Com. v. Herbert, R.

J-S10031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICO MANDRELL HERBERT
Appellant No. 1710 EDA 2014
Appeal from the Judgment of Sentence April 7, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001359-2012
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 12, 2015
Appellant, Rico Mandrell Herbert, appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas, following
his open guilty pleas to third degree murder, robbery of motor vehicle, and
abuse of corpse.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On February 23, 2012, Appellant broke into the home of eighty-seven-year-
old Joseph DeVivo (“Victim”). At the time of the break in, Victim was in his
bed. Victim quickly realized that someone had entered his house, and
Victim left the bedroom to confront the intruder. When Victim encountered
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1
18 Pa.C.S.A. §§ 2502(c), 3702, and 5510, respectively.
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*Retired Senior Judge assigned to the Superior Court.
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Appellant, Victim became frightened and started to shout. Appellant
responded by pulling Victim’s t-shirt over his head, smothering Victim to
death. After the killing, Appellant took Victim’s wallet, cell phone, and car
keys. Appellant loaded Victim’s corpse into the trunk of Victim’s car.
Appellant drove Victim’s car to a local motel, where Appellant spent the
night with his girlfriend.
On February 24, 2012, Appellant fled in Victim’s car to North Carolina.
On February 25, 2012, Appellant drove Victim’s car to South Carolina. In a
secluded, wooden area, Appellant dumped Victim’s corpse into a ravine.
Also on February 25, 2012, Victim’s daughter first reported Victim as
missing. Ultimately, police apprehended Appellant in North Carolina by
analyzing data from Victim’s cell phone and the “OnStar” system in Victim’s
car.
On May 17, 2012, the Commonwealth filed notice of intent to seek the
death penalty against Appellant. On July 5, 2012, the Commonwealth filed a
criminal information charging Appellant with criminal homicide, burglary,
abuse of corpse, robbery of motor vehicle, and two (2) counts of theft by
unlawful taking. Prior to trial, however, the parties entered into a plea
agreement. On April 7, 2014, Appellant executed a written guilty plea
colloquy. That same day, Appellant pled guilty to third degree murder,
robbery of motor vehicle, and abuse of corpse. In exchange, the
Commonwealth withdrew the remaining charges. Following an oral colloquy,
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the court accepted Appellant’s pleas. The court immediately sentenced
Appellant to twenty (20) to forty (40) years’ imprisonment for the third
degree murder conviction, ten (10) to twenty (20) years’ imprisonment for
the robbery of motor vehicle conviction, and one (1) to two (2) years’
imprisonment for the abuse of corpse conviction.2 The court ordered the
sentences to run consecutive to each other, resulting in an aggregate term
of thirty-one (31) to sixty-two (62) years’ imprisonment.
Appellant timely filed post-sentence motions on April 16, 2014. In his
motions, Appellant asked for reconsideration of his sentences in light of
various mitigating factors, including his acceptance of responsibility for the
crimes. Appellant also emphasized that he had taken positive steps toward
rehabilitation while incarcerated. Appellant claimed “the aggravating factors
cited are greatly outweighed by the mitigating factors referenced in court at
the time of sentencing.” (Post-Sentence Motions, filed 4/16/14, at 4).
Citing the sentencing guidelines, Appellant concluded the court had imposed
unreasonable sentences. Additionally, Appellant requested an amendment
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2
With a prior record score (“PRS”) of two (2) and an offense gravity score
(“OGS”) of fourteen (14), the standard range for Appellant’s murder
conviction was ninety-six (96) months to the statutory limit, which was two
hundred forty (240) months. With a PRS of two (2) and an OGS of twelve
(12), the standard range for Appellant’s robbery of motor vehicle conviction
was sixty (60) to seventy-eight (78) months, plus or minus twelve (12)
months for aggravating or mitigating circumstances. With a PRS of two (2)
and an OGS of three (3), the standard range for Appellant’s abuse of corpse
conviction was restorative sanctions to nine (9) months, plus or minus three
(3) months for aggravating or mitigating circumstances.
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of the sentencing order to reflect that he had already served one (1) year
and twenty-three (23) days’ imprisonment. On May 7, 2014, the court
granted Appellant’s request for a time credit. The court denied Appellant’s
post-sentence motions in all other respects.
Appellant timely filed a notice of appeal on May 23, 2014. On May 27,
2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
subsequently complied.
Appellant raises one issue for our review:
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
BY SENTENCING APPELLANT OUTSIDE THE GUIDELINES,
WHEN SUCH SENTENCES WERE THE MAXIMUM
ALLOWABLE UNDER THE STATUTE WITHOUT
CONSIDERING RELEVANT SENTENCING FACTORS AND
WITHOUT STATING ADEQUATE REASONS FOR ITS
SENTENCE.
(Appellant’s Brief at 7).
On appeal, Appellant contends the court imposed an aggravated range
sentence for his abuse of corpse conviction, and the court exceeded the
aggravated range for his robbery of motor vehicle conviction. Appellant
argues the court imposed unduly harsh sentences based upon factors
already included in the sentencing guidelines, namely the seriousness of the
offenses. Appellant insists his sentences are unreasonable. Further,
Appellant claims the court did not articulate specific aggravating
circumstances to justify sentences in-and-above the aggravated range.
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Appellant concludes the court abused its discretion by imposing manifestly
excessive sentences for the robbery of motor vehicle and abuse of corpse
convictions. Appellant’s challenge is to the discretionary aspects of his
sentences.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)
(stating claim that sentence is manifestly excessive challenges discretionary
aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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).
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3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
pleas were “open” as to sentencing. (See N.T. Plea/Sentencing Hearing,
4/7/14, at 7.) Thus, Appellant can challenge the discretionary aspects of his
sentences.
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
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. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174 L. Ed. 2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
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appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). “A claim that the sentencing court
imposed an unreasonable sentence by sentencing outside the guideline
ranges raises a ‘substantial question’ which is reviewable on appeal.”
Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999).
Here, Appellant’s post-sentence motions did not mention his current
contention that the court failed to articulate specific aggravating
circumstances. Appellant also failed to raise his current argument at the
sentencing hearing. Instead, Appellant asserts the argument for the first
time on appeal. Thus, the argument is waived. See Mann, supra.
Nevertheless, Appellant’s post-sentence motions and Rule 2119(f) statement
did preserve his claim regarding the reasonableness of the court’s departure
from the sentencing guidelines for the robbery of motor vehicle conviction. 4
As presented, Appellant’s claim appears to raise a substantial question as to
the discretionary aspects of his sentence. See Davis, supra.
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4
The court imposed an aggravated-range sentence for Appellant’s abuse of
corpse conviction, which did not exceed the guidelines. Thus, Appellant’s
argument on the court’s departure from the guidelines does not implicate
the sentence for the abuse of corpse conviction.
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Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011)
(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999)
(en banc)).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct.
2984, 162 L. Ed. 2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. “If the court imposes a sentence outside of
the sentencing guidelines, it must provide a written statement setting forth
the reasons for the deviation and the failure to do so is grounds for re-
sentencing.” Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957,
963 (2007). A court’s “on-the-record statement of reasons for deviation
stated in the defendant’s presence” satisfies the requirement of a
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contemporaneous written statement. Commonwealth v. Styles, 812 A.2d
1277, 1278 (Pa.Super. 2002).
“[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.’” Walls, supra at 568, 926 A.2d at 963. In making this
“unreasonableness” inquiry, this Court must consider four factors:
§ 9781. Appellate review of sentence
* * *
(d) Review of record.—In reviewing the record the
appellate court shall have regard for:
(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.A. § 9781(d)(1)-(4).
In Walls, supra, our Supreme Court said, “the concept of
unreasonableness” is “inherently a circumstance-dependent concept that is
flexible in understanding and lacking precise definition.” Id. at 568, 926
A.2d at 963.
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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…. 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 9721, 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.
Id. at 568-69, 926 A.2d at 964 (emphasis added).
Instantly, Appellant waived his right to a pre-sentence investigation
(“PSI”) report and proceeded immediately to sentencing following the court’s
acceptance of the guilty pleas. Prior to the imposition of sentence, Appellant
presented testimony from Deborah Belknap, a capital mitigation specialist
who researched Appellant’s case in preparation for a potential capital
proceeding. Ms. Belknap conceded that Appellant has a “fairly extensive”
arrest record in South Carolina. (See N.T. Plea/Sentencing Hearing at 37.)
Nevertheless, Ms. Belknap highlighted mitigating factors, including
Appellant’s impoverished childhood, poor academic record, physical abuse
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inflicted by his father, a diagnosis of attention deficit hyperactivity disorder,
and a history of drug and alcohol addiction. Ms. Belknap also noted
Appellant’s positive relationships with his son, daughter, and grandparents.
After receiving argument from defense counsel, Appellant addressed the
court. Specifically, Appellant apologized to the court and Victim’s family
members; and he asked the court to show mercy on him.
The Commonwealth presented Victim’s son, who read a statement on
behalf of Victim’s family. The statement addressed the positive impact
Victim had made as a father and an elementary school teacher. The
prosecutor supplemented the statement with his own argument, indicating
that Victim was a proud World War II veteran who remained active and
socially engaged, despite his advancing age. The prosecutor also
emphasized the various lies Appellant told investigators after his arrest. In
conclusion, the prosecutor asked the court to depart from the guidelines and
impose maximum sentences for all three convictions.
Based upon the foregoing, the court provided the following statement
of reasons for the sentences it imposed:
In any case like this, in every case, you have to balance
many things when imposing sentence. And I think what
strikes me in this case is that immediately prior to this
incident…there was a plea in another burglary case….
* * *
And [Appellant] did not appear for sentencing in that case
which resulted in the issuance of a warrant for [Appellant]
on that case.
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It’s really troubling to me that anyone can reach the age of
87, having lived a good life, and then have [his] life end in
this manner. You know, most of our World War II
veterans, we have reached that sort of time in history
where many are passing now by natural causes just from
the age. And [Victim] by all recitations was one of those
people who kept going and continued to be active and
lived a good life. It should never have ended in this
manner. For what? A wallet, some credit cards, a car,
and I guess some money.
But what’s really disturbing to me is―and, [Appellant], I
know that today you allocuted to these charges. But I also
recognize…that was done in order to spare [Victim’s]
family and friends from having to sit through what would
have proven to be a very lengthy and disturbing trial with
evidence that I know is gruesome and disturbing.
But I suspect that if that was really the reason, we would
have been here sooner rather than the day that we have
the 170 people sitting in another courtroom waiting [for
jury selection].
* * *
I look at what I believe are mitigating circumstances here
which is also something the court has to balance, and
obviously it appears as though your life as a child was not
very good and that perhaps you suffered at the hands of
your parents.
But there was also a lot of drug and alcohol use. There
was also opportunity where the courts have been involved
before with you to change your life around. And at some
point, it’s up to you to do that. You know, when you
look―and I have the old PSI here, and you certainly have
had those opportunities in the past.
And you have children. You know, I find it interesting as
well that at some point you did have a good household
because you talk about your grandparents being
supportive and being there for you and having a nurturing
household with your grandparents, and so I have to
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balance all of these things.
But, again, I do find as an aggravating circumstance the
fact that you were on bail pending sentencing in the prior
case during the commission of this. You were out―there
was a bench warrant for your arrest during the commission
of this. You know, [Victim] was an…87…year old
gentleman who was a World War II veteran. You had
apparently been in his home before.
To me, these actions really show an incredible indifference
to human life.
* * *
Just the progression of this whole thing and how it
occurred. You go into the home, and then you know
there’s an opportunity. So [Victim’s] startled, but then
there’s an opportunity for you to do the right thing, either
to walk away or to…do something else, but you don’t.
And then you throw him in the car. And then there’s still
an opportunity because then you stop somewhere else,
and you’re with your girlfriend or girlfriends, and you still
have an opportunity, but you don’t, and then you’re on
your way to South Carolina.
(Id. at 53-57).
Here, the court stated with particularity its reasons for imposing
Appellant’s sentence.5 Regarding the “reasonableness” of Appellant’s
sentence, the court considered the nature and circumstances of the
offenses. The court noted that Appellant had the opportunity to walk away
after Victim confronted him. The court recognized Appellant’s history of
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5
Thus, even if Appellant had preserved his claim regarding the court’s
failure to provide specific aggravating circumstances, it would not have
warranted relief.
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burglaries, emphasizing that Appellant committed the current offenses while
awaiting sentencing in another case. The court mentioned that previous
attempts at rehabilitation had proven unsuccessful. Finally, the court
elaborated on the circumstances of Victim, an elderly veteran.
After weighing these considerations against the mitigating factors
mentioned by Ms. Belknap, the court elected to exceed the guidelines for the
robbery of motor vehicle conviction. The court observed Appellant and
evaluated the testimony from the mitigation specialist. The court also
announced its findings at the time of sentencing. Under these
circumstances, the court’s upward departure from the sentencing guidelines
for the robbery of motor vehicle was reasonable under Section 9781(d).
See Walls, supra. Based upon the foregoing, we see no cause to disturb
the judgment of sentence. See Coulverson, supra. Accordingly, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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