Com. v. Zimmerman, K.

J. S26019/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
KRISTIN MICHELE ZIMMERMAN, :
:
APPELLANT :
: No. 1591 MDA 2016
Appeal from the Judgment of Sentence May 18, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000356-2016
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 31, 2017
Appellant, Kristin Michele Zimmerman, appeals from the May 18, 2016
Judgment of Sentence entered in the Lebanon County Court of Common
Pleas sentencing her to a term of eleven months to three years of
imprisonment. On appeal, Appellant challenges the discretionary aspects of
the trial court’s sentence. After careful review, we affirm on the basis of the
trial court’s Opinion.
The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history of this case, which we
adopt for purposes of this appeal. See Trial Court Opinion, filed 9/13/16, at
*
Former Justice specially assigned to the Superior Court.
J. S26019/17
1-5. While we will not go into exhaustive detail here, some of the relevant
facts are as follows.
Appellant has repeatedly appeared before the Honorable Bradford H.
Charles “on charges that were largely drug-related.” Id. at 1. Historically,
Judge Charles has permitted Appellant to seek drug and alcohol treatment in
lieu of incarceration. However, Appellant has violated the terms of her
probation or parole on at least ten occasions, and continues to be arrested
on new charges. Id. at 2, 4.
On April 6, 2016, Appellant entered an open guilty plea to one count of
Retail Theft graded as a third-degree felony.1 On May 18, 2016, Appellant
appeared before Judge Charles for sentencing, and “once again asked for
inpatient treatment in lieu of jail.” Id. at 3. In response, Judge Charles
reminded Appellant of her numerous prior appearances and requests for
leniency. He then imposed a sentence of nine months to three years of
imprisonment, which was within the standard range of the sentencing
guidelines.
In response, Appellant told Judge Charles to “[h]ave a great fucking
day.” Id. at 4; N.T., 5/18/16, at 12.
Judge Charles then immediately vacated Appellant’s sentence, and
imposed a sentence of eleven months to three years of imprisonment, which
remained within the standard range of the sentencing guidelines. The trial
1
18 Pa.C.S. § 3929(a)(1).
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court stated that Appellant’s use of an expletive towards the court evidenced
her “extreme lack of remorse” and provided further proof that she
considered the proceedings to be “a game to her.” Trial Court Opinion at 4.
Appellant filed a Post-Sentence Motion, which the trial court denied.
On September 23, 2016, Appellant timely filed the instant appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue, “[w]hether the [trial court]
improperly modified [Appellant’s] sentence and imposed a harsher penalty
as a result of her use of profanity in the [c]ourtroom?” Appellant’s Brief at
4.
We begin by noting that Judge Charles was authorized to vacate the
“oral sentence” he stated on the record and resentence Appellant to a longer
term. See 42 Pa.C.S. § 5505 (authorizing a court to “modify or rescind any
order within 30 days after its entry”). See also Commonwealth v. Unger,
462 A.2d 259, 260-61 (Pa. Super. 1983) (holding that where a trial judge
has not yet signed a sentencing order and entered it in the record, and the
defendant is still present in the courtroom, no sentence has been “imposed”
yet, and the trial court can therefore vacate the “initial pronouncement” and
impose an increased sentence without placing the defendant in double
jeopardy).
Appellant does not dispute that the trial court was empowered to
“change its mind” about the sentence imposed. Appellant’s Brief at 10.
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Instead, Appellant avers that her decision to tell the court to “[h]ave a great
fucking day” did not provide the sentencing court with any “new information
. . . that would warrant a penalty increase.” Id. Therefore, Appellant
argues, the sentence ultimately imposed by the trial court must have been
the result of “prejudice toward her based on past interactions.” Id. at 11.
Appellant’s claim, that the trial court imposed a sentence based on
prejudice, is a challenge to the discretionary aspects of her sentence. See
Commonwealth v. Derry, 150 A.3d 987, 991, 995 (Pa. Super. 2016). A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d
1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and
Notice of Appeal. Although Appellant did not include in her Brief a separate
Rule 2119(f) Statement, the Commonwealth has not objected to this defect
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and, thus, we decline to find that the defect is fatal. 2 Finally, a claim that
the trial court imposed a harsher sentence as a result of improper prejudice
raises a substantial question. See Derry, 150 A.3d at 995 (noting that “it is
axiomatic that an abuse of a sentencing court's discretion may be
demonstrated where the court exercised its judgment for reasons of
partiality, prejudice, bias or ill-will” and that such a claim, therefore, raises a
substantial question (quotation and citation omitted)).
Accordingly, we turn to the merits of Appellant’s claim, mindful of our
standard of review:
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
Judge Charles has authored a comprehensive, thorough, and well-
reasoned Opinion, citing to the record and relevant case law in addressing
Appellant’s claim. After a careful review of the parties’ arguments and the
record, we affirm on the basis of that Opinion, which clearly finds that the
2
This Court “may overlook an appellant’s failure to comply with Rule 2119(f)
where the [Commonwealth] fails to object to the omission and a substantial
question is obvious from the appellant’s brief.” Commonwealth v.
Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).
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J. S26019/17
trial court increased Appellant’s minimum sentence after her “outburst of
profanity” because it evidenced a “blatant disrespect” toward the trial court,
a lack of remorse, and additional evidence that Appellant’s request for
treatment was disingenuous “gamesmanship[.]” Trial Court Opinion at 8.
We agree.
The parties are directed to attach a copy of the trial court’s September
13, 2016 Opinion to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2017
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CRIMINAL DIVISION
COMMONWEAL TH OF NO. CP-38-CR-356-2016
PENNSYLVANIA
v.
KRISTIN MICHELE ZIMMERMAN
APPEARANCES
Jared Hinsey, Esquire For Commonwealth of Pennsylvania
D~STRICT ATTORNEY'S OFFICE
Elizabeth Judd, Esquire For Kristin Michele Zimmerman
OPINION BY CHARLES. J .. September 13, 2016
is a Judge empowered to alter the sentence of a defendant who
directs the "f-word" at him at the end of a sentencing hearing? Kristin
Michele Zimmerman (hereafter "DEFENDANT") argues that we are not. For
reasons we will articulate in more detail below, we disagree.
L FACTS
DEFENDANT in this case is well known to the Court. For years, she
has appeared in court on charges that were largely drug-related. On
practically every occasion she has appeared· in Court, DEFENDANT
proffered impassioned pleas for mercy based upon the needs of her children
and her self-proclaimed desire to obtain drug and alcohol treatment.
On multiple past occasions, this Court acquiesced to the requests of
DEFENDANT. We permitted her in lieu of incarceration to spend time at
treatment facilities sponsored by Bowling Green, Gaudenzia and White
Deer Run. We also afforded her with countless opportunities for outpatient
counseling. On more than one occasion, this Jurist imposed sentences
upon DEFENDANT that focused upon o pporturutyand rehabilitation instead
of retribution.
in response to the opportunities afforded by the Court, DEFENDANT
responded as follows:
• By lying on multiple occasions to her probation and parole officers;
• By failing to report as directed by. her probation and parole officers;
e By failing to report for mandatory drug testing;
• By attempting to pass false urine as her own;
• By committing additional crimes; and
• By continuing to use heroin and other drugs, even while pregnant.
On May 18, 2016, DEFENDANT was brought before this Court as a
result of Driving Under the influence and yet another Retail Theft offense.
According to the Affidavit of Probable Cause submitted to the Court at the
time of sentencing, DEFENDANT stole $515 worth of DVDs from Wal-Mart
with the intent to sell those DVDs in order to raise money to purchase
heroin. The DUI occurred when DEFENDANT drove while under the
influence of opiates and became involved in a one-vehicle accident.
Because of DEFENDANT's prior history, her standard sentencing range
permitted the Court to incarcerate her for up to 12 months.
During her pre-sentence interview, DEFENDANT was asked what she
likes to do in her free time. She responded: "Besides getting high?" After
being advised that her response was not appropriate, she indicated that
she "did not remember" what she did for fun because she "spends all of her
time and money getting high."
Vvhen DEFENDANT appeared m court for sentencing on May i 8,
2016, we stated to her attorney:
What you may not remember or that you may not know because
you weren't with her at the time is how much I have attempted
to work with her to get her help in the past. I remember· Kristin
Michele Zimmerman. I don't remember most people that stand
before me. I remember her as a young lady that had a lot of
potential. And just paid lip service to the need for treatment
and used it as a game. I am done. I am done. You know, fool
me once, shame on you. Fool me twice, okay. I'll take some of
the blame, but still shame on you. Fool me three or four or five
times, it's not happening.
(N.T. 3). Despite this rather gruff language, DEFENDANT once again asked
for inpatient treatment in lieu of jail. She stated:
I want an opportunity to go somewhere that is spiritually based.
I was contemplating the U-Turn For Christ or the Salvation
Army .... The problem I had with Guadenzia Ia prior treatment
opportunity] is that there was no spiritual foundation there.
There was nothing to build my house on. So if I didn't have a
strong foundation, my house was bound to fail. I've shown that
I can be clean for periods of time. Yes, I've stumbled. I've
fallen. A lot of people have. I am not using rehab as a game ....
It's not a game. It's my life. My kids are· growing up without
me. I'm so tired. There's nothing for me in Lebanon County.
There's not. There's no treatment. i do everything I can,
3
Renaissance, twelve steps, NA. I'm completely at your mercy.
I have an open plea.
(N.T. 5-6).
Before imposing sentence, we reminded DEFENDANT that she had
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violated the terms of probation or parole on ten prior occasions. We also I
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reminded her of the flippant comments she made to the presentence l
investigation interviewer and stated: "And that's from someone who has
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j
four children and has on multiple occasions come into court and tried to
convince me that she deserves a break so that she can raise her children
and be with her children." (N.T. 7).
Following the exchanges outlined above, we initially imposed a
sentence of 9 months to 3 years in a state correctional facility. We declared
DEFENDANT to be RRRI eligibie. After wishing DEFENDANT "good luck,"
she responded "Have a great fucking day." We then immediately changed
our sentence to require that DEFENDANT spend 11 months in prison with
an RRRI minimum of 8 months and 7 days. (N.T. 12). In response to a
question from defense counsel about why we changed our sentence, the
Court cited the expletive uttered by DEFENDANT toward the Court and we
indicated that her comments reflected an extreme lack of remorse and
additional evidence that "this is a game to her." We also reminded everyone
that the revised sentence we imposed remained within the standard
sentencing range applicable to DEFENDANT's charge. (N. T. 13).
DEFENDANT has appealed our sentence. The sole argument
proffered by DEFENDANT in her Post-Sentence Motion is that we lacked
A
the authority to modify the sentence we had originally imposed. We issue
th is Opinion in support of our belief that we did possess the authority to do
exactly what we did at the time of sentencing.
IL DtSCUSSION
As a general proposition, sentencing of a criminal defendant is
determined at the ·discretion of the Trial Judge. See, e.g. Commonwealth
v. Moury, 992 A.2d 162 (Pa.Super. 2010). "The rationale behind such
broad discretion and concomitantly deferential standard of appeal 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. Walls, 926 A.2d 957, 961 (Pa.
2007). As a general proposition, when a Court's sentence is within the
standard range prescribed by the Pennsylvania Sentencing Guidelines, it
will not generally be deemed excessive or unreasonable. See
Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995). in fact,
so-called "standard range sentences" will only rarely be overturned on
appeal. See, generally, Commonwealth v. Wallace, 2015 WL6114473
(Pa. Super. 2015); Commonwealth v. Moury, supra; Commonwealth v.
Wright, 600 A.2d 1289 (Pa. Super. 1991). in fact, when a standard range
sentence is imposed, Pennsylvania's Sentencing Code does not even
require a judge to a rticuiate the reasons for the sentence imposed. See 42
Pa.C.S.A. § 9721; Commonwealth v. Wright, supra.In this case, we imposed a sentence upon DEFENDANT that was
within the standard sentencing range. In fact, the sentence was not even
at the very top of the standard sentencing ran~e. Moreover, we declared
DEFENDANT to be eligible for the RRRI program that will enable her to
obtain a further reduction of her minimum sentence. Had we originally
imposed the sentence we ended up imposing, DEFENDANT would not even
have an argument that could be proffered on appeal. However, because
we increased DEFENDANT's sentence by two months foliowing her profane
comment in court, DEFENDANT argues on appeal that we erred.
At common law, a Court retains the authority to "change its mind"
regarding a sentence provided that the change is articulated promptly. See,
e.g. Commonwealth v. Mackley, 380 Pa. 70 (Pa. 1955). This authority
was codified within Pennsylvania's Judiciary Code in 1976. That statute
states:
Modification of Orders
Except as otherwise provided or prescribed by iaw, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.1
Section 5505 has been invoked in cases involving sentencing. See, e.g.
Commonwealth v. Fleming, 480 A. 2d 1214 (Pa. Super. 1984);
Commonwealth v. Kotz, 601 A.2d 811 (Pa.Super. 1992).
1 This statute was patterned off of an earlier law related to rehearing of cases. See former 20 Pa.C.S. § 3521.
The most analogous case to the one at bar is Commonwealth v.
Unger, 462 A.2d 259 (Pa.Super. 1983). In Unger, the Defendant appeared
for a sentencing hearing on January 14, 1982. At sentencing, the Court
verbally imposed a sentence of 6 months to 5 years. The Defendant was
thereafter told about his appellate rights. Following this colloquy, the
Commonwealth asked the Court to reconsider the sentence because the
Defendant had threatened the prosecuting officer. Thereafter, the Court
vacated its pronounced sentence and increased the Defendant's time in
prison from 6 months to 2 Yi years. The Defendant appealed, claiming that
the Court exceeded its authority.
In Unger, the Superior Court began its analysis by stating:
Oral statements made by the judge in passing sentence, but not
incorporated in the written judgment signed by him, are no part
of the judgment of sentence. Commonwealth v. Foster, 229
Pa.Super.Ct. 269, 271, 324 A.2d 538, 539 (1974). In addition,
an "initial oral pronouncement of sentence ... [is] not a 'sentence
imposed" for purposes of double jeopardy." Commonwealth v.
Hodge, 246 Pa.Super.Ct. 71, 81, 369 A.2d 815, 820 (1977). A
violation of the double jeopardy clause occurs if the sentence is
increased after the Defendant has begun serving it.
Commonwealth v. Allen, 443 Pa. 96, 104, 277 A.2d 803, 806
(1971) (emphasis added)".
Id. at 260. The Superior Court affirmed the Judge's "final" sentence. The
Court stated:
Only the second sentence was entered into the record and
signed by the Court. Not only was the lower court's original
sentence oral, but appellant had not yet left the courtroom to
begin serving his sentence. W~ cannot say, therefore that the
initial sentence was actually "imposed" and, accordingly, find
that the lower court's resentencing did not place appellant in
double jeopardy.
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II
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Id. at 260-61.
In this case, as in Unger, no written sentencing order had been signed
by the Court when the "final" sentence was imposed. As in Unger,
DEFENDANT had not even left the courtroom. Given the Court's statutory
authority to modify orders within 30 days, and given the clear precedential
authority articulated in Unger, supra, we conclude without hesitation that a
Trial Judge has the authority to alter a sentence in the presence of the
Defendant in open court in response to additional information or changed
circumstances.
In this case, we freely acknowledge that we increased DEFENDANT's
minimum sentence by two months because of the words she uttered in
response to the Court wishing her "good luck." By using the "f-word" toward
a judge in open court surrounded by dozens of spectators and others
awaiting sentencing, DEFENDANT displayed blatant disrespect toward the
Court and the justice system. Her statement, and the demeanor by which
it was uttered, clearly communicated that DEFENDANT had no remorse for
her conduct. After trying to convince the Court that her prior rehabilitation
opportunities had failed because they were not faith-based and that she
wanted a spiritual rehabilitation program, she turned around when we said
"no" and hurled a profanity at the Court with venom and without one ounce
of contrition. If we had any doubt about whether DEFENDANT was
attempting to continue her "rehab instead of jail" gamesmanship, it was
dispelled by her outburst of profanity.
0
A courtroom must be a place governed by decorum. If we permit
courts to become arenas where shouting and profanity is encouraged,
pretty soon legal proceedings will become like "debates" on CNN where
surrogates for opposing viewpoints shout at and interrupt one another with
impunity. No civilized system of justice could operate in such an
environment. If our appellate courts were to proclaim that Trial Judges
should simply sit back and take no action when t-word profanities are hurled
at them in court, the first step toward courtroom chaos will have been taken.
Ill. CONCLUSION
This Court possesses the statutory authority to modify Court Orders
within 30 days. In this case, we altered our Court Order within seconds
after the initial sentencing decision had been pronounced. We did so in the
presence of DEFENDANT before she left the courtroom. We did so before
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the sentence was issued in writing and signed. Under Pennsylvania law, t
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we acted within our authority to increase DEFENDANT's minimum sentence (
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from 9 months to 11 months regardless of the reason for that decision. I
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Nevertheless, our reason was legitimate. In order to preserve decorum
inside a courtroom, Judges must have the authority to respond when
individuals hurl the f-word profanity at them in open court.
We remind DEFENDANT that we increased her sentence by only two
months (as compared with the two year increase that was ultimately
approved in Unger). We remind DEFENDANT that our sentence remained
in the standard sentencing guideline range. Some might observe that our
0
response to DEFENDANT's courtroom antics was restrained. In simple
language, DEF EN DANT should be reminded that our response to her use
of the t-word in open court could have been far worse.
10