
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Bricker, 41 A.3d 872 (Pa.Super. 2012); Commonwealth v. Macias, 968
A.2d 773, 776 (Pa.Super. 2009). Hence, we must affirm. Walls, supra.
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
Justice Fitzgerald files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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