Com. v. Frankenfield, R.

J-S12040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL L. FRANKENFIELD :
:
Appellant : No. 2541 EDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000507-2018
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2022
Russell L. Frankenfield (“Appellant”) appeals from the Judgment of
Sentence imposed following his guilty plea to Simple Assault, 18 P.S.
§2701(a)(1). He challenges the discretionary aspect of his sentence, asserting
that the court abused its discretion by failing to acknowledge sentencing
factors set forth in 42 Pa.C.S. § 9721. After careful review, we vacate and
remand for resentencing.
The facts relevant to Appellant’s guilty plea are as follows. On May 17,
2018, a patrol officer responded to a 911 report of domestic violence at a
home where he interviewed the victim who showed signs of injury. The victim
explained that she and Appellant had an altercation that became physical. N.T.
Plea, 7/6/21, at 10. The police officer’s affidavit of probable cause also
indicated that the victim alleged that Appellant tried to strangle her, held a
gun to her face, and threatened to kill her before she was able to lock herself
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in the bathroom and call 911. Affidavit of Probable Cause, 3/17/18. Police
officers arrested Appellant and found a firearm in his car.
On June 5, 2018, the Commonwealth charged Appellant with six
offenses: two counts of simple assault, and one count each of recklessly
endangering another person, terroristic threats, harassment, and
strangulation. Appellant waived the preliminary hearing.
On July 6, 2021,1 the court held a plea hearing at which the
Commonwealth stated that the simple assault charge to which Appellant
intended to plead guilty was “based on a physical assault as stated in the last
sentence of the first paragraph of the affidavit,” i.e., “She [the victim] then
stated the argument turned physical and the actor pulled her out of bed and
began to choke her.” N.T. Plea, at 7-8; Affidavit of Probable Cause. In
exchange for Appellant’s guilty plea, the Commonwealth agreed to nolle pros
the remaining five charges and agreed not to ask the court to bar Appellant
from owning or possessing firearms or seek a deadly weapons enhancement.
The court conducted a thorough plea colloquy informing Appellant that, among
other things, the standard range sentence could be “anywhere between
probation and one month’s incarceration on the low end, with a maximum of
24 months.” Id. at 9. The court accepted Appellant’s plea as voluntary,
knowing, and intelligent and deferred sentencing.
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1 The docket indicates that in the three years between Appellant’s arrest and
the guilty plea hearing, the parties each obtained multiple trial continuances.
On May 19, 2021, the parties entered a guilty plea “stipulation” to one count
of simple assault and the court scheduled the plea hearing for July 6, 2021.
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Neither party requested a pre-sentence investigation, and the court did
not order one.
On October 19, 2021, the court held a sentencing hearing. After
reviewing the sentencing guidelines worksheet with the court, Appellant’s
counsel argued that a probationary term would be the appropriate sentence
because Appellant has had no contact with the victim, “has been compliant
with all terms and conditions imposed upon him both by the [c]ourt, by the
District Attorney’s Office as far as any conditions he’s followed [sic],” “there’s
been no incidents since the event happened, . . . he’s adapted his ways, his
behavior. He is employed. . . . [and h]e has no prior record.” N.T. Sentencing,
10/19/21, at 2, 5-6. The Commonwealth added only that the sentencing
guidelines worksheet included $1,234.10 in restitution for the victim’s medical
bills. Id. In response to the court’s invitation to speak, Appellant stated, “I
just apologize for, um, taking up too much time with this legal situation I got
myself into and I’m just trying to move on with my life.” Id.
The court then sentenced Appellant to a term of incarceration of one
month to two years less one day, 100 hours of community service, $1,234.10
in restitution, court costs, and fees. Id. Appellant’s counsel immediately
asked the court to reconsider its imposition of incarceration, emphasizing that
Appellant had no prior record and the victim had not participated in the
prosecution of this case except to withhold approval of ARD in 2018. Id. at
8-9. The Commonwealth, however, added that the victim had submitted a
victim impact statement in July 2018. Id. at 8. In response, the court
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informed Appellant that it would not require him to be remanded immediately.
After discussion of Appellant’s post-sentence rights, the court directed
Appellant to report to the county jail one month later, on November 19, 2021.
Id. at 14.
Appellant timely filed a post-sentence motion asking the court to
reconsider the sentence of incarceration. The court held a hearing on the
motion on November 16, 2021, at which Appellant testified about his
employment. After discussion with counsel regarding alternative sentences,
the court indicated it would also consider directing that Appellant serve his
sentence over consecutive weekends.
On November 18, 2021, the court denied the post-sentence motion in
part, and modified the sentence so that Appellant could serve his period of
incarceration over consecutive weekends.
Appellant timely appealed. Both Appellant and the court complied with
Pa.R.A.P. 1925.
Appellant raises the following questions for our review, reordered:2
1. Whether the trial court abused its discretion in sentencing the
Appellant to a period of incarceration with said sentence being
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2 Appellant’s brief addresses these three issues together, in contravention of
our rules of appellate procedure requiring the argument to “be divided into as
many parts as there are questions to be argued,” with headings signifying “the
particular point treated therein” and “followed by such discussion and citation
of authorities as are deemed pertinent” and reference to the record where the
matter was “raised or preserved below.” Pa.R.A.P. 2119 (a)-(c), (e). See
also Pa.R.A.P. 2101 (requiring conformance with briefing rules). Despite this
omission, we are nonetheless able to address Appellant’s claims.
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in the high end of the standard sentencing guidelines for the
charge of Simple Assault.
2. Whether the trial court erred in making reference to the
probable cause affidavit as a basis for imposing the sentence
where the Appellant did not plead guilty to all the facts in the
probable cause affidavit.
3. Whether the trial court erred in making reference to the alleged
factual events that may have not been proven or admitted to
by the Appellant in the guilty plea colloquy.
Appellant’s Br. at 1.
Appellant argues that the court abused its discretion in imposing a
sentence of incarceration instead of probation because he “had no prior record
score, was fully employed, and the victim failed to participate in the
sentencing proceedings.” Id., at 6, 9-10. Appellant also avers that the court
erred in sentencing him “in the high end of the standard range of the
sentencing guidelines without consideration of Appellant’s remorse, the
absence of the victim’s participation at the sentencing hearing, absence of
prior record, and instead relying upon alleged facts outside of the guilty plea
colloquy.” Id., at 7, 9.
A claim that a sentence is excessive presents a challenge to the
discretionary aspects of the sentence. Such a claim does not entitle an
appellant to review as of right; rather, a challenge in this regard is properly
viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17, 18-19 (Pa. 1987).
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An appellant challenging the discretionary aspects of his sentence must
comply with the following requirements in order to obtain our review: (1) file
a timely notice of appeal; (2) preserve the issue at sentencing or in a motion
to reconsider and modify sentence; (3) include within his brief a concise
statement of the reasons relied upon for allowance of appeal as required by
Pa.R.A.P. 2119(f); and (4) raise a substantial question that the sentence is
inappropriate under the Sentencing Code. Commonwealth v. Carrillo-Diaz,
64 A.3d 722, 725 (Pa. Super. 2013). An appellant’s Rule 2119(f) statement
must “raise a substantial question as to whether the trial judge,
in imposing sentence, violated a specific provision of the Sentencing Code or
contravened a ‘fundamental norm’ of the sentencing process.”
Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).
Here, Appellant timely filed a post-sentence motion and a notice of
appeal. He included a Rule 2119(f) Statement in his brief, alleging that the
sentence he received was “excessive and not based upon the factors in the
sentencing code.” Appellant’s Br. at 3. In his brief, he argues that the court
did not discuss or otherwise acknowledge the factors provided in the 42
Pa.C.S. § 9721 because it did not “mention . . . Appellant’s employment
status, remorse, or rehabilitative needs since it was his first offense.” Id. at
10. This argument presents a substantial question, and we thus proceed to
the merits of whether the court abused its discretion.
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Our review is informed by well-settled legal principles. “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. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (citation
omitted). “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.” Id. (citation omitted).
Here, Appellant contends that the court abused its discretion by ignoring
Section 9721 which requires courts to consider certain factors prior to
imposing a term of incarceration, including a defendant’s characteristics and
rehabilitative needs. Based on our review of the record and applicable law,
we agree that the court erred as a matter of law and, thus, abused its
discretion.
Our sentencing statutes provide that “[t]he court shall impose a
sentence of total confinement if, having regard to the nature and
circumstances of the crime and the history, character, and condition of
the defendant, it is of the opinion that the total confinement of the defendant
is necessary because, inter alia, “a lesser sentence will depreciate the
seriousness of the crime of the defendant.” 42 Pa.C.S. § 9725(3) (emphasis
added). In addition, Section 9721(b) provides that “the sentence imposed
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should call for total confinement 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.” Id. (emphasis added).
Significantly, Section 9721(b) also provides that “[i]n every case in
which the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or reasons for the
sentence imposed.” 42 Pa.C.S. § 9721 (emphasis added). “In particular, the
court should refer to the defendant’s prior criminal record, his age, personal
characteristics[,] and his potential for rehabilitation.” Commonwealth v.
Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). Finally, the record as a whole must
reflect the sentencing court’s consideration of the facts of the case and the
defendant’s character. Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.
Super. 2010).
Here, because the court did not order a pre-sentence investigation, the
court was required to state on the record that it was aware of and considered
the sentencing factors provided by our sentencing code. As noted above, the
court here stated:
So we’ve reviewed the matter here and we understand that this
had occurred some time ago. I know it’s been some time getting
here. The [c]ourt’s been concerned, I think, since the outset since
we reviewed this of the nature of this offense and what had
occurred here and so understanding that, the gravity of the
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offense and the impact on the life of the victim as relayed here in
the affidavit, sir, I’m going to sentence you as follows[. . .] .
N.T. Sentencing, at 7.
This barebones statement does not satisfy the mandates of Section
9721. The fact that the incident occurred some time ago is not a sentencing
factor. While the court mentioned its consideration of the nature of the
offense, the gravity of the offense, and the impact on the victim, the court’s
statement does not in any way indicate that it was aware of and considered
the characteristics of Appellant, particularly his rehabilitative needs, before
imposing a term of incarceration. The imposition of a standard range sentence
does not absolve the court of its statutory obligation to provide thorough
consideration and explanation indicating that it was aware of the sentencing
factors as provided by our legislature and properly considered them.
We, thus, vacate the judgment of sentence and remand for resentencing
in accordance with this memorandum.3
Judgment of Sentence vacated. Case remanded. Jurisdiction
relinquished.
President Judge Emeritus Bender joins the memorandum.
Judge Bowes files a Dissenting Memorandum.
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3 We address Appellant’s second and third issues only to observe that, in light
of the court’s summary explanation of its reasons for imposing a sentence of
incarceration, Appellant’s claims that the court impermissibly relied on
allegations in the affidavit of probable cause are purely speculative.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2022
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