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Commonwealth v. Ball

Superior Court of Pennsylvania

June 22, 2017

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
DAWN MARIE BALL Appellee

         Appeal from the Judgment of Sentence imposed December 14, 2015 In the Court of Common Pleas of Lycoming County CP-41-CR at Nos: 0000045-2014, 0000547-2015, 0002134-2013, 0002148-2013

          BEFORE: BOWES, OLSON, and STABILE, JJ.

          OPINION

          STABILE, J.

         The Commonwealth of Pennsylvania appeals from the December 14, 2015 judgment of sentence imposing an aggregate five years of probation for four counts of aggravated harassment by a prisoner (18 Pa.C.S.A. § 2703.1). The trial court imposed no further penalty for Appellee's guilty plea to a fifth count of aggravated harassment and one count of aggravated assault (18 Pa.C.S.A. § 2702). We affirm.

         All of the offenses at issue arise from incidents between Appellee and corrections officers at SCI Muncy. On September 15, 2012, while awaiting trial for another offense, Appellee spit on and kicked two corrections officers. The Commonwealth charged Appellee with two counts of aggravated harassment by a prisoner, two counts of aggravated assault, and two counts of simple assault at docket number 2148 of 2013.

         On November 6, 2013, Appellee screamed at and spit on a corrections officer at SCI Muncy. The Commonwealth charged her with aggravated harassment by a prisoner at docket number 2134 of 2013. Similar incidents occurred on November 18, 2013 and December 16, 2014, resulting in two more charges of aggravated harassment by a prisoner at docket numbers 45 of 2014 and 547 of 2015.

         On August 18, 2015, Appellee entered a guilty plea to the aforementioned offenses. The trial court appointed Dr. Terri Calvert to examine Appellee and testify at Appellee's sentencing hearing. The sentencing hearing took place on December 1, 2015. At its conclusion, the trial court imposed a sentence of five years of probation. On December 11, 2015, the Commonwealth filed a timely motion to reconsider. The trial court conducted a hearing on December 14, 2015 and modified Appellee's sentence to include six months of electronic monitoring. The sentence otherwise remained unchanged. The Commonwealth's timely appeal followed.

         The Commonwealth asserts the following errors:

A. Whether the trial court abused its sentencing discretion by imposing a sentence below the mitigated range of the sentencing guidelines.
B. Whether the trial court abused its discretion by imposing a sentence of probation without any incarceration.
C. Whether the trial court abused its discretion by imposing a sentence of guilt without further penalty for the most serious charge, aggravated assault.

Commonwealth's Brief at 9.

         Each of these issues challenges the trial court's sentencing discretion. The Commonwealth preserved these issues in its timely post-sentence motion. The Commonwealth's brief includes a Pa.R.A.P. 2119(f) statement arguing that its assertions of error present substantial questions for review.

A substantial question requires a demonstration that the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. This Court's 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. Whether a substantial question has been raised is determined on a case-by-case basis; the fact that a sentence is within the statutory limits does not mean a substantial question cannot be raised.

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013). Instantly, the Commonwealth argues that the statutory factors set forth in 42 Pa.C.S.A. §§ 9722 and 9725 warranted a sentence of incarceration. Commonwealth's Brief at 22. The Commonwealth also argues that the trial court's sentence constituted an unreasonable deviation from the sentencing guidelines, given the circumstances of this case. Id. We conclude the Commonwealth has presented a substantial question for our review. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001) (holding that the Commonwealth raised a substantial question where it alleged the sentence was excessively lenient and provided specific reasons why the sentence violated sentencing norms), appeal denied, 796 A.2d 979 (Pa. 2002).

         We review the trial court's sentencing scheme for abuse of discretion. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). "[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 unreasonable, or the result of partiality, prejudice, bias or ill-will." Id.

         Section 9781(c) of the Sentencing Code directs this Court to vacate a sentence and remand to the sentencing court if "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S.A. § 9781(c)(3). Likewise, § 9781(d) governs our review of the record:

(d) Review of record.--In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based. (4)The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

         Our Supreme Court has addressed the § 9781(c)(3) "unreasonable" inquiry as follows:

What makes a sentence "unreasonable" is not defined in the statute. Generally speaking, "unreasonable" commonly connotes a decision that is "irrational" or "not guided by sound judgment." The Random House Dictionary of the English Language, 2084 (2nd ed. 1987); see 1 Pa.C.S. § 1903 (words to be construed according to their common and approved usage). While a general understanding of unreasonableness is helpful, in this context, it is apparent that the General Assembly has intended the concept of unreasonableness to be a fluid one, as exemplified by the four factors set forth in Section 9781(d) to be considered in making this determination. Indeed, based upon the very factors set out in Section 9781(d), it is clear that the General Assembly intended the concept of unreasonableness to be inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition.
[W]e decline to fashion any concrete rules as to the unreasonableness inquiry for a sentence that falls outside of applicable guidelines under Section 9781(c)(3). We are of the view, however, that the Legislature intended that considerations found in Section 9721 inform appellate review for unreasonableness. That is, while a sentence may be found to be unreasonable after review of Section 9781(d)'s four statutory factors, in addition a sentence may also be unreasonable if the appellate court finds that the sentence was imposed without express or implicit consideration by the sentencing court of the general standards applicable to sentencing found in Section 9721, i.e., the protection of the public; the gravity of the offense in relation to the impact on the victim and the community; and the rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b). Moreover, even though the unreasonableness inquiry lacks precise boundaries, we are confident that rejection of a sentencing court's imposition of sentence on unreasonableness grounds would occur infrequently, whether the sentence is above or below the guideline ranges, especially when the unreasonableness inquiry is conducted using the proper standard of review.

Walls, 926 A.2d at 963-64 (some citation omitted).

         The Commonwealth notes that the guideline range for each of Appellee's offenses was 21 to 27 months of incarceration. The aggregate guideline range, had the trial court imposed consecutive sentences for all six offenses, was 126 to 162 months of incarceration. As ...


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