Com. v. Tunstall, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KELSEY ANN TUNSTALL
Appellant No. 1185 WDA 2014
Appeal from the Judgment of Sentence March 18, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001610-2013
CP-11-CR-0001914-2013
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 30, 2015
Appellant, Kelsey Ann Tunstall, appeals from the judgment of sentence
entered on March 18, 2014, after pleading guilty to aggravated assault by
motor vehicle while driving under the influence (“AA-DUI”)1 as well as to the
unrelated crime of receiving stolen property2 and other charges not relevant
to this appeal. Tunstall contends the sentencing judge erred in imposing
terms of imprisonment in the aggravated range of the sentencing guidelines
for the two separate, consecutive terms of imprisonment. As we conclude
that the sentencing court failed to disclose in open court the reasons for the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. § 3735.1.
2
18 Pa.C.S.A. § 3925.
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sentence for receiving stolen property, we vacate the judgment of sentence
and remand for resentencing.
On May 17, 2013, Tunstall was driving her parents’ SUV with her
infant daughter as a passenger. Around 1:30 p.m., Tunstall veered into the
wrong lane of traffic and struck Troy Jordan, who was riding a motorcycle.
The impact catastrophically injured Jordan. His lower spine was crushed and
fractured and he was permanently paralyzed from the waist down. Jordan
was 41, married, and the father of two teenage girls. When Tunstall finally
exited her vehicle, officers noticed she “had a staggered gait, slurred
speech, and needed assistance walking at the scene.” N.T., Guilty Plea,
1/30/14, at 7. Tunstall later tested positive for Alprazolam and Methadone.
See Id. Tunstall is a drug addict. She has been battling her addiction for
roughly ten years and has “multiple convictions” for the same. N.T.,
Sentencing, 3/18/14, at 18. In July, 2013 a criminal complaint was filed
charging Tunstall with AA-DUI, among other offenses.
While free on bail, Tunstall stole a ring and money from a motor home.
The police immediately arrested her at a mall attempting to pawn the ring,
at which time Tunstall admitted to the crime and was charged. Failing to
post bail, Tunstall was placed in jail and has been incarcerated ever since.
Tunstall eventually accepted a plea bargain and pled guilty to AA-DUI
as well as to the unrelated crime of receiving stolen property and other
charges not relevant.
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At the sentencing hearing, the Commonwealth presented testimony
from both Jordan and his wife, Debra. Debra spoke of the devastating effects
of the crash. Jordan’s paralysis has caused substantial hardship upon their
family, including their two children, forcing their extended family to help
because she is legally blind. See N.T., Sentencing, 3/18/14, at 9-11. Jordan
related that he was no longer able to work as a welder and provide for his
family. See id., at 14-15.
Following the Jordans’ testimony, the court indicated its intention to
sentence Tunstall in the aggravated range. The court imposed a sentence of
36 to 72 months’ imprisonment for AA-DUI and a consecutive term of 4 to
12 months’ imprisonment for receiving stolen property. Tunstall’s final
aggregated sentence was 40 to 84 months’ imprisonment.
Tunstall filed a timely post-sentence motion, arguing that the court
relied upon improper factors in sentencing her in the aggravated range. She
claimed that the principal reasons that the court relied upon—the injury to
Jordan and her drug use—were already contemplated in the offense gravity
score for AA-DUI. Further, Tunstall challenged the sentence for receiving
stolen property, noting that the court provided no justification for the
departure from the standard sentencing range. After hearing argument, the
court declined any modification. This timely appeal followed.
On appeal, Tunstall argues that the sentencing court abused its
discretion in imposing two sentences outside the standard range guidelines.
This claim challenges the discretionary aspects of Tunstall’s sentence. “A
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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).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
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. Moury, 992 A.2d 12, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Tunstall challenged her sentence in a post-sentence motion and
filed a timely appeal. Tunstall’s appellate brief also contains the requisite
Rule 2119(f) concise statement. See Appellant’s Brief, at 11. We must now
determine whether Tunstall’s challenge to the discretionary aspects of her
sentence raises a substantial question.
“A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Zirkle,
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107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look
beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation
omitted).
Here, Tunstall claims in her Rule 2119(f) statement that “because the
sentencing court imposed an aggravated sentence, there exists a substantial
question for merits review of the discretionary aspects of sentence for both
issues.” Appellant’s Brief, at 11. Tunstall further claims “the sentencing court
relied upon impermissible factors in its sentence for AA-DUI … [and] the
sentencing court violated the norms of sentencing by failing to state any
reason for its departure for its sentence of Receiving Stolen Property.” Id. A
claim that a sentencing court imposed a sentence outside the standard
guidelines without stating adequate reasons on the record presents a
substantial question. See Commonwealth v. Antidormi, 84 A.3d 736, 759
(Pa. Super. 2014) (citation omitted). Therefore, we conclude that Tunstall
has presented a substantial question.
Both issues raised in this appeal challenge the imposition of terms of
imprisonment in the aggravated range of the sentencing guidelines. For such
challenges, the following standard of review has been set forth.
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 judgement.
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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. Super. 2006)
(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).
It is well-established that Pennsylvania has an indeterminate guided
sentencing scheme. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117
(Pa. 2007). The sentencing judge is required to consider the sentencing
guidelines that have been adopted by the Legislature. See 42 Pa.C.S.A. §
9721(b). It is recognized however that the sentencing guidelines are purely
advisory in nature and are merely one factor among many that the court
must consider in imposing a sentence. See Yuhasz, 923 A.2d at 1118. “[A]
trial court judge has wide discretion in sentencing and can, on the
appropriate record and for the appropriate reasons, consider any legal factor
in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at
1275.
In her first claim, Tunstall claims the sentencing court relied upon
impermissible factors in its sentence for AA-DUI. She raises the valid point
that it is impermissible for a court to consider factors already included within
the sentencing guidelines as the sole reason for increasing a sentence into
the aggravated range. See Commonwealth v. Simpson, 829 A.2d 334,
339 (Pa. Super. 2003). While this is a correct statement, Tunstall overlooks
the fact that the purported illegal reason for deviation must be the sole
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reason. See id. Sentencing courts are permitted to use factors already
included in the guidelines if they are used to supplement other extraneous
sentencing information. See id. The sentencing court listed a myriad of
reasons for opting for the aggravated range sentence including the crime’s
impact on the victim’s life and family in consideration of his permanent
paraplegia, Tunstall’s intoxicated operation of a motor vehicle while notably
traveling with and caring for her infant child, her multiple current convictions
for drug usage, her ten year history of drug abuse, and her prior failed drug
rehabilitation. See N.T., Guilty Plea, 3/13/14, at 18.
It could be argued that some parts of the numerous reasons given are
contemplated in the elements of the sentencing guidelines. However, they
are plainly not the sole reason for departure and thus taken in the aggregate
were appropriate considerations for sentencing in the aggravated range for
the charge of AA-DUI. We therefore conclude Tunstall’s first issue on appeal
is without merit.
Tunstall next alleges that the sentencing court failed to state any
justification for the departure into the aggravated range for her sentence for
receiving stolen property. We agree.
It is simply not clear from the record that the reasons the sentencing
court relied upon for aggravation of her sentence applied to any charge
outside those arising directly from the accident with Jordan. The sentencing
court stated its intention to sentence Tunstall in the aggravated range after
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hearing testimony from the Jordans, the victims of the AA-DUI charge. See
N.T., Sentencing, 3/18/14, at 18. The charge for receiving stolen property
was unrelated to the AA-DUI charge and involved a separate victim who was
not at all mentioned by the sentencing court. Further, after listing its other
reasons, the sentencing judge makes note that “[a] lesser sentence would
depreciate the seriousness of the crime of aggravated assault by a motor
vehicle while under the influence of drugs.” Id. It is clear from this
statement that the reasons supplied were meant to apply to the charges
arising from the accident.
The Commonwealth asserts that Tunstall’s inability to properly treat
her drug addiction was the impetus for all of her charges, and therefore
could apply to the receiving stolen property charge. See Appellee’s Brief, at
5. They further acknowledge that another “obvious reason” for aggravation
of this sentence is the fact that she committed the theft to fund her drug
habit after the accident that destroyed Jordan’s spinal column. Id. at 5-6.
This would have been an appropriate consideration for sentencing in the
aggravated range—had it been stated on the record. See 42 Pa.C.S.A. §
9721(b) (“the court shall make as a part of the record, and disclose in open
court at the time of the sentencing, a statement of the reason or reasons for
the sentence imposed”). But it was not. And as the Commonwealth
concedes, the sentencing court did not acknowledge this during sentencing.
See Appellee’s Brief, at 5.
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As a result of the sentencing court failing to follow the proper
procedure under the Sentencing Code, we must vacate the sentence.
If vacating the sentence disturbs the overall sentencing scheme of the
sentencing court, we must remand so the court can restructure its sentence
plan. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).
On the other hand, if the decision does not alter the overall scheme, there is
no need for a remand. See id. We have little doubt we have upset the
sentencing scheme. Accordingly, we vacate the judgment of sentence and
remand.
Judgement of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
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