Com. v. Vanmatre, E.

J-S25022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIN KATHLEEN VANMATRE :
:
Appellant : No. 2478 EDA 2016
Appeal from the Judgment of Sentence July 12, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000523-2016
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JUNE 13, 2017
Appellant Erin Kathleen VanMatre appeals from the judgment of
sentence of twenty-four to eighty-four months of incarceration, imposed July
12, 2016, following her guilty plea to criminal conspiracy to commit robbery,
a felony in the third degree.1 We affirm.
The relevant facts and procedural history are as follows. In April
2016, Appellant entered an open guilty plea to conspiring to commit robbery
of an eighty-year-old woman. After observing the elderly woman in Rite Aid
Pharmacy, Appellant and Co-defendant William Hayhurst (“Co-defendant”)
followed the woman to her residence. When the woman’s vehicle stopped,
Co-defendant grabbed the woman’s purse and fled with Appellant. The
woman collided her car into their car in an effort to stop them. She followed
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1
18 Pa.C.S. § 903.
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their vehicle until they threw her purse out the window, with the woman’s
wallet and cash missing. See Trial Ct. Op., 9/28/2016, at 1.
After considering the pre-sentence investigation (PSI) report, the trial
court sentenced Appellant as described above on July 12, 2016. Appellant’s
motion to reconsider the sentence was denied without a hearing on July 15,
2016.
Appellant timely appealed and filed a court-ordered 1925(b)
statement. The court filed a responsive opinion.
On appeal, Appellant raises the following issue:
1. Did the trial court abuse its discretion at sentencing when the
court gave [Appellant] a sentence of twenty-four (24) to
eighty-four (84) months, which is a departure sentence where
the standard guideline range is six (6) to sixteen (16) months
with an aggravated range of up to nineteen (19) months,
without any justification for the departure?
Appellant’s Br. at 6.
Appellant raises a challenge to 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. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011);
Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007); see also
Pa.R.A.P. 2119(f). To invoke this Court's jurisdiction when challenging the
discretionary aspects of a sentence, we must consider the following four-part
test:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
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motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Instantly, we note that Appellant has complied with the first two
requirements. Appellant filed a timely notice of appeal. She preserved the
issue in her post-sentence motion to reconsider sentence. However,
Appellant has not included a 2119(f) statement in her brief. See Pa.R.A.P.
2119(f). In order to raise a challenge to discretionary aspects of sentencing,
an appellant must inter alia articulate in her Rule 2119(f) statement a
substantial question to invoke this court’s jurisdiction. Commonwealth v.
Mouzon, 812 A.2d 617, 626 (Pa. 2002); see 42 Pa.C.S. § 9781(b).
However, in light of Commonwealth’s failure to object to the statement’s
absence, we decline to deem the issue waived. Commonwealth v.
Broughter, 978 A.2d 373, 374 (Pa. Super. 2009).
Next, we address whether Appellant presents a substantial question.
“The determination of whether the particular issue raised constitutes a
substantial question is evaluated … on a case by case basis.”
Commonwealth v. Jones, 640 A.2d 914, 917 n.4 (Pa. Super. 1994) (citing
Commonwealth v. McFarlin, 587 A.2d 732 (Pa. Super. 1991) (en banc),
affirmed, 607 A.2d 730 (Pa. 1992)). 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
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the sentencing process.” Commonwealth v. Sierra, 752 A.2d 910, 912-13
(Pa. Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735
(Pa. Super. 1999) (en banc), allocatur denied, 790 A.2d 1013 (Pa. 2001)).
Here, Appellant contends that the court imposed a sentence that was
excessive and manifestly unreasonable when it imposed a sentence outside
of the sentencing guidelines. Appellant’s challenge constitutes a substantial
question. Commonwealth v. Davis, 737 A.2d 792, 798 (Pa. Super. 1999)
(“A claim that the sentencing court imposed an unreasonable sentence by
sentencing outside the guideline ranges raises a ‘substantial question’ which
is reviewable on appeal.”). Accordingly, we will proceed to address her
substantive argument.
The standard under which we review sentencing claims is well
established. 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 every case where the court imposes a sentence outside the
sentencing guidelines adopted by the Pennsylvania Commission
on Sentencing ... the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation
from the guidelines. Failure to comply shall be grounds for
vacating the sentence and re-sentencing the defendant.... The
statute requires a trial judge who intends to sentence a
defendant outside the guidelines to demonstrate on the record,
as a proper starting point, his awareness of the sentencing
guidelines. 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 he also states of record the factual basis
and specific reasons which compelled him to deviate from the
guideline range.
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When evaluating a claim of this type, it is necessary to
remember that the sentencing guidelines are advisory only. If
the sentencing court deems it appropriate to sentence outside
the guidelines, it may do so as long as it offers its reasons.
[O]ur Supreme Court has indicated that if the sentencing court
proffers reasons indicating that its decision to depart from the
guidelines is not unreasonable, we must affirm a sentence that
falls outside those guidelines..... [I]n exercising its discretion,
the trial court must consider the character of the defendant and
the particular circumstances of the offense, and must impose a
sentence that is consistent with the protection of the public, the
gravity of the offense, and the rehabilitative needs of the
defendant.
Davis, 737 A.2d at 798-99 (internal quotation marks and citations omitted).
An appellate court reviewing a departure sentence must vacate and
remand a case where it finds that the sentenced imposed is unreasonable.
42 Pa.C.S.A. § 9781(c)(3). In making a reasonableness determination, we
consider the following factors:
(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.A. § 9781(d); see Sheller, 961 A.2d at 190–91.
A court is required to consider the particular circumstances of the
offense and the character of the defendant, including her prior criminal
record, age, personal characteristics, and potential for rehabilitation.
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), cert. denied,
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545 U.S. 1148 (2005). When it is clear that the sentencing court reviewed a
PSI report, “we presume that the sentencing judge was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988).
“When imposing a sentence, the sentencing court is required to
consider the sentence ranges set forth in the Sentencing Guidelines, but it
[is] not bound by the Sentencing Guidelines.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008) (citations omitted). The court may
deviate from the recommended guidelines, if necessary, to accomplish
adequate protection of the public, address Appellant’s rehabilitative needs,
while taking into account the “gravity of the particular offense as it relates to
the impact on the life of the victim and the community.” Sheller, 961 A.2d
at 190 (quoting Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.
2001)).
The only constraints placed on the court’s discretion in
sentencing matters are that the sentence imposed must be
within the statutory limits; the record must show that the court
considered the sentencing guidelines in light of the above
balancing standard; and, if the court deviates from the
sentencing guidelines, the record must demonstrate a
contemporaneous statement of reasons for the departure. The
requirement of a contemporaneous statement explaining any
deviation from the sentencing guidelines is satisfied when the
sentencing judge states the reasons on the record in the
defendant’s presence.
Jones, 640 A.2d at 917 (internal citations omitted); 42 Pa.C.S. § 9721(b).
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In her brief, Appellant contends that the court failed to provide a
justification for the departure from the sentencing guidelines. See
Appellant's Br. 10-11. The record belies this contention.
At Appellant’s sentencing hearing, the court was cognizant that the
standard range indicated by the sentencing guidelines for conspiracy to
commit robbery was six to sixteen months and that the aggravated range
was nineteen months. See Sentencing Transcript (“S.T.”), 7/12/2016, at 2.
Nevertheless, the Commonwealth recommended a departure sentence of
thirty months. Id. Thus, the court was aware that it imposed a sentence
that exceeded the guideline range when it imposed a sentence of twenty-
four to eighty-four months.
In addition, the court considered the PSI report, which identified three
aggravating factors, which potentially justified a departure sentence,
including the nature and circumstances of this offense, a pre-planned
personal attack on an eighty-year-old elderly woman. Id. at 6; see also
PSI Report (“PSI”), 7/6/2016, at 8. Further, the court considered
Appellant’s prior record in which Appellant victimized the elderly in two prior
robberies. S.T. at 4; PSI at 7. In addition, Appellant had three misconducts
while incarcerated, demonstrating a lack of amenability to rehabilitation.
See S.T. at 5; PSI at 7-8. On the record, the court stated that Appellant
had exhibited a pattern of conduct in crimes against the elderly and had a
serious drug problem that contributed to parole violations, revocation of
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probation, and poor performance on supervision. See S.T. at 6. The court
deemed three misconducts while incarcerated and the victim’s age as
aggravating circumstances justifying the deviation from the guidelines. Id.
Nevertheless, Appellant argues that the existence of aggravating
factors are cause for a sentence within the aggravated range but do not
justify a departure from the sentencing guidelines. See Appellant's Br. at
12. We disagree.
The sentencing code gives the trial court discretion to sentence a
defendant outside of the sentencing guidelines while considering the
sentencing guidelines, the background and character of the defendant, and
the circumstances surrounding the crime. See Commonwealth v.
Lawson, 650 A.2d 876, 882 (Pa. Super. 1994). The court may consider a
crime committed against the elderly as a “substantial aggravating
circumstance” at sentencing. Id. (citing Commonwealth v. Darden, 531
A.2d 1144, 1149-50 (Pa. Super. 1987) (noting that the age of defenseless
seventy-year-old woman victim could be considered as a “substantial
aggravating factor” to justify a sentence outside the guideline ranges)).
Here, the sentencing court noted the nature and circumstances of this
crime against an eighty-year-old woman on the record at sentencing. See
S.T. at 6. The court also considered Appellant’s pattern of conduct in
personally targeting the elderly. See id. Here, Appellant had a history of
committing similar crimes against the elderly. See Lawson, 650 A.2d at
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882 (noting that the sentencing court may consider a defendant’s prior
convictions).
Based on the record, the court was cognizant that it imposed a
sentence outside of the applicable guideline range in an effort to balance the
protection of the public, the gravity of the offense, and Appellant’s
rehabilitative needs. See 42 Pa.C.S. § 9721(b); Sheller, 961 A.2d at 190–
91. The court acted reasonably in considering all of the factors identified by
Section 9781(d) given the gravity of the offense and the impact on the
community. Accordingly, we discern no abuse of discretion. Jones, 640
A.2d at 917.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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