February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
BONNIE LOUISE VONSTEIN DAVIS, Appellant
Appeal from the Judgment of Sentence May 10, 2013, Court of Common Pleas, Bedford County, Criminal Division at No. CP-05-CR-0000237-2012.
Joseph D. Seletyn, Esq.
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT, JJ. [*]
Appellant, Bonnie Louise Vonstein Davis ("Davis"), appeals from the judgment of sentence entered on May 10, 2013 following her guilty plea to the crime of driving under the influence – highest rate of alcohol, 75 Pa.C.S.A. § 3802(c). On appeal, Davis contends that the trial court abused its discretion in refusing to grant her application to participate in an intermediate punishment program. For the reasons that follow, we affirm.
The trial court offered the following apt summary of the relevant procedural background of this case:
On March 11, 2013, [ Davis] pled guilty to one count of Driving Under the Influence to the Highest Rate blood alcohol level as a second offense in the past ten years. Pursuant to the plea agreement, the remaining charges were to be nolle prossed and sentencing was open to the [c]ourt's discretion. On May 10, 2013, after reviewing a Pre-Sentence Investigation, we imposed a sentence of nine (9) months to twenty-three (23) months in the Bedford County Jail followed by three (3) years probation, with intensive alcohol supervision requirement including an alcohol detection anklet. At the sentencing hearing, counsel for [ Davis] neglected to bring to our attention that [ Davis] had made application for participation in the Bedford County Intermediate Punishment Program. As a result, we did not address the Intermediate Punishment Program at sentencing. [ Davis] subsequently filed a Post-Sentence Motion requesting that the [ c]ourt admit [ Davis] into the Intermediate Punishment Program. We held a hearing on May 14, 2013, and denied relief.
Trial Court Opinion, 8/ 13/ 2013, at 1- 2.
On appeal, Davis presents the following issue for our consideration and determination:
Given that the lower court ignored her current offense while it repeatedly cited [ Davis's] past offense as justification for denying her entry into the Bedford County Intermediate Punishment Program, which she was eligible for, while the past offense was already accounted for in her Prior Record Score, did the court abuse its discretion in denying her admission to the Program?
Davis's Brief at 4.
Davis challenges the discretionary aspects of her sentence. A challenge to the discretionary aspects of a sentence "must be considered a petition for permission to appeal, as the right to appeal from the discretionary aspects of sentencing is not absolute." Commonwealth v. Long, 831 A.2d 737, 750 (Pa.Super. 2003). Two requirements must be met before we will review this challenge on its merits. First, Davis 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." Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 512, 522 A.2d 17, 19 (1987). Davis's appellate brief contains a 2119(f) Statement, and therefore she has met the first requirement.
Second, Davis must show, "that there is a substantial question that the sentence imposed is not appropriate under this chapter." 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 653 A.2d 706, 710 (1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995). Davis claims that the trial court considered an impermissible factor in its sentencing decision. This Court has held that a claim that the sentence is excessive because the trial court relied on impermissible factors raises a substantial question. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003). Accordingly, we will review her claim .
The parties to this appeal agree that Davis was eligible for the Bedford County Intermediate Punishment Program. I n Commonwealth v. Williams, 941 A.2d 14 (Pa.Super. 2008), this Court explained that participation by eligible candidates is within the discretion of the sentencing court:
In adopting I PP [ intermediate punishment program] as a sentencing alternative, '[ t] he Legislature's intent was to give judges another sentencing option which would lie between probation and incarceration with respect to sentencing severity; to provide a more appropriate form of punishment/ treatment for certain types of non-violent offenders; to make the offender more accountable to the community; and to help reduce the county jail overcrowding problem while maintaining public safety.' Thus, the grant or denial of a defendant's request for I PP is largely within the sound discretion of the trial court.
Id. at 24 (citations omitted) (quoting Commonwealth v. Arthur Williams, 868 A.2d 529, 534 (Pa.Super. 2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005)).
When imposing sentence on May 10, 2013, the trial court included in its considerations that one of Davis's two prior DUI s had resulted in the death of her daughter. N.T., 5/ 10/ 2013, at 12 ("And the fact that you caused an accident while you were drunk and your daughter died I can't think of a better reason not to do it."). At the subsequent hearing on May 14, 2013 to consider her request to participate in the I PP program, the trial court further explained as follows:
I think the Commonwealth had a good, had a good argument for a State sentence. As I told [ Davis] at the sentencing it did alarm me that, you know, she had the – she didn't come here as a normal second time offender. One being that she had one just outside of the ten years. And then the bigger reason that she had, the biggest lesson really anyone could get for not drinking and driving, and she didn't, she didn't learn from that. So I did have a big concern over what her rehabilitative needs were at that time.
And the Commonwealth had a good argument for a State sentence. I took into consideration her employment history in the County, her family in the County and decided to – in essence the trade off that I would give her is that she would spend the rest of her parole time at least on the SCRAM Bracelet for treatment purposes. And I would knock off some of the sentence. So, I guess what I'm saying though – that's a long way to say I essentially gave her a modified County IP sentence anyway….
Because if it hadn't been for the SCRAM Bracelet it more likely would have been a much longer sentence. I don't think the County IP Program – because I looked over the policy that's in place that Judge Ling approved. I t is discretionary with the Court. The Program technically you get a third of the sentence. Now, typically that's the mandatory minimum.
I don't think that a third of the mandatory minimum would be, would do this case justice. And I don't think that would be an appropriate sentence. I don't think that a third of the sentence I imposed, in other words, three (3) months would be appropriate in the case either. I think I gave her – at least in m y reasoning, I had given her a discount anyway by placing her on the SCRAM Bracelet and lessening the jail time.
And, also, I think her supervision needs after are greater than the usual County I P participant. Because the County IP Program under the policy is: a third of the jail sentence and then four (4) months supervision on the SCRAM Bracelet. Well, I think in her case I think a greater supervision is needed. So, I don't think she fits in the County Intermediate Punishment Program. Its – I've already given you that same sentence, Ms. Davis. You just have a longer jail time which I think is appropriate given your past, your past offense.
N.T., 5/ 14/ 2013, at 6-8.
Davis contends that the trial court erred by considering her prior conviction for DUI . I n particular, relying on this Court's decision in Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super. 2000), Davis argues that the trial court impermissibly "double counted" the prior DUI conviction, since that conviction had already been taken into account in determining her prior record score under the sentencing guidelines. Davis's Brief at 10.
The reliance on Goggins is misplaced here, however, since in that case this Court held that a sentencing court may not consider factors already included in the sentencing guidelines as a reason for increasing a sentence from the standard range into the aggravated range. I d. at 731; see also Commonwealth v. Long, 831 A.2d 737, 750 (Pa.Super. 2003) (" I t 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."). Goggins did not involve a trial court's exercise of its discretion to place a defendant into an intermediate punishment program, and thus arguably it has no relevance at all in this case. The Court in Goggins concluded that the same factors that determine the prior record score, which in turn determines the standard range of minimum sentences, cannot then be used to push the defendant's sentence outside the standard range and into the aggravated range. This rationale simply has no application in the present circum stance. In this regard, we note that Davis's minimum sentence in this case, nine months of imprisonment, was within the standard sentencing range (one to twelve months) given her prior record score of one.
As such, Davis has offered no satisfactory reason why the trial court did not act within its discretion to consider her prior DUI offense, its tragic consequences, and her failure to learn from it when denying her IPP request. To the contrary, in reviewing its stated reasons for doing so, it is clear that the trial court was properly focused on the appropriate general standards for sentencing, including the protection of the public and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b).
Judgment of sentence affirmed.