Opinion
J. S26019/17 No. 1591 MDA 2016
05-31-2017
COMMONWEALTH OF PENNSYLVANIA v. KRISTIN MICHELE ZIMMERMAN, APPELLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 18, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000356-2016 BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Kristin Michele Zimmerman, appeals from the May 18, 2016 Judgment of Sentence entered in the Lebanon County Court of Common Pleas sentencing her to a term of eleven months to three years of imprisonment. On appeal, Appellant challenges the discretionary aspects of the trial court's sentence. After careful review, we affirm on the basis of the trial court's Opinion.
The trial court's Pa.R.A.P. 1925(a) Opinion includes a thorough and complete narrative of the facts and procedural history of this case, which we adopt for purposes of this appeal. See Trial Court Opinion, filed 9/13/16, at 1-5. While we will not go into exhaustive detail here, some of the relevant facts are as follows.
Appellant has repeatedly appeared before the Honorable Bradford H. Charles "on charges that were largely drug-related." Id. at 1. Historically, Judge Charles has permitted Appellant to seek drug and alcohol treatment in lieu of incarceration. However, Appellant has violated the terms of her probation or parole on at least ten occasions, and continues to be arrested on new charges. Id. at 2, 4.
On April 6, 2016, Appellant entered an open guilty plea to one count of Retail Theft graded as a third-degree felony. On May 18, 2016, Appellant appeared before Judge Charles for sentencing, and "once again asked for inpatient treatment in lieu of jail." Id. at 3. In response, Judge Charles reminded Appellant of her numerous prior appearances and requests for leniency. He then imposed a sentence of nine months to three years of imprisonment, which was within the standard range of the sentencing guidelines.
In response, Appellant told Judge Charles to "[h]ave a great fucking day." Id. at 4; N.T., 5/18/16, at 12.
Judge Charles then immediately vacated Appellant's sentence, and imposed a sentence of eleven months to three years of imprisonment, which remained within the standard range of the sentencing guidelines. The trial court stated that Appellant's use of an expletive towards the court evidenced her "extreme lack of remorse" and provided further proof that she considered the proceedings to be "a game to her." Trial Court Opinion at 4.
Appellant filed a Post-Sentence Motion, which the trial court denied.
On September 23, 2016, Appellant timely filed the instant appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue, "[w]hether the [trial court] improperly modified [Appellant's] sentence and imposed a harsher penalty as a result of her use of profanity in the [c]ourtroom?" Appellant's Brief at 4.
We begin by noting that Judge Charles was authorized to vacate the "oral sentence" he stated on the record and resentence Appellant to a longer term. See 42 Pa.C.S. § 5505 (authorizing a court to "modify or rescind any order within 30 days after its entry"). See also Commonwealth v. Unger , 462 A.2d 259, 260-61 (Pa. Super. 1983) (holding that where a trial judge has not yet signed a sentencing order and entered it in the record, and the defendant is still present in the courtroom, no sentence has been "imposed" yet, and the trial court can therefore vacate the "initial pronouncement" and impose an increased sentence without placing the defendant in double jeopardy).
Appellant does not dispute that the trial court was empowered to "change its mind" about the sentence imposed. Appellant's Brief at 10. Instead, Appellant avers that her decision to tell the court to "[h]ave a great fucking day" did not provide the sentencing court with any "new information . . . that would warrant a penalty increase." Id. Therefore, Appellant argues, the sentence ultimately imposed by the trial court must have been the result of "prejudice toward her based on past interactions." Id. at 11.
Appellant's claim, that the trial court imposed a sentence based on prejudice, is a challenge to the discretionary aspects of her sentence. See Commonwealth v. Derry , 150 A.3d 987, 991, 995 (Pa. Super. 2016). A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter , 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary sentencing issue:
We 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. Evans , 901 A.2d 528, 533 (Pa. Super. 2006) (citations omitted).
In the instant case, Appellant filed a timely Post-Sentence Motion and Notice of Appeal. Although Appellant did not include in her Brief a separate Rule 2119(f) Statement, the Commonwealth has not objected to this defect and, thus, we decline to find that the defect is fatal. Finally, a claim that the trial court imposed a harsher sentence as a result of improper prejudice raises a substantial question. See Derry , 150 A.3d at 995 (noting that "it is axiomatic that an abuse of a sentencing court's discretion may be demonstrated where the court exercised its judgment for reasons of partiality, prejudice, bias or ill-will" and that such a claim, therefore, raises a substantial question (quotation and citation omitted)).
This Court "may overlook an appellant's failure to comply with Rule 2119(f) where the [Commonwealth] fails to object to the omission and a substantial question is obvious from the appellant's brief." Commonwealth v. Kneller , 999 A.2d 608, 614 (Pa. Super. 2010). --------
Accordingly, we turn to the merits of Appellant's claim, mindful of our standard of review:
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.Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted).
Judge Charles has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's claim. After a careful review of the parties' arguments and the record, we affirm on the basis of that Opinion, which clearly finds that the trial court increased Appellant's minimum sentence after her "outburst of profanity" because it evidenced a "blatant disrespect" toward the trial court, a lack of remorse, and additional evidence that Appellant's request for treatment was disingenuous "gamesmanship[.]" Trial Court Opinion at 8. We agree.
The parties are directed to attach a copy of the trial court's September 13, 2016 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/31/2017
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