Com. v. Cooper, P.

J-S70008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL COOPER
Appellant No. 3264 EDA 2013
Appeal from the Judgment of Sentence October 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009158-2012
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 09, 2014
Paul Cooper appeals from his judgment of sentence entered in the
Court of Common Pleas of Philadelphia County. On appeal, Cooper claims
his sentence was an abuse of discretion. After our review, we affirm.
On January 11, 2012, Cooper was arrested for crimes against a 16-
month-old child. On September 4, 2013, Cooper entered a no contest plea
to charges of aggravated assault, simple assault, unlawful restraint,
endangering the welfare of a child, and recklessly endangering another
person (REAP). The court sentenced Cooper to an aggregate sentence of
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*
Retired Senior Judge assigned to the Superior Court.
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fourteen and one-half to thirty-two years’ incarceration.1 This appeal
followed.
Cooper raises the following claim for our review: Did the court err as a
matter of law by imposing a harsh, excessive and manifestly unjust
sentence, which was beyond the standard range and not consistent with
Pennsylvania law under 42 Pa.C.S. §§ 9721 and 9781? The court imposed
the following consecutive sentences: for aggravated assault, 120-240
months, which is outside the guidelines (the top of the aggravated range is a
102-month minimum); for endangering the welfare of a child, 30-60
months, also outside the guidelines (the top of the aggravated range is a 21-
month minimum); for REAP, 12-24 months, which was within the standard
range of the guidelines; and for unlawful restraint, 12-60 months, also
within the standard range of the guidelines.2
Contrary to Cooper’s claim, we conclude the sentence was not in
violation of either section 9721 or 9781 of the Sentencing Code.
We note first that a plea of nolo contendere is treated the same as a
guilty plea in terms of its effect upon a particular case. Commonwealth v.
Boatwright, 590 A.2d 15, 19 (1991). “A defendant who has pled guilty
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1
The Commonwealth sought the maximum sentence of 16 to 32 years’
imprisonment. See N.T. Sentencing Hearing, 10/25/13, at 26.
2
The court applied the 6th Edition of the Sentencing Guidelines, which apply
to sentences imposed for felony and misdemeanor offenses committed on or
after June 3, 2005.
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may challenge the discretionary aspects of his sentence as long as the
defendant did not agree to a negotiated sentence as part of a plea
agreement.” Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.
Super. 2000) (citation omitted). Therefore, Cooper, who entered an open
plea of no contest, may challenge the discretionary aspects of his sentence.
See id.; see also N.T. Plea Hearing, 9/4/13, at 6. However, [c]hallenges 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, we must 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).
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)
(citations omitted).
In his Pa.R.A.P. 2119(f) statement, Cooper claims his sentence was
excessive in that the court imposed his sentences to run consecutively and
failed to state sufficient reasons on record for imposing a sentence outside
the guidelines. Appellant’s Brief, at 9. This claim raises a substantial
question to invoke appellate review. See Commonwealth v. Rodda, 723
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A.2d 212, 214 (Pa. Super. 1999) (en banc) (claim that sentencing court
imposed sentence outside guidelines without specifying sufficient reasons
presents substantial question for review).
When imposing a sentence, the sentencing court is required to
consider the sentence ranges set forth in the Sentencing Guidelines, but it
not bound by the Sentencing Guidelines. See Commonwealth v. Yuhasz,
923 A.2d 1111, 1118 (Pa. 2007) (“It is well established that the Sentencing
Guidelines are purely advisory in nature.”); Commonwealth v. Walls, 926
A.2d 957, 965 (Pa. 2007) (referring to Sentencing Guidelines as “advisory
guideposts” which “recommend . . . rather than require a particular
sentence”). The court may deviate from the recommended guidelines; they
are “merely one factor among many that the court must consider in
imposing a sentence.” Yuhasz, 923 A.2d at 1118.
A court may depart from the guidelines “if necessary, to fashion a
sentence which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the particular
offense as it relates to the impact on the life of the victim and the
community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.
2001). When a court chooses to depart from the guidelines however, it
must “demonstrate on the record, as a proper starting point, . . . awareness
of the sentencing guidelines.” Eby, 784 A.2d at 206. Further, the court
must “provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).
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In Walls, our Supreme Court observed that the parameters of this
Court's review of the discretionary aspects of a sentence is confined by the
dictates of 42 Pa.C.S. §§ 9781(c) and (d). Section 9781(c) states in
relevant part that we may “vacate the sentence and remand the case to the
sentencing court with instructions” if we find that “the sentencing court
sentenced outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S. § 9781(c)(3). Section 9781(d) provides that
when reviewing a sentence, we must consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant [and], of course, the court must
consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa. Super. 2006) (citations omitted). “A sentencing court may
consider any legal factor in determining that a sentence in the aggravated
range should be imposed.” Commonwealth v. Stewart, 867 A.2d 589,
592-93 (Pa. Super. 2005) citing Commonwealth v. Duffy, 491 A.2d 230,
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233 (1985). “In addition, the sentencing judge’s statement of reasons on
the record must reflect this consideration, and the sentencing judge’s
decision regarding the aggravation of a sentence will not be disturbed absent
a manifest abuse of discretion.” Bowen, 975 A.2d 1120, 1122 (Pa. Super.
2009).
Here, at the sentencing hearing, Judge Diana Anhalt, set forth on the
record her consideration of the applicable guidelines, see N.T. Sentencing
Hearing, 10/25/13, at 6, as well as the following reasons for the sentence
imposed:
[F]or the following reasons I will be going above the guidelines
in the case of the aggravated assault. The medically
compromised situation of this 16-month old child [aggravates]
this case in a tremendous way. If I recall the testimony or the
plea correctly, that the child had seven surgeries before the age
of 16 months; he had a colostomy bag, and he got—he had 13
broken ribs, front and back, and the amount of pressure that
would be needed to cause those type[s] of injuries that would
also [puncture] a lung and puncture a liver, to me is a reason
enough to [aggravate] the sentence. But then there’s also a
lack of a sense of responsibility. The fact that the child could not
be touched for three weeks, due to injuries, this is a major-- is
an important factor. The fact that there is –I guess- did the
prior record score, and I want to be very clear on the record,
that the prior record score takes into account what you were
convicted for in the other cases. But the fact that you had prior
knowledge about how sensitive children are and you can’t pick
them up by the legs, and you can’t pick them up too hard
around the belly, those are things you know. And the fact that
you have a second conviction for the same type of crime is what
makes me [aggravate] the endangering the welfare of a child
sentence, is that you have two of those, and potentially, you
now, there was other evidence submitted at your homicide trial,
where there was another kid that had been hurt as well. Those
are very small factors, but factors nevertheless, that when I look
at the guidelines for endanger the welfare , it’s 12 to 18 plus or
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minus 3, given your history, I don’t think your record adequately
reflects the criminal background, and because of that, that’s why
I’m going to go – it’s only a little above the endangering the
welfare of a child, but it’s above the [standard range of the]
guidelines nonetheless. So, the sentence –oh, and then of
course, last, but not being least, is protection of society. I
believe that you are a danger to every child that you come into
contact with, because there is no one safe from your touch.
N.T. Sentencing Hearing, 10/25/13, at 33-35.
Based on the foregoing, we conclude that the trial court provided
adequate reasons on the record for its decision to sentence Cooper outside
the guidelines for the aggravated assault and endangering the welfare of a
child convictions. The court explained that its decision to aggravate 3 the
sentence was based primarily on the infant victim’s vulnerability and
medically compromised condition. Id. at 35. The court also explained that
Cooper had a history of similar crimes and believed that Cooper was “a
danger to every child [he] come[s] into contact with[.]” Id.
Because the aggravating factors relied on by the trial court are
adequate to sustain a sentence outside the guidelines, we find no abuse of
discretion. See Commonwealth v. Sheller, 961 A.2d 187 (Pa. Super.
2008) (where sentence exceeded aggravated sentencing range, this Court
affirmed where trial court considered all statutorily required factors,
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3
We note the distinction between an “aggravated sentence,” as described
herein by the trial court, which is outside the guidelines, and an
“aggravated-range sentence,” which is within the sentencing guidelines,
albeit in the aggravated range.
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including gravity of offense and defendant's rehabilitative needs as well as
defendant's history and characteristics contained in pre-sentence
investigation report, and factors outside guidelines supported departure,
including defendant's commission of crime in family home while victim's
twelve-year-old daughter was present); Commonwealth v. Holiday, 954
A.2d 6 (Pa. Super. 2008) (evidence supported imposition of sentence
beyond aggravated range of sentencing guidelines for several vehicular
crimes; defendant's criminal history began when he was 15 years of age, he
had repeated drug felonies, he continually violated parole, and in instant
case, he hit people with vehicle, did not stop, tried to outrun officer, then
killed one and permanently injured second victim, he again did not stop to
help, for four months he hid from police and did not turn himself in, his
license was suspended when he was driving as he was convicted of seven
probation violations, time spent in jail did not rehabilitate him, he was not
capable of functioning as law abiding citizen, and lengthy incarceration was
only solution to modify his behavior); Commonwealth v. Johnson, 873
A.2d 704 (Pa. Super. 2005) (sentences of two consecutive terms of two and
one-half to five years for driving under influence (DUI) were not excessive,
even though sentences were beyond what was recommended in sentencing
guidelines; defendant had been convicted of DUI more than 20 times,
completely failed to rehabilitate, failed to take responsibility for his actions,
failed to adhere to law requiring him not to drive, and failed to adhere to law
requiring him not to drive drunk, and trial court evaluated, among other
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things, circumstances of defendant's most recent DUI convictions, his
character, danger he represented to community, and high levels of alcohol
present in his blood).
Additionally, at allocution, Cooper did not take responsibility for his
actions, reflecting his lack of character, his lack of remorse and his lack of
rehabilitative potential. After review of these factual matters, the sentencing
court concluded that it needed to protect society’s most vulnerable from
Cooper. Prior to imposing sentence, court had the benefit of a pre-sentence
investigation report and an opportunity to consider Cooper’s history and
characteristics. See Trial Court Opinion, 4/8/14, at 5; Commonwealth v.
Devers, 546 A.2d 12 (Pa. 1988) (when sentencing court has benefit of pre-
sentence report, we must presume sentencing judge was aware of, and duly
considered, any character-related information contained therein).
The sentencing court considered all the requisite factors, including the
nature and circumstances of the offense, protection of the public, the
recommended guideline range, the gravity of the offense, and the
rehabilitative needs of the defendant. See 42 Pa.C.S.A. §§ 9781(d),
9721(b). Based on our review of this record, we find no manifest abuse of
discretion. Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003).
To the extent that Cooper challenges the trial court’s decision to
impose his sentences consecutively, we find no substantial question. See
Commonwealth v. Pass, 914 A.2d 442, 446–47 (Pa. Super. 2006)
(Pennsylvania law affords sentencing court discretion to impose sentences
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concurrently or consecutively, and any challenge to exercise of discretion
ordinarily does not raise a substantial question); Johnson, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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