February 6, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JOSEPH JERAULD, Appellant
Appeal from the Judgment of Sentence December 17, 2012 In the Court of Common Pleas of Wyoming County Criminal Division at No(s): CP-66-CR-0000371-2010
BEFORE: PANELLA, MUNDY, and PLATT [*] , JJ.
Appellant, Joseph Jerauld appeals from the judgment of sentence entered on December 17, 2012, in the Court of Common Pleas of Wyoming County. After careful review, we affirm.
On May 6, 2011, Jerauld entered a guilty plea to one count of kidnapping, in violation of 18 Pa.Cons.Stat.Ann. § 2901(A)(3), a felony of the first degree. The Commonwealth outlined the factual basis for the plea as follows:
On December 5, 2009 at about one o'clock to one thirty a.m. Morgan Simon was at a friend's residence at 15 Mathewson Terrace, Factoryville Borough, Wyoming County. At that time [Jerauld] telephoned her and a friend answered the phone. Over the phone [Jerauld] yelled I'm coming to fucking get her. [Jerauld] arrived in his vehicle shortly thereafter and was highly intoxicated. Morgan told [Jerauld] that she was not going with him. He grabbed her and dragged her to his Jeep and threw her inside. When she fought back to try to get out of the vehicle to get away [Jerauld] took her head and smashed it against the dashboard. Then [Jerauld] in order to prevent her from getting away grabbed her by her hair and held her head in his lap while he drove away. As the vehicle was moving Morgan kept trying to stop it. Each time she tried this in order to further subdue [Jerauld] punched her in the head. Morgan kept screaming and begged [Jerauld] to take her back. Instead [Jerauld] took her approximately three miles away to an isolated field in LaPlume where no one else could see or hear her. At this location [Jerauld] dragged her out of the vehicle by her hair and terrorized her. Earlier when she tried to use his phone to call the police [Jerauld] took her phone from her. While at the field at one point she got off the ground and tried running to the vehicle to try to get her phone back to call the police. [Jerauld] prevented her from getting back to the vehicle. [Jerauld] confined her in that location for approximately four and a half hours.
N.T., Guilty Plea, 5/6/11, at 14-16. As part of the plea agreement, the Commonwealth, represented by Assistant District Attorney Gerald F. Idec, Jr., agreed to "remain mute at sentencing." Id., at 9. Sentencing was deferred as President Judge Shurtleff recused himself following the guilty plea due to a conflict of interest. On July 8, 2011, Jerauld appeared before Senior Judge Vanston for sentencing.
The Commonwealth was represented by District Attorney Jeffrey Mitchell at the time of sentencing who was uninformed that ADA Idec had agreed to stand mute at sentencing. As such, following Jerauld's plea of allocution, he made the following statement on behalf of the Commonwealth: "Your Honor, this crime and the victim Impact Statement speaks for itself. We would ask for state sentence." N.T., Sentencing, 8/2/11, at 5. Jerauld was subsequently sentenced to a period of not less than 36 nor more than 120 months' imprisonment in a state correctional institution. After the denial of post-sentence motions Jerauld did not file a direct appeal.
Jerauld later filed a timely PCRA petition wherein he argued that his sentence should be vacated and remanded because the Commonwealth breached its plea agreement by making a statement at the time of sentencing. The Commonwealth agreed and the PCRA court granted the petition.
Prior to re-sentencing, Jerauld filed a motion for recusal, which was denied on December 17, 2012. On that same day, Jerauld was re-sentenced to a period of 36 to 120 months' imprisonment and ordered to pay the costs of prosecution. Jerauld filed post-sentence motions, which the trial court denied. This timely appeal followed.
On appeal, Jerauld raises the following issues for our review:
I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN DENYING A RECUSAL MOTION FILED BEFORE RE-SENTENCING AND THEN RE-IMPOSING THE SAME SENTENCE PREVIOUSLY IMPOSED AFTER THE DISTRICT ATTORNEY AGREED DEFENDANT'S PCHA PETITION SHOULD BE GRANTED BECAUSE AFTER AGREEING TO STAND MUTE AT THE ORIGINAL SENTENCE, THE DISTRICT ATTORNEY REFERRED TO THE VICIM [SIC] IMPACT STATEMENT AS SPEAKING FOR ITSELF AND ASKED FOR A STATE SENTENCE.
II. WHETHER THE ORIGINAL SENTENCE AND A RE-SENTENCE IMPOSED ALTHOUGH WITHIN THE HIGHEST END OF THE STANDARD RANGE, CONSTITUTED A MANIFEST ABUSE OF DISCRETION AND WAS UNREASONABLE BECAUSE THE LOWER COURT HEARD THE COMMENTS OF THE DISTRICT ATTORNEY AT THE ORIGINAL SENTENCE AND IMPOSED A SENTENCE WITH LITTLE EXPLANATION EXCEPT THAT THE GUIDELINES DRIVE THE SENTENCE ON THEIR OWN.
Appellant's Brief, at 4.
Jerauld first argues that the trial court abused its discretion in denying his motion for recusal. Specifically, that recusal was warranted as the sentencing judge had already heard the Commonwealth's remarks at the original sentencing and had thus been improperly influenced by the Commonwealth's breach of its agreement to stand mute. We disagree.
If a party questions the impartiality of a judge, the proper recourse is a motion for recusal, requesting that the judge make an independent, self-analysis of the ability to be impartial. If content with that inner examination, the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This assessment is a personal and unreviewable decision that only the jurist can make....
This Court presumes judges of this Commonwealth are "honorable, fair and competent, " and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. The party who asserts a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal, and the decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.
Commonwealth v. Timchak, 69 A.3d 765, 774 (Pa.Super. 2013) (citation omitted).
Thus, Jerauld bears the burden of establishing bias, prejudice or unfairness on the part of the sentencing judge necessitating recusal. The facts of this case simply do not warrant recusal.
Senior Judge Vanston was assigned to Jerauld's case for sentencing and re-sentencing. Jerauld requested that Senior Judge Vanston recuse from the proceedings because he believed his ability to be impartial at the re-sentencing was clouded as he previously heard the comments by the Commonwealth. In denying Jerauld's request, Senior Judge Vanston made the following statements:
I have no idea who [Jerauld] is…. I sentenced him almost two years ago or a year and a half ago. I had idea, until I opened his file two day – late last week, I couldn't remember him from Adam. I probably sentenced, in twenty one years as a sitting judge and now three years as a senior judge, I've probably sentence five thousand people, maybe more, I have no idea. This gentleman doesn't mean anything to me more than the other five thousand. I couldn't remember him, so I intentionally did not read the transcript. I saw there was a transcript and I assumed that it had to do with the sentencing and I intentionally did not read it so that I would not remember what the District Attorney's Office may have said at some point in time.
N.T., Sentencing, 12/17/12, at 3-4.
It is apparent that Senior Judge Vanston established that he could rule impartially and without prejudice and, more importantly, that he had no recollection of the Commonwealth's statements. As such, we find no merit to Jerauld's first claim on appeal.
Lastly, Jerauld maintains that the sentence imposed was unreasonable as it was at the highest end of the standard range and that the sentencing court gave "little explanation, except that the guidelines drive the sentence on their own." Appellant's Brief, at 11. This is a challenge to the discretionary aspects of his sentence. He further argues that the trial court sentenced on the basis of the crimes themselves, not on the pre-sentence investigation report. See id., at 12.
Our standard of review is as follows.
[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. [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 exercisedwas manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. ... 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.
Commonwealth v. Christine, 78 A.3d 1, 9-10 (Pa.Super. 2013) (citation omitted).
"Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings." Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa.Super. 2006) (citation omitted). "Absent such efforts, an objection to at discretionary aspects of a sentence is waived." Id., at 1274 (citation omitted).
Jerauld filed a post-sentence motion, alleging that his sentence was unreasonable. See Post-Trial Motion, 12/21/12, at ¶¶ 2-3. As this motion adequately preserved Jerauld's challenge to the discretionary aspects of his sentence, we will proceed to address his argument on appeal.
We begin our review of Jerauld's issue by noting that "[a] challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the appropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). "Two requirements must be met before we will review this challenge on its merits." McAfee, 849 A.2d at 274 (citation omitted). "First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Id. (citation omitted). "Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Id. (citation omitted). That is, "the sentence violates either a specific provisions of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Tirado, 870 A.2d at 365 (citation omitted). We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists. See id. "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. (citation omitted).
In the present case, Jerauld's appellate brief contains the requisite Rule 2119(f) concise statement and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. In his Rule 2119(f) statement, Jerauld assets that the sentencing court abused its discretion when it imposed a sentence in the highest end of the standard range of the guidelines with little explanation on the record and, essentially, that the trial court did not take into adequate consideration the material in the pre-sentence investigation report. Neither contention raises a substantial question for our review. In any event, these claims are meritless.
Jerauld concedes that the sentence imposed was within the standard range outlined by the Sentencing Guidelines. See Appellant's Brief, at 11. At the time of re-sentencing, Senior Judge Vanston stated on the record that, he reviewed the pre-sentence investigation report and sentencing guidelines. See N.T., Sentencing, 12/17/12, at 5. In re-sentencing Jerauld to a period of 30 to 120 months' imprisonment, Senior Judge Vanston noted that "we still have a felony one kidnapping" and, as such, "the sentence is in the standard range guidelines for Pennsylvania Commission on sentencing and the court sees no reason to deviate from the same." Id, at 10-11. "Any lesser sentence would depreciate the seriousness of the defendant's conduct." Id., at 11.
The trial court did not abuse its discretion in sentencing Jerauld. Jerauld's standard range sentence precludes relief. "[W]here a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (citation omitted). In addition, the trial court in this case had the benefit of a pre-sentence investigation report As such, it is presumed that the sentencing court "was aware of the relevant information regarding defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa.Super. 2004) (citation omitted). See also Commonwealth v. Cruz-Centeno, 668 A.2d 536, 546 (Pa.Super. 1995) (combination of pre-sentence investigation report and imposition of standard range sentence, absent more, cannot be considered excessive or unreasonable).
Judgment of sentence affirmed. Jurisdiction relinquished.