Com. v. O'Connor, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAUREN O'CONNOR :
:
Appellant : No. 879 WDA 2019
Appeal from the Judgment of Sentence Entered April 4, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014388-2016
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2020
Lauren O’Connor appeals from the judgment of sentence, entered in the
Court of Common Pleas of Allegheny County, following her convictions for
conspiracy to commit third-degree murder,1 carrying a firearm without a
license,2 and possession of drug paraphernalia.3 Upon careful review, we
affirm.
The Honorable Beth A. Lazzara relied on the Commonwealth’s factual
recitation at O’Connor’s guilty plea hearing in summarizing the facts of the
case as follows:
On or about August 22[,] 2016, [] Lauren O’Connor arranged to
meet with Ryan Ramirez[.] O’Connor drove to Settlers Cabin
____________________________________________
1 18 Pa.C.S.A. §§ 903, 2502(c).
2 18 Pa.C.S.A. § 6106(a)(1).
3 35 P.S. § 780-113(a)(32).
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Park, and [] Kristopher [] Lott got into the vehicle with Ramirez
and O’Connor. Lott had never met Ramirez but had been
romantically involved with O’Connor. Shortly into the drive[,] Lott
[] physically assault[ed] Ramirez and brandished a firearm.
O’Connor then drove to a PNC Bank in Burgettstown,
Pennsylvania. [T]here was a Google search for [“]PNC Banks near
me[”] [made from O’Connor’s cellular phone] and a surveillance
video at the Burgettstown PNC Bank branch location [captured
video of O’Connor’s actions at that location.]
While at the PNC Bank, Lott accompanied Ramirez to an ATM and
to a teller inside the bank to ensure that Ramirez emptied out his
bank account and handed over the funds. [R]emaining in the
parking lot, O’Connor is seen engaging in a discussion with Lott
and Ramirez [] prior to [their entrance] into the bank [].
***
Ultimately, withdrawals in the amount of $60 and $18 [] were
completed and handed over to Lott. Following the event at PNC
Bank, O’Connor and Lott drove Ramirez to a remote location
outside of Burgettstown. [T]here, approximately 20 feet from the
roadway, [] Kristopher Lott shot Ryan Ramirez in the forehead. []
Further, the Commonwealth would have presented audio-
recorded statements from [] O’Connor following the homicide in
which she met with the police [for two separate interviews],
handed over her cell phone and consented to searches of her
home and vehicle.
O’Connor took investigators to the scene of the homicide [and
testified at Lott’s preliminary hearing].
***
[Jean] Ott[, manager of Gander Mountain,] would have
authenticated video captured before the homicide that showed
O’Connor entering Gander Mountain [alone] and purchasing
bullets compatible with the firearm that was used to murder
Ramirez.
[Following Ramirez’ murder,] Lott and O’Connor separated, as
O’Connor went into her parents’ home alone. However, at no time
did O’Connor contact the authorities as to the whereabouts or the
death of Ryan Ramirez [when she was away from Kristopher Lott
and in her parents’ home].1
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1 The [italics] portion was added pursuant to defense
counsel’s request at the hearing. []
[Later that day], O’Connor and Lott re-joined outside of her
[parent’s home. F]ollowing loitering complaints by neighbors, Lott
and O’Connor were apprehended by Robinson Township Police [].
They were [] in possession of a firearm inside a pink/peach canvas
bag, which also contained numerous personal items belonging to
O’Connor. [An] Allegheny County Medical Examiner Scientist
[ballistically tested the firearm] and determined [it was] the
weapon [] used in the murder of [] Ramirez. [A]lso [] in this
pink/peach canvas bag [were] keys belonging to [] Ramirez[, and]
his cell phone. []
Trial Court Opinion, 9/20/19, at 7-10 (italics in original).
On January 10, 2019, O’Connor pled guilty to the above charges. On
April 4, 2019, the court sentenced O’Connor to twenty to forty years’
imprisonment for her conspiracy conviction.4 O’Connor filed a timely post-
sentence motion to modify sentence. Following a hearing, the trial court
denied O’Connor’s motion. O’Connor filed a timely appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.
In this appeal, O’Connor raises the following claim for our review:
Was the statutory maximum sentence imposed on [] O’Connor
unreasonable, manifestly excessive, contrary to the dictates of the
[S]entencing [C]ode, and an abuse of discretion in that: 1) the
court failed to consider and apply all of the required sentencing
factors under [42 Pa.C.S. §§ 9721(b) and 9725]; 2) the court
focused exclusively on the seriousness of the crime, including the
same factors which constituted the elements of the crime; and 3)
the court did not engage in individualized sentencing?
Appellant’s Brief, at 6.
____________________________________________
4 O’Connor’s other convictions are not at issue in this appeal.
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O’Connor’s claim raises a challenge to the discretionary aspects of her
sentence. Such challenges are not entitled to review as of right.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). In
Caldwell, we restated our four-part test for reaching the merits of challenges
to discretionary aspects of sentencing:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
(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.
Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Here, O’Connor filed a timely notice of appeal and preserved the issue
in a post-sentence motion. She also included a statement of reasons to allow
an appeal to the discretionary aspects of her sentence pursuant to Rule
2119(f). See Appellant’s Brief, at 19-24. We must, therefore, determine
whether O’Connor raises a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code. See Caldwell, supra.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,
533 (Pa. Super. 2011). “A defendant presents a substantial question when
he sets forth a plausible argument that the sentence violates a provision of
the sentencing code or is contrary to the fundamental norms of the sentencing
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process.” Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018)
(quoting Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)).
O’Connor raises several claims in her 2119(f) statement:
First, the lower court failed to state on-the-record, meaningful
reasons that comport with the considerations required under 42
Pa.C.S. §9721(b), for imposing the maximum allowable sentence.
. . . In addition, the court relied on an impermissible, duplicative
factor, that is, the seriousness of the offense, in particular, an
element of the offense, which was already accounted for in
calculating the sentencing guidelines. . . . [Finally,] although her
sentence was within the statutory limits and the period of
incarceration imposed fell within the standard range, the court
failed to impose an individualized sentence tailored to her and the
attendant facts of her case, contrary to the Sentencing Code.
Appellant’s Brief, at 19-24.
We have previously held that a trial court’s failure “to consider relevant
sentencing criteria, including the protection of the public, the gravity of the
underlying offense, and the rehabilitative needs of [the] Appellant, as 42
Pa.C.S.A. § 9721(b) requires,” raises a substantial question.
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012); see also
Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (trial
court’s failure to sufficiently state reasons for sentence imposed raises
substantial question). Also, a claim that the sentencing court relied on
impermissible factors by considering factors already included in the sentencing
guidelines raises a substantial question. Simpson, 829 A.2d at 338; see also
Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003) (claim that
sentence is excessive due to sentencing court’s reliance on impermissible
factors raises substantial question).
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As an initial matter, for ease of consideration, we re-categorize
O’Connor’s three sub-claims into the following two:5 (1) the trial court’s
failure to consider all of the required sentencing factors, and (2) the trial
court’s consideration of impermissible factors. Each of these claims raises a
substantial question and permits us to review the merits of O’Connor’s appeal.
See Riggs, supra; see Simpson, supra.
We recently restated our standard of review for excessive sentencing
claims 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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§
9781(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
***
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
***
____________________________________________
5 O’Connor’s third sub-claim, that the sentencing court did not engage in
individualized sentencing, is essentially the same claim as her first—that the
sentencing court did not consider the required sentencing factors. See
Appellant’s Brief, at 6; 19-24.
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In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(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. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014)
(internal citation omitted).
Here, O’Connor concedes that her sentence falls within the sentencing
guidelines. See Appellant’s Brief, at 28. Therefore, she must demonstrate
that the application of the guidelines was clearly unreasonable. See §
9781(c)(2); Raven, 97 A.3d at 1254.
O’Connor claims that the sentencing court failed to consider the criteria
set forth in section 9721(b). Specifically, O’Connor notes that the sentencing
court failed to consider mitigating factors such as her prior record score of 0,
her position within her community, supportive witness impact statements
made on her behalf, her history of being the victim of multiple sexual assaults,
her Type 1 Diabetes diagnosis, the sudden death of a boyfriend, her history
of alcohol and drug abuse, her cooperation with law enforcement throughout
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the course of the Commonwealth’s investigation into Ramirez’ death, and the
control exerted over her by Lott. See Appellant’s Brief, at 39-40; 42-43.
Contrary to O’Connor’s allegation, the sentencing court’s statements
prior to imposing its sentence demonstrate that the court did consider this
mitigating information. See N.T. Sentencing, 4/4/19, at 126-30.
Additionally, at the sentencing hearing, the court noted it had read the pre-
sentence report twice prior to commencing the hearing. Id. at 5. We have
previously said that, “where [] the sentencing court had the benefit of a pre-
sentence investigation report, we can assume the sentencing court was aware
of relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotations omitted);
see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). The
sentencing court also noted that it received the “Psychiatric Presentence
Evaluation” which was a separate document provided by O’Connor to the
court. See N.T. Sentencing, 4/4/19, at 4; 98. Moreover, the sentencing court
heard testimony from eleven witnesses, received twenty-four victim impact
letters, and heard testimony from O’Connor herself. Id. at 116; 119-22. At
the conclusion of the lengthy sentencing hearing, the court stated to
O’Connor:
I understand that you are telling me that you have learned
something in the time that you have been incarcerated so far. You
certainly will have an additional amount of time to continue that
learning journey, to hopefully stay clean, to hopefully get some
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skills and things that when you come out, that this entire type of
episode will never happen again. Good luck to you.
Id. at 133-34.
Despite O’Connor’s claims to the contrary, the sentencing court was
aware of her background and took her individual characteristics into account.
The sentence of twenty to forty years’ of imprisonment was within the
standard range, albeit the statutory maximum, and the record reflects that
the sentencing court carefully considered all of the evidence presented at the
sentencing hearing. Id. at 124-34. Even so, “[t]he [sentencing] court is not
required to parrot the words of the Sentencing Code, stating every factor that
must be considered under [s]ection 9721(b) [so long as] the record as a whole
[] reflect[s] due consideration by the court of the statutory considerations.”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).
Consequently, there was no abuse of discretion, and the sentencing court did
not arrive at a clearly unreasonable decision. See Raven, supra; 42 Pa.C.S.
§ 9781(c)(2).
Next, O’Connor claims the sentencing court relied upon impermissible
factors, leading to “double-counting.” Appellant’s Brief, at 40. O’Connor urges
that, pursuant to Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super.
2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006), and
Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000), “‘double-
counting’ of a sentencing factor to justify the imposition of a sentence where
that factor is already accounted for by the sentencing guidelines is an abuse
of discretion.” Appellant’s Brief, at 40.
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First, O’Connor claims the sentencing court’s focus on the seriousness
of her offense caused the court to double-count the offense gravity score,
which is already accounted for within the guidelines. Second, she claims the
court focused on her complicity in the shooting, which is an element of the
crime of conspiracy, and therefore is already accounted for in the guidelines.
Although O’Connor correctly states the law on double-counting, Whitmore
and Goggins are inapplicable to the facts of her case because, instantly, there
was no double-counting.
Whitmore and Goggins involved defendants sentenced in the
aggravated range of the guidelines. In Whitmore, we held that a trial court
committed reversible error in double-counting a prior conviction by
considering it as the basis for imposing a statutory maximum sentence.
Whitmore, 860 A.2d at 1037-38. In Whitmore, the trial court initially
sentenced a defendant to what it believed was a statutory maximum sentence.
Upon discovering that the defendant’s prior record exposed him to a greater
maximum sentence, the trial judge reconsidered the sentence and amended
it to the true statutory maximum under the circumstances. In so doing, the
trial court stated, “I felt that five to [ten] was the appropriate
sentence because that's what I thought was the maximum sentence. . . .
[Five to ten years’ imprisonment] was appropriate at that time because it was
the maximum. It sounds like Mr. Whitmore should go to jail for about fifty
years, quite frankly.” Id. at 1037 (italics in original). In reversing, we
observed that,
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there is no indication of record that Whitmore’s prior conviction
was not already factored into his prior record score under the
sentencing guidelines. In fact, the record reveals that the
Commonwealth was aware of Whitmore’s prior conviction and in
accord with [the sentencing judge’s] recitation of the suggested
standard range sentence.
Id. at 1038.
In Goggins, we held that a trial court impermissibly doubled-counted
the defendant’s prior record when it sentenced him above the mandatory
minimum sentence because of that defendant’s prior record. Goggins, 748
A.2d at 732. In Goggins, we held that the trial court’s consideration of the
defendant’s “amenability to rehabilitation” amounted to reversible double-
counting because the legislature had already factored that consideration into
the mandatory minimum sentence under the applicable recidivist statute. Id.
Here, the court sentenced O’Connor within the standard guideline range,
albeit at the top of that range—indeed, the statutory maximum sentence for
third-degree murder. Judge Lazzara found that the mitigating factors relied
upon by O’Connor failed to outweigh imposition of the standard range
sentence. N.T. Sentencing, 4/4/19, at 130 (“You made those choices and you
are responsible for those choices. And I find nothing mitigating about those
choices.”) (emphasis added). Although this sentence may appear harsh on
its face, in actuality, the Commonwealth allowed O’Connor to plead down to
third-degree murder instead of trying her for second-degree murder. N.T.
Post-Sentence Motion Hearing, 5/16/19, at 23. As a result of her plea to the
lesser offense, O’Connor received a significant reduction in the maximum
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allowable sentence from life without parole.6 Unlike the defendant in
Whitmore, O’Connor was not sentenced to the statutory maximum; here, a
standard-range sentence was the statutory maximum. Moreover, unlike the
defendant in Goggins, O’Connor was not sentenced under a recidivist statute
providing for mandatory minimum sentences. There is no evidence of any
double-counting in the record; thus, there was no abuse of discretion, and the
sentencing court did not arrive at a clearly unreasonable decision. See
Raven, supra; 42 Pa.C.S. § 9781(c)(2).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/08/2020
____________________________________________
6 See 18 Pa.C.S.A. § 1102.
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