Com. v. Karpinski, S.

J-S05016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN KARPINSKI :
:
Appellant : No. 750 WDA 2017
Appeal from the Judgment of Sentence March 6, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009329-2016
BEFORE: OLSON, J., OTT, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED JUNE 5, 2018
Steven Karpinski appeals from the judgment of sentence imposed March
6, 2017, in the Allegheny County Court of Common Pleas. The trial court
sentenced Karpinski to a term of 45 to 120 months’ imprisonment following
his guilty plea to one count of possession of child pornography. 1 On appeal,
Karpinski challenges the discretionary aspects of his sentence. For the
reasons below, we affirm.
The facts underlying Karpinski’s guilty plea are summarized in the
affidavit of probable cause as follows.2 After Karpinski was released from
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 Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 6312(d).
2 During the plea hearing, Karpinski waived a reading of the facts and
stipulated to those recounted in the affidavit of probable cause. See N.T.,
12/12/2016, at 9.
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prison for a previous conviction of possession of child pornography, and while
he was still on probation for that offense, he moved in with Darrell and
Rebecca Bigrigg. In March of 2016, after Karpinski left the residence, Darrell
was moving an old chest freezer when a laptop and several DVD’s and CD’s
fell out of the motor and wiring compartment. Rebecca recognized the
computer as belonging to Karpinski, and also recognized his handwriting on
the DVD’s and CD’s. Knowing Karpinski was not permitted to possess these
items as a condition of his probation, Rebecca turned the materials over to
the police. After obtaining a search warrant, the Pennsylvania State Police
viewed the DVD’s, and found they contained videos and images of child
pornography. The police also identified Karpinski’s latent prints on several of
the DVD’s. They subsequently interviewed Karpinski, who admitted hiding the
materials in the motor compartment of the freezer, and viewing the images
while he lived with the Bigriggs. See Criminal Complaint, 7/14/2016, Affidavit
of Probable Cause at 2-5.
Karpinski was arrested and charged with one count of possession of child
pornography. On December 12, 2016, he entered a guilty plea, in exchange
for which the Commonwealth agreed to not seek a mandatory minimum
sentence.3 That same day, Karpinski also pled guilty to charges of sexual
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3See 42 Pa.C.S. § 9718.2(a)(1) (providing for mandatory minimum 25 years
sentence when a defendant is convicted of a second sexual offense).
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abuse of children, possession of child pornography, and indecent assault 4 for
an unrelated incident at Docket No. 2016-218.
On March 6, 2017, Karpinski appeared for sentencing on the present
conviction, the conviction at Docket No. 2016-218, and the probation violation
for his previous conviction at Docket No. 2014-10642. As noted above, on
the charge of possession of child pornography at issue herein, the trial court
sentenced Karpinski to a term of 45 to 120 months’ imprisonment. Although
the minimum sentence fell within the standard guidelines range, the court
imposed the statutory maximum sentence permissible.5 On March 16, 2017,
Karpinski filed a timely post-sentence motion seeking modification of his
sentence only in the present case. The trial court denied the motion on April
24, 2017, and this timely appeal followed.6
Karpinski’s sole issue on appeal is a challenge to the discretionary
aspects of his sentence. When considering such a claim, we must bear in
mind:
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4 See 18 Pa.C.S. §§ 6312(d) and (d), and 3126(a)(7), respectively.
5On the probation violation case, the court imposed an aggregate consecutive
sentence of 10 to 20 months’ imprisonment, followed by five years’ probation.
At Docket No. 2016-218, the court sentenced Karpinski to an aggregate term
of five years’ probation, to run concurrent with the probation violation tail.
Karpinski did not appeal the sentences imposed on those two cases.
6On May 25, 2017, the trial court ordered Karpinski to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
requesting and being granted several extensions of time, Karpinski complied
with the court’s directive, and filed a concise statement on October 30, 2017.
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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.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,
it is well-settled that:
[a] challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Prior to reaching
the merits of a discretionary sentencing issue:
We 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).
Commonwealth v. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some
citations omitted), appeal denied, 178 A.3d 106 (Pa. 2018).
In the present case, Karpinski complied with the procedural
requirements for this appeal by filing a timely post-sentence motion for
modification of sentence and subsequent notice of appeal, and by including in
his appellate brief a statement of reasons relied upon for appeal pursuant to
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.
2119(f). Therefore, we must determine whether he has raised a substantial
question justifying our review.
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
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provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted). Here, Karpinski argues the sentence imposed by the trial
court, was “manifestly unreasonable” without adequate consideration of the
sentencing factors set forth in Section 9721(b) of the Sentencing Code.
Karpinski’s Brief at 9, citing 42 Pa.C.S. § 9721(b). In particular, he asserts
the court failed to consider his rehabilitative needs when it imposed the
statutory maximum sentence. See id. Moreover, Karpinski maintains the
trial court focused solely on “retribution and the seriousness of the crime when
these factors are already taken into consideration in the guidelines.” Id. at
10.
An allegation that the trial court failed to consider the “relevant
sentencing criteria” set forth in Section 9721(b) raises a substantial question
for our review. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012), appeal denied, 63 A.3d 776 (Pa. 2013). Similarly, “a claim the trial
court focused solely on the nature of the offense … presents a substantial
question.” Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super.
2013), appeal denied, 85 A.3d 481 (Pa. 2014). Accordingly, we may proceed
to an examination of Karpinski’s argument on appeal.
As noted above, Karpinski insists the sentence imposed by the trial court
was manifestly excessive. He notes that “[w]hile the minimum term is within
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the standard range the maximum term is the statutory maximum.”
Karpinski’s Brief at 12. Relying on Commonwealth v. Coulverson, 34 A.3d
135 (Pa. Super. 2011), Karpinski argues the comments by the trial court, at
sentencing, demonstrate the court placed an “intense focus on the nature of
the crime to the exclusion of any other sentencing factors,” and, in fact, made
“no mention of his psychological issues” or potential for rehabilitation. Id. at
16-17. Because the trial court failed to consider all the relevant sentencing
factors, Karpinski contends he is entitled to a remand for a new sentencing
hearing.
Preliminarily, we note that when a sentence is imposed within the
guidelines range, this Court should vacate it only if we find “the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” 42 Pa.C.S. § 9781(c)(2). Furthermore, where, as here, the
trial court had the benefit of a pre-sentence investigation report, “we can
assume the [] court ‘was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.’” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (quotation omitted). Indeed, with regard to Karpinksi’s mental
health, defense counsel specifically argued Karpinski had struggled with
mental health issues since he was 12 years old, which was when his house
burned down, resulting in the death of his father and older brother. See N.T.,
3/6/2017, at 4. Counsel also emphasized Karpinski had family support, and
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accepted responsibility for his actions. See id. at 5. Therefore, the trial court
was well aware of these factors when imposing sentence.
After hearing argument on all three cases, the court made the following
comments:
Mr. Karpinski is both a convicted violator and a technical
violator. The nature of his convicted violation is quite concerning,
and the depth of his sexual deviance is also quite concerning.
On the new attributable offense, [Docket No. 2016-9329], I
will impose a sentence in the standard range but with a long tail
given my concerns about his treatment needs in particular as well
as the safety of the community and impose a sentence of 45 to
120 months.
Id. at 8-9. The trial court elaborated on the reasons for its sentence in its
opinion:
After his first offense, [Karpinski] was afforded the
opportunity to be supervised in the community under charge
specific special conditions that included, inter alia, a mental health
treatment protocol designed for sex offenders and a restriction
prohibiting him from using devices with internet access. His
ongoing conduct in this case not only violated his probation in the
earlier case, but also demonstrates [Karpinski] is not amenable to
rehabilitation within the community. Even with the intensive
supervision afforded to [Karpinski] through the Allegheny County
Sex Offender specialty court, [Karpinski] continued to engage in
the same conduct.
At the sentencing hearing this Court considered the Pre-
Sentence Report and sentencing factors listed in 42 Pa.C.S. §
9721(b). While on probation with this Court for similar offenses,
[Karpinski] hid his laptop along with DVDs and CDs containing
images of child pornography inside the wiring of a freezer chest
and these items were only discovered when the freezer was
moved. This Court’s 45 to 120 month sentence starts in the
standard range of the Sentencing Guidelines but contains a long
tail indicative of this Court’s concern for both his need for
treatment in a secure environment as well as the safety of the
community.
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Trial Court Opinion, 11/1/2017, at 5.
We detect no abuse of discretion on the part of the trial court. Contrary
to Karpinski’s claim, the court did not focus solely on the nature of the crime,
nor did it ignore his rehabilitative needs. Rather, the trial court recognized
Karpinski had been convicted of the same crime before, and, despite the
opportunity to serve his sentence in the community on probation, was unable
to conform his behavior under the law. Indeed, his current offense grew out
of his elaborate attempt to hide child pornography he continued to possess
and view while on probation for his prior offense. Accordingly, the court’s
imposition of a standard range minimum sentence was reasonable.
Nor do we agree with Karpinski’s assertion that this Court’s decision in
Coulverson, supra, compels a different result. In that case, the defendant
entered an open guilty plea in four separate cases to 18 charges - including
rape, robbery, and burglary - for his participation in a two-day crime spree.
The trial court imposed an aggregate sentence of 18 to 90 years’
imprisonment. As here, the minimum sentences were imposed in the standard
range of the guidelines, but the maximum terms were the statutory maximum
available under the law, and ordered to run consecutively, which resulted in
the 90-year maximum term. See Coulverson, supra, 34 A.3d at 139.
On appeal, a panel of this Court concluded the maximum sentence
imposed was “‘clearly unreasonable’ within the meaning of 42 Pa.C.S. §
9781(c).” Id. We emphasized the trial court provided “minimal” support for
its lengthy sentence, and appeared to rely primarily on the testimony of the
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rape victim and her family. See id. at 144. Further, when defense counsel
challenged the maximum sentence imposed during the bifurcated hearing, the
court replied, “You don’t like the statutory maximum; but shouldn’t you be
addressing that to the legislature?” Id. at 145. This Court explained:
A sentence may still be excessive regardless of the
commencement of terms of imprisonment in the standard
guidelines range if the upper end of the sentence imposes a term
unlikely to end during the defendant's natural life span or, as here,
perpetually subject to the discretion of the Board of Probation and
Parole. We remain mindful, as must our trial courts, that a
maximum sentence is a sentence of confinement to be prorogued
only as “a favor given by the state, as a matter of grace and
mercy....” Mickens–Thomas v. Pa. Bd. of Prob. and
Parole, 699 A.2d 792, 796 (Pa. Cmwlth. 1997). Issuance of
parole may not be assumed and may not be treated as a tool of
rehabilitation; presumably, a defendant’s rehabilitation has
already been achieved if parole is granted. Consequently, parole,
imposed as a byproduct of an outsize maximum sentence, is not
a legitimate means of implementing the statutory goals of criminal
sentencing. Thus, the term of imprisonment must be
individualized in its entirety as a sentence of confinement and not
treated as a means to indefinite parole, or worse, as a means of
private retribution or judicial policy-making.
In this case, the trial court imposed a maximum sentence of
confinement of 90 years …, which we regret to conclude, violated
this precept in sentencing. The court’s discussion at argument on
Coulverson’s post-sentence motion strongly suggests its
determination that the defendant should spend as much of his life
in prison as the court could order, notwithstanding the tragedy
and dysfunction underlying Coulverson’s own life, his individual
need for effective intervention, or any rehabilitation he might
achieve.
Id. at 148. Therefore, the Coulverson Court vacated the judgment of
sentence, and remanded for re-sentencing.
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We find the facts of the present case distinguishable. First, and
foremost, Karpinski’s maximum term of imprisonment is 10 years, as
compared to the 90-year prison term imposed in Coulverson. Karpinski did
not receive a virtual life sentence, nor was he condemned to a life served
perpetually on parole. Second, the trial court in the case sub judice provided
sufficient reasons for the sentence imposed, not the least of which was
Karpinski was on probation for the same crime when he committed the
offense herein. Indeed, Karpinski was given the opportunity to conform his
behavior outside of prison, but he was unable to do so. The facts in
Coulverson were unique and extreme. As such, we disagree with Karpinski’s
claim that that decision compels relief here.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2018
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