Opinion
J-S14024-16 No. 677 MDA 2015
04-07-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOAN GENSIAK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 16, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002134-2013 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E. MEMORANDUM BY PANELLA, J.
Former Justice specially assigned to the Superior Court.
Appellant, Joan Gensiak, appeals from the judgment of sentence entered October 16, 2014, in the Court of Common Pleas of Lackawanna County, following her guilty plea to Neglect of a Care-Dependent Person, graded as a felony of the first degree, and Endangering the Welfare of Children, graded as a felony of the third degree. We affirm the convictions, but vacate the judgment of sentence and remand for resentencing.
18 Pa.C.S.A. §§ 2713 and 4304(a)(1), respectively.
The trial court summarized the history of this case as follows.
On March 19, 2013, Robert Gensiak (hereinafter "Robert"), a thirty-two (32) year old male with Down Syndrome, who was the brother of [the Appellant,] was admitted to the hospital
because he was semi-responsive and unable to stand up. [Appellant] resided in the home with Robert.
At the preliminary hearing, David Utter testified that he was the lead emergency room technician at the hospital where Robert was admitted. He testified Robert was covered in a rash, and was emitting a strong, foul smelling odor. He testified that Robert weighed sixty[-]nine (69) pounds. While at the hospital, Robert went into cardiac arrest and passed away on March 20, 2013.
The Lackawanna County District Attorney's Officer charged [Appellant] with four (4) charges related to her brother's death and the endangerment of her two (2) year old daughter, who also resided in the home. [Appellant's] mother, Susan Gensiak, and [Appellant's] sister, Rebekah Gensiak, were also charged in relation to Robert Gensiak's death. [Appellant] was charged with Murder of the Third Degree ..., Neglect of Care-Dependent Person ..., Involuntary Manslaughter ..., and Endangering Welfare of Children-Parent/Guardian/Other Commits Offense....
On May 8, 2014, all three (3) co-defendants pled guilty before [the trial court]. [Appellant] entered a guilty plea to [Neglect of Care-Dependent Person and Endangering the Welfare of Children.] At the time of the guilty plea, [the trial court] engaged in an extensive colloquy of the [Appellant]. The [Appellant] ... stated that she had the opportunity to go through the four[-]page guilty plea colloquy with her attorney. She further stated that her lawyer answered any and all questions about the guilty plea colloquy and that she had an understanding of her guilty plea and what she was doing. She also conceded that there was no agreement between herself, her attorneys and the District Attorney's Office regarding sentencing. She additionally acknowledged that she understood the [c]ourt was not a party to any agreement she may have had regarding sentencing. When questioned, she answered she knew she had the right to a jury trial, and understood her attorney's would have the opportunity to cross-examine any witnesses called by the Commonwealth and to object to any evidence the District Attorney's Office sought to have admitted to trial.
During the colloquy of the [Appellant], the Assistant District Attorney read the allegations of the criminal information for both crimes into the record. [Appellant accepted responsibility and admitted to committing the crimes with which
she had been charged.] ... [Appellant] stated that she was freely and voluntarily entering into this plea. ... Accordingly, [the trial court] found [Appellant] entered into the plea knowingly, freely and voluntarily.Trial Court Opinion, 6/2/15 at 1-4.
Prior to sentencing, both attorneys for the [Appellant], on July 21, 2014 and August 26, 2014, respectively, filed separate motions for the appointment of a psychiatrist to aid in the sentencing of the [Appellant]. [Appellant's] attorneys requested that a psychiatrist be appointed at the rate of five hundred dollars ($500.00) per hour with a cap of five thousand dollars ($5,000.00). [The court] granted [Appellant's] request for a psychiatrist, but capped the available amount at two thousand dollars ($2,000.00). Defense Counsel declined to use the psychiatrist, stating in a letter to the [c]ourt that two thousand dollars ($2,000.00) was an insufficient amount.
The court sentenced Appellant to a term of six to fifteen years' imprisonment. Thereafter, Appellant filed a post-sentence motion to withdraw her guilty plea as well as a motion for reconsideration of sentence. The trial court denied Appellant's motions following a hearing. This timely appeal followed.
Appellant raises the following issues for our review.
I. Whether, where Appellant was an [indigent], mentally-ill person, charged with third degree murder, the lower court erred in [failing to appoint] a mental health expert to aid Appellant's court-appointed counsel at sentencing?
II. Whether, where the Commonwealth misled Appellant into pleading guilty, by telling her that her identically-situated co-defendant was pleading guilty to an identical offense, an untrue fact, the lower court erred in re[f]using to allow Appellant to withdraw her guilty plea and proceed to trial?
III. Whether, by failing to articulate sufficient grounds on the record and by failing to properly weigh the mitigating circumstances present and by sentencing Appellant in a wildly disproportionate manner to that of her identically
situated co[-]defendant, the lower court erred in sentencing Appellant outside of the aggr[a]vated range?Appellant's Brief at 7 (unnecessary capitalization omitted).
Appellant first contends that the trial court erred when it allegedly denied her motion for the appointment of a psychiatric expert to assist at sentencing. Although Appellant concedes that the trial court agreed to provide funds for an expert, she argues that the court's decision to provide less money than the $5,000.00 she requested amounted to a tacit denial of Appellant's motion.
Our standard of review, as it relates to the appointment of a defense expert in a criminal matter, is as follows.
The provision of public funds to hire experts to assist in the defense against criminal charges is a decision vested in the sound discretion of the court and a denial thereof will not be reversed absent an abuse of that discretion.Commonwealth v. Cannon , 954 A.2d 1222, 1226 (Pa. Super. 2008) (citation omitted). "[T]he Commonwealth is not obligated to pay for the services of an expert simply because a defendant requests one." Id. at 1225 (citation omitted).
Appellant next claims that the trial court erred when it denied her post-sentence motion to withdraw her guilty plea. We note that,
[p]ost-sentence motions for withdrawal are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices. A defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. Manifest injustice may be established if the plea was not tendered knowingly,
intelligently, and voluntarily. In determining whether a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient plea does not per se establish prejudice on the order of manifest injustice.Commonwealth v. Broaden , 980 A.2d 124, 129 (Pa. Super. 2009) (internal quotes and citations omitted).
To be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. [A] manifest injustice occurs when a plea is not tendered knowingly, intelligently, voluntarily, and understandingly. The Pennsylvania Rules of Criminal Procedure mandate pleas be taken in open court and require the court to conduct an on-the-record colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Under [Pa.R.Crim.P.] Rule 590, the court should confirm, inter alia, that a defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) he is giving up his right to trial by jury; (4) and the presumption of innocence; (5) he is aware of the permissible ranges of sentences and fines possible; and (6) the court is not bound by the terms of the agreement unless the court accepts the plea. The reviewing Court will evaluate the adequacy of the plea colloquy and the voluntariness of the resulting plea by examining the totality of the circumstances surrounding the entry of that plea. Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise.Commonwealth v. Prendes , 97 A.3d 337, 352 (Pa. Super. 2014), appeal denied , 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted).
We have reviewed Appellant's first two issues raised on appeal, along with the briefs of the parties, the certified record and the applicable law. Having determined that the Honorable Margaret A. Bisignani Moyle's June 2, 2015 opinion ably and comprehensively disposes of these issues, with appropriate reference to the record and without legal error, we affirm Appellant's first two issues on the basis of that opinion. See Trial Court Opinion, 6/2/15 at 6-12.
We write independently to address Appellant's final issue, which challenges the discretionary aspects of her sentence. Preliminarily, we must determine whether Appellant has the right to seek permission to appeal the sentencing court's exercise of its discretion. See Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges the discretionary aspects of his sentence, we utilize a four-part test 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).Id. (internal citations omitted).
Here, Appellant challenged her sentence in a post-sentence motion and filed a timely appeal. Appellant's appellate brief also contains the requisite Rule 2119(f) concise statement. We must now decide whether Appellant's challenge to the discretionary aspects of her sentence raises a substantial question.
"A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014), appeal denied , 117 A.3d 297 (Pa. 2015) (citation omitted). "[W]e cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists." Commonwealth v. Christine , 78 A.3d 1, 10 (Pa. Super. 2013), affirmed , 125 A.3d 394 (Pa. 2015) (citation omitted).
Appellant claims in her Rule 2119(f) statement that the trial court improperly imposed a sentence outside of the aggravated range of the sentencing guidelines. A claim that the sentencing court imposed a sentence outside of the guidelines without specifying sufficient reasons presents a substantial question for our review. See Commonwealth v. Holiday , 954 A.2d 6, 10 (Pa. Super. 2008).
Our review of the sentencing transcript reveals that although the sentencing court announced that it was imposing an aggravated range sentence for the offense of Neglect of a Care-Dependent Person, the court proceeded to sentence Appellant outside of the sentencing guidelines. See N.T., Sentencing, 10/16/15 at 21. The "Pennsylvania Commission on Sentencing Guideline Sentencing Form" contained within the certified record indicates that that offense carried an offense gravity store of ten, see also 204 Pa.Code §§ 303.3 and 303.15, and that Appellant had a prior record score of zero. The sentencing guidelines therefore provide for a standard range sentence of 22 to 36 months imprisonment, with an aggravated range sentence of 36 to 48 months imprisonment. See id. at § 303.16(a). The trial court's sentence of five to ten years' imprisonment exceeded the guideline range.
"In sentencing outside of the guidelines, the court must demonstrate that it understands the sentencing guidelines ranges." Commonwealth v. Garcia-Rivera , 983 A.2d 777, 780 (Pa. Super. 2009). The Sentencing Code specifies that "in every case where the court imposes a sentence ... outside the guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S.A. § 9721(b). Section 9781(c)(1) of the Sentencing Code makes clear that "the appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds [that] the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously."
Because the record in the instant case does not indicate that the trial court properly considered the sentencing guidelines, and it appears that the trial court erroneously believed it was sentencing Appellant within the sentencing guidelines, when it in fact sentenced Appellant beyond the guidelines, we are constrained to vacate the judgment of sentence and remand for resentencing. See id. See also Commonwealth v. Byrd , 657 A.2d 961 (Pa. Super. 1995) (vacating the judgment of sentence where the sentencing court failed to set forth the permissible range of sentences under the guidelines, and provided reasons on the record to support what it believed was a sentence in the aggravated range, while actually sentencing the appellant outside of the guidelines without providing a contemporaneous statement of its reasons for such deviation). As our decision upsets the trial court's sentencing scheme, we must vacate the entire judgment of sentence and remand for resentencing. See generally Commonwealth v. Tanner , 61 A.3d 1043, 1048 (Pa. Super. 2013).
Due to our disposition of this issue, we decline to address Appellant's additional claim that the sentencing court failed to adequately explain the disparity between Appellant's sentence and that of her co-defendant, Rebekah Gensiak.
Convictions affirmed. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/7/2016
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