Opinion
J-S47004-15 No. 2181 MDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LAQUINN T. MITCHELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered May 16, 2014, in the Court of Common Pleas of Dauphin County, Criminal Division, at No: CP-22-CR-0000688-2014 BEFORE: ALLEN, OTT, and STRASSBURGER, JJ. MEMORANDUM BY ALLEN, J.:
Retired Senior Judge assigned to the Superior Court.
Laquinn T. Mitchell ("Appellant") appeals from the judgment of sentence imposed by the trial court after Appellant pled guilty to one count of simple assault. We affirm.
The trial court summarized the pertinent facts and procedural background of this case as follows:
A Criminal Complaint was filed against Appellant for simple assault on November 30, 2013. [Appellant] appeared before [the trial court] on May 16, 2014 for guilty plea and sentencing proceedings. The Commonwealth proffered that on November 30, 2013, Harrisburg police officers witnessed the Appellant having an argument with her juvenile daughter in which she proceeded to physically attack her daughter by punching her in the face repeatedly. Accepting these facts, Appellant pled guilty to the charge of simple assault, a misdemeanor of the thirdTrial Court Opinion, 3/3/15, at 2-4 (citations to notes of testimony omitted).
degree, and was sentenced by [the trial court] to twelve (12) months of county probation and to complete 100 hours community service. During her allocution, Appellant stated that her physical retaliation was a just response to her daughter's threatening words.
On May 16, 2014, following Appellant's guilty plea, the trial court sentenced her to twelve months of supervised county probation, court costs and a fine of $500, and 100 hours of community service. On August 12, 2014, Appellant filed a petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46, seeking reinstatement of her post-sentence rights. On October 14, 2014, the trial court entered an order reinstating Appellant's post-sentence rights nunc pro tunc. Appellant filed a post-sentence motion on October 17, 2014, which the trial court denied on November 28, 2014. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents one issue for our review:
Whether the trial court erred in denying Appellant's Post-Sentence Motion where her sentence was excessive and unreasonable and constitutes too severe a punishment in light of the victim's contributory behavior and history for similar conduct, and Appellant's curative actions regarding the victim's problem behavior?Appellant's Brief at 5.
Appellant's sole contention on appeal is that the trial court abused its discretion when it imposed a sentence of 12 months of probation. Appellant's Brief at 8-10. Such a challenge to the discretionary aspects of a sentence is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson , 856 A.2d 1254, 1257 (Pa. Super. 2004).
Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved h[er] issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on h[er] sentence is not an appeal as of right. Rather, [s]he must petition this Court, in h[er] concise statement of reasons, to grant consideration of h[er] appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.Commonwealth v. Austin , 66 A.3d 798, 808 (Pa. Super. 2013) (citations omitted).
Here, Appellant has filed a timely notice of appeal, and preserved a challenge to the discretionary aspects of her sentence by filing a post-sentence motion. In addition, Appellant has included in her brief a statement pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 8. We therefore proceed to determine whether Appellant has raised a substantial question for our review.
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Further:Commonwealth v. Caldwell , 2015 PA Super 128 (May 29, 2015) (citations and internal quotations omitted).
A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's
actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
An appellant making an excessiveness claim raises a substantial question when [s]he sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.
When imposing a sentence, the sentencing court must consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant. And, of course, the court must consider the sentencing guidelines.
Appellant argues that the trial court imposed an excessive and unreasonable sentence that was overly severe, particularly in light of Appellant's testimony that the victim, her fifteen-year-old daughter, was abusive towards her and "out-of-control", and in light of Appellant's age and family circumstances. Appellant's Brief at 9-10. Appellant asserts that under the circumstances, the sentence was unreasonable and excessive as to constitute too severe a punishment. Id. Such a claim raises a substantial question for our review. See Commonwealth v. Best , 2015 WL 4366508 (Pa. Super. July 16, 2015) (holding that the appellant's claim that the sentence imposed was so manifestly excessive as to constitute too severe a punishment raised a substantial question). Accordingly, we proceed to address the merits of Appellant's claim.
Our standard of review is 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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to 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.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination:
[T]he sentence imposed should call for confinement that is consistent 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.
Commonwealth v. Bricker , 41 A.3d 872, 875-876 (Pa. Super. 2012) (citations omitted).
42 Pa.C.S.A. § 9721(b).
Furthermore, Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is "clearly unreasonable" based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is "unreasonable." 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The ... weighing of factors under 42 Pa.C.S. § 9721(b) [is] exclusively for the sentencing court, and an appellate court could not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling
outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Here, the facts that formed the basis of Appellant's plea were set forth at the guilty plea hearing as follows:
[O]fficers from Harrisburg Police Department ... observed [an] interaction going on between [Appellant] and her daughter. ... It appeared that the two were arguing back and forth. They did see [Appellant] punch her daughter in the face several times. The daughter was yelling for help and she continued to punch her and kick her while her daughter was on the ground.N.T., 5/16/14, at 3-4.
The daughter had injuries, including a bloody nose and swollen cheek.
Immediately following the guilty plea hearing, the sentencing hearing commenced, and the trial court heard from Appellant's counsel, who recounted Appellant's background and education, employment history, family circumstances, and efforts at rehabilitation, including her recent completion of parenting classes, and her attendance at counselling sessions with her children. N.T., 5/16/14, at 4-5. Appellant was then afforded the right of allocution, and made the following statement:
I mean I did what I did. It was because my daughter threatened me and that was it. She is not going to threaten to kill me and not get consequences done with that. It is what it is.N.T., 5/16/14, at 6.
The trial court then provided the following reasons on the record for its sentence:
Ma'am, of course, obviously I am a firm believer that parents are allowed to discipline their children and sometimes that might involve some type of corporal punishment.N.T., 5/16/14, at 6.
It sounds here that what you did might have been just a bit over the top and that's the problem we have, hence the charge.
But nevertheless, I believe it might have been in your best interests to express a different attitude than the one you chose to express.
The trial court further expounded on its sentencing determination in its Pa.R.A.P. 1925(a) opinion, in which it explained:
In this case, Appellant was convicted of a misdemeanor of the third degree for simple assault upon her juvenile daughter. The [trial court] was permitted to sentence Appellant to a minimum term of imprisonment of no more than one year and to pay a fine of no more than $2,500. 18 Pa.C.S.A. § 2701. [The trial court] imposed a sentence of 12 months of supervised probation. As Appellant was given a probationary sentence, it is clear that the sentence does not exceed the statutory maximum. Of note is that when Appellant addressed the [trial court] during sentencing, instead of acknowledging the behavior for which she was pleading guilty, she expressed that her behavior was in reaction to her juvenile daughter's words. Appellant stated that her daughter's threatening words warranted the consequences she endured, namely a physical beating that included punches to the face and kicks to the body. In response, [the trial court] acknowledged a parent's right to discipline her child, but highlighted the extreme nature of the confrontation between this particular mother and daughter. In sum, [the trial court's] evaluation of the particular circumstances of the crime and Appellant's demonstrated indifference to the seriousness of her actions, together with the fact that the sentence is within the statutory maximum, defeat Appellant's claim that [the trialTrial Court Opinion, 3/3/15, at 6 (citations omitted).
court] abused its discretion and imposed an excessive and unreasonable sentence.
Upon review, we discern no abuse of discretion. We conclude that the trial court, after considering the guidelines, placed adequate reasons on the record for its sentence, taking into account the requisite sentencing factors, including the severity and impact of the crime on the victim, and Appellant's lack of remorse. The trial court, which was aware of Appellant's background, employment history and family circumstances, appropriately imposed an individualized sentence that neither exceeded the guidelines, nor fell outside of the statutory limits, and which was not clearly unreasonable. See id. Appellant's discretionary challenge thus fails.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Ott joins the memorandum.
Judge Strassburger concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015