Com. v. Schorschinsky, R.

J-S10042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT W. SCHORSCHINSKY :
:
Appellant : No. 787 MDA 2021
Appeal from the Judgment of Sentence Entered May 14, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004487-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 08, 2022
Appellant, Robert W. Schorschinsky, appeals from the judgment of
sentence imposed following his entry of an open guilty plea to a violation of
35 P.S. § 780-113(a)(14) for unlawful administration, dispensing, delivery,
gift, or prescription of controlled substances as a medical practitioner. He
claims that the plea court abused its discretion by denying his motion for
disqualification and/or recusal that he filed after the court declined to accept
a negotiated plea agreement. He also presents a challenge to the
discretionary aspects of his sentence. Upon review, we affirm.
In May of 2017, Berks County detectives began investigating Appellant,
then a doctor, first by examining his prescription drug monitoring program
records that indicated high doses of opioid prescriptions to his patients. N.T.
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* Retired Senior Judge assigned to the Superior Court.
J-S10042-22
1/13/21, 7; N.T. 5/14/21, 8. Following the execution of a search warrant at
Appellant’s office in Reading, a review of his patient records by another doctor
led to the conclusion that he had overprescribed Oxycodone and other
controlled substances to twenty of his patients. N.T. 1/13/21, 7; N.T.
5/14/21, 8. His opioid overprescriptions ranged from four to sixteen times
higher than the CDC’s recommended doses and two to eight times higher than
the Pennsylvania Medical Society’s recommended doses. N.T. 1/13/21, 7-8;
N.T. 5/14/21, 8 (“The morphine milligram equivalent recommended by the
CDC are 50 MME a day, and the Pennsylvania Medical Society are 90 MME a
day. The patient analysis by Doctor Negrini were anywhere from 200 to 800
MME a day.”).
On January 13, 2021, Appellant proceeded to a hearing where he
intended to enter a negotiated guilty plea to one count of violating § 780-
113(a)(14) in exchange for an agreed-upon sentence of 6 to 12 months of
imprisonment to be followed by 18 months of house arrest or intermediate
probation and 3 years of probation. N.T. 1/13/21, 2, 6-7. As a condition of
the plea, Appellant would voluntarily relinquish his medical license from the
Commonwealth and his Drug Enforcement Administration license. Id. at 2-3,
6. Appellant had pending charges for twenty counts of violating § 780-
113(a)(14) and one count for a violation of § 780-113(a)(12) for acquisition
or obtaining of possession of a controlled substance by misrepresentation,
fraud, forgery, deception, or subterfuge. Id. at 3; Bills of Information,
11/26/19, 1-2. At the start of the hearing, the Commonwealth requested to
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amend the bills of information, without objection, to identify all of Appellant’s
patients involved with the various charges as being associated with the lone
charge to which Appellant intended to enter his plea. N.T. 1/13/21, 2-4.
As part of his plea colloquy, Appellant acknowledged that the court was
not bound by the parties’ negotiated agreement. N.T. 1/13/21, 6. The court
declined to accept it. It cited, inter alia, the downward departure from the
recommendation of the Sentencing Guidelines, the references in an affidavit
of probable cause to overdoses by at least three of Appellant’s patients, one
of whom had since passed away, the fact that at least one of those patients
was elderly, the fact that Appellant’s medical license “would have been lost
regardless if there [had been] a conviction,” and that Appellant declined to
offer an allocution statement (“You said nothing. You said nothing. I gave
you the opportunity and you said nothing.”). Id. at 11, 13-15. Interspersed
in the court’s discussion of its reasons for declining to accept the plea
agreement were comments about other sentencings that the court had
conducted that morning. The court referenced that it had imposed a standard
guideline range sentence in another case for a higher term than the negotiated
sentence in this case and for a crime with a lower offense gravity score than
Appellant’s charge, and that the court “didn’t come off the guidelines” for two
defendants who had accepted responsibility for their crimes. Id. at 12, 15-
16.
While subsequently awaiting a trial listing, Appellant filed a motion
requesting the disqualification and/or recusal of the judge who rejected his
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negotiated plea agreement. He alleged that the judge’s comments upon
rejecting his plea agreement demonstrated a personal bias against him.
Disqualification/Recusal Motion, 2/19/21, ¶¶ 19-20. He cited that the judge
was “not swayed” by the relinquishment of his medical license, the judge
referred to the sentences of other unidentified defendants, the judge referred
to him as an “educated man,” the judge said that he “should have known
better” than a young man who had been previously sentenced by the court,
the judge had referred to his failure to speak on his own behalf, and the judge
compared him to other defendants who had appeared before the court for
sentencing. Id. at ¶¶ 13-18. On April 16, 2021, the plea court denied the
motion, offered context for its prior remarks, and explained its conclusions
that the court was not biased against Appellant and that the denial of his plea
agreement did not create an appearance of impropriety. N.T. 4/16/21, 5-17,
19-20.
On May 14, 2021, Appellant tendered an open guilty plea to a single
count of violating § 780-113(a)(14). The court imposed 60 to 120 months of
imprisonment.1 N.T. 5/14/21, 62. At sentencing, Appellant proffered an
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1 Appellant had a prior record score of zero and the Sentencing Guidelines
recommended a minimum term of imprisonment between 60 to 78 months,
plus or minus 12 months for aggravating or mitigating circumstances. N.T.
1/13/21, 9; N.T. 5/14/21, 12, 62; see also 204 Pa. Code § 303.15 (offense
listing; 6th ed., revised, through 7th ed. & amend. 1-4); 204 Pa. Code §
303.16(a) (basic sentencing matrix; 6th ed., revised, through 7th ed. & amend.
1-4). Appellant’s offenses spanned multiple editions and amendments of the
Sentencing Guidelines but the same guideline range would have been
(Footnote Continued Next Page)
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expert report reflecting a psychological evaluation and a discussion of alleged
mitigating factors. N.T. 5/14/21, 12-13 & Exhibit D-1. He also presented the
testimony of seven of his former patients, a spouse of one of his former
patients, his two sisters, and his wife. N.T. 5/14/21, 14-43.
Appellant filed a timely motion for reconsideration of his sentence,
alleging that, based on the expert report and testimony presented at the
sentencing hearing, there was significant evidence of mitigating factors for a
downward departure from the range of minimum imprisonment recommended
by the Sentencing Guidelines. Reconsideration Motion, 5/21/21, ¶¶ 6-7.
Appellant thereafter filed a timely notice of appeal and a timely concise
statement of errors complained of on appeal.2 Order Denying Reconsideration
Motion, 5/25/21, 1; Notice of Appeal, 6/2/21, 1; Rule 1925 Order, 6/14/21,
1; Rule 1925(b) Statement, 6/25/21, 1-2.
Appellant presents the following questions for our review:
A. Whether the Court abused its discretion by denying
Appellant’s motion for disqualification and/or recusal after
the court rejected a negotiated plea agreement between the
Appellant and the Commonwealth and then placed on the
____________________________________________
recommended throughout that period. See N.T. 5/14/21, 8; Bills of
Information, 11/24/19, Count 1 (identifying that Appellant’s violations of §
780-113(a)(14) occurred from June 20, 2012 to August 2, 2019); 204 Pa.
Code § 303.15 (offense listing; 6th ed., revised, through 7th ed. & amend. 1-
4); 204 Pa. Code § 303.16(a) (basic sentencing matrix; 6th ed., revised,
through 7th ed. & amend. 1-4).
2 We note with strong disapproval that the Commonwealth, here represented
by the Attorney General’s Office, has not filed a brief in this matter despite
this Court granting it three extensions of time within which to do so.
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record statements that demonstrated the court could not be
fair and impartial, including the following: (a) that the
Appellant was an educated man and should have known
better than the young man who the Court previously
sentenced to a longer term of incarceration; (b) that unlike
two other young men that the Court imposed a sentence
earlier in the day, the Appellant failed to speak on his own
behalf and accept responsibility; (c) that since the Court
previously imposed standard range sentences on the
aforementioned two other young men, there was no reason
to deviate from the standard range for the Appellant; [and]
(d) that the Court cited several specific instances of other
unidentified individuals recently sentenced to longer terms
of incarceration with lower offense gravity scores than the
Appellant?
B. Whether the Court abused its discretion by denying the
Appellant’s post-sentence motion to modify and reduce
[s]entence by failing to acknowledge mitigating factors that
[w]arranted a downward departure from the sentencing
[g]uidelines including the testimony of several former
patients [o]f the Appellant’s and the psychological report of
Dr. Frank Datillo?
Appellant’s Brief at 4 (suggested answers and references to the sentencing
court’s answers omitted).
In his first issue, Appellant challenges the denial of his motion for
disqualification and/or recusal of the plea court. He argues that comments
made by the court when it rejected his negotiated plea agreement “raise[d]
serious questions about [the court’s] future impartiality and fairness.”
Appellant’s Brief at 16. He cites the court’s remarks that addressed, inter alia,
other sentencing proceedings that the court had conducted on the morning of
that hearing, the fact that Appellant was more educated than the other
defendants the court had sentenced, the fact that Appellant did not offer an
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allocution statement, and that the court did not think a downward deviation
from the minimum term recommended by the Sentencing Guidelines was
appropriate. Id. citing N.T. 1/13/21, 11-16. He also points out that the plea
judge has presided over the Berks County Drug Treatment Court and suggests
that that role along with the court’s comments “create[d] the reasonable
appearance [that he] could not receive a fair trial” below. Appellant’s Brief at
21-22.
The plea court asserts that Appellant waived his disqualification/recusal
claim by not timely raising it at the hearing when the court had rejected his
negotiated plea agreement. Plea Court’s Opinion, 8/10/22, 5-6. The court
notes that Appellant had the burden to raise his objection “at the earliest
possible moment.” Id. Appellant acknowledges the court’s position on waiver
and suggests that it “further demonstrates the appearance of partiality.”
Appellant’s Brief at 18. The court, in the alternative, incorporated by reference
the remarks it made at the time that it denied the disqualification/recusal
motion. Plea Court’s Opinion, 8/10/22, 6.
This Court presumes the impartiality of lower court judges and reviews
the denial of a recusal motion under an abuse of discretion standard:
This Court presumes judges of this Commonwealth are
“honorable, fair and competent,” and, when confronted with a
recusal demand, have the ability to determine whether they can
rule impartially and without prejudice. The party who asserts a
trial judge must be disqualified bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating
recusal, and the decision by a judge against whom a plea of
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prejudice is made will not be disturbed except for an abuse of
discretion.
Commonwealth v. Luketic, 162 A.3d 1149, 1157 (Pa. Super. 2017)
(citations omitted). A “party seeking recusal or disqualification [is required]
to raise the objection at the earliest possible moment, or that party will suffer
the consequence of being time barred.” Lomas v. Kravitz, 170 A.3d 380,
389 (Pa. 2017) (citation omitted; emphasis added).
As a preliminary matter, we must resolve the question of whether
Appellant timely raised his recusal claim “at the earliest possible moment”
when he filed his disqualification/recusal motion thirty-seven days after the
hearing during which the court rejected his negotiated plea agreement. Here,
the sole basis for the recusal motion was alleged to be the court’s comments
at the hearing on January 13, 2021. See Disqualification/Recusal Motion,
2/19/21, ¶¶ 8-20. Appellant alleged below that the recusal motion was timely
because “the principal facts constituting the grounds for th[e] Motion were
uncovered following receipt of the transcript” for the January 13th hearing. Id.
at ¶ 8. Even though he admittedly received the transcripts from the hearing
on January 22, 2021, see Appellant’s Brief at 17, he did not file his
disqualification/recusal motion until February 19, 2021. Appellant’s instant
discussion of the timeliness of his disqualification/recusal motion did not
provide any explanation why his recusal claim could not have been raised in
a contemporaneous oral motion if it was based only on the plea judge’s in-
court comments.
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The “earliest possible moment” for bringing a recusal claim is “when the
party knows of the facts that form the basis for a motion to recuse.” Lomas,
170 A.3d at 390. If the only facts cited as the basis of a recusal motion are a
jurist’s comments in open court then our case law would dictate that the
recusal claim must be raised in a contemporaneous oral motion or otherwise
it would be waived. See, e.g., Coulter v. Lindsay, 159 A.3d 947, 950 (Pa.
Super. 2017) (per curiam) (where a party argued that all three members of a
Superior Court panel should recuse themselves, the Appellant waived the
recusal claim by not raising it at an oral argument and instead raising it nine
days after the case was argued). In this instance, there was no alleged or
apparent reason for counsel to wait to raise his claim until after a transcript
could be produced and then after almost another month had elapsed following
his receipt of the transcript. Accordingly, we hold that Appellant did not
present his recusal claim in a timely manner, and his first issue is waived.
Appellant implies that waiver should not apply because the timing of his
recusal claim did not result in “further delay to the court system.” Appellant’s
Brief at 17-18 (“The purpose of raising such a claim in a timely manner is to
avoid further delay to the court system.”). We would agree that the recusal
motion in this instance did not delay a scheduled trial date, however, Appellant
does not cite to any precedent providing that the “earliest possible moment”
deadline for making a recusal claim could be tolled in the absence of the delay
of court proceedings. Our independent review has not uncovered caselaw that
would allow him to argue that he could wait to bring a recusal motion so long
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as court proceedings have not been delayed. See Goodheart v. Casey, 565
A.2d 757, 764 (Pa. 1989) (“In the case, sub judice, the facts suggesting the
disqualification [of Justices of this Court] were known or should have been
known when the case was called for argument and are therefore waived. This
is so because the jurist, under such circumstances, may properly assume that
the lack of objection by the litigants reflects the appropriateness of his or her
participation.”); see also League of Women Voters of Pennsylvania v.
Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (Wecht J., single-Justice
order) (“Litigants cannot be permitted to hedge against the possibility of losing
a case on the merits by delaying the production of arguable grounds of
disqualification, or, worse, by digging up such grounds only after learning of
an adverse order. To hold otherwise would encourage judge-shopping, would
undermine the interests in the finality of judicial decisions, and would
countenance extensive and unnecessary expenditures of judicial
resources…”). Delay of proceedings can of course support a finding that a
party did not timely raise a recusal claim, however, the absence of such delay
does not allow an expanded deadline for pursuing recusal.
We note that Appellant did not address the plea court’s assignment to a
drug treatment court in his disqualification/recusal motion. He appears to
have addressed it for the first time at the hearing on his motion. See N.T.
4/16/21, 4-5 (“This Court has and I believe continues to address the Drug
Treatment Court program in Berks County … But the appearance here, based
upon the comments made at the time of sentencing and the Court’s handling
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and running of the Drug Treatment Court certainly demonstrates, at least on
its face, some reason to be concerned.”). To the extent that the judge’s
assignment on a drug treatment court became a secondary reason for recusal,
the record is silent as to whether that alternate basis for recusal could toll the
time for Appellant to raise his claim. Appellant’s counsel did not suggest below
that the judge’s assignment on a drug treatment court was a previously
unknown fact. Moreover, the court noted below that it had that assignment
for at least five years prior to the hearing during which the court rejected
Appellant’s negotiated plea and made the comments forming the basis for
Appellant’s claim in his written motion. N.T. 4/16/21, 18 (“I was assigned to
the Drug Treatment Court when I came over to criminal court so somewhere
[at] the end of 2015 or the beginning of 2016.”). As a result, the inclusion of
the secondary reason for the recusal claim could not provide a basis for
concluding that Appellant timely filed his motion.
Even if the recusal claim had been timely raised, we would not conclude
that the denial of Appellant’s motion was an abuse of discretion. The
comments of the plea court that formed the basis for rejecting Appellant’s
motion did not demonstrate bias or partiality requiring recusal. At a minimum,
Appellant did not satisfy his burden of production and persuasion.
“Recusal is required wherever there is substantial doubt as to the jurist’s
ability to preside impartially.” In Interest of McFall, 617 A.2d 707, 713 (Pa.
1992). “A jurist’s impartiality is called into question whenever there are
factors or circumstances that may reasonably question the jurist’s impartiality
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in the matter.” Id. “Thus, ‘[i]n order for the integrity of the judiciary to be
compromised, we have held that a judge’s behavior is not required to rise to
a level of actual prejudice, but the appearance of impropriety is sufficient.’”
Id. at 712. “[T]he appearance of impropriety sufficient to disqualify a judge
exists when ‘a significant minority of the lay community could reasonably
question the court’s impartiality.’” Commonwealth v. Dip, 221 A.3d 201,
207 (Pa. Super. 2019) (citation omitted).
The comments that formed the basis for the recusal claim in Appellant’s
motion included the following three passages:
THE COURT: I’m going to be very honest. I don’t like this plea
agreement. The standard range here is 60 to 78 months. I mean,
I understand that he’s voluntarily giving up his license. I --
obviously, I don’t know the procedure of him losing his license
because I don’t do that type of work so I don’t know what it takes
to do that. I would assume by this type of conviction that it
wouldn’t be too very difficult to do that; but I mean, the standard
range is 60 to 78 months plus or minus 12 months. So that brings
us down to 60 minus 12 is what, 48.
[Appellant’s counsel]: Your Honor, I think you have to look at the
age of the individual as well as his overall health. I think --
THE COURT: I know; but, you know, here’s what -- here’s my
trouble. I understand what you’re saying, but this morning I just
sentenced somebody who had an OGS [offense gravity score] of
-- prior record score of 1 and an OGS of 8 on one offense and then
on the other one, the other count, he pled guilty to was an OGS
of 2 -- I’m sorry. I’m not -- here it is. My notes. On Count 2, he
had an OGS of 11. The standard range was 42 to 60 months. I
just sent him to a state correctional facility for 4 to 8 years.
N.T. 1/13/21, 11-12, cited at Appellant’s Brief at 18.
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THE COURT: When I look at the Probable Cause of the patients
that were attached in Table No. 1 to the Information of what -- in
which he’s pled guilty, it has patient B.S., overdose reported
2018; patient J.M., overdose reported 2017; patient N.S.,
overdose reported 2016 and deceased. Why’s he deceased, I
don’t know. I don’t know according to the way this is laid out if
it’s a result of this. Then what is really troubling to me, really
troubling is patient J.M., Dr. Schorschinsky treated J.M. for chronic
pain but objective findings described some mild cervical spine
findings, neurosurgery found no reason to operate in 2014.
Patient’s main issues were related to his mental health and
residual weakness due to a prior stroke. And I want to put this
on the record that this patient’s date of birth is July 20th of 1946.
He was elderly.
N.T. 1/13/21, 13-14, cited at Appellant’s Brief at 20.
THE COURT: I just don’t know how we justify -- I don’t know
there’s any reasons -- just because he gave -- his license would
have been lost regardless if there’s a conviction. I don’t think him
voluntarily turning it over is any great -- I don’t think it takes the
guidelines down and I don’t know how I can sit here and sentence
some guy 15, 20 minutes ago to 4 to 8 years in a state correctional
institution. And there was another kid who was 20 years old who
has -- he’s an educated individual. He’s gone to college. He’s
gone to medical school. He’s an educated individual. He
absolutely knows what this was doing to people out on the street.
Absolutely knows. And just because he had a prescription pad, I
don’t see how that makes it any different than the other
gentleman that I just sent to a state correctional institution for 4
to 8 years. How does it make it any different? It’s not right. It’s
just not right. Just because he has a medical degree. He knows
better than that other individual that just went through the door.
And I will say this, the other two men -- and I don’t want to call
the other guy a man. He’s only 20. A young kid. They both stood
here in front of me and said, I accept responsibility and now I have
to pay the consequences. You’ve said nothing. You said nothing.
I gave you the opportunity and you said nothing. These other two
guys -- the one kid graduated from high school. That was it. You
have four years of a medical degree and whatever else because I
don’t know what your line of practice includes. But I don’t know
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how I can sit here and -- why would I come so far off the
guidelines, so far off the guidelines?
The other two people who were standing here in front of me I
didn’t come off the guidelines for them. I believe they took -- if I
-- I'd have to go back. I think they took standard range
sentences. I just -- I can’t accept this. I don’t think it’s right. I
don’t think it’s right for so many reasons. So I’m not going to --
N.T. 1/13/21, 14-16, cited in part at Appellant’s Brief at 19.
We do not find any basis to conclude that the plea court abused its
discretion by not recusing itself because of the above-reproduced remarks.
The cited comments did not reflect that the court held any bias against
Appellant and rather showed that, in explaining its reasoning for rejecting the
parties’ plea agreement, the court was unable to conclude that a significant
downward departure from the term recommended by the Sentencing
Guidelines was an appropriate result.
The court’s references to its other sentencing cases on the morning of
the hearing were not inappropriate. The court was not implying that it had to
skew a sentence or impose a particular sentence in the instant case to balance
out or match terms of sentence in other proceedings and thus deprive
Appellant of an individualized sentencing. See, e.g., Luketic, 162 A.3d at
1162 n.13 (“standardized sentences based on a class of crimes or criminals
are prohibited”); see also id. at 1165 ("It is also an abuse of discretion to
base one defendant’s sentence on the sentence imposed on another
defendant.”). The court was simply addressing other cases to compare its
efforts to sentence consistent with the recommendations of the Sentencing
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Guidelines unless it was provided with sufficient reasons for departing from
those recommendations. See Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009) (a sentence imposed within the standard guideline
range is presumptively reasonable). The court’s comments reinforced that it
was striving to remain an impartial jurist instead of evincing a possible bias
against Appellant. The court made that apparent in its explanation for its
ruling on the recusal motion. See N.T. 4/16/21, 13-16 (the court referred to
its reference about “two other individuals that [it] had just sentenced” and
then discussed the purpose and applicability of the Sentencing Guidelines).
To the extent that the court referenced the fact that Appellant never
offered an allocution statement at the hearing, we do not find a basis for relief.
The court correctly explained below to Appellant that it considered the
existence of lack of remorse as an acceptable sentencing factor. N.T. 4/26/21,
16 (THE COURT: “With respect to the comment that counsel suggests in the
motion about the remorse, again, that is a factor that I am to consider under
the Sentencing Code…”); see Commonwealth v. Begley, 780 A.2d 605, 644
(Pa. 2001) (noting lack of remorse, as a sign of the defendant’s character, is
an appropriate consideration for sentencing outside of the guidelines);
Commonwealth v. Summers, 245 A.3d 686, 695 (Pa. Super. 2021) (“Lack
of remorse is an appropriate sentencing consideration.”).
If the court had referenced the absence of an allocution statement as
the basis for the imposition of an aggravated range sentence or a sentence
above the aggravated range, then Appellant would have had a basis for
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seeking recusal. If that had occurred, he could have argued that the court
was biased against him because it would have stated an intent to punish him
for the exercise of his constitutional rights, as in Commonwealth v. Bethea,
379 A.2d 102 (Pa. 1977), where our Supreme Court ruled that it was
constitutionally impermissible to impose a more severe sentence because a
defendant chose to stand trial rather than enter a guilty plea. However, that
is not what happened here. The court only referenced the lack of an allocution
statement here as a declined source for additional mitigation as Appellant
sought a significant downward departure from the guidelines’ sentencing
recommendation.
In Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super. 2009), this
Court held both that a defendant’s silence at sentencing may not be
considered as “indicative of his failure to take responsibility for the crimes for
which he was convicted” and “that silence at sentencing may not be the sole
factor in determining a defendant’s lack of remorse.” 975 A.2d at 1121
(emphasis added). To the extent that the court here, upon considering the
negotiated plea agreement, referenced Appellant’s silence, those comments
took place after the court’s lengthy discussion about the references to
Appellant’s patients in the affidavit attached to his Bills of Information.
The court’s discussion about the patients appeared to be for the purpose
of identifying that Appellant had demonstrated a lack of remorse. It focused
on the possibility that Appellant’s patients may have suffered overdoses and
possibly died as a result of the crime to which he was pleading guilty. N.T.
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1/13/21, 13-14. Moreover, the court addressed the plight of one elderly
patient to identify that Appellant had overprescribed painkilling medication to
that person even though his ailments (mental illness and residual weakness)
would not seem to require the use of those drugs. Id. The ensuing references
to Appellant’s vast educational background in this context naturally drove
home the notion that Appellant was an intelligent person based on his
continued practice of medicine and thus he should have known better than to
engage in his criminal conduct and was thus clearly culpable for his actions.
The court’s combined discussion of these factors suggesting a lack of remorse
rendered harmless any error that could have resulted from the court’s
statement, “You’ve said nothing,” being construed as a finding that Appellant’s
silence was proof of his refusal to take responsibility for his crime. See
Bowen, 975 A.2d at 1128 (holding that, even where a court erred by relying
on a defendant’s silence to establish his lack of remorse, there was no need
for a remand and this Court could affirm an aggravated-range sentence where
the trial court cited numerous other aggravating factors).
Here, the court rejected the parties’ negotiated plea agreement as a
matter of its discretion. See Commonwealth v. White, 787 A.2d 1088,
1091 (Pa. Super. 2001) (“While the Commonwealth and a criminal defendant
are free to enter into an arrangement that the parties deem fitting, the terms
of a plea agreement are not binding upon the court. Rather the court may
reject those terms if the court believes the terms do not serve justice.”).
Appellant’s recusal claim proved, at most, that the court could have provided
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a clearer explanation for its rationale for rejecting the agreement at the time
that the rejection occurred. The claim did not demonstrate bias or an
appearance of impropriety necessitating a recusal because the court’s
comments, when properly viewed in their context, provided a reasonable
explanation for why the negotiated plea agreement did not serve justice: the
court did not find adequate mitigating circumstances that justified the
imposition of a sentence reflecting a steep downward deviation from the
recommendations of the Sentencing Guidelines.
Even if we generously construed Appellant’s discussion of the plea
judge’s experience of being assigned to a drug treatment court as preserving
an alternate theory for requesting recusal, we could not find a basis for relief.
Appellant suggests that because the jurist who sat as the plea court separately
sat as a drug court judge and “listened to numerous individuals … speak about
their circumstances that led them to commit crimes associated with their
addictions,” he “could not receive a fair trial” in front of that judge. Appellant’s
brief at 21-22. He cites no supporting law to make that argument and it is
meritless because it simply asks this Court to ignore the presumption of
impartiality based on nothing more than a jurist’s continued service for the
Judiciary.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. He claims that his sentence at the bottom of the standard range
recommended by the Sentencing Guidelines was excessive and that the
sentencing court failed to issue “reasonable, proper, and sufficient reasons”
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for it. Appellant’s Brief at 22. He also asserts that the sentencing court should
have sentenced him below the guidelines’ recommended standard range
based on his cognitive decline that was detailed in an expert report to the plea
court and the testimony he presented at his sentencing hearing. Id. at 25-
26. He alleges that the court ignored his mitigation evidence. Id. at 27.
There is no absolute right to appellate review of a discretionary
sentencing claim. Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa.
Super. 2021) (en banc). Rather,
[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).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(citation omitted). Following satisfaction of all four elements, this Court then
reviews the underlying discretionary aspects of sentencing issue, pursuant to
an abuse of discretion standard. Commonwealth v. Akmedov, 216 A.3d
307, 328-29 (Pa. Super. 2019) (en banc).
As preliminary matters, we acknowledge that Appellant timely filed a
notice of appeal and partially preserved his claim. Appellant did not raise any
discretionary sentencing claims at the sentencing hearing after the imposition
of his prison term. N.T. 5/14/21, 62-63. Accordingly, his instant claim was
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only preserved below to the extent that it was asserted in his post-sentence
motion for reconsideration of his sentence. See Commonwealth v.
Hartman, 908 A.2d 316, 319 (Pa. Super. 2006) (Hartman waived a
discretionary sentencing claim by not preserving it at sentencing or in a timely
post-sentence motion). His assertions about his sentence being excessive and
the court failing to properly consider his mitigation evidence were arguably
included in his post-sentence motion. See Reconsideration Motion, 5/21/21,
¶ 6 (“That the Defendant avers that there was significant evidence of
mitigating factors that warranted a downward departure from the sentencing
guidelines.”). His post-sentence motion was silent concerning a claim that the
sentencing court failed to offer an adequate statement of reasons for his
sentence. Accordingly, that part of his claim is waived.3 See
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)
(discretionary sentencing claim waived where, although Mann filed a post-
sentence motion, the motion did not include the specific claim raised on
appeal); Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”).
____________________________________________
3 To the extent that Appellant waived that part of his claim, the waiver is
immaterial. That sub-part of his claim was unavailing where he received a
sentence at the bottom of the standard range recommended by the
Sentencing Guidelines. See Commonwealth v. Leatherbury, 116 A.3d 73,
83 (Pa. Super. 2015) (“Here, each of Leatherbury’s sentences was within or
below the standard range of the sentencing guidelines … Thus, the trial court
was not required to provide a statement of reasoning and this claim does not
raise a substantial question.”).
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As for the remainder of the threshold issues we must review before
proceeding to substantive review of the instant claim, we note that Appellant
has included a statement pursuant to Pa.R.A.P. 2119(f) in his brief.
Appellant’s Brief at 10-12. That section provides some boilerplate law and the
following paragraph addressing his claim:
Appellant, a first-time offender, was sentenced to a period of
incarceration of 5 to 10 years. This sentence was issued without
sufficient reasons being placed on the record and is so
disproportionate as to implicate the fundamental norms that
underlie the sentencing process. This is a substantial question for
the Superior Court to determine.
Id. at 11-12. Nothing in his Rule 2119(f) statement specifically addressed
the preserved portion of his claim alleging that the sentencing court abused
its discretion by imposing a standard guideline range sentence that was
excessive due to the court’s supposed failure to consider his mitigation
evidence. While ordinarily the failure to demonstrate a substantial question
for the preserved portions of a discretionary sentencing claim in the Rule
2119(f) statement may render the claim unreviewable, we may overlook
Appellant’s noncompliance with Rule 2119(f) because the Commonwealth has
not filed a brief and thus did not raise an objection to Appellant’s Rule 2119(f)
statement. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.
2004) (citation omitted) (“[W]hen the appellant has not included a Rule
2119(f) statement and the [Commonwealth] has not objected, this Court may
ignore the omission and determine if there is a substantial question that the
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sentence imposed was not appropriate or enforce the requirements of
Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal.”). Here, we may
elect to determine whether Appellant’s preserved claim raises a substantial
question.
“A ‘substantial question’ involves whether a sentence follows the
Sentencing Code and fundamental norms that underlie the sentencing
process.” Commonwealth v. Crawford, 254 A.3d 769, 782 (Pa. Super.
2021). The claim before us is that “the court abused its discretion by ignoring
the overwhelming mitigation presented at the time of sentencing,” and, as a
result, the court did not deviate below the standard range recommended by
the Sentencing Guidelines. Appellant’s Brief at 27. Our jurisprudence on the
existence of a substantial question based on claims of excessive sentences
being imposed as a result of the failure to consider mitigating factors has been
less than clear. See, e.g., Commonwealth v. Miller, 275 A.3d 530, 535
(Pa. Super. 2022), citing Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2014) (holding that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.”); Commonwealth v. Velez, 273 A.3d 6, 9 (Pa. Super.
2022), citing Raven and Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa. Super. 2015) (en banc) (stating that a claim that a sentence was
excessive in light of certain mitigating factors raises a substantial question);
compare with Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super.
2021) (“this Court repeatedly held that ‘a claim of inadequate consideration
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of mitigating factors does not raise a substantial question for our review’”),
citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007);
Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n
allegation that a sentencing court ‘failed to consider’ or ‘did not adequately
consider’ certain factors does not raise a substantial question that the
sentence was inappropriate.”), citing Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
The plea court opined that Appellant’s mitigating factors claim did not
present a substantial question for review. Plea Court Opinion, 8/10/21, 9,
citing Commonwealth v. Pacheco, 227 A.3d 358, 375 (Pa. Super. 2020)
(“an allegation that a sentencing court failed to consider or did not adequately
consider certain mitigating factors does not raise a substantial question that
the sentence was inappropriate”), affirmed after allocatur was granted in
part on unrelated issues, 263 A.3d 626 (Pa. 2021). We find that Appellant’s
challenge to his standard guideline-range sentence raises a substantial
question as it presents a combined claim alleging an excessive sentence, a
failure to consider mitigating factors, and a misapplication of the Sentencing
Guidelines. See Raven, supra; Caldwell, supra; 42 Pa.C.S. § 9781(c)(2)
(this Court shall vacate a sentence and remand for resentencing if it finds that
“the sentencing court sentenced within the sentencing guidelines but the case
involves circumstances where the application of the guidelines would be
clearly unreasonable”); but see Commonwealth v. Rhoades, 8 A.3d 912,
918-19 & n.12 (Pa. Super. 2010) (concluding that a defendant who received
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a standard-range sentence did not raise a substantial question when
challenging the sentencing court’s alleged failure to consider mitigating
factors); Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010)
(same where the sentencing court imposed two consecutive standard-range
terms of imprisonment). Accordingly, we will proceed to reviewing the merits
of Appellant’s claim.
Appellant asserts that the plea court “fail[ed] to acknowledge mitigating
factors that [w]arranted a downward departure from the [S]entencing
Guidelines” and “ignor[ed] the overwhelming mitigation presented at the time
of sentencing.” Appellant’s Brief at 22, 27. The mitigating evidence referred
to by Appellant was an expert report reflecting a psychological evaluation and
a discussion of alleged mitigating factors and the testimony of seven defense
witnesses, including some of Appellant’s former patients and family members
of his and one of his former patients.
The record does not support Appellant’s allegation that the plea court
failed to acknowledge or ignored his mitigation evidence. When Appellant’s
counsel asked to mark and move his expert report into the evidentiary record
at his combined plea and sentencing hearing, the court acknowledged its
review of the report. N.T. 5/14/21, 13 (“THE COURT: … That report previously
had been provided to the Court in anticipation of today’s hearing and I did
have the opportunity to review it.”). At the outset of a lengthy review of the
relevant information presented for sentencing, the plea court explicitly
acknowledged its consideration of Appellant’s mitigation evidence:
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THE COURT: I have considered the rehabilitative needs of the
defendant. I have considered his statement here today. His
apology to the victims. I’ve considered his -- considered his prior
criminal record, which is zero. His age, I believe on his guilty plea
paperwork as of today was 62. I have considered his personal
characteristics, which were testified to today by the
multiple witnesses that were presented on his behalf …
I have considered his remorse, which I believe today he has
submitted an apology to the victims. We don’t have any
Commonwealth witnesses. I have considered the nature of the
offense. We did not have a PSI. However, as indicated Defense
1 is a very comprehensive, I believe it was approximately
25 page report by Doctor Frank Dattillo … and the Court had
the benefit of reading this prior to today, which is extensive
and goes back to his childhood through high school,
college, medical school. The accident is referenced here, and
through his employment. His rehabilitation with the VA and then
his continuing on with medical school and getting his licensing.
Id. at 54-55 (emphasis added).
The court’s statements in the record referencing its consideration of
Appellant’s mitigation evidence render the instant claim meritless. In raising
this claim, Appellant is implicitly suggesting that this Court should reweigh his
mitigation evidence and substitute our judgment in place of the sentencing
court’s order. A request of that nature is outside our purview. See
Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021) (en banc)
(“We cannot reweigh the sentencing factors and impose our judgment in the
place of the sentencing court.”), quoting Commonwealth v. Macias, 968
A.2d 773, 778 (Pa. Super. 2009); Commonwealth v. Sexton, 222 A.3d 405,
422 (Pa. Super. 2019) (“[I]t would be inappropriate for us to second-guess
the trial court’s weighing of the aforementioned factors, for we cannot
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substitute our view of aggravating or mitigating factors with those of the trial
court, nor may we reweigh those mitigating factors which Appellant thinks the
sentencing judge overlooked.”). Accordingly, we affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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