HomeMy WebLinkAbout97-2252 CriminalCOMMONWEALTH
Vo
DAVID M. PINTI,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: 97-2252 CRIMINAL TERM
: CHARGE: (1) BURGLARY
: OTN: E935556-6
:
: 97-2255 CRIMINAL TERM
: CHARGES: (1) BURGLARY (6 COUNTS)
: (3) UNLAWFUL POSSESSION OF
: SCHEDULE I CONTROLLED
: SUBSTANCE (2 COUNTS)
: OTN: E719775-0
IN..RE: OPINION EURSUANTTOPA. Rdk.E. _19_25
OLER, J., July 22, 1998.
In this criminal case, the Commonwealth has petitioned the Superior Court for
allowance of appeal from the discretionary aspects of a sentence imposed by this court.~ The
Commonwealth contends that the court abused its discretion by not imposing consecutive
terms for several burglaries and by deviating by two weeks from the applicable standard
range minimum sentence of twelve months,z
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENTOEFACTS
Defendant, a 24-year-old male with bipolar disorder and no experience in prison prior
~ Although the Commonwealth filed a Notice of Appeal from an order denying its
motion to modify sentence, it is assumed that the filing will be treated as a petition for
allowance of appeal pursuant to Section 9781(b) of the Judicial Code from the discretionary
aspects of the judgment of sentence. See Act of November 26, 1978, P.L. 1316, § 3, as
amended, 42 Pa. C.S. § 9781(b).
2 See Commonwealth's Motion To Modify Sentence, paragraph 13, filed May 5,
1998.
to the crimes subjudice, 3 pled guilty on March 13, 1998, to seven burglaries of residences
(when no person was present) and two misdemeanor drug offenses?
A presentence investigation report was ordered? The report indicated that the crimes
were the result of Defendant's drug addiction, that since his arrest and incarceration
Defendant had completed the Drug and Alcohol Intervention Program at the Cumberland
County Prison, had enrolled, and was participating at the prison, in the New Directions drug
and alcohol treatment program, and was attending Narcotics Anonymous meetings at the
prison.6 It noted that Defendant's intention was to obtain in-patient treatment upon his
eventual parole.7
The report indicated that Defendant had been diagnosed by the prison psychiatrist as
suffering from bipolar disorder, and that he was being treated at the prison with medication
in the form of Zoloft.8 It further indicated that he had had no write-ups in the prison since his
incarceration on the charges?
Standard range guideline minimum sentences for the burglaries were 12 to 18 months;
standard range guideline minimum sentences for the marijuana misdemeanors were
3 See Presentence Investigation Report, dated April 24, 1998. This report was made
part of the record by order of court dated May 7, 1998.
Defendant's prior record consisted of a summary retail theft conviction in 1994 and
a drug offense involving marijuana in 1996. Id.
4 See Order of Court, March 13, 1998.
5Id.
6 See Presentence Investigation Report, dated April 24, 1998.
7Id.
8Id.
9Id.
2
Restorative Sanctions to nine months,l° The presentence investigator, Charles R.
McKenrick, an experienced Cumberland County probation officer, recommended a county
sentence as to the burglaries and no additional period of imprisonment as to the drug
chargesd~ With respect to the advantages of a county sentence, the presentence investigator,
while acknowledging that this "would require a sentence in the [m]itigated range," noted that
it would be beneficial in terms of Defendant's drug problem and "would afford the
[D]efendant an opportunity for work release resulting in a better chance of the victims getting
restitution?2
At sentencing, Defendant's counsel emphasized the strong local family support which
Defendant was receiving and pointed out that a private psychologist had been retained at the
family's expense to assist Defendant in his rehabilitation? This psychologist submitted a
report recommending inpatient treatment following Defendant's eventual parole, and
thereafter a group home environment for a certain period during which outpatient treatment
would be received.~4
Defendant's father also addressed the court at sentencing as follows:
Most of the information has been supplied to you, in
addition to the letter my wife wrote, other than the additional
fact that in the time that we've been with David in the last six
months or so [since his incarceration] there's been a substantial
change in the crying out or the need for help. This is sometimes
lo Id. Because these misdemeanors carried a potential maximum sentence of 12
months, the standard guideline range exceeded the actual legal minimum sentence by three
months.
~ Id.
i2 Id'
~3 N.T. 6-7, Sentencing Hearing, April 28, 1998.
~4Id. at7.
3
tough for an adult to ask for and/or recognize.
· The only other item that came up that was a big concern
of ours was the analysis of the bipolar, which is a chemical
imbalance. Sometimes it's not a controllable fact or function.
My son never had any idea that was even there. I just wanted to
state the fact that he is a very caring person and he has a support
group behind him of his family and his grandparents. Thank
you for the time?
For his part, the Defendant, David M. Pinti, addressed the court as follows:
I would like to personally apologize to Mr. Weidner [one
of the victims, who appeared in court for the sentencing] for
entering his home and burglarizing the residence. I would also
like to apologize to the families of the houses that I burglarized.
This has been the biggest mistake of my life, and I think about
it every day.
After the death of my grandfather, I involved myself in
the wrong crowd and began abusing heroin and cocaine on a
regular basis. My life went downhill slowly, and it wasn't until
I hit rock bottom that I'd seen what I was doing to myself. Now
clear-headed, I've begun to start my life over. With the support
of my loving family and the continued use of NA's twelve-step
program, I look forward to staying clean, finding a job, and
paying all fines and restitution in full.
Once again, I apologize to all of those who I have
wronged in my drug addiction, including family and friends.
That's all?
In the Commonwealth's presentation at sentencing, C. Roy Weidner, Esq., a
Cumberland County attorney whose residence had been burglarized by the Defendant and
~s N.T. 12, Sentencing Hearing, April 28, 1998.
~6Id. at 12-13.
4
who was owed restitution in the amount of $250,17 argued in favor of a state sentence? He
spoke of the sense of violation which his family felt and expressed the view that a county
sentence would be "a slap in the face to crime victims.''t9 In addition, the Cumberland
County District Attorney maintained that a standard range sentence and state incarceration
were appropriate in the case.2°
At the conclusion of the sentencing proceeding, the court imposed concurrent 11 1/2
to 23 month sentences for the burglaries, and a consecutive 12-month probationary sentence
for the marijuana offenses.2~ In addition to noting its reliance upon the presentence
investigation report, the court emphasized that the Defendant was "addressing the drug
problem which he has and is doing so at the Cumberland County Prison.''22
On May 5, 1998, the Commonwealth filed a motion to modify sentence. The motion
stated that the court's "departure from the sentencing guidelines (sic23) and running the
sentences concurrent, while in the discretion of the Court [were] unreasonable.''24
On May 7, 1998, the court declined to modify the sentence. The Commonwealth filed
a notice of appeal from this order on June 4, 1998.2s
~7 See Presentence Investigation Report, dated April 24, 1998.
~8 N.T. 2-3, Sentencing Hearing, April 28, 1998.
~9 Id. at3.
20 Id. at 14.
2~ Order of Court, April 28, 1998.
22 Id.
23 The court did not, in fact, depart from the guidelines, but sentenced within them.
24 Commonwealth's Motion To Modify Sentence, paragraph 13.
25 See note 1 supra. Although filed more than 30 days after entry of the judgment of
sentence, the appeal appears to be timely under Pennsylvania Rule of Criminal Procedure
5
DISCUSSION
"Matters of sentencing are left to the sound discretion of the trial judge."
Commonwealth v. Rickabaugh, __ Pa. Super. __, __, A.2d , , 1997 WL
776622, at *20 (filed December 18, 1997). "[I]t was not the intention of the Legislature to
adopt the Guidelines as a way to preclude judicial discretion .... "Commonwealth v. Frazier,
347 Pa. Super. 64, 70, 500 A.2d 158, 161 (1985). As Representative (now Federal Circuit
Court Judge) Scirica stated in connection with the sentencing guidelines,
[i]t is impossible to legislatively propose a single just sentence
for all persons convicted of a particular crime and variations in
sentencing necessarily result from taking into account individual
differences in each case .... No legal system can function
without the exercise of discretion. To eliminate discretion from
the courts where it is visible, is to reconstitute it in the police
and prosecutors where it is invisible.26
Under the Judicial Code, "the Commonwealth may file a petition for allowance of
appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the
appellate court that has initial jurisdiction for such appeals. 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 [the Sentencing Code]." Act of
November 26, 1978, P.L. 1316, § 3, as amended, 42 Pa. C.S. § 9781(b) (emphasis added).
Relief is to be afforded the Commonwealth on appeal 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 wouM be clearly unreasonable; or
1411 (B) (2) (b) (ii).
26 See Commonwealth v. Frazier, 347 Pa. Super 64, 70, 500 A.2d 158, 161 (1985).
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
Id., § 9781(c) (emphasis added).
Where a trial court sentences outside the guidelines, an explanation for this departure
must, according to the Judicial Code, be placed on the record. Act of December 30, 1974,
P.L. 1052, § 1, as amended, 42 Pa. C.S. 9721(b); Commonwealth v. Wagner, __ Pa. Super.
,702 A.2d 1084 (1997).27 In addition, in general, reasons for a sentence should appear
on the record. Pa. R. Crim P. 1409(C)(2); Commonwealth v. Riggins, 474 Pa. 115,377 A.2d
140 (1977).
However, in this regard the Pennsylvania Supreme Court has stated that
[w]here pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself.
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1992); see Commonwealth
v. Phillips, 411 Pa. Super. 329, 601 A.2d 816 (1992). The existence of a presentence
investigation report in the present case, and the sentencing court's reliance upon it, was
expressly indicated by the court on the record at sentencing?
In the matter subjudice, with respect to the Commonwealth's challenge to this court's
imposition of concurrent, as opposed to consecutive, sentences for the burglaries to which
Defendant pled guilty, it may be noted that the Superior Court has "held that such a challenge
does not present a substantial question regarding the discretionary aspects of sentence."
Commonwealth v. Rickabaugh, J Pa. Super.. .... A.2d __, __, 1997 WL
776622, at *20 (filed December 18, 1997).
27 Cf. 204 Pa. Code § 303.13(c) (Sentencing Commission directive for reasons to be
recorded for mitigated and aggravated range sentences for purposes of record-keeping).
28 As mentioned previously, this report was made part of the record. See note 3 supra.
On the merits of such an issue, the Pennsylvania Superior Court has stated as follows:
It is well-settled that, in imposing sentence, a trial judge has the
discretion to determine whether, given the facts of a particular
case, a given sentence should be consecutive to, or concurrent
with, other sentences being imposed.
In this case, the court imposed concurrent sentences for the burglaries for two reasons.
First, as will be discussed more fully below, it was felt that a sentence of 11 1/2 to 23 months
incarceration, followed by a consecutive sentence of probation of 12 months, was sufficient
in Defendant's case to serve the rehabilitative, punitive, deterrent and retributive functions
of sentencing. Second, by virtue of the aggregation doctrine, consecutive prison sentences
would have resulted in a loss of this court's control over Defendant's eventual parole and
supervision. In this regard, it has been said that "[t]he trial court ... enjoys discretion to
impose concurrent sentences upon multiple convictions and, therefore, retain parole power."
Commonwealth v. Harris, 423 Pa. Super. 190, 201,620 A.2d 1175, 1181 (1993).
With respect to the court's deviation by two weeks from a standard range guideline
sentence for the burglaries,2° it was the court's view that a county sentence in Defendant's
case would best serve the purposes of sentencing. First, it felt that Defendant was one of the
more promising candidates for rehabilitation (and payment of restitution), given the support
of his family, the efforts he had undertaken while incarcerated to deal with his drug
problems, and the programs and medical treatment which the prison was making available
to him. His present prison setting had proven conducive to these conditions.
Second, the court did not view the additional two-week period which would have
resulted in a standard range minimum sentence under the guidelines as significantly more
punitive or deterring than the minimum sentence imposed. The minimum sentence of 11 1/2
29 The sentence of probation for the misdemeanor drug offenses was within the
standard range of the guidelines. See Commonwealth v. Wagner, J Pa. Super. ,702
A.2d 1084 (1997) (probation as species of Restorative Sanctions).
8
months was more than 96% of the standard range sentence of twelve months.
Third, the recommendation of Probation Officer McKenrick of a county sentence
signified his willingness to assume responsibility for supervision of Defendant upon his
eventual release from prison. This professional commitment was of considerable practical
significance where a substantial amount of restitution was due. The court's imposition of a
consecutive sentence for the drug offenses ensured that Defendant would be subject to Mr.
McKenrick's supervision for 12 months in addition to the initial period of parole on the
burglaries.
For the foregoing reasons, it is believed that the judgment of sentence challenged by
the Commonwealth, to the extent, it any, that it presented a substantial question warranting
review, was not clearly unreasonable.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
For the Commonwealth
Bryan Walk, Esq.
108-112 Walnut Street
Harrisburg, PA 17101
For the Defendant
9