Com. v. Hurd, J.

J-S81038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER RAE HURD :
:
Appellant : No. 1041 MDA 2018
Appeal from the Judgment of Sentence Entered April 16, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000254-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 26, 2019
Appellant, Jennifer Rae Hurd, appeals from the judgment of sentence
entered in the Court of Common Pleas of Adams County after she pleaded
guilty to Driving Under the Influence of Alcohol (“DUI”), highest rate of
alcohol, in violation of 75 Pa.C.S.A. § 3802(c). Herein, she challenges the
discretionary aspects of her sentence. We affirm.
The pertinent facts and procedural history are as follows:
On September 19, 2017, Appellant appeared before [the trial
court] and entered a plea of guilty to amended count 2 of the
criminal information, DUI, highest rate of alcohol in violation of §
3802(c) of the Vehicle Code as a misdemeanor of the first degree
and third offense for mandatory sentencing purposes. In
accordance with 75 Pa.C.S.a. § 3804(c)(3), Appellant faced a
twelve month mandatory minimum sentence. Appellant’s plea
was pursuant to a plea agreement which recommended a
sentence of sixty months county intermediate punishment with
twelve months[’] restrictive intermediate punishment. During the
plea colloquy [the trial court] explained to the Appelalnt tha the
twelve months of restrictive punishment consisted of eight months
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S81038-18
at the Adams County Work Release Facility and four months on
electronic monitoring, house arrest.1 Sentence was scheduled for
November 16, 2017, to allow Appellant to undergo an assessment
to determine her eligibility for an intermediate punishment
sentence.
1 The Adams County Intermediate Punishment Plan, effective
January 1, 2015, sets forth a recommendation that the restrictive
period will be divided two thirds at the Adams County work release
facility and one-third house arrest with electronic monitoring.
On November 14, 2017, sentencing counsel for Appellant filed a
Sentencing Memorandum requesting [that the trial court] impose
an intermediate punishment sentence with a minimal amount of
jail time and a lengthy period of time on house arrest, based on
Appellant’s medical issues. Appellant required surgery for a total
hip replacement of her right hip and Appellant was also being
treated for multiple sclerosis. Appellant’s treatment for multiple
sclerosis included specific required medication. Appellant’s
counsel confirmed that the medical provider at the Adams County
Adult Correctional Complex could provide Appellant with her
prescribed medication if incarcerated at the Adams County Adult
Correctional Complex. [The trial court] also received and
reviewed supplemental character letters to the Sentencing
Memorandum, also dated November 14, 2017.
On November 1, 2017, at the request of Appellant with no
objection from the Commonwealth, sentence was continued until
April 16, 2018 to afford Appellant the opportunity to undergo hip
replacement surgery prior to sentence.
On April 16, 2018, Appellant appeared with sentence counsel for
sentence. Appellant filed a Supplemental Sentencing
Memorandum with [the trial court] on April 11, 2018, which
provided information [to the trial court] concerning Appellant’s
diagnosis of multiple sclerosis. Prior to sentence it was confirmed
that Primecare Medical, the medical provider for Adams County
Adult Correctional Complex, would provide the necessary
medication to Appellant concerning her treatment for multiple
sclerosis. During the sentencing hearing Appellant’s counsel
advised [the trial court] that other than multiple sclerosis,
Appellant was not dealing with any medical issues at that time,
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but had not undergone surgery for the hip replacement.
Appellant’s counsel requested a restrictive intermediate
punishment sentence with more time on house arrest and a lesser
period of incarceration at the work release facility of the Adams
county Adult Correctional Complex. This request was based on
Appellant’s medical issues and Appellant’s employment in
Lancaster County. [The trial court] sentenced Appellant to sixty
months intermediate punishment with 12 months’ restrictive
intermediate punishment, [the latter consisting of] eight months
at the Adams County Adult Correctional Complex work release
facility and four months on house arrest with electronic
monitoring.
On April 25, 2018, Kaitlyn Clarkson, Esquire entered her
appearance on behalf of Appellant. On April 26, 2018, Appellant
filed a Petition for Bail After Finding of Guilt Pursuant to
Pa.R.Crim.P. Rule 521, and a Motion to Modify Sentence. On May
30, 2018, [the trial court] granted Appellant’s Petition for Bail
After Finding of Guilt Pursuant to Pa.R.Crim.P. 521 and denied
Appellant’s Motion to Modify Sentence. On June 22, 2018,
Appellant filed her Notice of Appeal. By Order of Court dated June
25, 2018, [the trial court] directed Appellant to file a Concise
Statement of Matters Complained of on Appeal. Appellant timely
filed her Concise Statement on July 5, 2018.
Trial Court Opinion, 8/2/18, at 1-3.
Appellant presents one question for our consideration:
[Where] Hurd suffers from multiple sclerosis, COPD, and
degenerative disk disease, and requires hip surgery and a nose
reconstruction[, did] the trial court sentence [her] excessively in
ordering her to serve eight months in the Adams County
Correctional Complex [as part of the initial 12-month restrictive
setting portion of her 60-month IPP sentence]?
Appellant’s brief, at 4.
This Court has held:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to appellate review as of right. Prior to
reaching the merits of a discretionary sentencing issue:
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J-S81038-18
[w]e conduct a four part analysis to determine: (1)
whether 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 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. § 781(b).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or raised
in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some
citations and punctuation omitted).
The Rule 2119(f) statement
must specify where the sentence falls in relation to the sentencing
guidelines and what particular provision of the Code is violated
(e.g., the sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or double-
counted factors already considered). Similarly, the Rule 2119(f)
statement must specify what fundamental norm the sentence
violates and the manner in which it violates that norm....
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is sought,
in contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Id.Here, Appellant timely appealed, preserved the issue in her post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief. See
Evans, 901 A.2d at 533. Further, Appellant asserts in her Rule 2119(f)
statement that she raises a substantial question that her sentence of
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J-S81038-18
incarceration was inappropriate where she claims the trial court failed to
consider her individual circumstances consisting of a disabling medical
diagnosis and her resultant need for nearly continuous physical assistance.
Even if we assume arguendo that Appellant’s claim raises a substantial
question, we observe that:
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. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008) (citation
omitted). “Where pre-sentence reports exist, we shall . . . presume that the
sentencing judge was aware of relevant information [contained therein] and
weighed those considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Moreover, a
challenge to a standard range sentence must show the sentence is “clearly
unreasonable” based on the circumstances of the case. Commonwealth v.
Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011).
Here, the record confirms both the existence of a presentence
investigation report and the court’s repeated inquiry into Appellant’s medical
condition, as it asked both parties for pertinent medical updates and otherwise
articulated an awareness of her condition. N.T. 4/16/18, at 2-6. The court
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J-S81038-18
thereafter imposed a standard range sentence, to which Appellant filed a
motion for reconsideration of sentence. Again, at the hearing on Appellant’s
motion, the court demonstrated a consideration of the sentencing guidelines,
sentencing alternatives, and the likelihood that Appellant would receive
adequate attention to her needs in a medical facility at the prison. N.T.
5/15/18, at 11-13.
Given this record, we discern no merit to Appellant’s contention that the
court failed to give reasonable consideration to her individual medical needs
as they related to a sentence of incarceration. To that end, we adopt the trial
court’s rationale as expressed on pages 5-7 of its Pa.R.A.P. 1925(a) Opinion.
Accordingly, Appellant’s challenge to the discretionary aspects of her sentence
fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/26/2019
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Circulated 02/01/2019 09:12 AM
_IN·THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CRIMINAL ··· .-,...
COMMONWEAL TH OF PENNSYLVANIA CP-01-CR-254-2017
vs.
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. JENNIFER RAE HURD c-,
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63 A.2d 495, 510 (Pa. s'tJper. 2008) (citing
Commonw\alth v. MbAfee, &49 A.2d 270, 274 (Pa. Super. 2004}). Pennsylvanta Rule
{1_ t\ . ·. · . , .:,. . '. -·_-_-. -_ - _ ·J:1 f,,_
of Appellat� Procedure 2119(f) states "[a]n appellant who challerlges the discretionary
3
aspects 'of a sentence in a criminal matter shall set forth in a separate section 1:0f the
brief a concise statement of the reasons relied upon for. allowance of appeal with
respect to the discretionary aspects of a sentence." Pa.R.A.P. 2119(f). "Allowance of
appeal may be granted at the discretion of the appellate court where it appears that
there is a substantial question that' the sentence imposed is not appropriate under this
chapter." 42 Pa.C.S.A. § 9781(b). A substantial question exists "'only when the
appellant advances a colorable argument that the sentencing judge's actions were
either: (1) Inconsistent with the specific provisions of the Sentencing Code or (2)
contrary to the fundamental norms which underlie the sentencing process."
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (quoting
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)).
In deterrnlnlnq whether the trial court committed an abuse of discretion in
imposing sentence, the standard of review is well settled:
Sentencing is a matter vested in the sound discretion of the sentence
judge, and a sentencing will not be dlstorbed 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. Shugars, 895 A.2d 1270, 1275 (Pa. Su'per. 2006) (citation omitted).
As the sentence at issue is a "standard rarlge" sentence, the sentence must be shown
to be "clearly unreasonable'' based on the Bircumstances of-the case. Commonwealth
v. Coulverson, 34 A.3d 135, 146 (Pa. Super. 2011).
DISCUSSION
In her concise statement, Appellant argues "the Court erred in giving Ms. Hurd an
excessive sentence for her individual circumstances. Ms. Hurd suffers from multiple·
. disk disease. She also 'requires
sclerosis, COPD and degenerative .
hip surgery and a
nose reconstruction. Ms. Hurd has fallen multiple times due to her MS, and broken
multiple bones from these falls. One of these falls broke her nose, and is the reason she
now requires a nose reconstruction."
Based on Appellant's guilty plea to DUI, highest, rate of alcohol in violation of
§3802(c) of the Vehicle Code as a third offense for mandatory sentencing purposes, this
Court was mandated to impose a twelve month mandatory minimum sentence in
accordance with 75 Pa. C.S.A. § 3804(c)(3). Therefore. in accordance with 42 Pa.
C.S.A. § 9721(a) this Court had t�e authority to impose a total confinement sentence, a
state intermediate punishment sentence, or a county intermediate punishment
sentence. This Court agreed to accept the plea recommendatlon In this matter and
imposed the least restrictive sentence possible given· the twelve month mandatory
minimum sentence required in this case.
This Court reviewed sentencing counsel's Sentencing Memorandum,
supplemental character letters to Sentencing Memorandum and Supplemental
Sentencing Memorandum prior to imposing sentence on April 16, 2018. This Court
listened to the comments of Appellant's counsel and the Commonwealth prior to
imposing sentencing and afforded Appellant an opportunity to provide comment.
First, it is important· to keep in mind that Appellant has not 'appealed the legality
of her sentence. Rather, she seeks to challenge the dlscretlonary portions of her
5
sentence. The mandatory minimum sentence imposed in this case was mandated by
statute. The sentence imposed was pursuant to a plea agreement between the
Commonwealth and Appellant. One who pleads guilty and receives a negotiated
'
sentence may not then seek discretionary review of that sentence. Commonwealth v.
Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994). Furthermore, the Pennsylvania Superior
Court· "has held on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question ... " Commonwealth v. Disalvo,
70 A.3d 900, 903 (Pa. Super, 2013) (internal quotations omitted) (citation omitteo).
Therefore It is questionable \Yhether Appellant possesses a legal basis to attack the
discretionary portion of her sentence, given that sentence was imposed pursuant to a
plea agreement and Appellant's argument is based on, a claim of "inadequate
consideration of mitigating factors."
Regardless, Appellant falls to set forth any specific provisions of the sentencinq
code or fundamental norms ur,,derlying the sentencing process which the trial court has
allegedly violated in imposing sentence. Such a failure precludes a review of the merits
that the sentence was excessive. Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa.
Super. 2007); CommonwealtJ} v, Ladamus, 896 A.2d 592, 596 (Pa. Super. 2006).
The lack of a substa�tial question is confirmed by a review of the circumstances
underlying Appellant's sentence. Prior to imposing sentence, this Court Indicated review
and reliance on the information in sentencing counsel's Sentencing Memorandum,
supplemental character letters to Sentencing Memorandum and Supplerpental
Sentencing Memorandum. This Court listened to the comments of counsel and afforded
Appellant the opportunity to provide this Court with comment. Thus, prior to imposing
6
sentence, this Court was armed with, and considered, the relevant information
contained within sentencing counsel's memorandums and the comments of counsel.
This Court took into account Appellant's medical issues and even afforded Appellant a
five month continuance of sentence to allow Appellant to deal with her medical issues.
This Court took into account the ability of the Adams County Adult Correctional
Complex to handle Appellant's medical issues, and provide proper medication
concerning such medical issues. This Court also considered Appellant's request to
serve a much greater portion of the restrictive intermediate punishment on house arrest
in Lancaster County for employment purposes. This Court considered the fact that this
was Appellant's third DUI conviction within a short period of time and that Appellant
committed this offense while awaiting trial and/or sentence on two other DUI offenses.
As evidenced by the discussion above, this Court considered the factors listed in
§ 9721(b) when fashioning .Appellant's sentence. As such, Appellant's sentence was not
"manifestly unreasonaote, or the result of pcirtiality, prejudice, bias or ill will." Therefore,
this Court respectfully requests Appellant's Judgment of Sentence be affirmed.
BY THE COURT,
�c_W�
Date: August 2, 201 a SHAWN C. WAGNER
Judge
KelleyL. Margetas, Esquire
' C?istribution s'�\
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Kaltlyh S. Clarkson, Esquire Original . /O\&..<'
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Kelley L. Margetas, E�quire� eJ�,<...,
Kaitlyr:i S. Clarkson, �squire LJi;�"-
Court Administrator - J.1 ( �, e, .
Adams County Legal/Journal -Lt�.�"l...
District & County Reports Q.ff\.,� \
Media Copy 6.J. c. ,.