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HomeMy WebLinkAboutCP-21-CR-1038-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CP-21-CR-1051-2007 : CHARGE: 1. BURGLARY : AFFAINT: PTL. GERALD STEIGLEMAN : OTN: L343862-1 V. : : CP-21-CR-1038-2007 : CHARGE: 2. CRIMINAL TRESPASS : 4. RECEIVING STOLEN PROPERTY : AFFIANT: DET. GLENN ADAMS JOSEPH ANDRU STAFFORD : OTN: K525622-6 IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Ebert, J., February 12, 2008 – In this criminal case, the Defendant pled guilty to 1 count of Burglary a felony of the first degree at count (1) of the information filed at CP-21-CR-1051-2007. On the information filed at CP-21-CR-1038-2007, the Defendant pled guilty to count (2) a charge of Criminal Trespass, a felony of the third degree, and to count (4) a charge of Theft by Receiving Stolen Property, a felony of the second degree. On the Burglary charge (F1), the Defendant was sentenced to pay the costs of prosecution, a total of $1,006.83 in restitution and to undergo imprisonment in the Cumberland County Prison for not less than 9 months nor more than 23 months. The Defendant did receive credit for 6 days previously served. Under the Pennsylvania Sentencing Guidelines, the standard range for this offense, given the Defendant’s prior record score of 0, was 6 – 14 months. In essence, the Court sentenced the Defendant to below the midpoint of the standard range on this charge. In the case related to the break-in of the home of Michael and Brinda Penyak, on the charge of Theft by Receiving Stolen Property (F2), (a .40 caliber Glock handgun), the Defendant was sentenced to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for not less than 11 ½ months to 23 months. This sentence was concurrent with the sentence on the Burglary charge. The standard range for this crime was 9 to 16 months. Again, the sentence given to the Defendant on this charge was below the midpoint of the standard range. Finally, on the charge of Criminal Trespass, the Defendant was sentenced to pay the costs of prosecution and undergo a period of 5 years probation. This probationary sentence was consecutive to the other county prison sentences. Additionally on the case involving the break-in of the Penyak home, the Defendant was sentenced to pay restitution in the amount of $34,437.57, jointly and severally with his co-defendants. From this judgment of sentence, Defendant filed a Post Sentence Motion on December 14, 2007, and an appeal to the Pennsylvania Superior Court on December 21, 2007. In his Statement of Matters Complained of on Appeal, filed January 10, 2008, Defendant basically essentially contends: 1)Defendant’s sentence is excessive and unreasonable because a co-defendant, who pled before another judge to several charges in addition to burglary charges stemming from the same incident as the defendant’s cases, received a sentence of 9 – 23 months. 2)Defendant should have been allowed to withdraw his plea because he “did not receive the benefit of the plea he bargained for.” 3) When co-defendants plead before different judges in the same Court of Common Pleas, the first sentence given should be “res judicata and/or act as estoppel”, such that no other sentence can ever be greater than the sentence given to the first defendant sentenced. This opinion in support of the judgment of sentence is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 2 STATEMENT OF FACT An examination of the record shows that on August 28, 2007, the Defendant entered a plea of guilty to a charge of Burglary a felony of the first degree, in full satisfaction of all the other charges pending against him at the information filed at CP-21- CR-1051-2007. On September 11, 2007, in open court, Senior Assistant District Attorney Sodus requested that the information be amended to add Count 4 - Theft by Receiving Stolen Property under 18 Pa.C.S.A. Section 3925, a felony of the second degree, to the Defendant’s information at CP-21-CR-1038-2007. This amendment was unopposed by Defense Counsel, Dirk Berry, and the Court amended the charge. Thereafter the Defendant pled guilty to count 2, Criminal Trespass (F3) and the newly added count 4, Theft by Receiving Stolen Property (F2) in full satisfaction of all the other charges pending against him at that information. Prior to entering his guilty plea to the Criminal Trespass and Theft by Receiving Stolen Property charge on September 11, 2007, the Defendant executed the standard guilty plea colloquy form used by this Court. In the colloquy the Defendant specifically answered “no” to the question, “have any threats or promises been made to you to persuade you to enter a plea of guilty other than the plea agreement that has been negotiated for you by yourself or your lawyer”? The Assistant District Attorney then recited the facts of the case as follows: The facts for the case are that on February 21, 2007, at a residence owned by Brinda and Mike Penyak, the Defendant entered the residence without permission or authorization from the Penyaks and did so as a principal and/or as an accomplice with Ryan Ohanlan and Andrew Paladino. 3 Inside the residence Mr. Paladino and Mr. Ohanlan -- I don’t know exactly who took property from the residence without the owner’s permission. Part of that property was a .40 caliber handgun, and, in particular Mr. Stafford came into possession of that .40 caliber Glock handgun knowing that it was stolen or believing that it had probably been stolen thereby making out the offenses of Criminal Trespass and also Receiving Stolen Property. In his brief the Defendant maintains that “[A]t all times material to the plea bargain process, Joseph Stafford was negotiating for a plea that was consistent with his lesser involvement than Andrew Paladino and that specifically indicated only Criminal Trespass, not Burglary, at CP-21-CR-1038-2007.” Nothing in the record of this case ever establishes that this so called “plea agreement” was presented to the Court. At the guilty plea colloquy, the Assistant District Attorney noted on the record that he had spoken to the victims in the case and stated, “I should forewarn the Defendant that Mrs. Penyak is extremely upset with the fact that their house was entered without their permission, they intend to participate at the sentencing to voice that displeasure.” Even after hearing this warning, the Defendant made no attempt to withdraw his plea. Sentencing on this case was then set for December 4, 2007, to coincide with sentencing on the home burglary charge the Defendant had previously pled to on August 28, 2007. A pre-sentence investigation was ordered. At the sentencing hearing, the victim of the Criminal Trespass and Theft by Receiving Stolen Property, Michael Penyak, testified before the Court. The victim emphasized the damage done to the house as a result of the unlawful entry. He further testified that one of the handguns stolen from his home had been recovered in Harrisburg in the possession of a mid-level drug dealer. Prior to sentencing, the Court read the entire 4 24 page pre-sentence investigation which included the victim impact statements, counseling records for the Defendant, and letters written by Defendant’s friends and family. The Probation Officer in the case recommended incarceration in all of the cases. The Pennsylvania Sentencing Guideline ranges for these offenses are as follows: Burglary – F1, Maximum Penalty 20 Years/$25,000 Offense Gravity Score: 7 Prior Record Score: 0 Standard Range: 6-14 Months Criminal Trespass – F3, Maximum Penalty 7 Years/$15,000 Offense Gravity Score: 3 Prior Record Score: 0 Standard Range: RS – 1 Month Theft by Receiving Stolen Property, F2, Maximum Penalty 10 Years/$25,000 Offense Gravity Score: 8 Prior Record Score: 0 Standard Range: 9-16 Months Defense Counsel stated on the record that he had received the pre-sentence investigation, had gone over it with his client and that there were no corrections or modifications. Accordingly, the Court sentenced the Defendant as stated above. It will be noted that each of the sentences was below the midpoint of the standard range. Given the large amount of restitution owed ($35,444.40), the Court sentenced the Defendant to 5 years probation on the Criminal Trespass charge, consecutive to the county jail sentences to allow Defendant sufficient time to pay the restitution under the Court’s supervision. In essence, the plea agreement negotiated by the Defendant and relayed to the Court was very simple. The Defendant pled guilty to the three offenses stated above in full satisfaction of the ten other charges pending against him. There was no agreement as to sentence or any promise that the Defendant would receive a lesser sentence than his 5 co-defendants. At the sentencing hearing, Defense Counsel Berry even indicated that he recognized that the standard range for the Receiving Stolen Property charge, which involved a firearm, was “actually more serious than the standard range for the subsequent burglary.” Defense Counsel Berry again, in recognition of the fact that there was no agreement as to the length of the sentence in the case, asked the Court to consider proportionality with regard to Mr. Stafford’s sentence, vis-à-vis the 9 month sentence one of his co-defendants had apparently received from another Judge. Defense Counsel argued that his client had limited involvement in his crimes. This Court simply did not accept Defense Counsel’s attempts to minimalize the Defendant’s involvement in these home break-ins. When the Court stated, “but he admitted he went into the home with the intent of committing crimes therein,” Defense Counsel responded that Defendant did not admit such and that he did not plead guilty to Burglary. This inquiry by the Court was prompted by the large amount of restitution owed. The amount was directly related to the amount of damage done to the house and the property taken from within. The Defendant did agree that he owed this restitution. The Court did not sentence this Defendant for Burglary, but did sentence him within the standard range for the crime of Theft by Receiving Stolen Property, which in this case was a Glock .40 caliber handgun. Defense Counsel, in his brief, states that the co-defendant in this case Andrew Paladino “upon information and belief” was the ring leader of 5 to 7 burglaries, and when he was sentenced by another Judge he received an aggregate sentence of 9 to 23 months. An examination of the record, however, reflects that Andrew Paladino pled guilty to only two Burglaries, each of which was a Felony 1, carrying an Offense Gravity Score of 7, 6 which is obviously less than the Offense Gravity Score of 8 assigned to the crime which this Defendant negotiated for in his plea agreement. Just as Defense Counsel does not want his client held accountable for crimes he did not commit, it is then also equally applicable that Defendant’s co-defendant Andrew Paladino may not be held accountable for 5 to 7 burglaries when he only pled guilty to two, both of which had an offense gravity score less than the Defendant’s theft by receiving the stolen handgun. Immediately after the sentence was pronounced, the Defendant moved to withdraw his plea at the case docketed to CP-21-CR-1038-2007 (Criminal Trespass, Receiving Stolen Property). Defense Counsel attempted to base this motion on the fact that the Defendant received 2 ½ months more on his minimum term of county imprisonment than did a co-defendant which this Court did not sentence. DISCUSSION 1. Length of Sentence. Sentencing is a matter vested in the sound discretion of the sentencing judge and his judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). The sentencing court is afforded this broad discretion in sentencing because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002), citing Commonwealth v. Ward, 568 A.2d 1242, 1243, (Pa.1990). Absent a finding that the sentencing court manifestly abused its discretion, the Appellate Court will not substitute its judgment for that of the sentencing court. Commonwealth v. Hoag, 665 A.2d 1212, 1213-14, (Pa.1995). The defendant must show that the sentence imposed either exceeded 7 the statutory limits or it was manifestly excessive in order to successfully prove abuse of discretion. Commonwealth v. Martin, 611 A.2d 731, 735, (Pa. Super. 1992). This Court found that Defendant did commit a home burglary at CP-21-CR-1051- 2007 and sentenced Defendant to pay restitution and to a term of imprisonment for not less than 9 months nor more than 23 months. The crime of burglary is classified as a felony in the first degree, 18 Pa. C.S.A. §3502, and this crime carries a maximum imprisonment sentence of a term not exceeding 20 years. 18 Pa.C.S.A. §1103. The Pennsylvania Sentencing Guidelines in this case called for a standard range of 6 to 14 months. The Defendant’s sentence was less than the midpoint of the standard range and is therefore manifestly not excessive. The Court found that the Defendant did commit the crime of Criminal Trespass of a home, and the crime of Theft by Receiving Stolen Property, a Glock .40 caliber handgun at CP-21-CR-1038-2007. On the Theft by Receiving Stolen Property charge, which had a Offense Gravity Score of 8 and a standard range of 9 to 16 months, the Defendant received a sentence of 11 ½ to 23 months. This sentence was run concurrent to the sentence given to the Defendant on his Burglary charge and was again less than the midpoint of the standard range for this offense. Accordingly, there is no abuse of discretion. The Defendant was sentenced to a probationary sentence which is a standard range sentence on a Criminal Trespass charge. Nowhere on this record has the Defendant established any “plea agreement” that he would be sentenced to a term of imprisonment less than this co-defendant Andrew Paladino. True, Defense Counsel argued this point, but the Court did not accept the argument. Defendant’s crimes were serious crimes. The impact of these crimes on the 8 victims was very significant. This Court also recognizes that the theft of handguns from homes is a contributing factor to gun violence in this state. It was the Defendant and his Counsel who chose to plead guilty to a crime which had a higher offense gravity score than any of the crimes pled to by this Defendant’s co-defendant. 2. Withdrawal of Guilty Plea. After being sentenced and not liking the sentence, the Defendant attempted to verbally withdraw his guilty plea. This motion was denied. It is black letter law that once a guilty plea has been entered and sentenced imposed, the plea may be withdrawn only upon a showing of manifest injustice. In this case, which involves break-ins of two family homes, and where the Defendant received a sentence below the midpoint of the standard range for his crimes, there is no manifest injustice. The Defendant did not like his sentence and simply wants to be punished less. Post sentence motions for withdrawal are subject to higher scrutiny since Courts strive to discourage entry of guilty pleas as sentence-testing devices. The fact that a defendant does not receive the sentence he expected does not establish the manifest injustice that is required before a Court can allow his guilty plea to be withdrawn after sentencing. Commonwealth v. English, 597 A.2d 122, 408 Pa. Super. 457 (1991), appeal denied 602 A.2d 856, 529 Pa. 645 (1992). 3. Impact of Co-Defendant Sentencing Before Another Judge. Pennsylvania has a system of individualized sentencing which directs its courts to impose sentences that are appropriate in light of individualized facts underlying the incident. Commonwealth v. Johnson, 873 A.2d 704, 709, (Pa. Super. 2005). 9 Contrary to Defense Counsel’s assertion in his brief that this is a matter of first impression, it appears that this very issue was addressed in Commonwealth v. Kalson, 446 A.2d 1320 (Pa.Super. 1982). In that case, the Court stated: The fact that appellant’s co-defendant received a lesser sentence does not necessarily lead to the conclusion that the appellant’s sentence was too harsh…Appellant has failed to provide any support for the argument that his sentence should be compared with sentences for similar offenses in [the same] county. Neither the governing statute on sentencing nor the controlling case law would require, or even suggest, that a sentencing judge should consider sentences imposed on other defendants in that county for the same crime. Accordingly, Defendant’s argument that the sentence of his co-defendant, Andrew Paladino, who was sentenced by a different Common Pleas Judge in this county should act as “res judicata and/or act as estoppel” is erroneous in light of this precedent. Furthermore, this Court heard testimony from one of the victims in this case and read the impact statement prepared by the other victim. Indeed, the Defendant himself agreed that he was equally liable with his co-defendants for restitution in the amount of $34,437.57 to these victims. This Court was moved by the gravity of this offense in relation to the impact it had on the victims. This is not just a case involving whether the Defendant had the intent to commit another crime when he illegally entered the victims’ home. What the victims voiced in court was the outrage and fear they felt as a result of this Defendant and the others violating the sanctity of their home. This Defendant negotiated a plea for an offense with a higher Offense Gravity Score than Burglary. He was sentenced to less than the midpoint of the standard range for the crime to which he pled. There is no injustice in this sentence. 10 CONCLUSION This Court did not abuse its discretion when it sentenced Defendant to concurrent terms of imprisonment followed by probation. All of these sentences are within the standard range of the Sentencing Guidelines. Defendant’s argument that his sentence was not in accordance with his understanding of the plea agreement has no merit since no such plea agreement was ever presented to this Court, and the Defendant’s colloquy form indicates that no promises had been made to him in regard to the length of his sentence. The Defendant’s sentences were well within the standard range of the Pennsylvania Sentencing Guidelines. Accordingly, this Court did not err in sentencing the Defendant. By the Court, M. L. Ebert, Jr., J. Daniel J. Sodus, Esquire Senior Assistant District Attorney Dirk E. Berry, Esquire Attorney for Defendant 11