HomeMy WebLinkAboutCP-21-CR-1949-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. : CP-21-CR-1949-2008
:
: CHARGE:
: (1) SIMPLE ASSAULT
:
KEVIN JAMES ROBINSON :
OTN: K656611-4 : AFFIANT: TPR. CHAD SYDNOR
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, J., March 9, 2009 —
Defendant Kevin James Robinson has filed an appeal to the Superior Court of
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Pennsylvania following an Order denying his Post-Sentence Motion. Defendant contends that
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this Court erred by sentencing Defendant to 1 to 2 years in a state correctional institution.
Defendant claims that this sentence is excessive despite Defendant’s prior record. In his
Concise Statement of Errors Complained of on Appeal he lists the following: (1) Defendant pled
guilty to simple assault on November 10, 2008, (2) Defendant pled open, (3) Defendant was
informed by the Court during the plea that the statutory maximum sentence range for simple
assault (M2) is 12 to 24 months, (4) Defendant was told by the Court that he would have to do
the first 12 months before he was eligible for parole, (5) Defendant was told by the Court that in
a “county” range sentence, if he behaved, some time would be taken off his sentencing, and, if he
did not behave he could stay in jail all the way up to 2 years, (6) On December 2, 2008,
Defendant received a sentence of 1 to 2 years in a state correctional institution and not a county
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sentence, (7) Defendant’s Motion to Modify Sentence was denied on December 17, 2008. This
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See Motion to Modify Sentence, filed Dec. 12, 2008.
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See Concise Statement of the Errors Complained of on Appeal at 1, filed Feb. 2, 2009.
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Id. at 1-2.
opinion in support of the Order denying the Defendant’s Post-Sentence Motion is written
pursuant to Pa. R.A.P. 1925(a).
STATEMENT OF THE FACTS
Defendant Kevin James Robinson entered a guilty plea on November 10, 2008 for the
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charge of Simple Assault. On December 2, 2008, the Court sentenced Defendant to pay the
costs of prosecution, to pay restitution to Nathan Sipe in the amount of $1,242.08, and to
undergo incarceration in a State Correctional Institute for not less than one year nor more than
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two years.
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The assault occurred on May 23, 2008, in South Middleton Township. Robinson
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punched Nathan Sipe in the face, causing him bodily harm. On November 10, 2008, Defendant
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appeared and pled guilty to the charge of Simple Assault, a misdemeanor in the second degree.
Immediately before Defendant formally entered his plea, there was discussion about the
consequences of the plea. The Defendant stated he understood his rights when he signed the
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rights form to plead guilty and that nobody threatened him or forced him to enter the plea.
Defendant then asked, “What is the offer to me in taking this open plea? What amount of time is
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being offered to me?” This Court responded, “That is between you and the Commonwealth
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…” Defense Counsel then reminded Defendant that Defendant had not accepted the District
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Attorney’s offer that he plead guilty to a set sentence of twelve months. Instead, Defendant
decided to plead open. Defense Counsel explained that the District Attorney wanted Defendant
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Transcript of Hearing on November 10, 2008 at 10, (hereinafter “Transcript at __”).
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See In re: Sentence, Order of Court on Dec. 2, 2008, filed Dec. 5, 2008.
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Police Criminal Complaint at 4.
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Transcript at 2.
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Id. at 10.
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Id. at 5.
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Id.
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Id.
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Transcript at 6.
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to serve twelve months, but Defense Counsel was going to ask for Defendant to be sentenced in
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the mitigated range. There was discussion that Defendant was going to “try for better than
[twelve months],” but it was pointed out that ultimately Defendant “was just taking [his]
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chances.”
Defendant Robinson was told that, if he pled open, he could get more than twelve
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months of incarceration. This Court then explained: “[t]he highest normal rate of sentence you
could get in this case with a misdemeanor of the second degree would be 12 months to 24
months. Okay? Then that means that you have to do the first twelve months before you would
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be eligible for parole.” This Court then clarified that it was speaking of a county range
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sentence: “In this county – again, that’s a county range sentence.” Continuing in its
description of a county sentence, this Court told the Defendant: “You get earned time, so if you
behave, some time would be taken off of that. If you don’t behave, then you could stay in jail all
the way up to the two years. All right?” The Defendant indicated that he understood what the
Court was saying. The discussion was concluded, and Defendant pled guilty. This Court
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accepted the plea. At the time of the plea, no one advised the Court about the Defendant’s
extensive prior criminal record. A presentence report was ordered.
At the sentencing hearing on December 2, 2008, Defense Counsel acknowledged
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Defendant’s “extensive criminal history.” Defense Counsel focused on the fact that the simple
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assault at issue supposedly involved only “one punch.” This Court responded, “[t]he problem
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Id.
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Id.
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Id.
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Id. at 7.
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Id.
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Id. at 10.
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In re: Sentence, Dec. 2, 2008, Transcript at 2 (hereinafter “Sentence at __”).
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Id.
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here is really the fact that the prior record is a RFEL”… (Repeat Felony 1/Felony 2 Offender
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Category.) “You have had some serious offenses here.” Defendant replied that he understood
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that. The past crimes of kidnapping and robbery were discussed. The Senior Assistant
District Attorney advised the Court that the case would be eligible for the newly instituted
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Recidivism Risk Reduction Incentive program. As later research would reveal, this was
incorrect. The Senior Assistant District Attorney also stated: “It’s one of those unique
situations, he will do nine months in state versus a year in county. So our position is a standard
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range sentence.” The Defendant told this Court: “I would rather take the county sentence.”
The sentencing hearing concluded and this Court entered an order directing Defendant to
pay the costs of prosecution, restitution in the amount of $1,242.08 to the victim, and to undergo
incarceration in a State Correctional Institute for a period of not less than one year nor more than
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two years. The Defendant was given credit toward the sentence from July 4, 2008. This
Court included the Recidivism Risk Reduction Incentive sentence language which would have
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required a minimum of nine months. In conclusion, this Court noted that the sentence was a
standard range sentence.
After researching 44 Pa.C.S.A. § 5303, the Court found that Defendant was not eligible
for the Recidivism Risk Reduction Incentive sentence. This was because the Defendant’s current
offense, simple assault, was a personal injury crime. Furthermore, Defendant had previously
been convicted of kidnapping and two separate robbery charges, which were also personal injury
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Id. at 3.
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Id.
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Id.
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Id. at 5-6.
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Id at 6.
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Id.
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Id.
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Id. at 7.
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Id.
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Id.
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crimes. For this reason, on December 3, 2008, this Court issued an Amended Order striking
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the last sentence of the order of December 2, 2008.
On December 12, 2008, Defendant filed a Motion to Modify Sentence. In summary, the
basis for the motion was that the Defendant felt that the Court had intended for the Defendant to
receive only a 9 month sentence, that a mitigated range sentence was warranted in that the case
only involved “one punch” by the Defendant, and the Court did not state a specific reason for
requiring the Defendant to serve his sentence in a state correctional institute. The Motion was
denied on December 17, 2008. This Court stated that the sentence given to the Defendant was a
standard range sentence under the sentencing guidelines, that the Defendant had a prior record
score of RFEL, and that the Defendant, in fact, committed this simple assault while on parole for
a robbery committed in New York.
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Defendant filed a Notice of Appeal on January 12, 2009. On the same day, this Court
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ordered Defendant to file a concise statement of matters complained of on appeal. Defendant
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filed his statement on February 2, 2009. This opinion supports this Court’s denial of
Defendant’s Post-Sentence Motion.
DISCUSSION
I. Standard of Review
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth
v. Fullin, 892 A.2d 843, 847, (Pa. Super. 2006), Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa. Super. 1999). An error of judgment does not establish an abuse of discretion. Id. “Rather,
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Id. at 5-6.
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Id.
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Notice of Appeal, filed Jan. 12, 2009.
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Order of Court, filed Jan. 12, 2009.
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Concise Statement of the Errors Complained of on Appeal, filed Feb. 2, 2009.
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the appellant must establish, by reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.” Id. Judges are given wide discretion in matters of
sentencing.
In Commonwealth v. Monahan, the Court stated: “in fashioning [a] sentence, a judge is
obligated ‘to follow the general principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative needs of the
Defendant.’” Commonwealth v. Monahan, 860 A.2d 180, 184 (Pa. Super. 2004), citing 42 Pa.
C.S. § 9721. One reason why lower courts are given broad discretion in sentencing is that trial
courts are in the best position to determine the proper penalty for a particular offense.
Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002), citing Commonwealth v. Ward, 568
A.2d 1242, 1243 (Pa.1990).
In order to prove abuse of discretion, a Defendant must show that the sentence imposed
by the Court exceeded statutory limits or was manifestly excessive. Commonwealth v. Martin,
611 A.2d 731, 735 (Pa. Super. 1992). To challenge the discretionary aspect of a sentence, a
Defendant must convince the appellate court that there exists a substantial question of
appropriateness under the sentencing code. See 42 Pa. C.S. § 9781(b).
II. Defendant’s Sentence was not Excessive.
In reviewing the Defendant’s “Concise Statement of the Errors Complained of on
Appeal,” it must be noted that in essence the Defendant’s only claim of error is that “1. the
sentence of the court to 1 – 2 years in a state correctional institution was excessive…” The
Defendant claims that the sentence was excessive for the following reasons:
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(a) Defendant pled guilty to simple assault on November 10, 2008;
(b) Defendant pled open;
(c) Defendant was informed by the Court during the plea that the statutory maximum
sentence range for simple assault (M2) is 12 to 24 months;
(d) Defendant was told by the Court that he would have to do the first 12 months before
he was eligible for parole;
(e) Defendant was told by the Court in a “county” range sentence, if he behaved, some
time would be taken off his sentencing, and , if he did not behave, he could stay in jail all the
way up to 2 years;
A review of both the guilty plea colloquy hearing and the sentencing hearing reveal that
the above stated items (a) through (e) were, in fact, true. Unfortunately, for the Defendant, these
items in no way establish that the Defendant’s sentence was excessive. The fact that a Defendant
enters a guilty plea does not guarantee that a Defendant will get a sentence less than the standard
range required by the Pennsylvania Sentencing Guidelines. Substantial discussion of this point
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took place on the record at the November 10 hearing. While the Defendant was going to “try
for better than [12 months], “it was communicated to the Defendant that ultimately he would just
be “taking [his chances].”
When the Court received the Defendant’s pre-sentence investigation, the parameters of
this sentence changed dramatically. The Defendant pled guilty to simple assault, a misdemeanor
of the second degree which carries a maximum penalty of 2 years imprisonment. The
Defendant’s prior record score was RFEL and the offense gravity score for simple assault was 3.
The Pennsylvania Sentencing Guidelines therefore only provided for a standard range sentence
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of 12 to 12. In short, the Defendant’s prior record dictated that he receive the maximum
minimum sentence allowed by the law which was one year.
The Court did not consider this assault to be a mitigated case even though the Defendant
maintained that it was only one punch. The victim suffered injuries and had restitution in the
amount of $1,242.08. Clearly, this was not an insubstantial sum. As noted in the victim’s
impact statement attached to the pre-sentence investigation, he had to have six stitches to the
right side of his nose, has a permanent scar and had a hairline fracture to his skull which caused
constant headaches and nosebleeds. Based on these facts a mitigated range sentence was not
warranted.
Furthermore, as noted in the Court’s order denying the Defendant’s Motion for
Reconsideration of Sentence, the Defendant committed this crime while he was on parole for a
felony robbery conviction in the state of New York for which he was sentenced on February 28,
2006, to 18 months to 3 years.
III. Defendant’s Sentence to a State Correctional Institution was not Error.
Again, reviewing the Defendant’s Concise Statement of Error Complained of on Appeal,
paragraph (f) appears to raise the issue that it was error to sentence the Defendant to a state
correctional institution and not a county prison. In examining the basic sentencing matrix
contained in Section 303.16 of the Pennsylvania Sentencing Guidelines, it must be noted that the
charge of simple assault is listed as a Level 2 offense with an offense gravity score of 3.
However, because the Defendant has a prior record score of RFEL, the recommended sentence
minimum level is 12 months and the matrix notes that such a sentence is in the yellow shaded
portion of the matrix indicating state incarceration.
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A convicted individual has no Constitutional or other inherent right to serve his
imprisonment in any particular institution or type of institution. Commonwealth v. Fullin, 892
A.2d 843 (Pa. Super. 2006). It has been stated that a Court should consider the difference
between the state and county prison environment in choosing a sentence for an individual. The
Courts have noted that this policy is based on the idea that a person sentenced to “simple
imprisonment” should serve his sentence in a county jail and not a state penitentiary because
such a person “who is rarely in trouble, should not be subjected to imprisonment with persons
guilty of serious misdemeanors or felonies. Commonwealth v. Stalnaker, 545 A2.d 886 at 889
(Pa. Super. 1988).
One need only examine Defendant’s prior record contained in the pre-sentence
investigation to quickly come to the conclusion that this Defendant was not a person who was
rarely in trouble. He had no less than 10 prior convictions for crimes including felony
kidnapping and felony robbery. As previously stated, the Defendant committed this simple
assault while on parole for a felony 1 robbery in New York. This Defendant received a sentence
of 1 ½ years to 4 ½ years in 1995 for robbery, 2 years to 4 years for theft in 2000, and 1 ½ years
to 3 years for robbery in 2006. Under the policy enunciated above in Stalnaker, it was this
Court’s obligation to ensure that the prisoners currently held in Cumberland County Prison were
not subject to being in prison with this person who has had serious misdemeanor and felony
convictions.
CONCLUSION
The sentence of the Defendant to a period of incarceration in a state correctional institute
for a period of not less than 12 nor more than 24 months was not excessive. It was a standard
range sentence within both the statutory limits of the Sentencing Code and the Pennsylvania
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Sentencing Guidelines. Clearly, Defendant’s prior record score of RFEL dictated that this
sentence be served in a state correctional institution. Defendant’s sentence was not excessive
and did not constitute an error of law or an abuse of discretion.
By the Court,
M.L. Ebert, Jr. J.
John Dailey, Esquire
Senior Assistant District Attorney
John M. Shugars, Esquire
Senior Assistant Public Defender
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