Com. v. Rompilla, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JONATHAN ROMPILLA :
:
Appellant : No. 460 EDA 2021
Appeal from the Judgment of Sentence Entered December 10, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000795-2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 28, 2022
Jonathan Rompilla appeals from the judgment of sentence imposed
following his guilty plea to attempted homicide.1 Rompilla argues the trial
court imposed an excessive sentence without adequate consideration of
mitigating factors. For the reasons that follow, we affirm.
Rompilla was charged with attempted homicide, aggravated assault and
terroristic threats stemming from an incident in which Rompilla threatened to
kill his wife, stabbed her twice in the abdomen, and hit her in the face with a
small hammer. On October 23, 2020, Rompilla entered a guilty plea to
attempted homicide, and in exchange, the Commonwealth withdrew the
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* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 901(a).
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remaining charges. The parties did not agree to a fixed sentence, but agreed
that the maximum sentence would be 10 to 20 years in prison. See N.T.,
Guilty Plea, 10/23/20, at 3. The assistant district attorney informed the court
that Rompilla had a prior record score of one, and the offense gravity score
for attempted murder was 13. See id. Applying the deadly weapon used
enhancement, the sentencing guidelines recommended a standard-range
sentence of 84 to 102 months. See id.; see also 204 Pa. Code § 303.17(b).
The trial court deferred sentencing for preparation of a pre-sentence
investigation report (“PSI”).
The trial court conducted a sentencing hearing on December 10, 2020.
The assistant district attorney noted that the sentencing guidelines form
identified the offense gravity score as 14, rather than 13.2 See N.T.,
Sentencing, 12/10/20, at 8. The assistant district attorney explained that the
discrepancy was the result of the domestic violence enhancement,3 which
became effective approximately one week prior to the assault. See id. at 8-
9; see also id. at 9 (wherein the assistant district attorney stated, “Frankly,
that hadn’t been contemplated at the time of the plea agreement, so we had
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2Applying the deadly weapon used enhancement for an offense gravity score
of 14, the sentencing guidelines recommend a standard-range sentence of
102 months to the statutory limit. See 204 Pa. Code § 303.17(b).
3 See 204 Pa. Code § 303.10(h) (providing that when an enumerated offense
is committed against a family or household member, the offense gravity score
assignment will be increased by one point).
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been discussing the range as being an offense gravity score of 13.”). However,
the assistant district attorney stated that the change would not affect the
Commonwealth’s sentencing recommendation, as the Commonwealth would
be requesting the maximum sentence. See id. at 9. The trial court sentenced
Rompilla to a term of 10 to 20 years in prison, with credit for time served,
plus the costs of prosecution and restitution in the amount of $3,327.88 for
his wife’s medical bills.
Rompilla filed a timely motion to reconsider his sentence, which the trial
court denied. Rompilla filed a timely notice of appeal and a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
In his sole issue on appeal, Rompilla argues that the trial court imposed
an excessive sentence without proper consideration of the “unusual
occurrence” during the guilty plea.4 Appellant’s Brief at 8. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted). Rather, an appellant must invoke this Court’s jurisdiction. See
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4 Because the parties did not bargain for a specific sentence when negotiating
the guilty plea, Rompilla is not precluded from challenging the discretionary
aspects of his sentence on appeal. Commonwealth v. Heaster, 171 A.3d
268, 271 (Pa. Super. 2017) (concluding that appellant could challenge the
discretionary aspects of his sentence after entering a “hybrid” guilty plea, i.e.,
a plea that negotiated a particular aspect of the sentence but did not include
a sentencing agreement).
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
We conduct a four-part analysis to determine: (1) whether the
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 the 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).
***
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Rompilla preserved his issue through a timely post-sentence
motion to reconsider his sentence and filed a timely notice of appeal. Rompilla
also included a separate Rule 2119(f) statement in his appellate brief,
asserting the trial court had imposed a harsh and excessive sentence, failed
to set forth its reasons for imposing the statutory maximum sentence, and
failed to consider the confusion over applying the correct offense gravity score
as a mitigating factor. See Appellant’s Brief at 7. We conclude Rompilla has
raised a substantial question for our review, and we proceed to the merits of
Rompilla’s sentencing challenge. See Commonwealth v. Caldwell, 117 A.3d
763, 770 (Pa. Super. 2015) (en banc) (stating, “[t]his Court has [] held that
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an excessive sentence claim—in conjunction with an assertion that the [trial]
court failed to consider mitigating factors—raises a substantial question.”
(citing Commonwealth v. Raven, 97 A.3dd 1244, 1253 (Pa. Super. 2014));
Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003) (concluding
that the appellant’s claim that the trial court did not adequately state its
reasons for imposing the sentence raised a substantial question).
We review discretionary sentencing challenges with great deference to
the sentencing court:
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. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted).
“In every case in which the court imposes a sentence for a felony … the
court shall make as a part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). “In considering these factors,
the court should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citation omitted). The trial
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court must also consider the sentencing guidelines. See 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] court is
required to consider the sentence ranges set forth in the Sentencing
Guidelines….”). Moreover, where, as here, the trial court has the benefit of a
PSI, “we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Moury, 992 A.2d at 171 (internal quotation
marks and citation omitted).
Instantly, the sentence imposed for attempted homicide is within the
standard range of the sentencing guidelines based upon an offense gravity
score of 14 for the domestic violence enhancement and application of the
deadly weapon used enhancement. See 204 Pa. Code § 303.17(b). The
sentence is also within the maximum contemplated by the parties during plea
bargaining, despite the change in Rompilla’s offense gravity score. Therefore,
we may only vacate Rompilla’s sentence if “the case involves circumstances
where the application of the guidelines would be clearly unreasonable.” 42
Pa.C.S.A. § 9781(c)(2); see also Moury, 992 A.2d at 171.
During the sentencing hearing, the trial court heard testimony from
Rompilla’s wife regarding the effects of the injuries she sustained. See N.T.,
Sentencing, 12/10/20, at 14-16 (wherein Rompilla’s wife described her
hospital stay, the exploratory surgery requiring 55 staples, permanent nerve
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damage, and more than a month of missed work). Rompilla’s wife also stated
she found various weapons when she recovered her vehicle; Rompilla had
taken or destroyed several items of sentimental value to her; and Rompilla
had told their sons that he did not care if he saw them again after the divorce.
See id. at 17. The Commonwealth introduced into evidence a handwritten
note, found on Rompilla’s person at the time of his arrest, stating, “There will
be no more struggling, your [sic] going to die, say goodbye! You pissed me
off enough to the point of no return, caused me to do this with fun & games.”
Id. at 20-21; see also Commonwealth’s Exhibit 8.
In response, Rompilla’s counsel discussed the confusion regarding the
offense gravity score and other mitigating factors. See N.T., Sentencing,
12/10/20, at 26-29. Rompilla exercised his right to allocution and apologized
to his wife.5 See id. at 30-31.
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5 Despite apologizing and purporting to take full responsibility for his actions,
Rompilla also stated that he “didn’t mean to stab her.” N.T., Sentencing,
12/10/20, at 33. What is more, the following exchange took place between
the trial court and Rompilla:
[The Court]: Okay. And not only did you have a knife, but you had
a letter that talked about not wanting to live anymore, you had a
letter that talked about her conduct, and you had some other
things that could have been used as weapons.
[Rompilla]: That’s an anger issue.
[The Court]: It is an anger issue.
(Footnote Continued Next Page)
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The trial court, prior to imposing the sentence, explained that it had fully
considered the PSI, the sentencing guidelines, the statement presented by
Rompilla’s wife, Rompilla’s statements and arguments by both counsel. See
id. at 41. The court also acknowledged that the parties had anticipated an
offense gravity score of 13. See id. at 42. The record therefore reflects that
the trial court was aware of all relevant sentencing factors. Further, we cannot
conclude that Rompilla has established the 10- to 20-year sentence was
unreasonable under these circumstances.
As we find Rompilla’s sole issue on appeal merits no relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
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[Rompilla]: Yeah.
[The Court]: It is an anger issue.
[Rompilla]: Well, there you go.
Id. at 33-34.
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