Com. v. Young, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LISA KIM K. YOUNG
Appellee No. 942 EDA 2013
Appeal from the Judgment of Sentence February 1, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003732-2011
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 16, 2014
The Commonwealth appeals from the judgment of sentence imposed
on Lisa Kim Young (Young) on February 1, 2013, in the Court of Common
Pleas of Philadelphia County. On October 9, 2012, Young entered into an
open guilty plea agreement to one count of aggravated assault and one
count of possession of an instrument of a crime (PIC).1 On November 28,
2012, Young was sentenced to 11½ to 23 months’ incarceration, with
immediate parole, to be followed by an aggregate term of 13 years of
probation. The Commonwealth filed a timely motion for reconsideration,
which was granted only to the extent that Young would report for
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702(a)(1) and 907, respectively.
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incarceration on February 19, 2013 and would then be paroled on March 4,
2013. This timely appeal followed in which the Commonwealth alleges the
trial court abused its discretion by issuing a manifestly lenient sentence.
After a thorough review of the submissions by the parties, the certified
record, and relevant law, we affirm.
The facts of this matter are simply stated and undeniably tragic. We
quote the factual history from the trial court’s Pa.R.A.P. 1925(a) Opinion.
On November 20, 2010, [Young] went to Craig Mills’ house
where she had an argument with Mills regarding allegations that
Mills had sexually assaulted [Young’s] teenage daughter. During
the argument, [Young] grabbed a baseball bat from an umbrella
holder in Mills’ house and struck him twice with the bat. [Young]
then left the house to go to her car; Mills followed her outside.
[Young] retrieved a kitchen knife from her car and walked back
towards Mills. [Young] then stabbed Mills once in the upper left
arm. [Young] tried to stab Mills a second time but was
prevented from doing so by family members. [Young] then
drove away, but was stopped by the police soon thereafter.
Upon being stopped, [Young] told the officers, “they didn’t have
anything to do with it, it was all me.”[2] After being read her
Miranda[3] rights, [Young] confessed to the detective that she
stabbed Mills and fled the scene.
Mills suffered serious bodily injury as a result of the stabbing,
including losing a massive amount of blood from an artery
severed during the stabbing. By the time Mills was brought to
the hospital, he was non-responsive. He has remained in a
coma since the stabbing and in on life-support and a ventilator.
He also has no sensation and does not respond to stimuli.
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2
It is unclear who “they” are.
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
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Trial Court Opinion, 11/5/2013, at 1-2.
On October 9, 2010, Mills entered into a guilty plea agreement,
wherein she pled guilty to aggravated assault and PIC, in exchange for all
other charges being nolle prossed. There was no agreement as to a
sentence. A presentence report was generated and at least 23 letters in
support of Young were provided to the court. The Assistant District Attorney
read an impact statement from the victim’s grandmother and the victim’s
daughter testified how the crime had affected her.
The Commonwealth has challenged the discretionary aspects of
Young’s sentence. We begin by addressing our standard of review in
sentencing matters:
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 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.
Commonwealth v. Hoch, 936 A.2d 515, 517-18 (Pa. Super.
2007) (citation omitted).
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. See Hoch, 936 A.2d at 518 (citation
omitted). An appellant must satisfy a four-part test to invoke
this Court's jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal; (2)
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whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence; (3)
whether appellant's brief has a fatal defect; and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010 (citations omitted).
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.
2014).
Our review of the certified record confirms the Commonwealth’s appeal
is timely, the issue was preserved in the court below, and the required
Pa.R.A.P. 2119(f) statement has been included. Therefore, we must
determine whether reasons given in the Rule 2119(f) statement raise a
substantial question. A claim that the trial court has imposed an excessively
lenient sentence raises a substantial question. See Commonwealth v.
Hoch, 936 A.2d 515 (Pa. Super. 2007). Accordingly, we will address the
merits of the Commonwealth’s appeal.
There is no dispute that the victim in this matter suffered a grievous
injury. The Commonwealth has argued that the nature of the injury, alone,
should require a term of incarceration. See Appellant’s Brief at 14.
Additionally, the Commonwealth contends that the trial court focused almost
exclusively on the defendant’s circumstances, relied on inaccurate and
unsupported factors, and also relied on impermissible factors in fashioning
Young’s sentence.
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We start our analysis with the trial court’s statements of reasons at
both the initial sentencing hearing of November 28, 2012, and the February
1, 2013 sentencing hearing following the Commonwealth’s motion for
reconsideration.
THE COURT: All right. In this matter with the prior record
score and the offense gravity, the standard score is 1 as
negotiated without the deadly weapon enhancement, guidelines
is 36 to 54 plus or minus 12. In this matter the defense is
asking for a period of probation, the Commonwealth is seeking a
period of 10 to 20 years of state incarceration.
Let me note the following factors, some of which are
mitigating factors, some of which are aggravated factors. Ms.
Young is a sole caregiver of two children that she herself knows
the impact of being a victim of a crime due to the fact her
husband was murdered some years ago. Her extensive
involvement in the community, the fact she has been self-
employed and has hired other employees over a period of time,
there is no drug and alcohol and mental health issues that are at
play here. The recommendation of the presentence investigator
that the defendant be put on supervision. The facts of this
particular crime and for purposes of the recitation of facts, I will
credit Ms. Kayhan’s recitation of those facts as well as that
contained in the arrest report which, among other things, at
least in my view, resulted in a horrific injury which will result in a
lifetime sentence both to the victim and to the victim’s family.
The fact that Ms. Young twice confessed, first to the
arresting police officer and second to the detective in a written
statement, the letters from the grandparents, daughter,
community leaders and Officer Young amongst others, and the
expression of remorse that the defendant has not only in
pleading guilty, but also in the letter that she has recited, and
also relying upon the statements by the victim’s family which are
clearly powerful and what I am taking most seriously.
And in my view, considering first, the protection of the
public, second, the nature and gravity of offenses as related to
the impact on the community and third, the rehabilitative need
of the defendant, I am considering the following:
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First, the guidelines which were promulgated by the state
legislature, second, the presentence investigation which I
incorporate fully as part of today’s record, arguments by
counsel, support from the defendant’s family, statements by the
victim’s family and my observation of the defendant both at the
guilty plea and at the sentencing hearing, it is my intention to
depart from the guidelines…
N.T. Sentencing, 11/28/2012, at 51-54. As mentioned above, the court
imposed a sentence of 11 ½ to 23 months’ incarceration, with immediate
parole, followed by 13 years of probation. As noted by the trial court, the
standard range sentence for aggravated assault with serious bodily injury for
a defendant with a zero prior record score, is 36 to 54 months’ incarceration.
The aggravated and mitigated ranges are plus or minus 12 months. The
sentence imposed, 11½ to 23 months’ incarceration, is below the mitigated
range.
On February 1, 2013, the trial court heard considerable argument from
both counsel regarding the Commonwealth’s motion for reconsideration of
sentence. At the end of the hearing, the trial court addressed the
Commonwealth’s allegations.
THE COURT: I will start out by first examining Section
9721, which I did state that I considered.
I did not, in fact, lip service, or simply go through the
motions, in terms of every cite that I considered.
I did consider the general principle that the sentencings
that would be 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 also the rehabilitation of the
defendant.
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I also then considered the guidelines that were
promulgated by the Commission on Sentencing, as well as the
unique circumstances of this particular defendant, her
background and support systems, as well as the lifelong
sentence.
And I did say, Mr. Carpenter [Assistant District Attorney],
that, in fact, in my view, resulted in a horrific injury that would
result in a lifetime sentence both to the victim and the victim’s
family members.
So it’s without a doubt that I considered it.
I think it is a matter of how you weigh that effectively.
And I understand sentencing, in my view, is one of the
most difficult things that I do.
This is a unique day of all days that just – and it’s by
happenstance of fitting it on my calendar.
And in a case earlier today, and this is not to compare
sentences, certainly, because that’s not appropriate, but as the
Appellate Court is in a position to understand and view
sentences based upon their history.
For three years I have been sentencing people. And, in
fact, today was a review by the defendant, who was sentenced
10 to 20 years on a drug conviction, and it was a statutory
maximum sentence I imposed.
The Commonwealth in that case thought six-and-a-half to
13 years was appropriate.
And, so, I went far above what the Commonwealth even
recommended.
So I sit here and I view things, and I weigh things, and I
weigh them in a way that I think is appropriate.
I thought was it appropriate in that case, and I upheld that
sentence.
I think the way I weighed it here with Miss Young is also
appropriate, and I will maintain the sentence that I have
imposed.
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Let me address the factors under 97.5 [sic],[4] Total
Confinement.
I do not believe that there is an undue risk that but for a
period of partial confinement - but for confinement the
defendant will commit another crime. And I believe that, in my
view, that the need for correctional treatment is not what []
would be most effectively provided through the commitment.
I do weigh most heavily that a lesser sentence would
depreciate the seriousness of the crime of the defendant.
There is no doubt that it was a serious crime and, as I
indicated before, it was one that has a lifetime impact on the
victim and on the victim’s family, as I mentioned before.
And I also weighed, as I was required to do, because Mr.
Silver [Defense Counsel] requested, a sentence of probation.
But under 97.2 [sic][5] an order of probation that I
considered – the Commonwealth requires I considered 12
different bases to weigh those factors.
And I will note some of those factors that would weigh
potentially towards an order of probation, which was that the
defendant has no history of prior delinquency or criminal
activity;
Has led a law-abiding life for a substantial period of time
before the commission of the present crime;
That the criminal conduct of the defendant was a result of
circumstances unlikely to recur;
That the character and attitudes of the defendant indicate
that they are unlikely to commit another crime;
That the defendant is likely to respond affirmatively to
probationary treatment.
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4
42 Pa.C.S. § 9725.
5
42 Pa.C.S. § 9722.
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Those are factors that would weigh towards an order of
probation.
However, there are factors that would disfavor probation,
which was that the criminal defendant – the criminal conduct of
the defendant did, in fact, cause serious harm;
That the defendant, in my view, did contemplate that her
conduct would cause serious harm;
That the nature of the aggravated assault, that it’s
intentional.
And I also considered the factors under 97.2 [sic].
N.T. Sentencing Hearing, 2/1/2013, at 48-52. As already stated, the
Commonwealth’s Motion for Reconsideration was granted only to the extent
that Young was required to report for incarceration, upon which she would
be paroled in a matter of days.
The limits of an appellate review of a sentence are determined by
statute. In relevant part, we may vacate the sentence if “the sentencing
court sentenced outside the guidelines and the sentence is unreasonable.”
See 42 Pa.C.S. 9781(c)(3). There are four statutory factors we must have
regard for in reviewing the certified record. They are: (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, and (4) the guidelines promulgated by the
commission. 42 Pa.C.S. § 9871(d)(1)-(4).
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Further, our Supreme Court has provided a comprehensive statement
regarding the review of a challenge to the discretionary aspects of a
sentence in Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).
Our Court has stated that the proper standard of review when
considering whether to affirm the sentencing court's
determination is an abuse of discretion. Commonwealth v.
Smith, 543 Pa. 566, 673 A.2d 893, 895 (1966) (“Imposition of a
sentence is vested in the discretion of the sentencing court and
will not be disturbed absent a manifest abuse of discretion.”). As
stated in Smith, an abuse of discretion is more than a mere
error of judgment; thus, a sentencing court will not have abused
its discretion unless “the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id.FN2 In more expansive
terms, our Court recently offered: “An abuse of discretion may
not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.” Grady v.
Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003).
FN2. As supported by both our case law mandating review
of the record, Smith, 673 A.2d at 895, and the Sentencing
Code requiring an appellate court to review the “record” in
making the reasonableness determination described below,
42 Pa.C.S. § 9781(d), our scope of review on appeal is
plenary, in other words, we may review the entire record.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is “in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.” Commonwealth v. Ward,
524 Pa. 48, 568 A.2d 1242, 1243 (1990); see also
Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587,
591(1992) (en banc) (offering that the sentencing court is in a
superior position to “view the defendant's character, displays of
remorse, defiance or indifference and the overall effect and
nature of the crime.”). Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
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sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and judgment
that should not be lightly disturbed. Even with the advent of the
sentencing guidelines,FN3 the power of sentencing is a function to
be performed by the sentencing court. Ward, 568 A.2d at 1243.
Thus, rather than cabin the exercise of a sentencing court's
discretion, the guidelines merely inform the sentencing decision.
See also United States v. Salinas, 365 F.3d 582, 588 (7th Cir.
2004).
FN3. The sentencing guidelines were promulgated by the
Pennsylvania Commission on Sentencing to be considered
by and to aid courts in imposing sentences. See generally
Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775(1987). The guidelines were designed to bring greater
rationality and consistency to sentences and to eliminate
unwarranted disparity in sentencing. Commonwealth v.
Mouzon, 571 Pa. 419, 812 A.2d 617, 620 n. 2 (2002)
(plurality).
Walls, 926 A.2d at 961-62 (Pa. 2007).
Additionally,
[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing
guidelines to assess whether the sentencing court imposed a
sentence that is “unreasonable.” 42 Pa.C.S. § 9781(c), (d).
Yet, what makes a sentence “unreasonable” is not defined in the
statute. Generally speaking, “unreasonable” commonly connotes
a decision that is “irrational” or “not guided by sound judgment.”
The Random House Dictionary of the English Language, 2084
(2nd ed. 1987); see 1 Pa.C.S. § 1903 (words to be construed
according to their common and approved usage). While a
general understanding of unreasonableness is helpful, in this
context, it is apparent that the General Assembly has intended
the concept of unreasonableness to be a fluid one, as
exemplified by the four factors set forth in Section 9781(d) to be
considered in making this determination. Indeed, based upon the
very factors set out in Section 9781(d), it is clear that the
General Assembly intended the concept of unreasonableness to
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be inherently a circumstance-dependent concept that is flexible
in understanding and lacking precise definition. Cf. United
States v. Crosby, 397 F.3d 103, 115 (2nd Cir. 2005) (explaining
concept or reasonableness in context of sentencing matters).
Thus, given its nature, we decline to fashion any concrete rules
as to the unreasonableness inquiry for a sentence that falls
outside of applicable guidelines under Section 9781(c)(3). We
are of the view, however, that the Legislature intended that
considerations found in Section 9721 inform appellate review for
unreasonableness. That is, while a sentence may be found to be
unreasonable after review of Section 9781(d)'s four statutory
factors, in addition a sentence may also be unreasonable if the
appellate court finds that the sentence was imposed without
express or implicit consideration by the sentencing court of the
general standards applicable to sentencing found in Section 972,
i.e., the protection of the public; the gravity of the offense in
relation to the impact on the victim and the community; and the
rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).
Moreover, even though the unreasonableness inquiry lacks
precise boundaries, we are confident that rejection of a
sentencing court's imposition of sentence on unreasonableness
grounds would occur infrequently, whether the sentence is above
or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard
of review.
Walls, 926 A.2d at 963-64.
With these statutory and Supreme Court mandated standards in mind,
we turn our attention to the Commonwealth’s allegations.
First, the Commonwealth argues that the severity of the crime itself,
including the tragic harm caused to the victim, requires the imposition of a
term of actual incarceration.6 However, such a sentence is not mandated by
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6
We emphasize that Young was sentenced to a term of incarceration. She
was, however, immediately paroled.
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statute or by the guidelines. If the legislature intended all such aggravated
assaults be punished by a mandatory term of actual incarceration, it clearly
knew how to do so. Therefore, in this case, the law allows for the possibility
of a sentence that does not require confinement.7 If we credit the
Commonwealth’s argument, we would essentially be usurping the
legislature’s function by mandating incarceration. Additionally, we would be
elevating the severity of the crime over all other factors.
Rather, Pennsylvania follows a policy of individualized sentencing, and
the nature of the crime, including the effect on the victim, is a factor to be
considered and weighed along with the other factors required by statute and
our Supreme Court. Our review of the record demonstrates that the trial
court did consider both the nature of the crime and its effect on not only the
victim, but the victim’s family as well. The fact that the trial court came to a
different conclusion than the Commonwealth does not mean the trial court
was either unreasonable or abused its discretion.
We next examine the Commonwealth’s sub-arguments.
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7
In this portion of the appeal, the Commonwealth appears to be arguing
that the immediate parole of Young was inappropriate. However, at the
February 1, 2013 hearing on the motion for reconsideration, the
Commonwealth acknowledged the trial court’s authority to grant immediate
parole in this situation. See N.T. Hearing, 2/1/21/3 at 52.
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The Commonwealth has argued the trial court “focused almost
exclusively on [Young’s] circumstances that do not reflect the gravity of her
crimes and their effect on her victim.” Appellant’s Brief at 17.
We begin by noting that it is self-apparent that Young’s circumstances
will necessarily focus on her and not on her victim. There is nothing
inherently improper about considering a defendant’s circumstances at
sentencing. Further, if a sentence that departs from the guidelines in favor
of the defendant is properly supported, it will, by necessity, be supported by
factors that weigh heavily in favor of the defendant. What our Court must
do in reviewing such a sentence is acknowledge that the statutes and
guidelines allow for such departures and examine whether the record reflects
the trial court reasonably considered the appropriate factors before
significantly departing from the guidelines. We must also recognize that in
circumstances such as are present instantly, the imposition of a sentence of
parole and probation, while allowable, is and should be a rare happening.
However, rarity does not equate to unreasonableness.
The Commonwealth further asserts that the trial court merely “paid lip
service”, see Appellant’s Brief at 20, to the gravity of the offense. To
support this argument, the Commonwealth has invited comparison of the
instant matter to a number of prior cases: Commonwealth v. Wilson, 946
A.2d 767 (Pa. Super. 2008); Commonwealth v. Daniel, 30 A.3d 495 (Pa.
Super. 2011); Commonwealth v. Dixon, 496 A.2d 802 (Pa. Super. 1985);
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Commonwealth v. Septak, 518 A.2d 1284 (Pa. Super. 1986); and
Commonwealth v. Days, 503 A.2d 1339 (Pa. Super. 1986). In each of
these cases, our Court determined the sentence imposed by the trial court
was impermissibly lenient and reversed. We find these comparisons to be
unpersuasive and will briefly examine each case.
In Wilson, the defendant committed two separate robbery/assaults,
hitting each victim in the face with a brick. Wilson was sentenced to an
aggregate term of 11½ to 23 months’ incarceration with immediate parole,
followed by seven years of reporting probation. The trial court found
treating Wilson’s drug dependence to be of paramount importance. Notably,
the defendant had prior arrests and convictions. Additionally, the trial court
was aware of multiple open cases in Delaware, but had no idea as to their
disposition. Our court noted that Wilson’s aggressive behavior predated the
two assaults at issue by a minimum of fifteen years and did not consider
Wilson’s drug history coupled with the aggressive criminal behavior
associated with it. Importantly, the presentence investigation reported
Wilson posed “a direct threat to the safety and welfare of others.” Wilson,
946 A.2d at 772. The factual and historic background of the defendant in
Wilson is far different from that of Young.
In Daniel, the defendant stabbed two people over an argument about
a telephone, placing both victims in critical condition. Daniel lied about the
circumstances, claiming he used a penknife when, in fact, the weapon was a
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double-edged butterfly knife. Daniel had a history of “increasingly serious
criminal behavior and continued to flaunt [sic] our laws, even after
commission of the offense at issue.” Daniel, 30 A.3d at 497-98. One of the
subsequent crimes was possession of an unlicensed firearm that had the
identification number removed. Id. at 498. Daniel had been sentenced to
11½ to 23 months’ incarceration (immediate parole) followed by five years
of probation. The trial court supported the sentence by stating Daniel had
pled no contest, foregoing a self-defense claim. Our Court determined there
was no evidence to support the possibility of a self-defense claim.
Furthermore, although Daniel had expressed remorse at sentencing, our
Court determined he was insincere given the subsequent criminal activity.
Additionally, the trial court credited the fact Daniel committed the crimes as
a result of drugs, he did not begin committing crimes until he was twenty
and had family support. However, the fact that Daniel was twenty when
beginning his criminal activity was not explained by the trial court and so
was discounted, leaving only his drug addiction, which alone could not
outweigh the other factors.8
In Dixon, the defendant pled guilty to third-degree murder, as
determined by the trial court. He was sentenced to 11½ to 23 months’
incarceration with credit for 9 months’ time served, followed by 10 years of
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8
No mention was made of family support.
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probation. Again, the trial court mistakenly credited the defendant with
giving up a self-defense claim; and also stated, without supporting evidence
that the crime would not have occurred but for Dixon being drunk. Unlike
the present case, Dixon had a significant criminal history, including a prior
manslaughter conviction, with his criminal activity becoming increasingly
violent. The pre-sentence report specifically noted Dixon was a poor
candidate for probation. Our Court noted the trial court rejected the
presentence evaluation without explanation and in an arbitrary manner.
Additionally, the trial court incorrectly asserted it could deviate from the
guidelines as long as the reasons were put on the record. Dixon, 496 A.2d
at 809. The trial court notably missed the requirement that the reasons had
to be supported by the record and not otherwise unreasonable.
In Septak, the defendant pled guilty to unlawful restraint, terroristic
threats and conspiracy regarding his involvement in a crime in which he and
others held a person captive seeking $9,000 ransom. He was sentenced to
four years of probation where the trial court refused to apply the deadly
weapon enhancement. Additionally, by failing to apply the required
sentence enhancement, the trial court also did not correctly determine the
proper guideline ranges.
Finally, in Days, after being convicted of kidnaping, unlawful restraint,
robbery, theft and possession of an instrument of crime, the defendant was
sentenced to time served to 23 months’ incarceration with one year of
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concurrent probation. In reversing the sentence, our Court noted the trial
court had not issued contemporaneous a written statement and gave as the
sole reason for imposing the sentence the fact Days had twice been sexually
assaulted in prison.
Here, there was no mandatory sentencing enhancement, no prior
criminal convictions,9 no statement in the pre-sentence report indicating a
likelihood of continuing problems, and no subsequent criminal convictions.10
Instantly, the certified record shows the trial court mentioned and
considered all relevant factors, including those that favored Young as well as
the nature and gravity of the crime.
While the Commonwealth has, properly, directed our attention to
those cases that it believes support its position, we compare those cases to
Commonwealth v. Vanderhorst, 501 A.2d 262 (Pa. Super. 1985), in
which a sentence of ten years of probation was affirmed for a defendant
convicted of voluntary manslaughter. Similar arguments were presented
and our Court opined:
The Commonwealth also argues that the sentencing court erred
in basing its deviation from the guidelines on a finding that
appellee had led a law-abiding life for a substantial period of
time before the commission of the present crime. The lower
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9
In 1993, Young was arrested for aggravated assault and was subsequently
acquitted. Therefore, her prior record score is zero.
10
In 2013, Young was arrested for simple assault and was subsequently
acquitted.
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court did not, as the Commonwealth seems to contend, base its
finding on a misunderstanding of the facts. The lower court was
fully cognizant of appellee's previous criminal record, but
considered the fact that all convictions, except one, were over
ten years old. Further, the most recent conviction was not for a
crime of violence. Likewise, the Commonwealth's contention that
appellee has not shown that he would benefit from a
probationary sentence is without substance. The lower court did
not abuse its discretion when it looked at appellee's past criminal
record in conjunction with the fact that he had a good
employment history and a supportive family and that he had
rehabilitated himself following his bout of criminal activity during
his late teens and early twenties. Such considerations were
specifically allowed by the legislature.
Vanderhorst, 501 A.2d at 264 (citations and footnote omitted).
Distinguishing the Commonwealth’s cases from the matter before and
considering Vanderhorst, we believe the Commonwealth’s argument does
not compel us to vacate Young’s sentence.
Next, the Commonwealth claims the trial court relied upon inaccurate
and unsupported factors. Specifically, the Commonwealth asserts that
Young did not show remorse by pleading guilty, and she pled guilty only
because the Commonwealth offered her a good plea bargain. Also, the
Commonwealth claims that Young perpetrated a fraud upon the trial court by
submitting a letter at sentencing purporting to be from Young’s mother, but
which was actually penned by Young.
There are no factual findings to support the Commonwealth’s bald
assertion that Young pled guilty only because of the plea-bargain she was
offered. She was, in fact, offered a favorable plea bargain. However, the
fact remains that she voluntarily confessed twice prior to her guilty plea and
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that she did express remorse in her written statement provided to the court
at the original sentencing hearing. Additionally, virtually every defendant
offered a plea agreement obtains some benefit from the agreement. By the
Commonwealth’s logic, no defendant would be showing remorse by pleading
guilty; the acceptance of the agreement being evidence of only self-serving
behavior. While we acknowledge there is an element of self-interest
inherent in a guilty plea, that fact does not foreclose the existence of
remorse. Here, the trial court observed the defendant at the guilty plea
hearing, as well as two sentencing hearings, and concluded that Young’s
statement of remorse was sincere and worthy of consideration. We cannot
second-guess this determination simply because it does not please the
Commonwealth any more than we will second-guess a trial court’s
determination that displeases a defendant. See Commonwealth v. A.W.
Robl Transport, 747 A.2d 400, 403 (Pa. Super. 2000) (Superior Court will
not second-guess the trial court’s credibility determinations on appeal.)
The next aspect of this argument is that the trial court unwittingly
relied on a fraudulent letter of reference. Specifically, the Commonwealth
contends that the letter presented to the court at the original sentencing
hearing, purportedly from Young’s mother, was in fact written by Young
herself. As proof of this “fraud”, see Appellant’s Brief at 24, the
Commonwealth asks us to compare the handwriting from a letter admittedly
written by Young after the sentencing hearing, see Letter, 10/10/2013,
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Supplemental Record, and the letter presented to the trial court. However,
the Commonwealth has not alleged Young’s mother did not sign the letter.
Additionally, the Commonwealth has directed our attention to no mandate
that a letter in support of a defendant come wholly from the hand of the
signer. Accordingly, even accepting the Commonwealth’s assertion that
Young penned the bodies of both letters, it is no more conclusive proof of
fraud than if Young had simply typed the letter her mother signed.
Finally, the Commonwealth argues the trial court based its sentence on
impermissible factors. Specifically, the Commonwealth claims the trial court
impermissibly: (1) double counted Young’s zero prior record score, (2)
considered Young’s employment status, (3) considered the fact Young is the
sole caregiver to two minor children, (4) credited the presentence
recommendation, (5) determined Young was unlikely to reoffend, and (6)
would be amenable to probationary treatment.
We agree that a trial court may not double count a zero prior record
score as a reason to deviate from the guidelines. Commonwealth v.
Smith, 673 A.2d 893 (Pa. 1996). We do not believe the trial court double
counted the prior record score. Rather, the trial court noted it had been
specifically requested to consider a sentence of probation. See N.T.
Sentencing, 2/1/2013 at 51. As such, the trial court considered the twelve
statutory factors listed at 42 Pa.C.S. § 9722. Number 7 requires the court
to consider the prior criminal history including whether the defendant “has
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led a law-abiding life for a substantial period of time before the commission
of the present crime.” Section 9722 (7). We are not persuaded that the
trial court improperly considered that which the legislature instructed the
trial courts to consider. See also Vanderhorst, supra (not improper to
consider legislatively mandated factors).
In the same light, 42 Pa.C.S. § 9725, governing sentences of total
confinement, requires the trial court to consider “the history, character and
condition of the defendant.” Accordingly, we find no fault with the trial
court’s consideration of the fact that Young had been a productive member
of the community, running her own beauty shop, employing others,
mentoring others and providing a home for her children as sole caregiver.11
All of these facts provide information regarding the history, character and
condition of this defendant.
____________________________________________
11
The Commonwealth asserts that Commonwealth v. Maleno, 502 A.2d
617 (Pa. Super. 1985) held that consideration of a defendant’s family is an
improper factor. We disagree with that characterization. In Maleno, the
trial court stated at sentencing, “we are getting sidetracked on the issue of
prior record score, and we are not pinpointing what is important in this case,
and that is the feelings of all these people [defendant’s family].” Maleno,
502 A.2d at 620. In response, the decision of our Court stated it disagreed
and that the trial court had misread the nature of the proceedings. Under
the circumstances of Maleno, the trial court improperly placed far too great
an emphasis on the feelings of the defendant’s family, but we do not read
that case to forbid consideration of the defendant’s family, especially in light
of the statutory mandates of Section 9725.
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The pre-sentence report recommended imposition of a probationary
sentence. All parties agreed that this recommendation of a sentence was
unusual. The trial court noted this recommendation, but our review of the
certified record leads us to conclude that the trial court considered all the
relevant factors before it and did not give undue weight to this
recommendation.12
Next, the Commonwealth argues that the trial court erred in
concluding Young was unlikely to reoffend. Much of this conclusion was
based on the trial court’s understanding of the forces that caused this
assault, recognizing that Young was responding to allegations one of her
daughters had been sexually assaulted by a family member and concluding
that such factors were unlikely to happen again.13
Here, the Commonwealth states Young has a demonstrated history of
prior and subsequent assaultive behavior. There are a number of problems
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12
The Commonwealth implies such a recommendation is improper, citing
Commonwealth v. Moore, 583 A.d 1 (Pa. Super. 1990). Moore, however,
does not hold that sentencing recommendations are forbidden. Rather, the
sentencing court is not to abdicate its sentencing responsibility to any other
person or group. The certified record in this matter clearly demonstrates the
trial court did not abdicate its responsibility in sentencing Young.
13
Although not specifically mentioned as such, this is also a factor to be
considered under Section 9722, specifically, whether the defendant acted
under a strong provocation as well as whether criminal conduct of the victim
induced or facilitated the crime. 42 Pa.C.S. § 9722(3), (5). We note that
the trial court determined Young was not acting in the heat of passion. See
Trial Court Opinion at 12.
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with this claim. First and foremost, the certified record contains no
documentation regarding these assaults. Although the Commonwealth has
provided a criminal abstract as an exhibit to its appellant’s brief, we may
only consider that which is contained in the certified record.14 Second, an
assault that took place after sentencing in this matter is irrelevant to
sentencing considerations. As the incident had yet to occur by the time of
sentencing, the trial court could not possibly consider it. Third, the
Commonwealth admits in its brief, which is confirmed by the criminal
abstract, that while Young had been charged with aggravated assault and
related crimes in 1993, she was acquitted of those charges. Accordingly,
Young was properly credited with a prior record score of zero, which the
Commonwealth did not dispute at sentencing. The Commonwealth has
provided no authority for the proposition that a sentencing court should
adversely consider the fact a defendant has been exonerated of other
crimes.
Similarly, the abstract notes Young was charged with simple assault
and reckless endangerment in 2013, but was acquitted. In his Pa.R.A.P.
1925(a) opinion, the trial judge noted he was aware of the 2013 simple
assault charge. In footnote 5, the trial court stated:
____________________________________________
14
“Simply put, if a document is not in the certified record, the Superior
Court may not consider it.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006).
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On October 1, 2013, the trial court lodged a detainer against
[Young] for an alleged simple assault that occurred on August
28, 2013.[15] [Young] was ultimately arrested on October 23,
2013. As a result, [Young] has a pending violation of probation
hearing. [Young] remains incarcerated on the trial court’s
detainer pending the disposition of the violation of probation
hearing. At a minimum, these post-sentencing charges call into
question, inter alia, the genuineness of [Young’s] remorse at the
sentencing hearing. At the worst, the charges could result in
revocation of [Young’s] parole and probation and the imposition
of a new sentence.
Trial Court Opinion, at 11 n.5. Accordingly, the trial judge was demonstrably
aware, post-sentence, of the allegations against Young but was waiting for
the resolution of the charges to determine the effect upon the instant
matter. We find no fault with such prudence.
Finally, the Commonwealth claims the trial court improperly
determined Young would respond to probationary treatment without
providing further explanation. However, the trial court noted in its opinion
that the pre-sentence report recommended anger management treatment
for Young. Further, at sentencing the Commonwealth could identify no
treatment services that would be appropriate for Young that would require
total confinement. See N.T. Sentencing Hearing, 2/1/2013 at 34-35.
Accordingly, we see no error here.
____________________________________________
15
The hearing on the motion for reconsideration of sentence took place on
February 1, 2013, six months prior to the alleged August simple assault. We
are unaware of the results of the violation of probation hearing.
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A significant downward departure from the sentencing guidelines will
necessarily raise a skeptical eye. However, absent statutory mandates, such
deviations are allowed. Provided the trial court’s decision is not
unreasonable or an abuse of discretion, neither the trial court nor appellate
courts may act as a super-legislative body by mandating incarceration based
solely upon the gravity of a crime. Rather, the trial courts are obliged to
consider each defendant individually and pronounce a sentence based upon
the facts, findings, and circumstances presented. The trial court followed
the law on sentencing. The certified record does not support the
Commonwealth’s claims that the trial court failed to consider the gravity of
the crime or that it considered improper, fraudulent or unsupported factors.
While another court might well have issued a different sentence, that is not
proof of an abuse of discretion or an unreasonable process and result. As
such, we find no abuse of discretion or error of law.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Strassburger files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2014
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