Com. v. Krause, B. ( 2020 )

J-S15005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARBARA JEAN KRAUSE :
:
Appellant : No. 933 WDA 2019
Appeal from the Judgment of Sentence Entered April 22, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000770-2018
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 15, 2020
Appellant, Barbara Jean Krause, appeals from the judgment of sentence
of an aggregate term of 7 to 40 years’ incarceration, imposed after she pled
guilty to 22 counts of misdemeanor and summary offenses, including
endangering the welfare of a child, simple assault, terroristic threats, and
recklessly endangering another person. Appellant solely challenges the
discretionary aspects of her sentence. We affirm.
The trial court summarized the facts and procedural history of this case,
as follows:
The case at bar involves the pervasive and severe abuse by
[Appellant] … against her six adopted children (LAK - sixteen years
old; JLK - fifteen years old; MPK - fourteen years old; IDK -
fourteen years old; RSK - thirteen years old; MJK - twelve years
old) (“children”).1 The abuse occurred between 2011 and 2018.
No trial was held, but [Appellant] entered an open plea of guilt
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* Former Justice specially assigned to the Superior Court.
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and accepted all the facts in the affidavit of probable cause as set
forth below. [Appellant] and her husband regularly referred to
their children as “niggers.” [A] paddle would be used to beat the
children upon the buttocks until they bled through their
underwear. [A] walking stick was used to beat the children on
their heads, leaving lumps and knots. The children would be
forced to do ‘Halfways,’ which involved standing against the wall
with their knees bent for extensive periods of time. The children
were malnourished and deprived of food for lengthy periods of
time as punishment. A few of the children were fed only eggs and
water for weeks as punishment. [Appellant] and her husband
used the family dogs to bite the children as they were being
punished, and many of the children still have scars from said
abuse as the wounds went untreated. The children had their
heads thrown into the wall. The children were additionally
threatened with axes and guns. [Appellant] threatened one of the
children that she would slit his throat with an ax[] while he was
sleeping. [Appellant] threatened another child by placing the
edge of an ax[] on his neck and telling him he would be shot. The
youngest child, after calling the police about the abuse he
received, was told by [Appellant] that she would shoot him if he
touched the phone again. All six children slept in the same room,
two of which had to sleep on the floor on one [half-]inch thick
mattress. All of the children were homeschooled, and when
examined at Geisinger Medical Center, it was determined that they
were lacking in academics and [were] at least 1 [to] 2 years
behind.
1This [c]ourt notes that this is a companion case to that of
Timothy Dean Krause, CP-17-CR-769-2018. [Mr. Krause
also filed an appeal from his judgment of sentence, which is
docketed at 931 WDA 2019.]
On April 22, 2019, [Appellant] entered an Open Plea of Guilt,
which provided the [s]entencing [c]ourt full discretion in
determining sentencing, to one [c]ount of Endangering the
Welfare of Children (Misdemeanor of the First Degree), one
[c]ount of Conspiracy to Endanger the Welfare of Children
(Misdemeanor of the First Degree), two counts of Simple Assault
(Misdemeanor of the First Degree), two [c]ounts of Terroristic
Threats (Misdemeanor of the First Degree), four counts of Simple
Assault (Misdemeanor of the Second Degree), six counts of
Recklessly Endangering Another Person (Misdemeanor of the
Second Degree), and six counts of Harassment (Summary
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Offense). The standard [sentencing guideline] range for
Endangering the Welfare of a Child and Conspiracy to Endanger
the Welfare of a Child is Restorative Sanctions [to] nine months[’
incarceration]. The aggravated range is nine … [to] twelve
months[’ incarceration]. The Probation [O]ffice recommended
twelve … [to] forty-eight months[’ incarceration], consecutive for
each charge. This [c]ourt agreed with the Probation [O]ffice’s
recommendation. The standard [sentencing guideline] range for
Simple Assault (Misdemeanor of the First Degree) is Restorative
Sanctions [to] three months[’ incarceration]. The aggravated
range is three … [to] six months[’ incarceration]. The Probation
[O]ffice recommended six … [to] forty-eight months[’
incarceration], consecutive. This [c]ourt agreed with the
Probation [O]ffice’s recommendation. The standard [sentencing
guideline] range for Terroristic Threats (Misdemeanor of the First
Degree) is Restorative Sanctions [to] one month [incarceration].
The aggravated range is one … [to] four months[’ incarceration].
The Probation [O]ffice recommended four … [to] twenty-four
months[’ incarceration], consecutive. This [c]ourt agreed with the
Probation [O]ffice’s recommendation. The standard [sentencing
guideline] range for Simple Assault (Misdemeanor of the Second
Degree) is Restorative Sanctions [to] one month [incarceration].
The aggravated range is one … [to] four months[’ incarceration].
The Probation [O]ffice recommended four … [to] twenty-four
months[’ incarceration], consecutive. This [c]ourt agreed with the
Probation [O]ffice’s recommendation. The standard [sentencing
guideline] range for Recklessly Endangering Another Person is
Restorative Sanctions to one month [incarceration]. The
aggravated range is one … [to] four months[’ incarceration]. The
Probation [O]ffice recommended four … [to] twenty-four months[’
incarceration], consecutive. This [c]ourt agreed with the
Probation [O]ffice’s recommendation. The Harassment charge is
a summary offense[,] so a $1.00 fine was imposed.
At the original sentencing hearing, it was determined that
[Appellant] had a prior record score of [zero]. Defense [c]ounsel
argued that the [c]ourt should ignore the [Probation Office’s]
recommendation and instead sentence [Appellant] within the
standard range. To support this request, [d]efense [c]ounsel
stated that there were previously aggravated charges, and those
were dropped in negotiations during the guilty plea arrangement.
The [c]ourt took this testimony under advisement, and
subsequently [Appellant] was sentenced in accordance with what
is enumerated above. In making its determination, this [c]ourt
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listed the violation of the parent/child trust, the severity and
nature of the charges, and the young ages of the victims as
reasons for the imposition of the aggravated sentencing range.
On May 21, 2019, a Post[-]Sentence Motion to Modify
Sentence was heard before the [c]ourt. At that hearing, defense
counsel argued the [sentences] were not individualized, not
necessary to protect the public, did not address the rehabilitative
needs of [Appellant], [were] not proportionate to [the] reasons
stated for [sentencing in the] aggravated range, [constituted]
essentially a life-term, and … that the reasons cited [by the court
for imposing the sentences were already] incorporated in the
sentencing guidelines. The Commonwealth argued that the
sentence was within the [guideline] range. Additionally, the
Commonwealth argued that the actions by [Appellant] were a
course of conduct that lasted seven years and targeted six
children. The Assistant District Attorney (“ADA”) noted that this
was not an isolated incident, and that the children had numerous
scars from [Appellant’s] consistent conduct. The ADA further
argued that due to the nature of the relationship between
[Appellant] and the victims, as that of a [mother] and [her]
children, this case involved the betrayal of trust. Finally, the ADA
argued that Simple Assault could be proven with far less than
[what] occurred in this case. Slapping a child in the face once
would support a Simple Assault charge, but beating children until
they bleed makes the nature and severity of these charges
warrant the aggravated range in this case. Upon consideration of
all the testimony and evidence, the Motion for Modification was
denied.
Trial Court Opinion (TCO), 8/14/19, at 1-4.
Appellant filed a timely notice of appeal, and she also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The trial court filed its Rule 1925(a) opinion
on August 14, 2019.
Herein, Appellant states two issues for our review:
1. Did the [trial c]ourt fail to adequately consider the [s]entencing
[g]uidelines when fashioning the sentence imposed?
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2. Did the [trial c]ourt impose a sentence that is unreasonable and
excessive under the circumstances of the case?
Appellant’s Brief at 4.
Appellant’s issues are interrelated and, thus, we will address them
together. Both of her claims implicate the discretionary aspects of her
sentence. We have explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). 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.”
Sierra, supra at 912–13.
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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant has satisfied the procedural prerequisites for raising and
preserving her discretionary-aspects-of-sentencing claims. In her Rule
2119(f) statement, she contends that the court’s sentence is excessive in light
of the fact that she pled guilty to only misdemeanor charges, and that “the
trial court applied the sentencing guidelines in a formulistic manner by
sentencing to the maximum of the aggravated range of the sentencing
guidelines on each and every count.” Appellant’s Brief at 11. Appellant insists
that “[t]he combination of excessive consecutive sentencing and merely
formulistic consideration of the sentencing guidelines should be found to raise
a substantial question.” Id.We consider Appellant’s claims as constituting substantial questions for
our review. See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.
Super. 2003) (en banc) (“[The a]ppellant’s claim that the court erred by
imposing an aggravated range sentence without consideration of mitigating
circumstances raises a substantial question.”). However, Appellant has not
demonstrated an abuse of discretion by the sentencing court. See Moury,
992 A.2d at 169 (“[T]he proper standard of review when considering whether
to affirm the sentencing court’s determination is an abuse of discretion.”)
(citation omitted). As this Court explained in Moury:
[A]n abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
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unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Id. at 169-70 (citations omitted).
Here, in explaining its rationale for imposing an aggravated range,
consecutive sentence, the trial court explained:
[T]his [c]ourt looked at the sentencing guidelines for the standard
range, and did not deem it appropriate for this individual case.
The severity and nature of the abuse laid on these children
weighed towards granting a sentence in the aggravated range.
[Appellant] chose to adopt these six children and provide a home
for them. With that choice[] comes responsibility, and [Appellant]
abused that responsibility. She not only refused to adequately
feed and educate her children, but she subjected them to
incredible punishment and abuse. These children were threatened
with deadly weapons, beaten until they bled, and [Appellant] did
not even take them to have their wounds treated once the harm
occurred. Additionally, these children were at impressionable and
vulnerable ages. The youngest of the children was twelve years
old. Based on these considerations, this [c]ourt made its
determination regarding sentencing, and [Appellant] has not met
[her] burden of proving this [c]ourt abused its discretion.
***
A. The sentences were individualized.
It appears to this [c]ourt that the argument that the
sentencing was not individualized results from an assumption that
because [Appellant] and her husband both received the same
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sentences, they could not have been individual[ized].[1] That is
not the case. Here, a husband and wife, the parents of the six
victim children, were charged with the same crimes. [Appellant]
and her husband acted together to create the conditions and
impose the punishments that ultimately resulted in their
appearance before this [c]ourt. Additionally, when arguments
were presented by defense counsel for [Appellant] and her
husband, defense counsel referred to each other and incorporated
each other’s statements into each[ other’s] own argument before
this [c]ourt. This exemplifies how inter-connected these two
[d]efendants are in this case. It naturally follows that the
sentence[s] would reflect that. This [c]ourt individually examined
and heard from each [d]efendant’s counsel, and based on that
information, this [c]ourt chose to sentence [Appellant] and her
husband with the same sentences. Therefore, while the
[Appellant’s] sentence was the same as her husband’s, this
[c]ourt came to that decision after individual analysis of the facts
before it and did not abuse its discretion.
B. The sentence was necessary to protect the public.
The nature and severity of these crimes shocked the
conscience of this [c]ourt. These six children were brutalized. The
crimes were violent and persisted for seven years. This [c]ourt
determined that the aggravated sentences were appropriate to
protect the public from these violent criminals and did not abuse
its discretion.
C. The sentence considered the rehabilitative needs of [Appellant].
____________________________________________
1 We note that Appellant now argues on appeal that her sentences were not
individualized because at each count, the court imposed the guidelines’
maximum, aggravated-range term. This claim was not explicitly raised in
Appellant’s Rule 1925(b) statement, and the trial court did not address it in
its opinion. Therefore, we deem this specific argument waived. Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). We
also deem waived Appellant’s claim, raised for the first time in her Argument
section, that the court improperly “considered the gravity of the more serious,
felony allegations which were withdrawn.” Appellant’s Brief at 14. This claim
was not raised in her post-sentence motion, Rule 1925(b) statement, or Rule
2119(f) statement. Therefore, it is waived.
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There was minimal testimony provided to persuade this
[c]ourt that [Appellant] would be able to rehabilitate herself.
[Appellant] submitted to the [c]ourt one statement acknowledging
her love of her children and a brief apology. This [c]ourt did not
find that [Appellant] exhibited remorse for her actions, and the
fact that not only would [Appellant] beat her children, but she
would threaten them with deadly weapons, and refuse to seek
treatment for their injuries, established to this [c]ourt that
[Appellant] would need a significant amount of time incarcerated
in order to be rehabilitated. Based on these factors, and the lack
of any mitigating argument provided by defense counsel, this
[c]ourt did not abuse its discretion.
D. The sentence imposed was proportional to the charges, and the
reasons cited are not incorporated into the guidelines.
It is impermissible for a court to consider factors already
included within the sentencing guidelines as the sole reason for
increasing or decreasing a sentence to the aggravated or
mitigated range. Commonwealth v. Simpson, 829 A.2d 334[,
339] ([Pa. Super.] 2003) [(citation omitted)]. However, this
[c]ourt is permitted to use factors already included in the
guidelines if they are used to supplement other extraneous
sentencing information. [Id.] at 340 [(citation omitted)]. Here,
the young ages [of the victims], betrayal of parent/child trust, and
nature and severity [of the offenses] are not considered in the
sentencing guidelines, and therefore, this [c]ourt did not use
factors already included. Even if the nature and severity were
included [in the guidelines], the young ages and betrayal of
parent/child trust are extraneous sentencing information that
would supplement the factors already included in the guidelines.
Therefore, this [c]ourt has not abused its discretion.
E. The sentence is not essentially a life-term, and if it was, the
violent nature of the crimes warranted the sentence[]
[Appellant] is fifty-two years old. She was sentenced to
seven [to] forty years of incarceration for her crimes. This would
give [Appellant] the opportunity to be released on parole after
seven years. Being released at fifty-nine years old is hardly a life
sentence.
Even if it is determined that this was essentially a life term,
this [c]ourt has made clear that the nature and severity of these
violent crimes warrants a lengthy sentence behind bars. While it
is possible that [Appellant] could die behind bars, her age alone is
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not a significant factor to warrant a lessened sentence. In
[Commonwealth v. Dodge, 957 A.2d 1198 (Pa. 2008)], the
Court held that imposition of a life sentence for nonviolent
offenses with limited financial impact was clearly unreasonable.
However, that is not the nature of this case. The crimes were
violent and [were committed] against multiple victims. The
sentences are additionally within the sentencing guidelines.
Therefore, this [c]ourt did not abuse its discretion.
TCO at 5-10 (some citations omitted).
Based on the court’s discussion, we discern no abuse of discretion in
Appellant’s sentence. The court offered multiple reasons for imposing
consecutive, aggravated-range sentences for each of Appellant’s
misdemeanor offenses, and it clearly considered the requisite statutory
factors, the particular circumstances of this case, and the mitigating factors
of Appellant’s age and lack of a prior criminal record. The court determined
that a lengthy term of incarceration was warranted due to the gravity of
Appellant’s crimes, the need to protect the public from her violent criminal
propensities, and to best serve Appellant’s rehabilitative needs. We do not
agree with Appellant that her sentence of 7 to 40 years’ incarceration for her
7 years of violent abuse towards her six adopted children is excessive. The
court did not abuse its discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2020
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