Commonwealth v. Lee

876 A.2d 408, 2005 Pa. Super. 160, 2005 Pa. Super. LEXIS 1234

• Court: Superior Court of Pennsylvania
• Decided: April 27, 2005
• Status: Published

Opinions

OPINION BY PANELLA, J.:

¶ 1 Appellant, Thomas D. Lee, appeals from the judgment of sentence entered on March 16, 2004 by the Honorable Ernest J. DiSantis, Jr., Court of Common Pleas of Erie County. After a careful review, we affirm.

¶ 2 Appellant worked as a counselor at the Community Country Day School in Erie, Pennsylvania. While employed at the school, Appellant sexually victimized a fifteen year old male student, D.M. Over the course of seven months, from January 1, 2002 through July 25, 2002, Appellant transported the victim to his home, provided him with alcoholic beverages, showed him adult pornographic videos, and engaged in oral and anal sex with the victim. According to the victim, this heinous activity occurred as often as six times a month. Further, on one occasion, Appellant even asked the victim if he could videotape then-sexual activity. In exchange for sexual activity, Appellant took the victim shopping and provided him with money and CDs. The victim eventually conveyed the instances of sexual abuse to his father and, on July 25, 2002, Appellant’s conduct was reported to the police.

¶3 On January 6, 2004, Appellant entered a nolo contendré plea to one count of corruption of minors¹ and two counts of indecent assault.² Thereafter, Appellant was sentenced on March 16, 2004 to an aggregate period of incarceration of fifteen (15) to ninety-six (96) months. Subsequent thereto on March 24, 2004, Appellant filed a post-sentence motion which was denied by the trial court on the same day. This timely appeal followed.

¶ 4 On appeal, Appellant raises two issues for our review. First, whether his sentence was manifestly excessive, with the emphasis of his argument directed at the cumulative maximum penalty imposed. And second, whether the trial court erred by refusing to admit into evidence, at the sentencing hearing, evidence regarding parole policies implemented by the Pennsylvania State Board of Probation and Parole.

¶ 5 Appellant concedes that his first issue is a challenge to the discretionary aspects of his sentence. Specifically, Appellant claims that the sentence imposed by the trial court was manifestly excessive and in violation of the sentencing guidelines.

¶ 6 It is well-settled that “a claim that the sentence imposed by the trial court was manifestly excessive is a challenge to the discretionary aspects of the sentence.” Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa.Super.2003). However, Appellant’s right to appeal the discretionary aspects of his sentence is not absolute. Commonwealth v. Barzyk, 692 A.2d 211, 216 (Pa.Super.1997).

¶7 In Bishop, this Court set forth the two requirements which must be met prior to reaching the merits of a challenge to the discretionary aspects of a sentence. “First, the 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 his sentence.” Bishop, 831 A.2d at 660 (citing Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207 (1994)). “Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code.” Id.; see also 42 PA. CONS. STAT. ANN. § 9781(b). In order to establish the existence of a substantial question, the appellant must show “actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentence process.” Bishop, 831 A.2d at 660. Additionally, in In the Interest of M.W., 555 Pa. 505, 725 A.2d 729 (1999), our Supreme Court acknowledged that the determination of whether a particular issue raises a substantial question must be evaluated by the court on a case-by-case basis. Id. at 731.

¶ 8 Our review of the record in the case sub judice reveals that Appellant has complied with the technical requirements for review of the discretionary aspects of the sentence. Specifically, Appellant incorporated his statement of reasons for allowance of appeal pursuant to Pa.R.A.P., Rule 2119(f) into his brief. Appellant’s Brief at 11. Additionally, Appellant contends that the maximum sentence imposed violates the “sentencing norms and emasculate[s] the purpose and function of the plea agreement reached between the defense and the Commonwealth.” Appellant complains that the maximum sentence of ninety-six months is manifestly excessive because of Appellant’s lack of a “prior criminal record, .. excellent work history, ... excellent educational background and exemplary community and volunteer involvement .... ” Appellant’s Brief at 12.

¶ 9 This Court must review each excessiveness claim on a case by case basis when the sentence imposed is within the statutory limits. Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super.2003). Bald allegations of excessiveness, unaccompanied by a plausible argument that the sentence imposed violated a provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme, are insufficient to raise a substantial question. Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002).

¶ 10 In the instant case, Appellant “has no complaint and raises no issue regarding the minimum sentence imposed.” Appellant’s Brief at 12. Moreover, Appellant concedes that the sentence imposed is in compliance with the Sentencing Guidelines. Appellant’s Brief at 16. Appellant argues that his sentence is excessive because of his expectation that he will not be paroled by the Pennsylvania Board of Probation and Parole (“PBPP”) at expiration of his minimum sentence. Id. at 12 and 16.

¶ 11 When the aggregated term of a sentence is for two years or more, exclusive authority to parole for such a sentence is vested in the State Board of Probation and Parole. Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782, 784 (1991). With respect to a state sentence, the PBPP has “exclusive power to parole ... all persons- heretofore or hereafter sentenced by any court in this Commonwealth to imprisonment in any prison or penal institution thereof, whether the same be a state or county penitentiary, prison or penal institution, as hereinafter provided.” 61 P.S. § 331.17. Inasmuch as the decision to grant parole rests exclusively with the PBPP, the issue of parole is not a fundamental norm underlying the sentencing process. See Commonwealth v. Eby, 784 A.2d 204, 208 (Pa.Super.2001). Basically, in state sentence cases, the imposition of a minimum incarceration sentence by the trial court serves the limited purpose of notification to the PBPP of the initial date that the defendant is eligible for parole:

The significance of minimum sentences arises in connection with eligibility for parole. See generally Act of August 6, 1941, P.L. 861, §§ 1-34, as amended, 61 P.S. §§ 331.1 to 331.34 (Supp.1974). Responsibility for determining when to release a person on parole is vested in the Board of Parole. 61 P.S. § 331.17 (Supp.1974) [footnote omitted]. No person, who has received a minimum sentence, may be considered for parole pri- or to the expiration of that minimum sentence. Id. § 331.21 (1964). In other words, a minimum sentence serves to notify the Board when it may exercise its discretion to parole an individual.

Commonwealth v. Butler, 458 Pa. 289, 294-295, 328 A.2d 851, 854-855 (Pa.1974).

¶ 12 The sentencing guidelines were formulated to replace an arguably chaotic sentencing system with a more rational one in order “ ‘to make criminal sentences more rational and consistent, to eliminate unwarranted disparity in sentencing, and to restrict the unfettered discretion given to sentencing judges.’ ” Commonwealth v. Eby, 784 A.2d at 208 (quoting Pennsylvania House Journal, 3130 (September 21, 1978)). The law in Pennsylvania takes into account that the sentencing court is divested of its discretion regarding parole when a sentence of greater than two years is imposed. As such, we find that in this case, Appellant has failed to raise a substantial question and we decline to address Appellant’s challenge to his sentence on the merits.

¶ 13 Even if we were to find that Appellant’s claim raised a substantial question, we would find no reason to vacate the sentence under the facts presented. Preliminarily, we note that “[sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion.” Commonwealth v. Messmer, 863 A.2d 567, 572 (Pa.Super.2004). “ ‘Discretion is abused when the course pursued [by the tidal court] represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias, or ill will.’ ” Commonwealth v. Smith, 545 Pa. 487, 491, 681 A.2d 1288, 1290 (1996) (quoting Coker v. S.M. Flickinger Co., 533 Pa. 441, 448, 625 A.2d 1181, 1185 (1993)); Commonwealth v. Ripley, 833 A.2d 155, 159 (Pa.Super.2003), appeal denied, Commonwealth v. Debrew, 577 Pa. 733, 848 A.2d 927 (Pa.2004).

¶ 14 The Sentencing Guidelines suggest that for this Appellant, given his prior record score of zero, a standard range sentence for the corruption of minors offense is restorative sanctions (“RS”) to nine months. 42 PA. CONS. STAT. ANN. § 9721. As this offense is graded a misdemeanor of the first degree, the statutory maximum sentence is sixty months. 18 PA. CONS. STAT. ANN. § 1104. The standard range sentence for the indecent assault offenses, again for this Appellant, is RS to three months. 42 PA. CONS. STAT. ANN. § 9721. As these offenses are each graded a misdemeanor of the second degree, the statutory maximum sentence for each is twenty-four months. 18 PA. CONS. STAT. ANN. § 1104.

¶ 15 Consideration of Appellant’s lack of prior criminal record is already accounted for in the sentencing guidelines by the determination of his prior record score. Commonwealth v. Celestin, 825 A.2d 670 (Pa.Super.2003); Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8 (1992). Furthermore, we note that the sentencing court took into consideration a pre-sentence investigative report, which included a psychological examination, a physical examination of the victim, Appellant’s own sentencing memorandum, a number of character letters, a victim impact statement, statements from both the Appellant’s and the Commonwealth’s attorneys, Appellant’s plea of allocution, and the sentencing guidelines. Additionally, the trial court noted that its sentencing scheme also reflected the Appellant’s conduct and lack of significant remorse or regret. Specifically, the trial court focused on the psychologist’s report that the Appellant “appears quite resistant to identify and recognize the consequences of his behavior ... [and] [therefore lacks the tools of insight to prevent himself from repeating his sex crime.”

¶ 16 Upon its consideration of all the above information, the trial court determined that Appellant was in need of long term counseling and state supervision. As a result, he was sentenced to nine to sixty months incarceration on the corruption of minors offense; three to twenty-four months incarceration on one of the indecent assault offense; and three to twelve months incarceration on the remaining indecent assault offense. The trial judge’s sentencing scheme provided the Appellant with the opportunity for long term counseling and a long period of supervision to protect the public. As such, the sentence imposed was neither excessive nor so manifestly unreasonable so as to constitute an abuse of discretion requiring reversal.

¶ 17 Appellant’s remaining issue is that the trial court erred in refusing to allow Appellant to present evidence regarding the policies of the PBPP. Appellant’s Brief at 18. The trial court held such evidence to be irrelevant for purposes of sentencing and that any issue regarding parole is not ripe for review until Appellant has served his minimum, sentence or is otherwise eligible for parole consideration. We agree. Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused is discretion. Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003). Relevant evidence is any evidence that has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E., Rule 401, 42 PA. CONS. STAT. ANN.

¶ 18 As aforesaid, the decision of whether to grant parole to a particular inmate is within the exclusive authority of the PBPP when the maximum sentence imposed is two years or greater. 61 P.S. § 331.17; Commonwealth v. Camps, 772 A.2d 70, 74 (Pa.Super.2001). A sentencing judge has no way of knowing, and no authority over, if or when a particular offender will be granted parole by the PBPP. The trial court correctly concluded that an analysis of the anticipated decision of the PBPP regarding the .Appellant’s parole date would have been based upon pure speculation. It must be remembered that the trial court intentionally provided a sentence that left the discretion for parole in the PBPP, regardless of whether the release would be the expiration of the minimum sentence or a later date to be established by the PBPP. Upon finding the necessity of a state sentence, the trial court’s sole responsibility was to set the date the Appellant becomes eligible for parole, not to engage in a guessing game which tracks the oftentimes changing policies of the PBPP. Therefore the evidence proffered did not make Appellant’s potential date of parole any more or less probable and was therefore irrelevant to the sentencing judge’s consideration. Pa.R.E., Rule 401, 42 PA. CONS. STAT. ANN.

¶ 19 Accordingly, we find that the sentence imposed falls within the statutory sentencing guidelines and maximum limits and is not manifestly excessive. Therefore, the judgment of sentence is affirmed.

¶ 20 Judgment of sentence affirmed.

¶ 21 Judge BENDER files a dissenting opinion.

1 . 18 PA. CONS. STAT. ANN. § 6301(a)(1).

2 . 18 PA. CONS. STAT. ANN. § 3126(a)(8).