Com. v. Frankenfield, R.

J-S12040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL L. FRANKENFIELD :
:
Appellant : No. 2541 EDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000507-2018
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 26, 2022
I respectfully dissent. My review of the certified record indicates that
the claim upon which the Majority grants relief is waived. Furthermore, I find
Appellant’s remaining claims lack merit. Accordingly, I would affirm.
In the instant case, Appellant was charged with, inter alia, simple
assault regarding a domestic incident on March 17, 2018, involving Appellant’s
girlfriend, Jodi Mihalik. In the affidavit of probable cause, Appellant was
accused of physically injuring the victim and threatening her with a firearm.
He was initially charged with recklessly endangering another person,
terroristic threats, harassment, strangulation, and multiple counts of simple
assault. Ultimately, Appellant entered an open guilty plea to one count simple
assault in exchange for the Commonwealth dropping all other charges, not
seeking a deadly weapon sentencing enhancement, and not pursuing a bar to
Appellant’s future gun ownership. See N.T. Guilty Plea, 7/6/21, at 6.
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At sentencing, the following exchange took place:
[DEFENSE COUNSEL]: [Appellant] is here. We pled guilty,
accepted responsibility to what he did back in July. I have the
[sentencing guidelines]. Both [the Commonwealth] and I have
reviewed it. It is calling for a standard range of [restorative
sanctions] to [one month]. When this incident happened,
[Appellant] was arrested and taken into custody for one day.
Since this incident happened, there was no contact. The individual
involved no longer lives in this area. [Appellant] has been
compliant with all terms and conditions imposed upon him by the
[c]ourt, by the District Attorney’s [o]ffice as far as any conditions
he’s followed. There’s been no incidents since that happened.
We’re asking the Court to impose that mitigated – that standard
range sentence of restorative sanctions.
[Appellant] can address the Court but he is employed. He is a
productive member of the community. This has been going on for
a couple years now and we are finally giving closure to all parties
involved.
N.T. Sentencing, 10/19/21, at 2-3. Then, the sentencing court confirmed that
no presentence investigation report (“PSI”) had been completed in this case
and also verified that Appellant was not requesting one.1
Thereafter, the sentencing court provided Appellant with another
opportunity to present persuasive arguments on his behalf:
THE COURT: What would you like to tell me, [c]ounsel?
[DEFENSE COUNSEL]: As I indicated, [Appellant] has pled guilty
and accepted responsibility for his conduct. There’s been no
issues since the event happened. It’s been along time coming.
When we discussed this with the Commonwealth and certain
conditions they wanted him to abide by, he did. He’s adapted his
ways, his behavior. He is employed. He contributes to society in
that regard, Your Honor. He has no prior record. We – per my
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1 Different jurists presided over the plea and sentencing proceedings.
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discussion with the Commonwealth, we are asking the [c]ourt to
impose just restorative sanctions, a period of probation for what
the [c]ourt believes is necessary and proper in this particular case.
Id. at 5-6. The court then questioned Appellant directly, who expressed
remorse for his actions. Id. at 6. Finally, the court made its pronouncement:
THE COURT: All right. Very well. So we’ve reviewed the matter
here and we understand that this had occurred some time ago. I
know its been some time getting here. The [c]ourt’s been
concerned, I think, since the outset[,] since we reviewed this[,] of
the nature of this offense and what had occurred here and so[,]
understanding that[,] the gravity of the offense and the impact on
the life of the victim as relayed here in the affidavit, sir, I’m going
to sentence you as follows:
First of all, I’m going to direct that you pay the costs of
prosecution. I’m going to direct that you undergo a period of
incarceration in the Carbon County Correctional Facility of not less
than 1 month nor more than 1 day less 24 months.
Id. at 7. Appellant orally requested the court to reconsider and impose a
period of probation. The court denied the request. At no point during this
proceeding did Appellant assert that the court had not provided adequate
reasons for the sentence imposed. See 42 Pa.C.S. § 9721(b) (“[T]he court
shall make as a part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence imposed.”).
On October 21, 2021, Appellant filed a timely post-sentence motion
requesting reconsideration on the sole grounds that the sentence was “unduly
harsh.” Post-Sentence Motion, 10/21/21, at ¶ 9 (“[Appellant] believes that
the minimum sentence imposed [in] this case was unduly harsh and requests
[the trial court] to consider . . . the rehabilitative needs of [Appellant] and the
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needs for the protection of the public[.]”). Nowhere in this filing did Appellant
allege that the trial court had not complied with § 9721(b). The trial court
held a hearing on Appellant’s post-sentence motion, after which it entered an
order modifying the original sentence by permitting Appellant to serve his
term of incarceration on “consecutive weekends beginning at 6:00 p.m. on
Fridays through 6:00 p.m. on Sundays.” Order, 11/18/21, at ¶ 2.
On December 10, 2021, Appellant filed a timely notice of appeal from
the order granting partial reconsideration. The trial court directed Appellant
to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). Appellant
filed a timely statement raising the following issues:
1. Whether the [t]rial [c]ourt abused its discretion in
sentencing [Appellant] to a period of incarceration with said
sentence being on the high end of the standard sentencing
guidelines for the charge of [s]imple [a]ssault. [Appellant’s] prior
record score was zero (0) with the offense of [s]imple [a]ssault
carry an offense gravity score of three (3), which pursuant to the
Pennsylvania State Sentencing Timetable set a standard range of
RS – 1 month.
2. [Appellant] alleges the trial court erred in making reference
to the [p]robable [c]ause [a]ffidavit as a basis for imposing the
sentence when [Appellant] did not plead guilty to all of the facts
in the [p]robable [c]ause [a]ffidavit. To the contrary, [Appellant
pled] only to the fact that he “attempted to cause, or intentionally,
knowingly or recklessly cause bodily injury to another, that being
Jodi Mihalik.
3. In sentencing [Appellant], the trial court made reference to
alleged factual events that have not been proven or admitted to
by [Appellant] in the [g]uilty [p]lea [c]olloquy.
Rule 1925(b) Statement, 12/23/21, at 1-2. Once more, Appellant did not
advance any claim concerning the trial court’s compliance with § 9721(b).
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Appellant has raised the same three issues for our consideration:
I. Whether the trial court abused its discretion in sentencing
[Appellant] to a period of incarceration with said sentence being
in the high end of the standard sentencing guidelines for the
charge of [s]imple [a]ssault.
II. Whether the trial court erred in making reference to the
probable cause affidavit as a basis for imposing the sentence
where [Appellant] did not plead guilty to all the facts in the
probable cause affidavit.
III. Whether the trial court erred in making reference to the
alleged factual events that may have not been proven or admitted
to by [Appellant] in the guilty plea colloquy.[2]
Appellant’s brief at 1.
For the first time in the argument section of his brief, however, Appellant
attempts to reimagine his first claim for relief as an allegation that the trial
court “issued its sentence without discussing the factors set forth in the
Sentencing Code.” Appellant’s brief at 5. As noted above, this claim arises
under § 9721(b), which provides that a criminal sentence must be consistent
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2 Appellant did not include this issue in his brief’s statement of questions
presented, which violates the Pennsylvania Rules of Appellate Procedure. See
Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”). Additionally,
the argument section of Appellant’s brief is deficient in that it is not divided
“into as many parts as there are questions to be argued[.]” Pa.R.A.P. 2119(a).
Instead, Appellant’s brief collectively discusses his claims in a disorganized
fashion that is difficult to parse. See Appellant’s brief at 6-10. To my mind,
this lack of organization has contributed to the Majority’s granting of relief
upon an unraised matter in this appeal. This Court has the authority to quash
an appeal or find certain issues waived under these circumstances, i.e., when
defects in the brief impede our review of the questions posed. See In re
Interest of R.D., 44 A.3d 657, 674 (Pa.Super. 2012).
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with “the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b). To that end, the trial court
must “make as a part of the record, and disclose in open court at the time of
sentencing, a statement of the reason or reasons for the sentence imposed.”
Id. This claim implicates the discretionary aspects of Appellant’s criminal
sentence. See Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super.
1999). As such, Appellant must preserve this issue by raising a
contemporaneous objection at sentencing or filing a post-sentence motion.
See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003)
(“[I]ssues challenging the discretionary aspects of sentencing must be raised
in a post-sentence motion or by raising the claim during the sentencing
proceedings.”). Absent such efforts, a discretionary objection is waived. Id.The Majority cursorily treats this issue as properly preserved and
proceeds to grant relief. As noted at length above, however, Appellant never
advanced any claim at the sentencing hearing or in his post-sentence motion
that the trial court had not complied with § 9721(b). Rather, Appellant
asserted only that his sentence was excessive. Since Appellant has improperly
revised his first claim on appeal, I would find the issue waived on this ground,
alone. See Commonwealth v. Reeves, 778 A.2d 691, 692 (Pa.Super. 2001)
(holding that a defendant waived claim concerning the “sentencing court’s
alleged failure to state the reasons for [the defendant’s] sentence on the
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record” by not raising the issue in the trial court); see also Pa.R.A.P. 302(a).
Furthermore, Appellant did not include this issue in his concise statement
pursuant to Rule 1925(b). Such an oversight also results in mandatory
waiver. See Pa.R.A.P. 1925(b)(4)(vii) (providing issues not raised in a concise
statement of errors are waived). I cannot concur in the Majority’s granting of
relief upon the merits of a thoroughly waived claim.3
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3 Even if this claim were not waived, I would find it to be meritless. To comply
with § 9721(b), a sentencing court must “state adequate reasons for the
imposition of sentence on the record in open court.” Commonwealth v.
Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). However, a sentencing court
“is not required to parrot the words of the Sentencing Court, stating every
factor that must be considered under Section 9721(b).” Commonwealth v.
Coulverson, 34 A.3d 135, 145 (Pa.Super. 2011). Rather, the threshold for
compliance with § 9721(b) requires only that “the record as a whole reflect
due consideration by the court of the statutory considerations enunciated in
that section.” Id. (emphasis added). Respectfully, I believe that both the
trial court and the Majority have failed to view the entirety of the record in
rendering its merits-based assessment.
Reviewing the transcript of the sentencing hearing reproduced above, it is
beyond cavil that the trial court was fully informed regarding Appellant’s lack
of a prior criminal record, his gainful employment, and his remorse for his
actions. See N.T. Sentencing, 10/19/21, at 2-6. Indeed, this information was
provided to the trial court in the moments immediately prior to the imposition
of sentence, such that it was fresh and forefront in the jurist’s mind. While
the trial court did not “parrot” the factors regarding Appellant’s background,
the entirety of the record speaks definitively that this information was
provided to, and considered by, the trial court. To hold otherwise would
transgress our existing case law. Cf. Coulverson, supra at 145.
Furthermore, while no PSI was prepared prior to sentencing, our case law
provides that “[a] sentencing judge must either order a [PSI] or conduct
sufficient presentence inquiry such that, at a minimum, the court is apprised
of the particular circumstances of the offense, not limited to those of record,
as well as the defendant’s personal history and background.”
(Footnote Continued Next Page)
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The Majority understandably does not engage with Appellant’s
remaining claims. Due to the nature of my dissent, I will address them.
Although stated separately, I discern that these remaining allegations
essentially raise the same argument, namely, that the sentencing court relied
upon inappropriate information. Thus, I will consider them collectively.
In pertinent part, Appellant alleges that the trial court “relied solely upon
facts and allegations not contained in the guilty plea colloquy and instead
focused on the criminal affidavit[.]” Appellant’s brief at 9. This claim also
implicates the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Archer, 722 A.2d 203, 210 (Pa.Super. 1998) (en banc)
(“[I]f a sentencing court considers improper factors in imposing sentence upon
a defendant, the court thereby abuses its discretion, but the sentence imposed
is not rendered illegal.”). Unlike Appellant’s first issue, however, this specific
claim was properly raised in Appellant’s post-sentence motion and his concise
statement of errors. See Post-Sentence Motion, 10/21/21, at ¶ 9(f); Rule
1925(b) Statement, 12/23/21, at ¶¶ 2-3. Furthermore, I note that Appellant
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Commonwealth v. Luketic, 162 A.3d 1149, 1161 (Pa.Super. 2017)
(emphasis added). To my mind, the sentencing judge in this matter did
precisely what was required by providing Appellant with multiple opportunities
to share his background with the court prior to the imposition of sentence.
Moreover, the sentencing court also evinced solicitude for Appellant’s personal
circumstances by modifying its original sentence to permit Appellant to serve
his modest period of incarceration on successive weekends. Read as a whole,
I find no basis to conclude that the trial court did not consider Appellant’s
personal characteristics or rehabilitative needs in imposing its sentence.
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filed a timely appeal and included a concise statement in his brief pursuant to
Pa.R.A.P. 2119(f). Finally, this claim raises a substantial question. See
Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.Super. 2010).
Accordingly, I will address its merits.
Our standard of review in this context is well-established:
The proper standard of review when considering whether to affirm
the sentencing court's determination is an abuse of discretion. . . .
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.
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.
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. Moury, 992 A.2d 162, 169-70 (Pa.Super. 2010).
As a general matter, “[t]here is no reason to prohibit the sentencing
court from taking into consideration the facts of the crime and how those facts
supported a potentially more serious sentence when the court is weighing
whether to impose a standard or mitigated sentence.” Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa.Super. 2009). In exercising this discretion,
the trial court must rely upon “full and accurate information.”
Commonwealth v. Maxwell, 421 A.2d 699, 703 (Pa.Super. 1980). Indeed,
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“[p]recisely because of the wide latitude afforded sentencing courts and
because we recognize the court’s ability to arrive at a balanced judgment when
possessed of all the facts, it becomes imperative that the facts relied upon by
the sentencing court be accurate.” Commonwealth v. Medley, 725 A.2d
1225, 1229 (Pa.Super. 1999). Thus, it is improper for a court to sentence
pursuant to facts de hors the record. See Commonwealth v. Griffin, 804
A.2d 1, 17 (Pa.Super. 2002) (cleaned up). If a court relies upon such
improper considerations, new sentencing is required. See Commonwealth
v. Cowan, 418 A.2d 753, 753 (Pa.Super. 1980).
Here, Appellant contends that the trial court relied upon facts in the
affidavit of probable cause that did not form the basis of Appellant’s guilty
plea. While Appellant has declined to state with specificity what improper
considerations the trial court allegedly relied upon, I discern that Appellant is
referring to the aforementioned allegations in the affidavit of probable cause
that Appellant menaced the victim with a firearm. See Affidavit of Probable
Cause, 3/17/18, at ¶ 2 (“The victim also stated during the altercation the actor
removed a black handgun . . . and held it to the left side of her head and
threaten[ed] to kill her.”). The trial court did refer to these allegations during
Appellant’s plea and sentencing proceedings. However, Appellant has grossly
mischaracterized the nature of these discussions.
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During the course of Appellant’s guilty plea, the trial court referred to
the allegations in the affidavit of probable cause in order to clarify the nature
of the factual basis for Appellant’s conviction:
[THE COMMONWEALTH]: The Commonwealth is . . . not seeking
a weapon enhancement on the charge, Your Honor.
THE COURT: How is that, [counsel]?
[THE COMMONWEALTH]: I’m sorry; what’s that, Judge?
THE COURT: I said, how is that? I mean, when I read the facts
of the affidavit, it clearly appears that there was a deadly weapon
used in the commission of this assault.
[THE COMMONWEALTH]: Judge, we’re basing this on Count 1,
which is, as you indicated, an assault. I believe the affidavit states
there was a physical altercation between the two. So the
Commonwealth would be basing it on the physical assault minus
the weapon that was allegedly used in the affidavit[.]
....
I believe, Your Honor, there was indication that [Appellant] pulled
her out of bed and began to choke her. Again, there is a basis for
a physical assault minus a deadly weapon enhancement.
....
THE COURT: All right. So the Commonwealth is not pursuing the
assault with regard to any use of a handgun; is that accurate?
[THE COMMONWEALTH]: That is accurate, Your Honor.
N.T. Guilty Plea, 7/6/21, at 6-8.
Consequently, the factual recitation offered by the Commonwealth as
the basis for Appellant’s plea included no mention of his use of a firearm:
[THE COMMONWEALTH]: Officer Gulla was the affiant on this
case. On March 17th of the year the incident occurred, he was on
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duty. He was dispatching to a residence in his jurisdiction. He
did interview the victim, who, as previously indicated, did show
signs of injury. She stated she got in an altercation with
[Appellant], who is before the [trial court] today.
At one point, that turned physical. The officer did notice injuries
or markings consistent with her description of the [assault] on the
victim.;
Ultimately, the officer did speak to [Appellant] who declined to
comment further and requested a lawyer.
Id. at 11. Thereafter, the only other reference to the at-issue information
occurred when the sentencing judge confirmed that the Commonwealth was
not pursuing a sentencing enhancement related to Appellant’s alleged
possession of a firearm in this case. See N.T. Sentencing, 10/19/21, at 4-5.
My review of these transcripts indicate that the trial court did not rely
upon improper information in crafting Appellant’s sentence, but merely sought
clarification regarding the precise factual basis being advanced by the
Commonwealth. Furthermore, this Court has held that a “mere reference” to
uncharged conduct by a sentencing court does not constitute an abuse of
discretion. See Commonwealth v. Miller, 965 A.2d 276, 280 (Pa.Super.
2009). Thus, I find no abuse of discretion by the trial court.
Based on the foregoing, I would affirm Appellant’s judgment of
sentence. Therefore, I respectfully dissent.
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