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 ...