Appeal from the Judgment of Sentence April 27, 2012 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000665-2011
BEFORE: STEVENS, P.J., MUNDY, J., and FITZGERALD, J.[*]
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Mercer County following Appellant's plea of "no contest" to the charge of second-degree misdemeanor cruelty to animals, 18 Pa.C.S.A. § 5511(a)(1)(i). Appellant contends (1) his sentence is illegal in that the trial court had no statutory authority to impose jail time, and (2) his sentence was manifestly excessive. After a careful review, we conclude the trial court had the authority to impose a period of incarceration upon Appellant, and we find no merit to his discretionary aspects of sentencing claim. However, we sua sponte conclude the trial court erred in not imposing a fine, as mandated by Section 5511(a)(1). Thus, we remand for the imposition of a fine, but affirm in all other respects.
The relevant facts and procedural history are as follows: On May 8, 2011, Appellant was arrested for abusing a dog, and the Commonwealth offered to permit him to plead "no contest" to cruelty to animals, graded as a second-degree misdemeanor, under 18 Pa.C.S.A. § 5511(a)(1)(i). On February 15, 2012, Appellant entered such a plea, resulting from his maiming and disfiguring of a dog, which was entrusted to his exclusive care by the dog's owner, Raelynn VanTassel. Specifically, the facts underlying Appellant's plea were set forth at the oral colloquy by the Assistant District Attorney as follows:
[ADA]: May it please the Court. Your Honor, the Commonwealth would establish through testimony and evidence that on or about March 30, 2011, the owner of the dog in question, Miss Raelynn VanTassel, was going into drug detox for five days and asked [Appellant] to take care of that dog while she was gone. The dog was a little bit underweight when she left, otherwise it was in good condition. Upon her return on April 5th, 2011, the dog was substantially hurt. She could tell something was wrong with the dog. And her testimony would establish that [Appellant] indicated that [her dog] was in a dog fight. Upon washing the dog, the wounds got worse, the skin came off and hair came off. Subsequently, the evidence would show that [Appellant]…dropped the dog off in downtown Sharon. Agent Dorogy picked the dog up and took it to get treatment and the veterinarian would testify this is not wounds sustained from a dog fight, that this is abuse, given that the dog was in the care of [Appellant] at the time.
THE COURT: Exclusive care as I understand it?
[ADA]: Exclusive care, yes, Your Honor. The dog was in [Appellant's] exclusive care at the time the dog was hurt. Miss VanTassel repeatedly asked [Appellant] to tell her if something else happened, to which he remained silent. The Commonwealth would submit to the jury given that the dog was hurt at the time that he had exclusive care, that he was the one that had the opportunity to hurt it, and the false story and disposing of the animal are indicia of the guilt and I would argue the jury would have no reasonable doubt.
THE COURT: My understanding also is that the evaluation of the dog by the vet showed the teeth on one side of the mouth had been kicked—pushed in.
[ADA]: Punched in. It was the front teeth, which is very unusual for damage to a dog.
THE COURT: They were inward and the dog lost the teeth.
[ADA]: Yes, Your Honor. And the wounds, we would have brought in pictures of the wounds and actually, I have pictures if the Court would need to see them.
THE COURT: No.
[ADA]: Okay. They're gruesome; there is some skin missing where it tracks down to the animal to its connective tissue. Substantial wounds to the animal that rises to the level ...