Com. v. Ferguson, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KYLA FERGUSON :
:
Appellant : No. 688 WDA 2020
Appeal from the Judgment of Sentence Entered June 5, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at No(s):
CP-02-CR-0009264-2018
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 14, 2021
Kyla Ferguson appeals from the judgment of sentence imposed
following her guilty plea to Endangering the Welfare of a Child.1 The child at
issue was her own child, and the trial court ordered as a condition of her
probation that she have no contact with that child. On appeal, she argues
that the condition is unconstitutional and an abuse of discretion. She also
challenges her prison sentence as excessive. We affirm.
Ferguson, a 24-year old mother who is currently pregnant with
her fourth baby, pled guilty to endangering the welfare of her
third child. At only two (2) months old, the victim, a six-week
premature baby named K.A., experienced repeated abuse during
its short few weeks of life, and, because of [Ferguson’s]
indifference and failure to seek prompt medical attention, the
newborn nearly died from injuries that involved bone fractures
and brain bleeds. Authorities became involved only when a
hospital physician with the Child Advocacy Center contacted the
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1 18 Pa.C.S.A. § 4304(a)(1).
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Homicide Unit because “they believed this child was going to
die.” N.T. Sentencing, 6/5/20, at 15-16.
At [Ferguson’s] plea hearing held on March 10, 2020, the
Commonwealth supplemented the information contained in the
affidavit of probable cause with the “names of individual
witnesses who the Commownealth would have called [if] we
[had] proceed to trial”:
[Debra Pfeifer] the Allegheny County Children, Youth and
Families caseworker who investigated the injuries and the
incident in this case. The Commonwealth also would have
called [Michelle Scott] from the Maternal Health Program.
The Commonwealth would have called her because she
was one of the in-home workers from that program who
was present on June 14, 2018 and who observed the
child’s injuries which necessitated immediate emergency
medical intervention.
The Commonwealth would have also called Samantha
Thomas . . . who was from the same Maternal Health
Program. The Commonwealth would have called her for
the same purpose specifically. However, Ms. Thomas would
have testified that she was the individual who picked the
child up from the Rock-N-Play and it was immediately
apparent to her that the child necessitated emergency
medical intervention.
. . . [T]he Commonwealth would have called multiple
witnesses from the victim’s primary care office and . . .
multiple individuals from Children’s Hospital of UPMC of
Pittsburgh that observed the child and/or provided medical
care to the child in the emergency and trauma rooms. . . .
N.T. Plea Hearing, 3/10/20, at 4-5.
Trial Ct. Op., at 6-7 (emphasis and some record citations omitted; record
citation formatting altered).
At the June 5, 2020 sentencing hearing, the court heard from Zoie
Martin, a forensic social worker with the Office of the Public Defender, who
testified as to Ferguson’s history and personal characteristics and heard a
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copy of a recording of the 911 call made by Ferguson. The court also
considered a presentence investigation report (PSI) and the sentencing
guidelines, as well as the parties’ sentencing memoranda and Ferguson’s
allocution. The court then imposed a standard range guideline sentence of
16 to 32 months of incarceration followed by five years of probation. A no-
contact condition of probation prohibited Ferguson from having contact with
the victim, her child, without court approval. The court also required
Ferguson to undergo a mental health evaluation and complete any
treatment, as well as continuing parenting classes.
Ferguson filed a post-sentence motion requesting that the court
modify the sentence and the no-contact condition, which the court denied.
This timely appeal followed.
Ferguson raises three questions on appeal.
I. Whether the trial court’s imposition of the probation
condition that [] Ferguson have no contact with K.A.
impermissibly infringes on [] Ferguson’s parental and due
process rights under both the United States and
Pennsylvania Constitutions?
II. Whether the trial court abused its discretion by imposing
as a condition of probation that [] Ferguson have no
contact with K.A., as such a condition was unreasonable,
manifestly excessive, and contrary to the factors set forth
under 42 Pa.C.S. § 9721(b), and the Sentencing Code
generally?
III. Whether the trial court abused its discretion by imposing a
term of incarceration which was unreasonable, manifestly
excessive, and contrary to the factors set forth under 42
Pa.C.S. § 9721(g) and the Sentencing Code generally?
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Ferguson’s Br. at 5.
In her first issue, Ferguson claims that the no-contact condition of her
probation infringes upon her fundamental right to parent her child.
Ferguson’s Br. at 18. Ferguson raises this issue for the first time on appeal.
Therefore, we must determine whether her claim is a challenge to the
legality of her sentence, or to the discretionary aspects of her sentence. “[A]
challenge to the legality of the sentence cannot be waived, but a challenge
to the discretionary aspects can.” Commonwealth v. Starr, 234 A.3d 755,
759, 764 (Pa.Super. 2020), appeal denied, 243 A.3d 724 (Pa. 2020)
(citation omitted).
The Pennsylvania Supreme Court has noted that “in the issue
preservation realm, that the question whether a claim implicates the legality
of a sentence presents a pure question of law.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014) (citation and quotation marks
omitted). “[I]f the sentence clearly implicates the legality of sentence,
whether it was properly preserved below is of no moment, as a challenge to
the legality of sentence cannot be waived.” Commonwealth v. Dickson,
918 A.2d 95, 99 (Pa. 2007) (citation omitted); see Commonwealth v. Hill,
238 A.3d 399, 407 (Pa. 2020) (“an appellate court can address an
appellant’s challenge to the legality of his sentence even if that issue was
not preserved in the trial court”).
The Commonwealth argues that because Ferguson is challenging the
constitutionality of a condition of probation, her claim involves the
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discretionary aspects rather than the legality of her sentence. See
Commonwealth’s Br. at 6-7. Specifically, it contends that claims involving
no-contact conditions of probation implicate the discretionary aspects of a
sentence. See id. (citing Commonwealth v. Dewey, 57 A.3d 1267(Pa.Super. 2012) and Commonwealth v. Houtz, 982 A.2d 537 (Pa.Super.
2009)). The Commonwealth asserts that even though this concerns a
fundamental right, based on prior decisions in this Court, we should still
consider it as challenging the discretionary aspects of Ferguson’s sentence.
See Commonwealth’s Br. at 7 (arguing that in Commonwealth v. Fenton,
750 A.2d 863, 867 (Pa.Super. 2000), “this Court has even construed a
constitutional challenge to a condition of probation that implicates a
fundamental right as a challenge to the discretionary aspects of a
sentence”).
Ferguson argues that the no-contact condition violated her rights
under both the United States and Pennsylvania Constitutions; therefore, a
challenge to that condition constitutes a challenge to the sentence’s legality
not the court’s exercise of discretion. See Ferguson’s Reply Br. at 4-5. She
contends that because she specifically raised it as a legality of sentence
claim, it does not implicate the discretionary aspects of her sentence.
Ferguson distinguishes her case from this Court’s decisions in Dewey and
Houtz because in those cases the no-contact conditions were raised as
challenges to the discretionary aspects of the sentence. See Ferguson’s
Reply Br. at 2. Ferguson agrees that in Fenton this Court analyzed the no-
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contact provision on discretionary grounds. She then accurately points out
that the Court continued the analysis on constitutional grounds without
suggesting it was waived. See id. at 3.
The term “illegal sentence” is a term of art that our courts apply
narrowly to a relatively small class of cases. Starr, 234 A.3d at 764.
Legality of sentence issues occur generally either: (1) when a
trial court’s traditional authority to use discretion in the act of
sentencing is somehow affected and/or (2) when the sentence
imposed is patently inconsistent with the sentencing parameter
set forth by the General Assembly. Most other challenges
implicate the discretionary aspects of a sentence, even though
the claim may involve a legal question, a patently obvious
mathematical error, or an issue of constitutional dimension.
Id. at 765 (citations and quotation marks omitted).
A challenge to the way that a trial court fashions a condition of
probation involves a matter under the trial court’s jurisdiction under the
Sentencing Code, 42 Pa.C.S. § 9754(b), and generally constitutes a
challenge to the discretionary aspects of a sentence rather than to its
legality. See Starr, 234 A.3d at 765. “Conversely, where the challenge
involves a question of whether a trial court exceeded its legal authority
under a statute to order a probation condition, our Supreme Court has
classified the challenge as a legality of sentence issue.” Id.
In Starr, this Court considered whether the appellant raised a
challenge to the legality of his sentence or the discretionary aspects of his
sentence when he claimed that his right to free speech was violated by a
condition of probation banning him from using the internet. See id. at 764.
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We concluded that the issue involved “a legal question of whether the trial
court abused its discretion in fashioning an overbroad condition that runs
afoul of constitutional rights” and did “not present a legality-of-sentence
issue involving the trial court’s imposition of a sentence that exceeds its
statutory authority.” Id. at 765.
Here, similarly, we conclude that Ferguson’s first issue presents a legal
question of whether the court abused its discretion in imposing an overbroad
condition that infringes on Ferguson’s constitutional rights. See id. Fenton
is not to the contrary. There, the appellant presented his challenge to the
probation condition as a question of an illegal sentence. However, we
concluded that it went to discretionary aspects of sentencing. See Fenton,
750 A.2d at 867 n.4. It is true that we did not question the preservation of
the issue, but it appears no such question arose. Accordingly, we agree with
the Commonwealth that this issue challenges discretionary aspects of
sentencing, and Ferguson waived it by failing to raise it before the trial
court.
In her second issue, Ferguson claims that the trial court abused its
discretion when it imposed a no-contact condition of probation barring
Ferguson from any contact with the victim, her daughter. 2 She agrees that
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2 We note that although Ferguson’s challenge to the constitutionality of the
no-contact provision is waived; she has not waived her challenge to the
condition as an abuse of the sentencing court’s discretion. This she properly
(Footnote Continued Next Page)
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this argument challenges discretionary aspects of her sentence. There is no
absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en
banc). Rather, we follow a four-part analysis before addressing a challenge
to discretionary aspects of sentence. We must determine whether the
appellant: (1) filed a timely notice of appeal; (2) properly preserved the
sentencing issue at sentencing or in a motion to reconsider or modify
sentence; (3) included in the appellate brief a Pa.R.A.P. 2119(f) statement;
and (4) has asserted a substantial question that the sentence is not
appropriate under the Sentencing Code. See Commonwealth v. Austin, 66
A.3d 798, 808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b). “[I]f the appeal
satisfies each of these four requirements, we will then proceed to decide the
substantive merits of the case.” Id. (citation omitted).
Ferguson’s appeal is timely, she preserved her issue in a post-
sentence motion, and her brief includes a Rule 2119(f) statement. We must
now determine whether she has presented a substantial question. “A
substantial question exists only 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.”
(Footnote Continued) _______________________
preserved in her post-sentence motion and has brought before this Court in
her second issue.
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Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.Super. 2013) (citation
omitted).
Ferguson argues that the no-contact condition of probation “violated
the Sentencing Code’s requirement that such conditions relate to
rehabilitation and not be unduly restrictive of liberty.” Ferguson’s Br. at 25.
This raises a substantial question. See Commonwealth v. Koren, 646 A.2d
1205, 1208 (Pa.Super. 1994).
On the merits, Ferguson claims that the no-contact condition of
probation is unreasonable. She argues that the condition does not further
her rehabilitation and is not necessary to protect the rights of law-abiding
citizens. Ferguson further claims that because the no-contact condition
broadly forbids all contact with K.A., it will have a damaging impact on the
parent-child relationship and will threaten to hinder K.A.’s emotional
development. See Ferguson’s Br. at 28-29. Ferguson asserts that severing
the relationship completely does not protect K.A.’s rights and claims that
other measures such as barring unsupervised contact would create the same
result.
Additionally, Ferguson argues that the no-contact condition is not a
reasonable means of effectuating her rehabilitation. She claims that she has
already taken extensive steps to improve her ability to parent K.A. Such
efforts include completing a six-week anger management class, an eight-
week parenting class, a mental health evaluation, a drug and alcohol
evaluation, and individual and group mental health therapy, and enrolling in
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a parenting program provided through the University of Pittsburgh. See id.
at 30. She acknowledges that the court imposed the condition subject to
modification with court approval but claims that it is unclear what more she
can do.
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. See Commonwealth v. Gonzalez, 109 A.3d 711, 731
(Pa.Super. 2015). “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.” Id. (citation omitted).
The trial court has discretion to order any reasonable conditions that
are “devised to serve rehabilitative goals, such as recognition of wrongdoing,
deterrence of future criminal conduct, and encouragement of future law-
abiding conduct.” Commonwealth v. Hall, 80 A.3d 1204, 1209 (Pa. 2013).
Section 9763(b)(15) of the Sentencing Code specifically provides that the
court may attach conditions of probation reasonably related to rehabilitation.
42 Pa.C.S.A. § 9763(b)(15).
“[A] sentencing court can order a no-contact condition on probation”
as long as “that condition is reasonably calculated to aid in the defendant’s
rehabilitation.” Koren, 646 A.2d at 1209. “[T]his court has consistently held
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that no-contact conditions are neither unreasonable nor unduly restrictive of
a person’s liberty.” Id.Here, the trial court explained that it imposed the no-contact order
“prohibit[ing] contact with the child whom [Ferguson] had nearly killed with
her inactions.” Trial Ct. Op., at 14. The court explained that its intent in
imposing the condition was to ensure that Ferguson undertook and
completed mental health treatment and parenting classes, which will reduce
the danger Ferguson poses to her child and will provide incentive for
Ferguson to “fully commit to her rehabilitative efforts.” Id. at 15. The court
noted that it specifically tailored the condition and made it subject to
modification with court approval. See id.
It explained that it had not completely banned Ferguson from having
any contact with her child for the entirety of her probation.
Rather, the no-contact condition simply required [Ferguson] to
obtain court approval prior to making contact so that the court
can confirm that [Ferguson] has continued to make strides in her
rehabilitative efforts, which in turn, helps ensure the child’s
safety and well-being. Given [Ferguson’s] role in this first-degree
felony crime and the harm sustained by her baby, the probation
condition imposed was related to [Ferguson’s] rehabilitation and
the protection of the victim, and it was reasonably calculated to
aid in [Ferguson’s] rehabilitation.
Id. at 15-16.
We conclude that the trial court did not abuse its discretion. See
Gonzalez, 109 A.3d at 731. It is well-settled that while she is on probation,
Ferguson “does not enjoy the full panoply of constitutional rights otherwise
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enjoyed by those who [have] not run afoul of the law.” Koren, 646 A.2d at
1209 (citation omitted) (alteration in original). “A probation order with
conditions placed on it will to some extent always restrict a person’s
freedom.” Id. Furthermore, the no-contact provision is reasonably related to
her rehabilitation. See 42 Pa.C.S.A. § 9763(b)(15). The fact that the no-
contact condition is modifiable by the trial court, provides incentive for
Ferguson to complete the rehabilitative steps the court set forth, to engage
in mental health counseling and complete parenting classes. Accordingly, we
conclude that the no-contact condition of probation is reasonable and related
to Ferguson’s probation. Hence, the trial court did not abuse its discretion in
imposing the condition and Ferguson’s second issue does not merit relief.
In her third issue, Ferguson claims that the court abused its discretion
when it imposed a manifestly excessive sentence of 16 to 32 months of
incarceration without considering her personal history, characteristics, and
rehabilitative needs. See Ferguson’s Br. at 32. This claim again implicates
the discretionary aspects of Ferguson’s sentence. Accordingly, we must
consider whether she has met the four requirements for this Court to
consider her claim. See Austin, 66 A.3d at 808; Gonzalez, 109 A.3d at
731.
Ferguson filed a timely notice of appeal and post-sentence motion and
has included a Rule 2119(f) statement in her brief. In her Rule 2119(f)
statement, she claims that the trial court imposed a “clearly unreasonable
sentence which is manifestly excessive under the circumstances of her case”
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and that the trial court imposed “a penalty [] excessive and/or
disproportionate to the offense.” Ferguson’s Br. at 26 (citation and quotation
marks omitted). However, her post-sentence motion alleged only that the
trial court erred by “fail[ing] to consider Ferguson’s personal history,
characteristics, and rehabilitative needs” and by imposing a sentence that is
“unreasonable, manifestly excessive, and contrary to the factors set forth” in
the Sentencing Code. Post-Sentence Motion, 6/8/20, at ¶¶ 6, 7. Accordingly,
her post-sentence motion preserved her excessiveness claim, but not her
double-counting claim.
Her only preserved challenge is a flat excessiveness claim, which does
not state a substantial question that the sentence is not appropriate.
An allegation that the sentencing court failed to consider certain
mitigating factors generally does not necessarily raise a
substantial question. Commonwealth v. McNabb, 819 A.2d 54,
57 (Pa.Super.2003). Accord Commonwealth v. Wellor, 731
A.2d 152, 155 (Pa.Super.1999) (reiterating allegation that
sentencing court “failed to consider” or “did not adequately
consider” certain factors generally does not raise substantial
question). Compare Commonwealth v. Felmlee, 828 A.2d
1105, 1107 (Pa.Super.2003) (en banc) (stating substantial
question is raised, however, where appellant alleges sentencing
court imposed sentence in aggravated range without adequately
considering mitigating circumstances).
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).
Ferguson cites Commonwealth v. Malovich, 903 A.2d 1247, 1253
(Pa.Super. 2006), for the proposition that a claim that she received a clearly
unreasonable and manifestly excessive sentence disproportionate to the
offense raises a substantial question. However, there, we granted review of
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a probation violation sentence where the trial court allegedly “(1) did not
state on the record any reasons for sentence; (2) imposed total confinement
without considering or discussing the mandatory factors of 42 Pa.C.S.A. §
9771; and (3) chose a sentence that was excessive and disproportionate to
the underlying technical violations.” Id. at 1253. The Court did not hold that
a straight excessiveness claim raised a substantial question. Ferguson’s last
issue does not raise a substantial question.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2021
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