HomeMy WebLinkAbout98-1264 CriminalCOMMONWEALTH
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WILLIAM REX ROBERT STARNER
OTN: E930524-0
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:No. 98-1264 CRIMINAL TERM
:
: CHARGE: THEFT BY UNLAWFUL
TAKING OR DISPOSITION
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 22, 1999.
In this criminal case in which Defendant was sentenced to not less than eight months
nor more than 23 months in prison on a thel~ charge, the Commonwealth has filed a petition
for allowance of appeaP from the discretionary aspects of the judgment of sentence. In
imposing the sentence, the court stated its reasons for a departure from the sentencing
guidelines as follows:
AND NOW, this 22nd day of December, 1998, the
Defendant, William Rex Robert Starner, now appearing in court
with the Public Defender, H. Anthony Adams, Esquire, for
sentencing, and having previously entered a plea of guilty as
charged to Thel~ by Unlawful Taking or Disposition, and the
Court being in receipt of a presentence investigation report and
having conducted a sentencing hearing in response to a motiOn
by the Commonwealth for modification of the sentence, the
sentence of the Court is that the Defendant pay the costs of
prosecution, and make restitution in the amount of $392.15 to
Thurston E. Cline, Jr., and that he undergo imprisonment in the
Cumberland County Prison for a period of not less than eight
months nor more than 23 months, with credit to be given from
JUly 1, 1998.
This sentence represents a departure from the guidelines
I The Commonwealth filed a notice of appeal from the judgment of sentence.
Presumably, this will be regarded as a petition for allowance of appeal pursuant to Section
9781 (b) of the Judicial Code. Act of November 26, 1978, P.L. 1316, § 3, as amended, 42 Pa.
C.S. § 9781(b).
for a number of different reasons: First, the value of the item
taken in the theft was relatively small; second, the crime resulted
from the Defendant's drug problem; third, the Defendant has
been in the Cumberland County Prison since July of 1998, has
had no write-ups, and is presently on track for work release
whereby he will be able to pay further on the outstanding costs,
fines and restitution which he owes. In addition, the Defendant
is presently participating at the Cumberland County Prison in a
drug and alcohol treatment program and has been doing so for
approximately four months. Furthermore, while at the
Cumberland County Prison, and prior to the sentence today, the
Defendant saved the life of another inmate. Finally, the victim
in this case is the Defendant's father-in-law, and there is no
indication on the record that he is requesting a harsh sentence.
The Court recognizes that this offense is not a minor one
and that the Defendant does have a prior record, but feels that
the sentence which it has imposed is more than sufficient to
satisfy the purposes of a sentence.
In its statement of matters complained of on appeal, the Commonwealth states that
"the sentences (sic) imposed ... is both outside the sentencing guidelines and unreasonable.''2
This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring on February 17, 1998, Defendant William Rex
Robert Stamer was charged with theft by unlawful taking or disposition.3 He pled guilty to
the offense on October 13, 1998. The facts of the incident were related by the prosecutor at
the time of the guilty plea as follows:
Your Honor, this defendant has been charged with Theft
by Unlawful Taking, graded as a third degree felony. He is
2 Commonwealth's Concise Statement of Matters Complained of on Appeal,
paragraph 7 (filed January 26, 1999).
3 See Information, Commonwealth v. Starner, No. 98-1264 (Cumberland County).
2
going to enter a plea of guilty as charged this aftemoon. The
facts in support of the plea are that on Tuesday, February 17,
1998, the defendant stole a Smith and Wesson .357 handgun
from the victim, Thurston Edward Cline, Jr. He did admit this
to the police.
The victim also claims that the defendant took a
Winchester rifle and a Kassner shotgun. The rifle was later
discovered by the victim in his residence. The shotgun has not
been recovered. The defendant in a written statement did admit
to selling the handgun for cocaine in Harrisburg.4
The victim of the theft was the Defendant's father-in-law.5
The court ordered a presentence investigation report and scheduled sentence for
November 24, 1998. At the time of sentencing, the Commonwealth made no
recommendation as to sentence.6 The court sentenced Defendant to pay the costs of
prosecution, make restitution in the amount of $392.15 to his father-in-law, and serve a
prison term of eight to 23 months.?
On December 4, 1998, the Commonwealth filed a motion to modify the sentence. The
motion noted that, because of Defendant's prior record, sentencing guidelines provided for
a mitigated range of 21 to 24 months, a standard range of 24 to 36 months, and an aggravated
range of 36 to 39 months? The motion indicated, additionally, that Defendant owed
$1,639.91 in prior court costs and fines, that Defendant "put a firearm in the hands of a drug
N.T. 2, Guilty Plea Colloquy, October 13, 1998.
N.T. 15, Resentencing Proceeding, December 22, 1998.
N.T. 2, Sentencing Proceeding, November 24, 1998.
Order of Court, November 24, 1998.
Commonwealth's Motion To Modify Sentence, paragraphs 3-4, 7.
3
dealer," that restitution for the stolen gun in the present case totaled $392.15,9 that Defendant
had previously received county sentences for his offenses,l° and that the individual who
prepared the presentence investigation report recommended a state sentence, i i
Upon receipt of the motion, which requested a vacation of Defendant's sentence and
a resentencing hearing, the court vacated Defendant's sentence and scheduled a hearing for
resentencing.~2 The new sentencing hearing was held on December 22, 1998.
At the sentencing hearing held on December 22, 1998, Defendant, a corrections
officer at the Cumberland County Prison named Todd Leedom, and the prison psychologist,
Mark Zengerle, were called as witnesses on behalf of the Defendant. No witnesses were
called on behalf of the Commonwealth.
The evidence at the hearing tended to show that Defendant was 30 years old, with a
history of drug addiction,~3 and that his most recent offense prior to the theft subjudice had
been in 1992.TM It indicated that while incarcerated in the Cumberland County Prison on the
present charge he had received no write-ups,~s had been participating in drug and alcohol
programs offered by the prison for the preceding four months and was making good progress
9 Commonwealth's Motion To Modify Sentence, paragraph 10.
l0 Commonwealth's Motion To Modify Sentence, paragraph 5.
il Commonwealth's Motion To Modify Sentence, paragraph 11.
~2 Order of Court, December 4, 1998.
13 N.T. 9, 12, 16, Resentencing Proceeding, December 22, 1998.
14 N.T. 12, Resentencing Proceeding, December 22, 1998.
is N.T. 8, 11, Resentencing Proceeding, December 22, 1998.
4
in the programs,~6 and had been granted trustee status at the prisofl7. Trustee status was
preparatory to placement in the institution's work release program, according to the
evidence.~8
The evidence at the hearing further tended to show that, although Defendant still
owed the county $1,639.00, he had in the past reduced his debts to the county by almost
$3,000.00. Finally, it was demonstrated that on December 4, 1998, Defendant had saved the
life of a fellow inmate who was attempting to commit suicide by suffocation.~9
This incident, which occurred about a week after Defendant's initial sentencing and
before he was aware that the Commonwealth was challenging the sentence,2° was the subject
of testimony of Corrections Officer Leedom, who was on duty in the cell block at the time,
and of Defendant. Defendant described the event as follows:
Q
inmate]?
What do you remember of the events with [the
A We were sitting there watching TV and --
THE COURT: When you say we, are you talking
about you and [the inmate]?
THE WITNESS: No, the rest of the inmates on the
block. We heard a strange noise coming from [the inmate's]
cell, so I went down to check on him. I looked in his cell, and
he was laying there. He made a strange noise again, so I went
in. He had a bag and a string around his neck. I ripped the bag
off his head and flipped his light on, and he was pretty blue. So,
I took a towel and started fanning him, because he was pretty
16 N.T. 14-15, Resentencing Proceeding, December 22, 1998.
17 N.T. 11, Resentencing Proceeding, December 22, 1998.
~8 N.T. 15, Resentencing Proceeding, December 22, 1998.
~9 N.T. 3-5, 10-11, Resentencing Proceeding, December 22, 1998.
20 N.T. 20, 22, Resentencing Hearing, December 22, 1998.
sweaty, and he looked pretty bad. While we were fanning him,
he started coming around a little bit. I yelled to get the guard,
and the guard came over.
BY MR. ADAMS:
Q Now there were some additional inmates that
helped you initially with [the inmate], is that correct?
A One inmate did come in the cell with me, and he
started fanning while I was trying to get him to come around.
Then he gave me the towel, and I started fanning him offa little.
Q You were the person that removed the bag from
[the inmate's] head, is that correct?
A Correct?
The inmate whose life was saved had a psychiatric history which included attempted
suicide? He was committed to a mental institution for treatment as a result of the present
incident?
The Commonwealth's position at the sentencing hearing was that the incident
involving the rescue was "all a matter of parole and not for sentencing.''24 This position was
amplified in response to a question by the court as follows:
THE COURT: I did vacate the sentence Order.
We're now in a new sentence position. I think that was at your
request?
MR. KEATING: Correct, Your Honor. However,
again, I don't think this is relevant to a sentencing proceeding.
Again, I guess we're getting into argument now, but our position
is that the reason it's not relevant for that particular purpose is
21 N.T. 10-11, Resentencing Hearing, December 22, 1998.
22 N.T. 24, Resentencing Hearing, December 22, 1998.
23 N.T. 24, Resentencing Hearing, December 22, 1998.
24 N.T. 18, Resentencing Hearing, December 22, 1998.
that to somehow claim that if the Defendant wasn't in the
Cumberland County Prison [the inmate's] life wouldn't have
been saved I don't think is enough, based on these facts, given
the fact the other individual was there and given the fact that Mr.
Starner was the one who committed a crime which resulted in
him being in Cumberland County Prison in the first place. So,
to say somehow that he should receive a benefit because he
happened to be in the prison at the time, because he committed
a crime and happened to be in the prison, I mean, that's -- it's
our office's position that if you see someone is in trouble, you
should go to help them anyway.
THE COURT: Not every prisoner would do that.
MR. KEATING: Well, I know they wouldn't, .... 25
The position of the defense at the sentencing hearing was that the incident in question
had occurred at~er a sentence of Defendant which was vacated,26 and that it was a proper
subject for consideration at the new sentencing proceeding? Defendant's counsel argued
the effect of the incident upon sentencing as follows:
MR. ADAMS: Your Honor, our position would be
very simple. There were two people out of twenty that were in
that area. One person went and actually removed the bag and
saved the man's life. Another one helped. It doesn't have to go
to whether he was there or whether he did save him. It goes to
his character, which is certainly something you can consider?
At the conclusion of the sentencing proceeding, the court entered the sentencing order
recited at the beginning of this opinion. It accepted the defense position that Defendant's
25 N.T. 18, Resentencing Hearing, December 22, 1998.
26 As noted previously in the text, Defendant was unaware of the filing of the
Commonwealth's motion to modify and vacation of the sentence at the time of the rescue.
See text accompanying note 20 supra.
27 N.T. 19, Resentencing Proceeding, December 22, 1998.
28 N.T. 19, Resentencing Proceeding, December 22, 1998.
rescue of a fellow inmate was a factor which could be considered, among others, in imposing
the sentence?
The Commonwealth petitioned for allowance of appeal from the discretionary aspects
of the sentence on January 19, 1999. The court's use of Defendant's rescue of another
inmate as a factor in its decision not to impose a more severe sentence was subsequently
described by the District Attorney as "intellectuallydeceiving.,'30
DISCUSSION
Preliminarily, it may be noted that conduct by a Defendant in the period between an
initial sentencing and a resentencing has traditionally been a factor which a court may
consider in imposing the latter sentence. See North Carolina v. Pearce, 395 U.S. 711, 89 S.
Ct. 2072, 23 L. Ed. 2d 656 (1969). Enhancements of sentence, for instance, have been
upheld where "based upon objective information concerning identifiable conduct on the part
of the defendant occurring after the time of the original sentencing proceeding."
Commonwealth v. Maly, 384 Pa. Super. 369, 372, 558 A.2d 877, 878 (1989). This court is
unaware of any authority for the Commonwealth's position in the case subjudice that the
court's consideration of Defendant's conduct on December 4, 1998, at the sentencing on
December 22, 1998, was improper.
The Pennsylvania Superior Court has stated the following with respect to challenges
to sentences:
Generally, sentencing is a matter within the sound
discretion of a sentencing judge and a sentence will not be
disturbed by an appellate court absent manifest abuse.
Commonwealth v. White, 341 Pa. Super. 261,270, 491 A.2d 252,
257 (1985) (citation omitted). The sentence must either exceed
the statutory limits or be manifestly excessive to constitute an
abuse of discretion. Id. Furthermore, ... [a party] does not have
29 See Order of Court, December 22, 1998.
30 Carlisle Sentinel, February 7, 1999, at 4.
8
an appeal as of right from the discretionary aspects of the
sentence. 42 Pa.C.S. § 9781(b); Commonwealth v. Scullin, 414
Pa. Super. 442, 446-447, 607 A.2d 750, 752 (1992), alloc.
denied, 533 Pa. 633,621 A.2d 579 (1992). Two requirements
must be met before [a] challenge to the judgment of sentence
will be heard on the merits. Commonwealth v. Koren, 435
Pa. Super. 499, 503, 646 A.2d 1205, 1207 (1994). First [the
challenger] must "set forth in his brief a concise statement of
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence." Pa.R.A.P. 2119(0, Id.
Second, [the challenger] must show "that there is a substantial
question that the sentence imposed is not appropriate under this
chapter." 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki,
513 Pa. 508, 513, 52 A.2d 17, 20 (1987), Commonwealth v.
Urrutia, 439 Pa. Super. 227, 236, 653 A.2d 706, 710, alloc.
denied, 541 Pa. 625,661 A.2d 873 (1995).
Commonwealth v. Palmer, 700 A.2d 988, 994 (Pa. Super. Ct. 1997) (footnote omitted).
Under Section 9781(c) of the Judicial Code, a judgment of sentence is to be
considered an abuse of discretion where:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable. 31
A review of the discretionary aspects of a sentence does not involve a determination
of whether the reviewing court agrees with the statements of the sentencing court "in the
sense that if [the reviewing court] had been the sentencing court [it] should have said the
same thing and imposed the same sentence." Commonwealth v. Rooney, 296 Pa. Super. 288,
31 Act of November 26, 1978, No. 319, § 3, as amended, 42 Pa. C.S. § 9781(c)
(emphasis added).
9
295,442 A.2d 773,776 (1982). The sentencing guidelines are instructive and advisory, but
they are not the equivalent of mandatory sentences:
The trial court is free to sentence a defendant outside the
Guidelines. Commonwealth v. Ousley, 392 Pa. Super. 549, 553,
573 A.2d 599, 601-02 (1990). The only limitation on such an
exercise of the sentencing court's discretion is that the lower
court must provide a statement of reasons explaining the
[departure] from the guidelines.
Commonwealth v. Novasak, 414 Pa. Super. 21, 44, 606 A.2d 477, 489 (1992).
In the present case, the court carefully considered the offense involved, the
Defendant, and the punitive, rehabilitative, deterrent and retributive functions of sentencing
when it resentenced Defendant to a period of not less than eight months nor more than 23
months incarceration for the theft of his father-in-law's gun. The reasons for the court's
departure from the guidelines were placed on the record and were factually supported in the
record; the Commonwealth's contention that the conduct of Defendant in prison prior to the
sentence was not a factor which could be considered was not, in the court's view, legally
correct.
Under these circumstances, it is believed that the sentence imposed upon Defendant
did not constitute a manifest abuse of discretion.
Jaime M. Keating, Esq.
Assistant District Attorney
For the Commonwealth
H. Anthony Adams, Esq.
Assistant Public Defender
For the Defendant
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