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HomeMy WebLinkAboutCP-21-CR-1155-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1155-2007 : : : CHARGES: (2) ROBBERY : (4) THEFT BY UNLAWFUL : TAKING V. : (5) CRIMINAL CONSPIRACY : TO COMMIT ROBBERY : (6) CRIMINAL CONSPIRACY : TO THEFT BY : UNLAWFUL TAKING : ZACHARY M. KINER : OTN: K428766-2 : AFFIANT: TPR. ERIC KEEBAUGH IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 By Ebert, Jr., J., February 19, 2008 - Defendant Zachary M. Kiner has filed an appeal to the Superior Court of Pennsylvania following an order sentencing him to an aggregate term of 15 months to 4 1 years in a State Correctional Institute. In his Statement of Matters Complained Of, the Defendant raises basically 2 issues: (1) The Court substituted its own judgment for that of the jury by using the vehicle of consecutive sentences to effectuate punishment of Defendant for crimes of which he was charged but not convicted of by the jury, and (2) the Court did not recuse itself when it should have done so because of a negative prior association with Defendant that manifested itself in a sentence that overcame the 2 sentencing guidelines and Defendant’s prior record score. This opinion, in support of the sentencing order of the Court, is written pursuant to Pa. R.A.P. 1925(a). 1 See Order of Court, Nov. 13, 2007. 2 Defendant’s Statement of Matter Complained of on Appeal, filed Jan. 10, 2008. STATEMENT OF FACTS This case involves a robbery of a taxicab driver during the early morning hours of January 31, 2007. The Defendant participated in this crime along with 2 other co- defendants. On September 26, 2007, after jury trial, the Defendant was found guilty at Count 2 – Robbery, (F3), at Count 4 – Theft by Unlawful Taking, (M2), at Count 5B – Criminal Conspiracy to Commit Robbery, (F3), and at Count 6 – Criminal Conspiracy to Commit Theft by Unlawful Taking, (M2). The jury was deadlocked on the remaining charges and on those charges a mistrial was declared. On November 13, 2007, Defendant, Zachary Kiner was sentenced by this Court to an aggregate prison term of 15 months to 4 years in a State Correctional Institution with 3 58 days credit for time previously served. The sentence of this Court on Count 2, 4 Robbery, a felony in the third degree, was imprisonment in a State Correctional Institute for not less than nine months nor more than three years. This is a standard range sentence. Additionally, this Court sentenced the Defendant on Count 5, Criminal 5 Conspiracy to Commit Robbery, also a felony in the third degree, to imprisonment in a State Correctional Institute for not less than six months nor more than one year. This sentence is also a standard range sentence but was run consecutive to the sentence at 6 Count 2. Defendant was sentenced on Count 4, Theft by Unlawful Taking, and Count 6, 7 Conspiracy to Commit Theft by Unlawful Taking, both misdemeanors in the second degree, to pay the costs of prosecution. 3 See Order of Court, Nov. 13, 2007. 4 18 Pa. Con. Stat. Ann. 3701 5 Id. 6 18 Pa. Con. Stat. Ann. 3921 7 Id. 2 Subsequently, a Post Sentence Motion was timely filed on November 20, 2007, alleging that the aggregate sentence was excessive and unreasonable. An Amended Post Sentence Motion was also timely filed on November 20, 2007, to address an issue of merger. On November 26, 2007, by Order of Court the merger issue was clarified such that the Defendant did not have to pay the costs of prosecution on Count 4 or Count 6. The remainder of Defendant’s Post Sentence Motion was denied. This appeal followed. DISCUSSION While Defendant’s brief incorrectly cites § 303.16 of the Sentencing Guidelines (no such section exists) to support his argument, the Court will assume that the Defendant was referring to §303.11(b) which addresses sentencing levels. Defendant maintains that, since the two crimes on which he was sentenced were individually Level 2 crimes, he should have been sentenced to County Prison and not a State facility. 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 the statutory limits or it was manifestly excessive in order to 3 successfully prove abuse of discretion. Commonwealth v. Martin, 611 A.2d 731, 735 (Pa. Super. 1992). A. Appropriateness of Consecutive Sentences. Important in the consideration of this case is the general rule in Pennsylvania, that in imposing a sentence, the Court has the discretion to determine whether to make it concurrent with or consecutive to another sentence then being imposed. A challenge to the Court’s imposing consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of the sentence. Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). In setting a sentence, the Court has discretion not only to deviate from guideline ranges but also to run the sentence concurrently with or consecutive to other sentences being imposed. Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003). The Court chose to run the sentence on the criminal conspiracy to commit robbery charge consecutive to the sentence for the robbery charge. This was because the Defendant actively joined in a conspiracy to rob an innocent taxicab driver, and helped plan the attack for the sole purpose of obtaining money to buy drugs. Defendant tries to make much of the fact that he was not convicted of the Felony 2 Robbery on which the jury was hung. However, the testimony at trial and the Defendant’s individual conviction for participating in a robbery in which some force was used exposes him to a sentence of up to 7 years imprisonment and a standard guideline range of RS – 9 months. The conspiracy which encompasses the creation of the plan to rob the taxicab driver was a separate and distinct crime from the actual execution of the robbery. It carried a separate maximum penalty of up to 7 years and a standard guideline range of RS – 9 months. 4 In this case, the Defendant was charged both as a principal and/or accomplice. Defendant testified at trial that, while he did agree to get money from the taxicab driver, he never really intended any force to be used. Obviously the jury did not accept this testimony, and the Defendant was found guilty individually of robbery, using force however slight, and criminal conspiracy to commit robbery, by use of force however slight. There is no question that the force used on the driver met the legal definition of force however slight, because the victim testified he was beaten with a baton and was punched. The Defendant admitted that his co-conspirator beat the taxicab driver. The c “co-conspirator rule” assigns legal culpability equally to all members of theonspiracy. Under the “co-conspirator rule,” all co-conspirators are responsible for the actions undertaken in the furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook the action. Commonwealth v. Galindes, 786 A.2d 1004 (Pa. Super. 2001), appeal denied 803 A.2d 733 (Pa. 2002). The same principle is true for accomplice liability. The very nature of accomplice liability is that one who actively and purposely engages in criminal activity is criminally responsible for the criminal actions of his co-conspirators which are committed in the furtherance of the criminal endeavor. Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. 2002), appeal denied 805 A.2d 521 (Pa. 2002). Accordingly, the Defendant received an aggravate sentence of 15 months to 4 years. This aggregate sentence definitely falls within Level 3 of the guidelines. It is specifically noted that Level 2 provides for sentence recommendations for generally non- violent offenders. Given the facts heard at trial by this Court, this Court finds that, under the circumstances presented in this case, the Defendant was not a “non-violent offender.” 5 The trial Court’s power to choose whether to commit the Defendant to a state or county facility is derived from 42 Pa.C.S.A. § 9762, which provides the following: All persons sentenced to a total or partial confinement for: (1) maximum terms of five or more years shall be committed to the Bureau of Corrections for confinement; (2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court; (3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Corrections for confinement. 42 Pa.C.S.A. § 9762. In this case, this Court imposed a sentence upon the Defendant of 15 to 48 months. Pursuant to the plain language of subsection 9762(2), this Court had the discretion to commit Defendant to either the Pennsylvania Bureau of Corrections, which is the agency responsible for the state prison system, or to a county prison. The plain meaning of Section 9762 is that length of maximum sentence determines where a prisoner may be committed. There is no single prescribed commitment for persons...whose maximum sentences subject them...to subsection (2), for a court of common pleas in those cases has the choice of either committing the person to the Bureau of Corrections or committing him instead to the county prison. Commonwealth v. Mefford, 863 A.2d 1206 (Pa. Super 2004). Therefore, confinement in a state facility was a sentencingoption in this case. In using its discretion to sentence the Defendant to a state correctional facility this Court took the following facts into account. The Defendant actively participated in 6 planning the crime and luring an innocent hardworking taxicab driver to a remote location. There is no question the victim was hit 15 to 20 times with a baton over the course of the robbery in addition to being punched. Even assuming that the Defendant’s accomplice and/or co-conspirator did the beating, the Defendant took no action to stop the beating. While we note that the Defendant said he was sorry for his actions, he never offered any personal apology to the victim. This Court recognizes that taxicab drivers perform a valuable service for the public. In an area like Cumberland County which encompasses both urban and rural areas, taxicab drivers are usually by themselves when called to remote locations. To be set upon by a single individual is bad enough, but to be targeted by a conspiracy of three young men who choose to attack an honest, hard-working individual for the purposes of obtaining quick money to buy controlled substances is intolerable and simply cannot be condoned. The consecutive sentence was fully warranted given the two distinct crimes of conspiracy to commit robbery and then actually participating in the robbery. B. Failure of the Court to Recuse Itself. After the jury returned its verdict and the verdict was recorded, the Court raised the Defendant’s bail to $50,000.00 cash or professional bond. Such an increase is permitted under Pa.R.Crim. 521 because in this case the Defendant was facing aggregate possible sentences in excess of 3 years imprisonment and was still facing retrial on even more serious felony charges. Frankly, under the Rule the Defendant could have been totally denied bail. The Defendant immediately filed an Emergency Habeas Corpus and Petition for Reduction of Bail on September 27, 2007. The Commonwealth filed an answer in 7 opposition to these motions on September 28, 2007. In order to properly evaluate the release criteria set forth in Pa.R.Crim. 523, the Court reviewed the Defendant’s past court records contained in his probation file. The records revealed that the Defendant had been sentenced on a misdemeanor 1, theft by unlawful taking charge on October 31, 2005, and given a probationary sentence. The Defendant thus re-offended by committing a more serious crime involving force within 15 months of his prior conviction. Additionally, the record disclosed that the Defendant had a prior juvenile record. The pre-sentence investigation for the 2005 theft and the pre-sentence investigation for the current charge revealed that the Defendant had actually been placed in a juvenile facility as a result of his adjudication prior to 2004. This fact was included in the Court’s opinion denying the Defendant’s Request for Habeas Corpus and Petition to Reduce Bail in its opinion of 8 October 11, 2007. Prior to becoming a Judge of this Court on January 1, 2006, I have previously served as a Public Defender, Assistant District Attorney and the elected District Attorney of Cumberland County. Overall, I have served in the criminal justice system in Cumberland County for over 16 years prior to becoming a Judge. The Court did indicate to Defense Counsel that it had a recollection of the Defendant as a juvenile based on a review of the Defendant’s probation file. However, the record in this case does not disclose that the Court’s conduct at trial or at any other proceedings showed any “negative” perception or bias toward this Defendant. In any Court of Common Pleas, it is not uncommon to have persons re-offend. To require a Judge who has previously served as a District Attorney for 10 years to 8 See Order of Court and Opinion dated October 11, 2007. 8 recuse himself from every case involving a Defendant who has been convicted during his tenure as District Attorney is patently unreasonable. The Defendant’s crimes took place over one year after this Court assumed the bench. The trial did not occur for over a year and a half after I became a Judge. Most importantly, this Court did not in any way consider the Defendant’s juvenile record in determining the sentence in this case. It must be recalled that on each of the individual crimes, the Defendant received a standard range sentence. As previously explained, the Court felt that these sentences should be run consecutive, based on the nature of the offenses, the Defendant’s participation in them, and the impact on the victim. While the Court did not consider the Defendant’s juvenile record or have any bias against the Defendant which would warrant recusal, the Court specifically notes that consideration of such factors is not error. As stated in Commonwealth v. Darden, 531 A.2d 1144 (Pa. Super. 1987), “[p]rior connections of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized” in determining the appropriate sentence. The Court noted such factors which are not incorporated in prior record score computation may be considered in justifying a sentence outside the guideline ranges. In any regard, the Defendant’s juvenile record was not considered in determining whether or not the Defendant’s sentences would run consecutive to one another. What did matter was that this Defendant on January 31, 2007, actively participated in planning a robbery of an innocent person with two other people and then actively participated in carrying out that plan. These are distinct crimes and given the impact of them on the victim, consecutive sentences were warranted. 9 CONCLUSION We reject the Defendant’s argument that his sentence is excessive or unreasonable. This Court did not show any bias toward the Defendant and therefore was not required to recuse itself based on the fact that the Court had previously served as District Attorney during the time when the Defendant was adjudicated delinquent. The Defendant’s aggregate sentence of 15 months to 4 years was a just sentence under the circumstances of this case. By the Court, _____________________ M. L. Ebert Jr., J. Christine Mehrtens-Carlin, Esquire Assistant District Attorney Dirk Berry, Esquire Court-appointed for the Defendant 10