Com. v. Parrotte, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH M. PARROTTE, :
:
Appellant : No. 1131 WDA 2015
Appeal from the Judgment of Sentence February 18, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0003276-2012
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 18, 2016
Kenneth M. Parrotte (“Parrotte”) appeals from the judgment of
sentence imposed after a jury convicted him of indecent assault (victim less
than 13 years of age), endangering the welfare of children (“EWOC”),
corruption of minors, and indecent exposure.1 We affirm.
The victim, Z.S., Parrotte’s six-year-old biological granddaughter,
resided with him, his wife, and other family members in his home located in
Braddock, Pennsylvania. In December 2011, Parrotte sexually assaulted the
victim by engaging in sexual intercourse with her. In January 2012, the
victim told her mother about the assaults. The victim’s mother then took
her to Children’s Hospital in Pittsburgh, as she had complained of pain in her
1
See 18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1), 6301(a)(1)(ii), 3127(a).
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vaginal area. During a forensic interview at the hospital, the victim informed
the authorities that Parrotte had assaulted her on more than one occasion.2
In March 2012, the Commonwealth charged Parrotte with the above-
mentioned crimes, as well as rape of a child, incest, and sexual assault 3
(collectively, “the remaining offenses”). The matter proceeded to a jury trial
in October 2012, at the close of which the jury acquitted Parrotte of the
remaining offenses and convicted him of indecent assault, EWOC, corruption
of minors, and indecent exposure. Prior to sentencing, the trial court
ordered the preparation of a presentence investigation report (“PSI”). On
June 6, 2013, the sentencing court (the Honorable Donna Jo McDaniel
“Judge McDaniel”) ruled that Parrotte met the criteria of a sexually violent
predator, and sentenced him as follows:
 a prison term of three and one-half to seven years on the
indecent assault conviction;
 a prison term of three and one-half to seven years on the
EWOC conviction,4 to run consecutive to the indecent assault
sentence;
 no further penalty for corruption of minors and indecent
exposure.
2
During the forensic interview, the victim described a skin pigmentation
anomaly on Parrotte’s penis, which was later observed by the detectives who
had arrested Parrotte.
3
See 18 Pa.C.S.A. §§ 3121(c), 4302(a)(1), 3124.1.
4
The sentencing court stated that the EWOC charge was graded as a third-
degree felony.
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Accordingly, Parrotte received an aggregate sentence of seven to fourteen
years in prison.5 Parrotte filed post-sentence Motions, which the trial court
denied in July 2013.
On October 3, 2013, the sentencing court issued an amended
sentencing Order, stating that the court had made a clerical error in the
previous sentencing Order. In the amended Order, the court imposed a
consecutive sentence, on the corruption of minors conviction, of three and
one-half to seven years in prison (the statutory maximum sentence),
resulting in a new aggregate sentence of ten and one-half to twenty-one
years in prison.
Parrotte timely appealed to this Court asserting, inter alia, that the
sentencing court abused its discretion by imposing a manifestly excessive
sentence that was outside of the aggravated range of the sentencing
guidelines, and imposed an illegal sentence on the EWOC conviction. This
Court affirmed Parrotte’s convictions, but vacated the judgment of sentence
and remanded for resentencing. See Commonwealth v. Parrotte, 104
A.3d 43 (Pa. Super. 2014) (unpublished memorandum). We held that the
sentencing court imposed an illegal sentence on the EWOC conviction, in
5
Notably to the instant appeal, each of the individual prison sentences
imposed exceeded the aggravated range of the applicable sentencing
guidelines, and was the statutory maximum sentence allowed.
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that the offense should have been graded as a first-degree misdemeanor,
instead of a third-degree felony. Id. (unpublished memorandum at 4-7).6
On remand, Judge McDaniel imposed the following sentence:
 a prison term of three and one-half to seven years on the
indecent assault conviction;
 a prison term of two and one-half to five years on the EWOC
conviction (graded as a first-degree misdemeanor), to run
consecutive to the indecent assault sentence;
 a prison term of three and one-half to seven years on the
corruption of minors conviction, to run consecutive to the
other sentences;
 no further penalty for indecent exposure.
Accordingly, Parrotte received an aggregate sentence of nine and one-half to
nineteen years in prison.7 Parrotte thereafter filed a Motion for
reconsideration of sentence, which was denied by operation of law.
Parrotte filed a timely Notice of Appeal. In response, the trial court
ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Parrotte timely filed a Concise Statement, after
which the trial court issued an Opinion.
Parrotte now presents the following issues for our review:
I. Does a sentencing court abuse its discretion by imposing an
excessive sentence, significantly outside the sentencing
6
The Supreme Court of Pennsylvania subsequently denied Parrotte’s Petition
for allowance of appeal. See Commonwealth v. Parrotte, 105 A.3d 736(Pa. 2014).
7
As was the case with Parrotte’s original sentence, each individual sentence
imposed on remand was the statutory maximum sentence.
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guidelines, without bothering to consider the correct
sentencing guidelines?
II. Does a sentencing court abuse its discretion by imposing an
excessive and unreasonable statutory maximum sentence,
without considering appropriate sentencing factors to support
its substantial deviation from the sentencing guidelines?
Brief for Appellant at 9 (capitalization omitted). We will address these two
related issues together.
Parrotte’s claims challenge the discretionary aspects of his sentence,
from which there is no absolute right to appeal. See Commonwealth v.
Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the
appellant has preserved the sentencing challenge for appellate review by
raising it at sentencing or in a timely post-sentence motion, the appellant
must (1) include in his brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a
sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Parrotte included a Rule 2119(f) Statement in his brief. See
Brief for Appellant at 17-21. Moreover, his above-mentioned issues present
a substantial question for our review. See Commonwealth v. Scassera,
965 A.2d 247, 250 (Pa. Super. 2009) (stating that a claim that the
sentencing court failed to consider the applicable sentencing guidelines, prior
to exceeding them, presents a substantial question); Commonwealth v.
Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating that an “[a]ppellant’s
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contention that the sentencing court exceeded the recommended range in
the Sentencing Guidelines without an adequate basis raises a substantial
question for this Court to review.”); Commonwealth v. Holiday, 954 A.2d
6, 10 (Pa. Super. 2008) (stating that “[a] claim that the sentencing court
imposed a sentence outside of the guidelines without specifying sufficient
reasons presents a substantial question for our review.”); Commonwealth
v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (stating that “[a] claim that the
sentencing court misapplied the Sentencing Guidelines presents a substantial
question.”).
Accordingly, we will address the merits of Parrotte’s claims, mindful of
our standard of review:
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, 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.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted).
In every case where, as here, a court imposes a sentence outside of
the sentencing guidelines, the court must provide, in open court, a
contemporaneous statement of reasons in support of its sentence. 42
Pa.C.S.A. § 9721(b).
[A sentencing] judge … [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
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Having done so, the sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the
community, so long as it also states of record the factual basis
and specific reasons which compelled it to deviate from the
guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted); see also 42 Pa.C.S.A. § 9721(b) (setting forth the
general considerations a sentencing court must take into account when
formulating a sentence). “[A] sentencing judge may satisfy [the]
requirement of disclosure on the record of [the judge’s] reasons for
imposition of a particular sentence without providing a detailed, highly
technical statement.” Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa.
Super. 2005) (citation omitted).
An appellate court must vacate and remand a case where it concludes
that “the sentencing court sentenced outside the sentencing guidelines and
the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). However, “if the
sentencing court proffers reasons indicating that its decision to depart from
the guidelines is not unreasonable, the sentence will be upheld.”
Commonwealth v. Smith, 863 A.2d 1172, 1177-78 (Pa. Super. 2004).
Finally, when evaluating a challenge to the discretionary aspects of
sentence, it is important to remember that the sentencing guidelines are
“purely advisory in nature.” Commonwealth v. Yuhasz, 923 A.2d 1111,
1118 (Pa. 2007). The sentencing guidelines
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have no binding effect, create no presumption in sentencing, and
do not predominate over other sentencing factors – they are
advisory guideposts that are valuable, may provide an essential
starting point, and that must be respected and considered; they
recommend, however, rather than require a particular sentence.
Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa. 2007); see also id.
at 964 (stating that the sentencing guidelines “are but one factor among the
many enumerated in the Sentencing Code as a whole[.]”) (citation and
quotation marks omitted).
Here, Parrotte argues that the sentencing court abused its discretion
by sentencing him to statutory maximum, consecutive sentences on three of
the four counts of which he was convicted, amounting to a manifestly
excessive and unreasonable aggregate sentence. Brief for Appellant at 22.
Parrotte contends that, at resentencing following this Court’s remand, the
sentencing court (1) failed to state that it had considered the correct
sentencing guidelines; (2) “impose[d] the statutory maximum sentence
without any guidance from the guidelines whatsoever”; and (3) “offered no
discussion during the sentencing hearing supporting the court’s decision to
sentence significantly outside of the guidelines.” Id. at 24.
Initially, we observe that in Parrotte’s prior appeal, a panel of this
Court rejected his challenge to the discretionary aspects of the sentence,
which appears very similar to the challenge he raises herein. See Parrotte,
104 A.3d 43 (unpublished memorandum at 3). Specifically, we stated that
the sentencing court
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acted within its discretion when it imposed sentence outside [of
the] aggravated range[, where (1) the] sentence imposed did
not exceed [the] statutory maximum; [(2) the] court …
considered [Parrotte’s PSI] prior to [the] sentencing hearing;
[(3) the] record reflects [that the] court considered all
appropriate factors in determining sentence; [(4) the] court
placed its reasons for [the] sentence on [the] record; … [(5)]
given [the] facts and circumstances of [Parrotte’s] assaults on
[his] six-year old granddaughter, [the] sentence was
appropriate; [and (6) the] court was within its discretion in
imposing the] statutory maximum[.]
Id.8 This Court remanded the matter solely for the trial court to rectify the
illegal sentence imposed on the EWOC count (i.e., as a result of the
improper grading). Id. at 5-7.
In the instant appeal, the trial court asserted in its Pa.R.A.P. 1925(a)
Opinion that the resentencing hearing “was merely a procedural event to
correct the grading and maximum term of [the EWOC] charge[,] and [the
trial c]ourt was not crafting a new sentence[; accordingly, the c]ourt found it
unnecessary to restate its reasoning.” Trial Court Opinion, 1/20/16, at 5;
see also id. (stating that the court “had already placed sufficient reasons on
the record in support of its deviation from the [sentencing] guidelines and
imposition of the statutory maximum[] [sentences].”).
To the contrary, Parrotte urges that the trial court never stated any
reasons for deviating from the guidelines at resentencing, and improperly
8
It is generally beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court, see Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013); however, here, the trial court’s resentencing
Parrotte on remand (which resulted in a reduction of his aggregate
sentence) permitted Parrotte to again challenge the discretionary aspects of
his sentence.
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“felt [that the] resentencing hearing was merely a procedural matter[,] since
the court was just going to once again impose a statutory maximum
sentence, regardless of the significant change in the guideline ranges” (i.e.,
as a result in the change of grading of the EWOC charge). Brief for
Appellant at 27, 33; see also id. at 27-28 (citing Commonwealth v.
Losch, 535 A.2d 115 (Pa. Super. 1987), which stated that “[w]hen a
sentence is vacated and the case remanded for resentencing, the sentencing
judge should start afresh.” Id. at 121 (citation omitted)).
Parrotte additionally contends that although the sentencing guidelines
are non-mandatory advisory guideposts, a sentencing court is obligated to
consider the guidelines prior to deviating from them, which the court in the
instant case failed to do. Brief for Appellant at 28-29 (citing, inter alia,
Scassera, 965 A.2d at 250, 251 (stating that a “sentencing court must
consider the sentencing guidelines, and the consideration must be more
than mere fluff. … Failure to even consider the guideline ranges is an abuse
of discretion and a violation of 42 Pa.C.S.A. § 9721(b).”) (emphasis in
original; citation omitted). According to Parrotte, “the record [] is devoid of
any indication that the sentencing court understood the suggested
sentencing ranges before deviating from them.” Brief for Appellant at 32;
see also id. at 36 (asserting that the sentencing court “fail[ed] to review
the sentencing guidelines when imposing its excessive sentence”). Finally,
Parrotte argues that the sentencing court, by imposing statutory maximum
sentences, inappropriately “focused on the seriousness of the offenses,
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rather than addressing how [] Parrotte’s case deviated from a typical case
involving these offenses. Although these offenses involving a child are
serious, the standard range of the guidelines took the seriousness into
account.” Id. at 40.
Initially, we observe that the sentencing court here had the benefit of
a PSI, which is contained in the certified record. Where a sentencing court is
informed by a PSI, it is presumed that the court is aware of all appropriate
sentencing factors and considerations (which includes the sentencing
guidelines), and that “where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009). Moreover, “[t]he sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” Id. (citation omitted); see
also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006).
Here, prior to imposing sentence at the original sentencing hearing,
the sentencing court stated as follows:
Well, I have reviewed the [PSI], and I find that it is horrific in
that the victim in this case was your [Parrotte’s] six-year old
granddaughter that you assaulted multiple times. You violated a
position of trust, and although I don’t know that this has been
discussed, you told [the victim that] she wasn’t allowed to tell
anyone. You have been involved in the criminal justice system
since you were 13 years of age. You have convictions for five
counts of receiving stolen property, unauthorized use, theft and
robbery. You have summary convictions. You have not done
well with community[-]based supervision. You were in a State
Correctional Institution one time, and you got out and violated
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parole, and you were sent back. If you aren’t a danger to our
community, I don’t know who would be.
N.T., 6/6/13, at 55.9
At the resentencing hearing, the sentencing court (1) acknowledged
this Court’s ruling that the EWOC conviction must be graded as a first-
degree misdemeanor (subject to a shorter statutory maximum sentence
than that originally imposed at this count), N.T., 2/18/15, at 2; (2)
considered defense counsel’s statement concerning Parrotte’s remorse and
good behavior while in prison, id. at 3; (3) considered Parrotte’s statement
to the court that he is “deeply sorry for this whole ordeal[, and] … trying to
better [him]self,” id.; and (4) proceeded to again impose three consecutive
terms of incarceration, which were the statutory maximum sentences
permitted, id. at 4-5.
Though the sentencing court’s stated reasons for imposing a sentence
in excess of the sentencing guidelines were not prolix, the court was not
required to provide a highly detailed statement. See Hunzer, supra. At
the original sentencing hearing, the sentencing court adequately informed
Parrotte of the reasons why the court deemed it appropriate to exceed the
sentencing guidelines, including Parrotte’s extensive criminal history, the
9
Prior to imposing sentence, the sentencing court also considered the
testimony of the Sexual Offenders Assessment Board evaluator, Dr. Allan
Pass, who stated that Parrotte (1) had a substantial criminal history,
extending back to when he was thirteen-years-old, N.T., 6/6/13, at 12-14;
(2) exhibited “behavior [that] constitutes a pattern of disregard for and
violation of the rights of others[,]” id. at 14; and (3) has been only
sporadically employed, id.
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“horrific” nature of the crime, the danger Parrotte posed to the community,
Parrotte’s risk for recidivism, and the court’s consideration of the PSI.
Pursuant to 42 Pa.C.S.A. § 9721(b), the record reflects that the sentencing
court fashioned a sentence that took into account the protection of the
public, the impact that the heinous crime had on the life of the victim and on
the community, and Parrotte’s rehabilitative needs.
We acknowledge that the record supports Parrotte’s claim that the
court never referenced the applicable sentencing guidelines on the record,
either at the original sentencing hearing or the resentencing on remand.
See Brief for Appellant at 36. However, it is well established that “[a]
sentencing court is not required to recite on the record the guideline
sentencing range, as long as the record demonstrates the court’s recognition
of the applicable sentencing range and the deviation of sentence from that
range.” Commonwealth v. Perry, 32 A.3d 232, 235 n.7 (Pa. 2011).
[W]hen deviating from the sentencing guidelines, a trial judge
must indicate that [s]he understands the suggested ranges.
However, there is no requirement that a sentencing court must
evoke “magic words” in a verbatim recitation of the guidelines
ranges to satisfy this requirement. Our law is clear that, when
imposing a sentence, the trial court has rendered a proper
“contemporaneous statement” under the mandate of the
Sentencing Code so long as the record demonstrates with clarity
that the court considered the sentencing guidelines in a rational
and systematic way and made a dispassionate decision to depart
from them. … When the record demonstrates that the
sentencing court was aware of the guideline ranges and contains
no indication that incorrect guideline ranges were applied or that
the court misapplied the applicable ranges, we will not reverse
merely because the specific ranges were not recited at the
sentencing hearing.
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Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002) (citations,
paragraph breaks, and some quotation marks omitted); see also Ventura,
supra (stating that where a sentencing court is informed by a PSI, it is
“presumed that the court is aware of all appropriate sentencing factors,
which includes the applicable sentencing guidelines).
Contrary to Parrotte’s assertion, there is no indication in the record
that the sentencing court was unaware of the guideline ranges or misapplied
them (aside from the above-discussed issue concerning the proper grading
of the EWOC count, which the court remedied on remand). See Griffin, 804
A.2d at 8 (rejecting the defendant’s claim that the sentencing court abused
its discretion in sentencing defendant above and outside of the sentencing
guidelines, by failing to indicate that the judge had any understanding of the
applicable guideline range, where (1) the court stated that it had considered
the defendant’s PSI, which included a Guideline Sentence Form; and (2) the
record demonstrated that the sentencing court was aware of the guideline
ranges).
Finally, the Commonwealth points out that, at the resentencing
hearing, Parrotte’s counsel never (1) “object[ed] to the abbreviated
hearing”; (2) “asked for new guideline [sentencing] forms to be prepared”;
and (3) “requested the trial court [to] veer from its original decision to
impose statutory maximum terms of incarceration at Counts 4, 5, and 6[,]
to run consecutively.” Commonwealth’s Brief at 20. These assertions are
supported by the record. Accordingly, Parrotte’s challenge to the lack of
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stated reasons at the resentencing hearing does not entitle him to relief.
See, e.g., Griffin, 804 A.2d at 8 (where the defendant complained that the
sentencing court had failed to consider the sentencing guidelines prior to
imposing sentence, stating that if the defendant “wanted the trial judge to
recite the applicable ranges in open court, counsel was afforded the
opportunity to request him to do so[,]” but never did).10
Based upon the foregoing, we discern no abuse of discretion by the
sentencing court in imposing a sentence in excess of the aggravated range,
nor do we determine that the court’s decision to depart from the sentencing
guidelines was unreasonable. See Smith, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
10
However, we caution the sentencing court that, in sentencing a defendant
(particularly where the sentence exceeds the aggravated range of the
guidelines), the court should at least mention that it had considered the
applicable guidelines, and state its reasons for deviating from those
guidelines. See Griffin, 804 A.2d at 8 (stating that “[w]e do caution the
trial court … that it is preferable to articulate the applicable ranges, as well
as the reasons for deviating from them.”); see also Scassera, supra(stating that a “sentencing court must consider the sentencing guidelines,
and the consideration must be more than mere fluff.”) (emphasis omitted).
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