Com. v. Taylor, P. ( 2015 )

J-S41037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAULA TAYLOR,
Appellant No. 2019 MDA 2014
Appeal from the Judgment of Sentence November 12, 2014
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000892-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAULA TAYLOR,
Appellant No. 2020 MDA 2014
Appeal from the Judgment of Sentence November 12, 2014
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000125-2014
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 12, 2015
Appellant, Paula Taylor, appeals from the judgment of sentence of not
less than forty months’ nor more than ten years’ incarceration, following her
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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open guilty plea to two counts of retail theft, 18 Pa.C.S.A. § 3929(a)(1).
Appellant claims her sentence is excessive. We affirm.
The sentencing court aptly set forth the facts of this case in its March
4, 2015 opinion:
Under Information 125-2014, the Williamsport police
charged Appellant Paula Taylor with retail theft, a felony of the
third degree, as a result of an incident on January 7, 2014 at the
Weis Markets where she was observed taking items such as
hairspray, face wipes[,] and mayonnaise, and placing them in
her purse without paying for them. Appellant tendered an open
guilty plea to this charge on May 2, 2014.
Under Information 892-2014, the Williamsport police
charged Appellant with retail theft and receiving stolen property,
both graded as felonies of the third degree, arising from an
incident on May 18, 2014 at Kohl’s involving merchandise valued
at $1227.09. On October 17, 2014, Appellant entered an open
guilty plea to both charges.
On November 12, 2014, the court sentenced Appellant to
an aggregate term of forty (40) months to ten (10) years of
incarceration in a state correctional institution, consisting of
sixteen (16) months to five (5) years for retail theft in case 125-
2014 and a consecutive term of twenty-four (24) months to five
(5) years for retail theft in case 892-2014.
Appellant filed a timely motion for reconsideration of
sentence in which she asserted that: (1) the reasons given by
the court for the twenty-four (24) month minimum sentence for
case 892-2014, which was beyond the aggravated range, were
insufficient; (2) the aggregate sentence of forty (40) months to
ten (10) years was unduly harsh and manifestly excessive; (3)
the court failed to adequately consider Appellant’s obvious need
for continuing mental health and drug and alcohol treatment;
and (4) the court failed to consider reports that Appellant had
made strides in treatment just prior to sentencing. The court
summarily denied this motion.
Appellant filed a timely notice of appeal. The sole issue
asserted by Appellant in her appeal is that the sentencing court
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abused its discretion when imposing sentence as specified in her
motion for reconsideration of sentence.
(Sentencing Court Opinion, 3/04/15, at 1-2) (footnote omitted). 1, 2
Appellant filed a timely motion for reconsideration. The sentencing
court denied that motion. Appellant filed a timely notice of appeal.
Appellant raises one question for our review:
1. Did the trial court abuse its discretion when imposing an
aggregate sentence of 40 months to 10 years in a state
correctional institution for 2 separate third degree felony retail
theft offenses, exceeding the aggravated range of the sentencing
guidelines on the second, where the [Appellant] has substantial
mental and physical disabilities?
(Appellant’s Brief, at 4).
Appellant claims that the sentencing court abused its discretion by
imposing a sentence above the aggravated range and failing to consider her
mental and physical disabilities. (See id. at 3). Specifically, she claims that
the sentence is manifestly excessive in relation to her criminal conduct,
rehabilitative needs, and physical and mental disabilities. (See id. at 7).
We disagree.
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1
Defendant is not R.R.R.I. eligible because of a prior robbery conviction.
(See Sentencing Order, 11/12/14, at 1).
2
Pursuant to the sentencing court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on December 8, 2014. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on March 4, 2015.
See Pa.R.A.P. 1925(a).
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On appeal, Appellant challenges the discretionary aspects of her
sentence. “When appealing the discretionary aspects of a sentence, an
appellant must invoke this Court’s jurisdiction by including in [the] brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code Pa.R.A.P.
2119(f).” Commonwealth v. Prisk, 13 A.3d 526, 532 (Pa. Super. 2011).
We note, “[t]he right to appeal the discretionary aspects of a sentence is not
absolute.” Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super.
2011), appeal denied 32 A.3d 1276 (Pa. 2011).
“[T]his Court has held that an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)
(citation omitted).
If an appellant . . . complies with all statutory and procedural
requirements regarding a challenge to the discretionary aspects
of sentencing, and articulates in his [or her] Rule 2119(f)
statement a substantial question so as to warrant appellate
review, § 9781 requires the Superior Court to review the manner
in which the trial court exercised its discretion. . . .
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).
Here, Appellant included a Rule 2119(f) statement in her brief that
demonstrated a substantial question, specifically, if the court properly
considered mitigating fact. Our standard of review for a challenge to
sentencing is well settled:
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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.
Raven, supra, at 1253 (citation omitted).
Here, Appellant claims the sentencing court did not consider her
mental and physical disabilities, or her improvement in treatment. (See
Appellant’s brief, at 8, 10).
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the sentencing
court’s discretion, as he or she is in the best position to measure
factors such as the nature of the crime, the [appellant’s]
character, and the [appellant’s] display of remorse, defiance, or
indifference.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014), appeal
denied, 109 A.3d 678 (Pa. 2015) (citation omitted) (emphasis added).
Further, “[m]ental illness is clearly a factor that may be considered in
sentencing. However, the trial court was also correct in stating that it does
not mandate a modification or reduction in any sentence that would or could
be imposed.” Commonwealth v. Diaz, 867 A.2d 1285, 1287 (Pa. Super.
2005) (record citation omitted).
Additionally, when an appellant has a lengthy history of recidivism, the
sentencing court may appropriately impose a lengthier sentence.
The courts of this Commonwealth have repeatedly
recognized that the general purpose of graduated sentencing
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laws is to punish more severely [those] offenders who have
persevered in criminal activity despite the theoretically beneficial
effects of penal discipline. Stated another way, the purpose of
such laws is to enhance punishment when the defendant has
exhibited an unwillingness to reform his [or her] miscreant ways
and to conform his [or her] life according to the law.
Accordingly, following the recidivist logic, each strike that serves
as a predicate offense must be followed by [a disposition] and,
by necessary implication, an opportunity to reform, before the
offender commits the next strike. . . .
Commonwealth v. Shawver, 18 A.3d 1190, 1197 (Pa. Super. 2011)
(citation omitted).
Here, the sentencing court considered Appellant’s lengthy criminal
record when determining the sentence. At sentencing, the court discussed
Appellant’s criminal history, including her nine previous convictions of retail
theft, nine non-retail related thefts, including identity theft, robbery, and
forgery, and three substance-related convictions. (See N.T. Sentencing,
11/12/14, at 3). As noted by the Commonwealth, if fully calculated,
Appellant has a prior record score of fourteen. (See id. at 7). The record
does not reflect this true score because of a statutory cap of five points.
(See Sentencing Ct. Op., 3/04/15, at 3).
Further, the court considered that the May 18, 2014 theft occurred
while Appellant was out on bail following a guilty plea on May 2, 2014 for the
January 7, 2014 theft. (See N.T. Sentencing, 11/12/14, at 14-15).
Additionally, the court noted Appellant’s medical and psychiatric disabilities,
as well as injuries sustained from her 2012 DUI related car accident. (See
id. at 5, 13). The court further considered the rehabilitative needs of
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Appellant, specifically citing the ineffectiveness of her previous treatment in
curbing her propensities to commit crimes. (See Sentencing Ct. Op., at 5).
In total, Appellant has pleaded guilty to over twenty theft charges.
(See Presentence Investigation Report (PSI), 7/11/14, at unnumbered
pages 1-2). The sentencing court considered these twenty prior convictions.
(See N.T. Sentencing 11/12/14, at 3). The court noted Appellant’s poor
response to past courts’ help, including her continued recidivism during
treatment. (See id. at 13). The sentencing court also noted that her
treatments through mental health court, therapy, mental health services,
outpatient services, inpatient services and even imprisonment did not help
her to reform her thirty year history of stealing. (See id. at 15).
Additionally, the sentencing court considered mitigating factors, such
as Appellant’s disabilities and rehabilitative needs. (See id. at 4). The court
also noted that at some points she had been treatment compliant. (See id.
at 6). However, the court concluded that neither of these factors
outweighed Appellant’s long history of non-compliant recidivist behavior.
(See id. at 17). Specifically, the judge found the aggravating factors
outweighed the mitigating factors, and aptly stated to Appellant at
sentencing:
There’s lots of people in wheelchairs who don’t steal stuff.
There’s lots of people with physical disabilities who don’t
steal stuff. With mental issues who don’t steal stuff. I
didn’t read anything that said you couldn’t be treated with
medication. What I read was you’re medication non-
compliant. [. . .] I’m sorry you suffered the physical
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disabilities that you suffered, and significant injuries, but
you made that choice.
(See id. at 17).
Moreover, the sentencing court had the benefit of obtaining Appellant’s
PSI. (See N.T. Sentencing, 11/12/14, at 3). When “the sentencing court
had the benefit of a presentence investigation report [] it is presumed that
the sentencing court was aware of all relevant information regarding
[appellant’s] character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Tirado, 870 A.2d 362,
366 n.6 (Pa. Super, 2005) (citation omitted). Therefore, in the instant case,
we presume the sentencing court properly weighed the considerations.
Accordingly, we conclude that the court properly weighed both
aggravating and mitigating factors. See Tirado, supra, at 366. Hence, the
sentencing court did not abuse its discretion in sentencing Appellant outside
the aggravated range of the sentencing guidelines. See Raven, supra, at
1253. Appellant’s claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2015
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