Com. v. Houston, C.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

CATHERINE JOANN ELIZABETH : HOUSTON :

:

Appellant : No. 914 WDA 2020

Appeal from the Judgment of Sentence Entered July 10, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0002248-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

CATHERINE JOANN HOUSTON :

:

Appellant : No. 915 WDA 2020

Appeal from the Judgment of Sentence Entered July 10, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000138-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

CATHERINE JOANN ELIZABETH : HOUSTON :

:

Appellant : No. 916 WDA 2020

Appeal from the Judgment of Sentence Entered July 10, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000575-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

CATHERINE JOANN ELIZABETH : HOUSTON :

:

Appellant : No. 917 WDA 2020

Appeal from the Judgment of Sentence Entered July 10, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000576-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

CATHERINE JOANN ELIZABETH : HOUSTON :

:

Appellant : No. 918 WDA 2020

Appeal from the Judgment of Sentence Entered July 10, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000577-2020

BEFORE: SHOGAN, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: May 18, 2021

Appellant, Catherine Joann Elizabeth Houston, appeals from the

judgment of sentence entered in the Mercer County Court of Common Pleas

following her open guilty plea to multiple counts of retail theft.1 We affirm.

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1 18 Pa.C.S.A. § 3929(a)(1).

3

The relevant facts and procedural history of this case are as follows. On

May 11, 2020, Appellant entered a guilty plea at docket CP-43-CR-0002248-

2019 to one count of retail theft as a felony of the third degree. On July 9,

2020, Appellant entered guilty pleas on the remaining four dockets.

Specifically, at docket CP-43-CR-0000138-2020, Appellant entered a guilty

plea to one count of retail theft as a misdemeanor of the first degree; at docket

CP-43-CR-0000575-2020, Appellant entered a guilty plea to one count of retail

theft as a felony of the third degree; at docket CP-43-CR-0000576-2020,

Appellant entered a guilty plea to one count of retail theft as a felony of the

third degree; and at docket CP-43-CR-0000577-2020, Appellant entered a

guilty plea to one count of retail theft as a felony of the third degree. On July

10, 2020, the court held a sentencing hearing on all five dockets. At the

conclusion of the hearing, the court imposed an aggregate sentence of 40-80

months’ imprisonment, followed by 5 years’ probation.

On July 15, 2020, Appellant timely filed a motion for modification of

sentence. Appellant argued that her sentence should be reduced based upon

various mitigating circumstances, which included physical and sexual abuse

by her father and paramours, her drug addiction and mental health issues,

and her history of unstable housing and foster care. Appellant claimed the

Mercer County Behavioral Health Commission recommended that she

participate in a long-term rehabilitation program, but she feared that she

would be ineligible for certain programs in the state prison system. (See

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Motion to Modify Sentence, 7/15/20, at 1-45).

On August 3, 2020, the court denied Appellant’s post-sentence motion.

On August 28, 2020, Appellant timely filed separate notices of appeal at each

trial court docket number.2 On August 31, 2020, the court ordered Appellant

to file a concise statement of errors complained of on appeal. On September

16, 2020, Appellant timely filed her concise statement.

Appellant raises a single issue for our review:

Whether the trial court abused its discretion when the trial court imposed a sentence that was not specifically tailored to the nature of the offense, the ends of justice and society, and failed to consider the rehabilitative and underlying trauma of Appellant.

(Appellant’s Brief at 4).

Appellant argues that the trial court did not place appropriate weight on

certain mitigating factors, including evidence regarding the trauma that

Appellant suffered during her life. (See id. at 14). Appellant contends that

due to her history of trauma, drug addiction, and mental illness, she should

have been allowed to attend clinically-managed, high intensity residential

services at a licensed long-term rehabilitation program. (See id. at 16).

Appellant insists the trial court’s state sentence failed to give proper weight to

those mitigating factors presented via testimony, argument, and the pre-

sentence investigation (“PSI”) report, and thus was an abuse of discretion and

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2 This Court subsequently consolidated the appeal sua sponte.

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against the norms which underlie the sentencing process. (See id. at 17, 24).

As presented, Appellant’s claim challenges the discretionary aspects of her

sentence. See Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.

2013) (explaining claim that court failed to consider certain mitigating factors

is challenge to discretionary aspects of appellant’s sentence).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a timely-filed post-

sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in her brief a

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separate concise statement demonstrating that there is a substantial question

as to the appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The requirement that an appellant separately set forth the reasons

relied upon for allowance of appeal furthers the purpose evident in the

Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision to

exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008) (internal quotation marks omitted).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790

A.2d 1013 (2001)).

This Court has observed that

[a]n allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question. Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). Accord Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super. 1999) (reiterating allegation that sentencing court “failed to

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consider” or “did not adequately consider” certain factors generally does not raise substantial question). Compare Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc) (stating substantial question is raised, however, where appellant alleges sentencing court imposed sentence in aggravated range without adequately considering mitigating circumstances).

“When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the defendant’s prior criminal record, [her] age, personal characteristics and [her] potential for rehabilitation.” Id. Where the sentencing court had the benefit of a [PSI report], we can assume the sentencing court “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has benefit of PSI, law expects court was aware of relevant information regarding defendant’s character and weighed those considerations along with any mitigating factors). Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. See Commonwealth v. Cruz-Centeno, [668 A.2d 536 (Pa.Super. 1995)], appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating combination of PSI and standard range sentence, absent more, cannot be considered excessive or unreasonable).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

Instantly, Appellant preserved her sentencing challenge by timely filing

her notices of appeal and raising her issues in a timely post-sentence motion

and in her Rule 1925(b) statement. Appellant’s brief seems to omit certain

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pages which might have included the requisite Rule 2119(f) statement.

Assuming without deciding that the missing pages contained the Rule 2119(f)

statement, Appellant’s issue still merits no relief. Significantly, Appellant’s

claim that the court failed to consider certain mitigating factors does not create

a substantial question. See id.

Moreover:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).

Here, Appellant presented testimony and argument at sentencing

regarding her mental health and drug addiction, and requested treatment

instead of incarceration. (See N.T. Sentencing, 7/10/20, at 8-10). The court

noted Appellant’s prior record score of 5 as well as the standard guideline

ranges for each charge, and proceeded to impose standard and mitigated

range sentences, some imposed concurrently and some imposed

consecutively, for an aggregate sentence of 40 to 80 months of incarceration

followed by 5 years’ probation. (See id. at 10-15). The court further stated:

The [c]ourt is placing a mitigated-range sentence on the

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record based on [Appellant’s] pre-sentence investigation3 that includes a history of abuse. She had … multiple domestic abusive partners. She had an abusive father. She was a runaway in her teens. She has a history of mental health struggles. She has a history of drug addiction, and, therefore, the probationary sentence is run consecutive to her state sentence … the intention of the [c]ourt is that she has a stepdown program following from her release from the state facility.

The [c]ourt notes that it is the intent of the [c]ourt, although the authority under the Department of Corrections, to make any determination, that [Appellant] receive placement into the State Drug Treatment Program.

So, ma’am, I know you wanted a county sentence. The [c]ourt reviewed all those, and I believe that balancing the needs of society and others, you have a history of thirtynine adult arrests not including the ones that we had in this matter. You had twelve probations. You had two revoked, at least, a minimum of twenty-four convictions, and I believe we have five new ones here. So I believe a lengthy state sentence is appropriate.

I understand the mitigation. I factored that in. I have given you several consecutive sentences, and I hope that you truly get the help that you say that you want, and hopefully they provide it for you in the state facility.

Id. at 15-16.

The record belies Appellant’s claim that the court failed to consider

mitigating factors. Additionally, the court had the benefit of a PSI report, so

it was aware of all relevant information regarding Appellant’s character and

weighed those considerations along with any mitigating factors. See Devers,

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3 Although the PSI report is not contained within the certified record, the court’s comments at sentencing and in its Pa.R.A.P. 1925(a) opinion confirm that the court received and reviewed it.

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supra at 101-02; Tirado, supra at 368. In its opinion, the court also noted:

In the instant case, there is not only an assumption that the [c]ourt considered all mitigating factors because of the pre- sentence investigation report, but also the [c]ourt’s statements of record that it considered all such factors. The [c]ourt again states for purposes of [this Court’s] review that it considered all mitigating factors. All sentences imposed by this [c]ourt at each of [Appellant’s] dockets were within the standard sentencing guideline ranges, except the consecutive probationary sentence which was in the mitigated range. The [c]ourt expressly stated its rehabilitative goal of allowing for a stepdown from incarceration. … The [c]ourt considered the specific nature of [Appellant’s] lengthy criminal history in imposing [its] sentence, including 39 adult arrests, 24 convictions, five instances of parole including two parole revocations, 12 instances of probation including two probation revocations, and a previous discharge from the state treatment program. The [c]ourt also specifically recommended [Appellant] for treatment. The [c]ourt considered prior attempts at rehabilitating [Appellant] as well, as detailed in [the PSI report]. The [c]ourt submits that Appellant has not raised a substantial question … [and if this Court finds Appellant has raised a substantial question,] then this [c]ourt submits that its sentences were proper.

(See Trial Court Opinion, filed October 23, 2020, at 5-6). Under these

circumstances, we see no reason to disrupt the court’s sentencing rationale.

See Shugars, supra. Therefore, even if Appellant had raised a substantial

question, it would not merit relief. Accordingly, we affirm.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/18/2021