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HomeMy WebLinkAboutCP-21-CR-2186-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SCOTT D. FRENCH : CP-21-CR-2186-2006 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., May 21, 2007:-- January 31, 2007 On , defendant, Scott David French, pled guilty to statutory 1 sexual assault, a felony of the second degree, in violation of 18 Pa.C.S. § 3122.1. The facts set forth during the plea colloquy were: MR. SODUS: On or about or between or after August of 2005, in Mechanicsburg borough at various locations, defendant, who was 22 years old at the time, engaged in sexual intercourse with BMN, a 16-year- old female, both vaginal intercourse and performed oral sex on her, and he admitted to police that he knew that the victim was 15 years old at the time they had sexual intercourse and admitted that he had sexual intercourse on several occasions. She became pregnant and has had that child. They were not married at the time. THE COURT: She was 15? MR. SODUS: She was 15. THE COURT: So it was consensual sexual intercourse. He was four or more years older than she was? MR. ANDREWS: That’s right. He was six years older than she. THE COURT: He was six years older than she was, and he knew she was underage? MR. ANDREWS: That is correct. * * * MR. ANDREWS: [T]he girl involved was fifteen years eleven months old when this conduct started. They remained active even up to __________ 1 He also pled guilty to counts of harassment, a misdemeanor of the third degree, and access device fraud, a misdemeanor of the first degree. Those convictions are not involved in the current appeal. CP-21-CR-2186-2006 2 the point in time when she’s talking to the police. . . . April 3, 2007 On , following a presentence investigation, defendant was sentenced for statutory sexual assault to undergo imprisonment in the Cumberland County Prison for a minimum term of one year minus one day to a maximum term of two years minus one day to date from September 10, 2006. Work release was authorized. The Commonwealth filed a direct appeal from the judgment of sentence. In a concise statement of matters complained of on appeal, the Commonwealth, after averring some facts and law in the first five paragraphs, raises one issue in Paragraph 6: In the present case there is a substantial question as to whether the defendant’s sentence was appropriate where the sentencing court failed to state adequate reasons to support such a substantial downward deviation from the guidelines and where the court relied on impermissible factors to support such a deviation. 3 Defendant’s offense gravity score was 7 with a prior record score of RFEL. The minimum mitigated range was 29 to 35 months; the standard range was 35 to 45 months; and the aggravated range was 45 to 51 months. At sentencing, the court stated: __________ 2 Section 3122.1 of the Crimes Code provides that, “[a] person commits a felony of the second degree when that person engages in sexual intercourse with the complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.” 3 His prior criminal record consisted of theft, burglary and conspiracy to burglary in 2002. He was sentenced on the theft to not less than one month or more than twenty- three months, on the burglary to not less than nine months or more than twenty-three months, and on the conspiracy to burglary to not less than six months or more than twenty-three months concurrent. In 2003, he has a record for defiant trespass and burglary. He was sentenced on the defiant trespass to costs, and on the burglary to -2- CP-21-CR-2186-2006 The sentence on the charge of statutory sexual assault is below the mitigated guidelines, and I have imposed it because of your age at the time you committed the offense, the fact that the criminal conduct was consensual but illegal and close to the age of lawful consent of the girl when the offense took place, and under the circumstances the guidelines being greatly affected by your prior criminal record, I believe any greater sentence would not serve the interest of justice in this case. Defendant was born on August 31, 1983. His prior criminal record was for offenses that occurred when he was nineteen. Prior to his arrest on September 10, 2006, defendant was working for a company for two and one-half years unloading trucks and delivering produce. The victim did not file a victim impact statement. A state trooper’s investigative interview with the victim on February 2, 2006, which is part of the presentence investigation report, indicates that she started dating defendant in July, 2005, when she was fifteen and he was twenty-one. The first time they had sexual intercourse was in August, 2005. On November 11, 2005, she found out that she was pregnant. The last time they had sexual intercourse was on January 27, 2006. They had sexual intercourse approximately thirty times, all of it consensual. In a brief in support of the concise statement of matters complained of on appeal, the Commonwealth argues that, “the sentencing court’s complete departure from the sentencing guidelines was unreasonable.” “Furthermore, [defendant] has never served a period of state incarceration, indicating that county prison has not not less than eight months to two years less one day. -3- CP-21-CR-2186-2006 4 Commonwealth v. Celestin, deterred him from committing felony crimes.” In 825 A.2d 670 (Pa. Super. 2003), the Superior Court stated: Section 9781 of the Sentencing Code permits either party in a criminal proceeding to file a petition for allowance of appeal of the discretionary aspects of a sentence to this Court. 42 Pa.C.S.A. § 9781(b). “Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” Id. It is only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. We will grant an appeal 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. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2002) (citation omitted). In fulfilling the above requirements, “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall 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). See also Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The concise statement of matters complained of on appeal does not set forth what “impermissible factors” the court allegedly relied on to support the deviation from the sentencing guidelines. The Commonwealth in its brief suggests that the court Commonwealth v. Gause, should not have listed consensual conduct. It cites 659 __________ 4 Even if the court had imposed a maximum sentence of five years less one day, it could have allowed defendant to serve his time in the Cumberland County Prison. The maximum sentence imposed of two years less one day keeps control over this defendant in this court. The sole reason set forth in the concise statement of matters complained of on appeal did not raise any issue as to the sentence being inappropriate because defendant was not sentenced to serve time in a state correctional institution. -4- CP-21-CR-2186-2006 A.2d 1014 (Pa. Super. 1995), for the proposition that “unless the particular facts of the case in question are distinguishable from the typical case of that same offense, a sentence in the standard range would be called for.” The Commonwealth argues that, “there is nothing that makes this case atypical from any other Statutory Sexual Assault crime, where the victim consents but is under the legal age of consent.” The Commonwealth suggests that the fact that the victim was close to the age of lawful consent is not a factor which we should have considered in deviating below the guideline ranges. The impact on the victim is an important factor to consider in sentencing. Commonwealth v. Walls, Pa.C.S. § 9721(b); 846 A.2d 152 (Pa. Super. 2004). Here, the illegal consensual intercourse occurred in August 2005 when the victim was fifteen years and eleven months old. Defendant was 21 as he did not reach 22 until the end of August. All of the sexual intercourse that occurred for the next five months was not 5 illegal because the girl had reached the age of sixteen years. Clearly, this was an 6 atypical statutory sexual assault crime. As we stated at the time of sentencing, the guidelines were greatly affected by defendant’s prior criminal record. That record did not involve a sexual offense. If defendant had not had a criminal record, the minimum mitigated sentencing guideline range would have been RS; the standard range, 6 to 14 __________ 5 The information wrongfully charged that the offense of statutory sexual assault extended between August 1, 2005 and January 27, 2006. 6 Regarding impact on the victim, there is noting in the record to determine if the conception of her child occurred when she was 15 and 11 months or after she was 16. -5- CP-21-CR-2186-2006 months; and the aggravated range, 20 months to 30 months. The Commonwealth states in its brief that, “While [defendant] may be of ‘tender age,’ his crimes are serious and are deserving of adult punishment.” We are shocked that the District Attorney of Cumberland County does not consider a sentence of not less than one year or more than two years less a day at either end as adult punishment. The sentence was appropriate for the crime committed and the circumstances under which it was committed; it was not contrary to the fundamental norms which underlie the sentencing process; it was justified by the record; and a greater sentence would not serve the interests of justice. (Date) Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Taylor P. Andrews, Esquire For Defendant :sal -6-