HomeMy WebLinkAbout97-1234 CriminalCOMMONWEALTH
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MICHAEL LEE SIMS
OTN: E906139-3
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CHARGE: SIMPLE ASSAULT (2 cts)
· No. 97-1234 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., March 31, 1998.
In this criminal case in which Defendant was sentenced to not less than six months
nor more than 23 months in prison on two misdemeanor simple assault charges to which he
pled guilty, the Commonwealth has filed a petition for allowance of appeaP from the
discretionary aspects of the judgment of sentence. In imposing the sentences, the court stated
its reasons for a departure from the sentencing guidelines as follows:
The sentences represent departures from the guidelines
downward because at the time of the trial in this matter, one of
the victims, Donna Yates, indicated that she did not wish to see
the prosecution against the Defendant pursued, and she is the
mother of the other victim, Amanda Yates. In addition, no
medical attention was required for the victims, as indicated by
the most recent victim impact statement received by the crime
victim/witness program on December 9, 1997; Defendant has a
history of mental health treatment and is, in the opinion of the
pre-sentence investigator, in need of further mental health
treatment; Donna Yates, victim and mother of the other victim
in the case, requested in her most recent victim impact statement
that the Defendant receive no further jail sentence beyond the 15
days which he had previously served...; Defendant pled guilty
to this offense in order to avoid the requirement that Donna
Yates testify against him and in acceptance of responsibility for
_x 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).
his actions; and the Defendant's prior record includes only one
crime of violence, which occurred about 13 years ago.
In its statement of matters complained of on appeal, the Commonwealth states simply
that "the sentences imposed.., is both outside the sentencing guidelines and unreasonable."
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 occtm~g on June 16, 1997, Defendant Michael Lee Sim.~
was charged with two counts of simple assault.2 The victims were the Defendant's girlfriend,
Donna Yates, and her nine-year-old daughter, Amanda Yates. The facts of the incident were
related by the prosecutor as follows:
[B]ack on June 16th, 1997, somewhere between 4 and
5:00 in the evening, while at the residence of Donn~ Yates, the
Defendant became angry at one Donna Yates, and they got into
an argument. During the argument, she - the argument was
over the fact that she didn't spend enough time with him.
Ms. Yates told him that she didn't want to spend time
with him because he was mean, and she just had some wash to
do. He said, you're not going anywhere. So he took her in the
bedroom, held her down. She pushed him away. He grabbed
her and bit her leg. She got away, went in the living room, and
started to get the wash ready. He came out, grabbed ahold of
her from behind, and had her in a choke hold.
Amanda, her nine-year-old daughter -- she is no relation
to the Defendant. The Defendant at the time was dating Donna
Yates. However, there is no blood or they're not married or
anything like that. Amanda, the nine-year-old, told the
Defendant, stop, for him to let go. At that time he ran after
Amanda. He threw her down on the steps, slapped her on the
back, punched her in the head, ran out -- I'm sony -- Donna
Yates ran out, the mother, told the Defendant to stop. So he
grabbed ahold of the mother, through her down the steps.
See Information, Commonwealth v. Sims, No. 97-1234 (Cumberland County).
2
She caught her balance, and grabbed the girls, got in her
car immediately, and went to the police around 4:30, 4:40 in the
evening. She reported the same to Officer Spencer, who took
pictures, had her write a whole statement and so forth. At the
time that caused bodily injury, or at least attempted to cause
bodily injury, to one Amanda Yates, which is one count, and
Donna Yates is the othe{.3
A jury trial commenced in the case on November 18, 1997, at which time Donna
Yates advised the court that she did not wish to testify; she indicated that she had reconciled
with Defendant and did not want the prosecution to proceed.4 The court instructed her to
testify notwithstanding this request. ~
At this point, Defendant chose to plead guilty to the charges and his plea was
accepted.6 Because of the Defendant's prior record, which resulted in standard guideline
ranges of 12 to 18 months in the case of Donna Yates and 21 to 30 months in the case of
Amanda Yates, the court declined a request by Defendant, which the Commonwealth had
not opposed, for immediate sentencing and ordered a pre-sentence investigation report.7 In
doing so, however, the court indicated that it was "certainly at sentencing going to take into
consideration that Ms. Yates is not interested in pursuing the matter.''s
Sentencing was held on December 30, 1997. The pre-sentence investigation file
included a discharge sununary fi:om Edgewater Psychiatric Center indicating that, following
the events giving rise to the prosecution herein, Defendant had been hospitalized with
3 N.T. 26-28, Guilty Plea Colloquy, November 18, 1997.
4 N.T. 25-26, Trial, November 18, 1997.
5 N.T. 26, Trial, November 18, 1997.
6 N.T. 32, Trial, November 18, 1997.
7 N.T. 31-33, Guilty Plea Colloquy, November 18, 1997.
8 N.T. 32, Guilty Plea Colloquy, November 18, 1997.
depression and suicidal thoughts, and that he was receiving medication in the form of Prozac,
inter alia. It also indicated that he had been hospitalized in 1989, and at that time had been
given shock treatments. A victim impact statement received December 9, 1997, from Donna
Yates, included these remarks in support of the Defendant:
The incident at the time was scary, but as time goes by
you learn how to forgive and to forget. People do have
problems in life but God always says (forgive.) My children
have done this also, they love Michael Sims.
At the time of the incident we were afraid but at this time
we are not afraid. I do believe people change if they have help
from a Loved one, or ask God for help.
I do believe Michael Sims is very sony for what he has
done. I do believe time served [15 days] was enough of time
for his crime. But I do believe Michael Simq should have some
kind of counseling to help him deal with his problems. Thank
you?
Neither Donna Yates nor Amanda Yates appeared for Defendant's sentencing.
Notwithstanding the request of Donna Yates that the Defendant receive a sentence of time
served in the amount of 15 days, and notwithstanding the request of his counsel that he
receive a probationary sentence, l° the court imposed a sentence as to each count of not less
than six months nor more than 23 months incarceration in the Cumberland County Prison.n
The court also included a paragraph in the sentence instructing the county probation and
parole office to consider the advisability of attaching a special condition to any eventual
parole prohibiting Defendant from having any contact with Donna Yates or Amanda Yates.a2
On January 5, 1998, the Commonwealth filed a motion to modify sentence. The
9 N.T. 16, Resentencing Heating, January 27, 1998 (emphasis added).
,o N.T. 3, Sentencing Heating, December 30, 1997.
n Order of Court, December 30, 1997.
~2 ]d'
4
motion recited the facts admitted to by Defendant when he pled guilty, and included the
following paragraphs:
14. The Pre-Sentence Investigation Report was prepared
by Elizabeth D. Baker of the Cumberland County Adult
Probation Department on December 12, 1997.
15. The Court indicated that it relied on the Pre-Sentence
Investigation Report for its sentence.~3
16. The Pre-Sentence Investigation Report upon which
the Court relied indicates that the defendant had a lengthy prior
record for various felony charges including burglary, attempted
burglary, robbery with a firearm, and thefts of motor vehicle.
17. The Pre-Sentence Investigation Report upon which
the Court relied indicates that the defendant's prior record score
is the highest on the charge, repeat felony status (RFEL).
18. The Pre-Sentence Investigation Report upon which
the Court relied indicates that on Count A, the assault on Donna
Yates, the mother, the standard range sentence is 12 to 18
months with a mitigated range of 9 months and an aggravated
range of 21 months. The probation officer recommended that
the defendant receive state time and court cost for this count.
19. The Pre-Sentence Investigation Report upon which
the Court relied indicates that on Count B, the assault against
Amanda Yates, the nine year old daughter, that the standard
range sentence is 21 to 30 months with a mitigated range of 18
months and an aggravated range of 33 months with the
recommendation of the probation officer that the defendant
receive state time and court costs.
~3As the court explained at a resentencing hearing held in this case on January 27,
1998, its references at sentences to presentence investigation reports are intended to comport
with the holding of Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), and its
progeny, whereby the reasons of a sentencing court can be understood to have included
materials contained in the report without the necessity for a reiteration of each such item in
a statement of reasons. N.T. 18, Resentencing Hearing, January 27, 1998. Such a reference
by no means constrains the court to accept the recommendation of the presentence
investigator, nor his or her interpretations and conclusions. Id
20. The Pre-Sentence Investigation Report upon which
the Court relied indicates that on December 19, 1997, Donna
Yates obtained a PFA which prohibits the defendant from
having any contact with her.
21. The Pre-Sentence Investigation Report upon which
the Court relied indicates that Donna Yates was contacted and
that she was in fear of her safety from the defendant and that the
victim impact statement which was attached to the Court's copy
of the Pre-Sentence Investigation Report indicated that she was
afraid that the defendant would kill her?4
22. The Pre-Sentence Investigation Report upon which
the Court relied indicates that in the opinion of the probation
officer, the defendant was lacking insincerity (sic) and honesty
when he said he would accept responsibility for his behavior.
23. The Pre-Sentence Investigation Report upon which
the Court relied, indicates that it was the opinion of the
investigator that the defendant attempts to win through
intimidation and to solicit sympathy through threats of suicide.
In response to the Commonwealth's motion, the court vacated the judgment of
sentence previously imposed, directed transcription of the notes of testimony of the guilty
plea colloquy, and scheduled resentencing for January 27, 19987 At that time, a hearing was
held on the Commonwealth's motion.
At the hearing, the Commonwealth presented the testimony of a nineteen-year-old
daughter of Donna Yates, who said that in December of 1997 she overheard a telephone
conversation in the middle of the night between her boyfriend and Defendant, wherein
Defendant told the boyfriend that Ms. Yates had destroyed his life and that when he got out
of jail he would destroy her. The Commonwealth also presented the testimony of Donna
14 In point of fact, the most recent victim impact statement submitted by Ms. Yates not
only did not indicate that she was afraid that Defendant would kill her, but indicated that she
hoped that the Defendant would receive no further jail time. See N.T. 16-17, Resentencing
Hearing, January 27, 1998.
Order of Court, January 9, 1998.
Yates.16
In this testimony, Ms. Yates said that she had been reluctant to testify at trial because
she was "afraid and concerned.''~? She claimed that she had not appeared for Defendant's
sentencing, because she "was afraid to be here.''aS She stated that she "knew he would be
mad.''~9 He had made phone calls to her mother' s house, according to her testimony, and his
mother had called her from California.2°
On cross-examination, Ms. Yates conceded that subsequent to Defendant's guilty plea
she took Defendant to the courthouse to meet with his presentence investigator.2~ She agreed
that she had secured a modification of a protection from abuse order to permit Defendant to
have contact with her?
In response to a question from the court, Ms. Yates confirmed that the sentiments
quoted previously in this opinion fi.om the victim 'impact statement which the court had at
sentencing were hers? She also stated that Defendant was not with her when she wrote the
statement.24 In response to a question by the prosecutoi' on redirect examination as to whether
Defendant had "any influence on you when you wrote those statements," she said that "[hie
~6 N.T. 8, Resentencing Hearing, January 27, 1998.
17 N.T. 11, Resentencing Hearing, January 27, 1998.
~8 N.T. 13, Resentencing Hearing, January 27, 1998.
~gId.
2o N.T. 13-14, Resentencing Hearing, January 27, 1998.
21 N.T. 15, Resentencing Hearing, January 27, 1998.
2~ N.T. 16, Resentencing Hearing, January 27, 1998.
24 N.T. 17, Resentencing Hearing, January 27, 1998.
7
would ask me quite often to drop all this, drop the whole case, and forget about it.''2~ When
asked by the prosecutor whether that was why she wrote the statement the way she did, she
replied, "Yes.''26
With respect to her request to the court in the victim impact statement that Defendant
receive no additional period of ineareorafion, she engaged in this exchange with the court:
Q [I]n spite of the fact that his time served sentence
would have been 15 days, I gave him a sentence of six months,
as I recall. Was that not satisfactory to you?
A Michael Sim~ mode me believe that he would change,
but through seeing him and doing things with them, his anger
started coming out again.
Q After December 9th?
A Yes.
Q But none of that was related to me when he was
sentenced?
A No?7
At the conclusion of the hearing, the court imposed the sentences which it had
originally ordered, with the statement of reasons quoted at the beginning of this opinion.
DISCUSSION
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
2~ N.T. 17, Resentencing Hearing, January 27, 1998.
27 N.T. 16-17, Resentencing Hearing, Jan. 27, 1998.
the statutory limits or be manifestly excessive to constitute an
abuse of discretion. Id Furthermore, ... [a party] does not have
an appeal as of right from the discretiona_ry aspects of a
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, 61 A.2d 579 (1992). Two requirements
must be met before [al 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
discretionaxy 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(1>); Commonwealth v. Tuladziecki,
513 Pa. 508, 513, 522 A.2d 17, 20 (1987), Commonwealth
v. Urrutia, 439 Pa. Super.227, 236, 653 A.2d 706, 710, alloc.
deniec~ 541 Pa. 625, 661 A.2d 873 (1995).
Commonwealth v. Palmer, .. Pa. Super. ,. ,700 A~2d 988, 994 (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 ease 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.28
As a general rule, an increase in a sentence under Section 9781 is not considered
offensive to double jeopardy principles. See Commonwealth v. Grispino, 361 Pa. Super. 107,
521 A.2d 950 (1987). On the other hand, resentencings of defendants to greater penalties
than originally imposed are not without constitutional implications in certain circumstances.
Act of November 26, 1978, No. 319, §3, as amended, 42 Pa. C.S. § 9781(c).
9
See, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).
In this court's view, a tral judge should be wary of encouraging a system of sentencing
where initial sentences are subject to enhancement based upon reversals of representations
and recommendations tendered by interested parties; such a system could, it is believed, lend
itself to manipulation and arbitrariness.
In the present case, the court imposed prison sentences of six to 23 months for two
misdemeanor assaults, notwithstanding a request by one of the victims, who was the mother
of the other vicfim~ that the Defendant receive no further incarceration beyond the 15 days
which he had previously served. The court's rationale for imposing additional incarceration,
but departing downward from the guidelines, in this particular case was expressed at the time
of resentencing and appears in the introductory portion of this opinion.
The court did not believe that the victim's impact statement requesting leniency for
Defendant in the form of no further incarceration was entirely compelling, but it also did not
believe that the request was the result of coercion or insincerity or that it was entitled to no
weight. Upon resentencing, the court remained of the view that under all the circmstances
the sentences as originally imposed were proper.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Attorney for the Commonwealth
Austin F. Grogan, Esq.
Assistant Public Defender
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Attorney for the Defendant
10