Com. v. Adams, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TRACY ADAMS
Appellant No. 1139 EDA 2016
Appeal from the Judgment of Sentence imposed February 23, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007733-2015
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2018
Appellant, Tracy Adams, appeals from the judgment of sentence
imposed on February 23, 2016, in the Court of Common Pleas of Philadelphia
County following her entry of a no contest plea to charges of indecent assault,
stalking and harassment.1 Appellant contends the trial court abused its
discretion by imposing a sentence beyond the aggravated sentencing
guidelines. Finding no abuse of discretion, we affirm.
The trial court summarized the underlying facts as follows:
In February 2015, Appellant, a 40-year-old female, and
Complainant, a 21-year old female, were both incarcerated at
Kintock Community Corrections Center. On February 24, 2015,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3126, 2709.1, and 2709(a), respectively.
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Complainant told authorities that she had been harassed by
Appellant. On February 20, Complainant was on an approved
social pass, used heroin, and came back to Kintock Community
Corrections Center high. Complainant was unable to stand or walk
for most of the weekend because of her withdrawal from heroin.
On February 20, 2015, while Complainant was in the bathroom
dealing with her withdrawal, Appellant came into the bathroom
and kissed Complainant with an open mouth. Throughout that
weekend, Appellant sat in (sic) the Complainant’s bed and rubbed
her entire body including her chest and buttocks, under the guise
of caring for Complainant, even after Complainant told her to stop
numerous times.
Trial Court Rule 1925(a) Opinion, 10/31/16, at 2.
Following entry of Appellant’s nolo contendere plea, the trial court
ordered a pre-sentence investigation. With the benefit of that report, on
February 23, 2016, the trial court sentenced Appellant to an aggregate
sentence of two to five years in prison followed by three years of sex offender
probation.2
On March 2, 2016, Appellant filed a post-sentence motion requesting
reconsideration of the sentence. On March 14, the trial court denied the
motion without a hearing. This timely appeal followed. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our consideration:
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2 “Where a pre-sentence report exists, we shall . . . presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.
2014), appeal denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
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1. Did the trial court abuse its discretion in sentencing [] Appellant
above the aggravated range without sufficient aggravating
factors and above what the [C]ommonwealth requested after
a plea of no contest?
Appellant’s Brief at 3.3
As this Court recently reiterated:
[I]t is well-settled that “[t]he right to appeal a discretionary aspect
of sentence is not absolute.” Commonwealth v. Dunphy, 20
A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, an appellant’s
appeal should be considered as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162
(Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test:
[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. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.
Super. 2006)).
Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017).
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3The Commonwealth requested a state sentence of two to four years in prison,
which was also above the guidelines of six to sixteen months, plus or minus
three. Notes of Testimony (“N.T.”), Sentencing, 2/23/16, at 2, 7-9.
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Here, Appellant filed a timely notice of appeal, preserved the issue in a
motion to reconsider, and included a statement in accordance with Pa.R.A.P.
2119(f). Therefore, she has satisfied the first three requirements. We must
determine whether she has satisfied the fourth by raising a substantial
question that the sentence is not appropriate under the Sentencing Code.
Appellant contends the trial court “relied on impermissible and
inaccurate factors in determining the appropriate sentence.” Appellant’s Brief,
Pa.R.A.P 2119(f) Statement, at 6. She contends that “reliance on
impermissible and inaccurate factors always creates a substantial question as
to the appropriateness of a sentence.” Id. (citing Commonwealth v.
Shugars, 895 A.2d 1270 (Pa. Super. 2006)). In Shugars, this Court held
that a claim the trial court relied on “impermissible factors” does raise a
substantial question. Id. at 1274 (citations omitted). Therefore, we shall
consider Appellant’s claim, mindful that “the proper standard of review when
considering whether to affirm the sentencing court’s determination is an abuse
of discretion.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). We
recognize that the sentencing guidelines are merely advisory; they “have no
binding effect, create no presumption in sentencing, and do not predominate
over other sentencing factors.” Id. at 964-65. Further, we are to exercise
our judgment “in reviewing a sentence outside the sentencing guidelines to
assess whether the sentencing court imposed a sentence that is
‘unreasonable.’” Id. at 963 (citing 42 Pa.C.S.A. § 9871(c), (d)).
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Appellant argues that in sentencing Appellant above the aggravated
range,
the lower court demonstratively explained that Appellant was not
fit to be a mother and be around her son. It was clear not only
by the [c]ourt’s demeanor but words that it was directly punishing
Appellant for her prior conduct even though the prior record score
and the relevant guidelines had already taken that crime into
consideration when she was to be sentenced on the current
matter. [] Appellant argues that this was unfairly punitive and
improper conduct from the lower court.
Appellant’s Brief at 7 (citing N.T., Sentencing, 2/23/16, at 13).
At sentencing, Appellant’s counsel explained “with all candor, this was a
no contest plea really for one reason and one reason alone. As the
Commonwealth pointed out in the sentencing memorandum, this was a
potential Megan’s Law second strike of 25 years.” N.T., Sentencing, 2/23/16,
at 4.4 Appellant explained to the trial court that being incarcerated had been
a humbling experience but she considered everything to be a learning
experience. Id. at 10. She stated she remained “positive and focused” and
that she has an 11-year-old son who was five when she “left.” Id. She
indicated her goal “has always been and still is to get home to him so that
[she] can be the mother that he truly deserved.” Id. at 10-11. She concluded
by stating to the trial court that she would continue to work hard and “will also
humbly take whatever time that you feel necessary to take advantage of the
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4 Appellant previously pled guilty to rape of a child and received a sentence of
four to eight years in prison for that offense.
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time so that I can continue bettering myself so that I can be better for my
child.” Id. at 11.
The trial court, having already moved into evidence the
Commonwealth’s sentencing memorandum and the pre-sentence
investigation report, then imposed its sentence and announced its reasons for
going above the guidelines, stating:
Number one, a lack of acceptance of responsibility.
Number two, the fact that this was a vulnerable victim who not
only was incarcerated and couldn’t get away from you, but was
also actively going through withdrawal on heroin trying to get her
life together and then this happened.
Number three, this is your second Megan’s law – or excuse me –
second sexual offense.
And four, this was a case that called for a 25-year sentence. And
the legislature has deemed this kind of offense, when you have
your kind of history, that significant. And I don’t know that there
are any words that I could say to you right now to stress how
important it is for you to get your life in order. Because you are
not fit – if this is the kind of behavior that you’re going to exhibit
in society or not in society with people who are at the most
vulnerable place in their life, you know, you’re going to have a
real problem. And you are not fit to walk among the rest of us.
You are not fit to be around your son. And you are not fit to be
around his friends or anyone else who is in a similar sort of
situation where they’re vulnerable.
Id. at 12-13.
Based on our review of the record, we cannot say the sentence imposed
by the trial court was unreasonable. The trial court stated its reasons for
going above the guidelines on the record, complying with the mandate of the
Sentencing Code to provide a contemporaneous statement of the reasons for
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deviating from the guidelines. 42 Pa.C.S.A. § 9721. We reject Appellant’s
assertion that “the court seemed to completely focus on the factual basis of
the previous conviction including calling [into] questions the maternal
capabilities of Appellant.” Appellant’s Brief at 8 (citing N.T., Sentencing,
2/23/16, at 13). As illustrated in the excerpt from the sentencing hearing,
the trial court stated reasons for the sentence that were unrelated to any
“maternal capabilities.” Further, as the Commonwealth observed, when the
trial court did address Appellant’s “maternal capabilities,” it was responding
to Appellant’s comments on wanting to be the mother her son deserved.
Commonwealth Brief, at 8 n.1. In doing so, the trial court was addressing the
need to protect the safety of the community, including her son and his friends
who are part of the community. Id. at 8 (citing Walls, 926 A.2d at 962)
(“Sentencing Code offers general standards with respect to the imposition of
sentence which require the sentencing court to impose a sentence that is
‘consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.’ 42 Pa.C.S. § 9721(b).”).
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We find no abuse of discretion on the part of the trial court in sentencing
Appellant above the guidelines.5 Therefore, we shall affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/18
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5 Appellant also complains that the trial court abused its discretion by refusing
to conduct a hearing on her motion for reconsideration. Appellant’s Brief at
7. However, the reasons offered in support of her motion, i.e., that the
sentence was greater than that requested by the Commonwealth, that the
sentence was imposed after a non-trial disposition, and that the trial court
“rendered a highly punitive sentence that seemed to be centered on
[Appellant’s] one previous conviction,” were all matters known to the court at
sentencing. See Appellant’s Motion to Reconsider Sentence or Withdraw No
Contest Plea, 3/2/16, at 1-2 (unnumbered) and N.T., Sentencing, 2/23/16, at
4-11. We find no merit in her contention that the trial court abused its
discretion in denying the motion without a hearing. See, e.g., Moore v.
Moore, 634 A.2d 163, 167 (Pa. 1993) (“Since a motion for reconsideration is
addressed to the sound discretion of the trial court, the trial court is obviously
in the best position to decide if additional testimony, briefs or argument are
necessary to the court in reassessing its original order.”).
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