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HomeMy WebLinkAboutCP-21-CR-0000351-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BILLIE JOE HOLDREN : CP-21-CR-0351-2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 10, 2010:-- Defendant appeals her sentence of 1 to 2 years in a state correctional institution on the grounds that the sentence is manifestly unreasonable and the result of prejudice, bias, or ill will. Specifically, she contends the court sentenced her harshly for the purpose of striking fear in another defendant in an unrelated case who was sentenced immediately before the Defendant. I. Standard of Review At the outset, it should be noted that Defendant is challenging a discretionary aspect of her sentence to which there is no absolute right of appeal. Commonwealth v. Garcia-Rivera, 983 A.2d 777, 779 (Pa. Super. 2009). Instead, her appeal amounts to a petition for permission to appeal that may be granted at the discretion of the Superior Court if it appears there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa. Code § 9781(b). II. Substantial Question A substantial question exists when the sentence imposed is: (1) inconsistent with a specific provision of the Sentencing Code or (2) contrary to CP-21-CR-0351-2010 the fundamental norms which underlie the sentencing process. Garcia-Rivera, 983 A.2d at 779. Defendant's concise statement of the errors complained of on appeal does not dispute that the length and nature of her sentence is within the guidelines range. She had a prior record score of 5 and an offense gravity score of 3, resulting in a standard guideline sentence of 6-16 months. At a sentencing level of 3, the court may impose a sentence of total confinement in a state facility. See 204 Pa. Code § 303.11(b)(3). Clearly, her state sentence of 1-2 years is within the guidelines and well below the aggravated range. Because her sentence is consistent with the Sentencing Code, Defendant must show that it is contrary to the fundamental norms underlying the sentencing process. Here, Defendant complains that her sentence: [W]as imposed by the Court expressly to set an example for and strike fear in another defendant in an unrelated case who was sentenced to probation immediately prior to the imposition of this sentence who, as she was leaving the courtroom, was told to have a seat and remain in the back of the courtroom to “watch this sentence” that was about to be imposed upon [D]efendant …. See Concise Statement of the Errors Complained of on Appeal at ¶2(a). In light of what went on during sentencing, Defendant accuses the court of demonstrating “partiality, prejudice, bias or ill will in the imposition of the sentence ….” Id. at ¶2(b). Judicial impartiality is undoubtedly a fundamental norm underlying the sentencing process and to impose a sentence for no other reason than prejudice, -2- CP-21-CR-0351-2010 bias, or ill will would violate that norm. See Commonwealth v. Spencer, 496 A.2d 1156 (Pa. Super. 1985). Here, the court submits that Defendant's sentence was a result of her lengthy criminal history and previous failed attempts at rehabilitation during county prison sentences. It was not the product of any bias or ill will. Further, the fact that Defendant's sentencing immediately followed the unrelated defendant's probationary sentence was merely serendipitous -- as counsel knows, it is the Assistant District Attorney and not the court who calls the cases. The court admits to seizing an opportunity for an object lesson for the unrelated defendant who notably lacked any prior record score. What the court emphatically did not do was punish Defendant more severely for the sake of that lesson. Although the appellate court may be satisfied with the fact that the sentence was eminently fair under the guidelines, we feel the need to elaborate briefly for the benefit of the Defendant, her counsel and perhaps other attorneys who have appeared before us during our brief tenure on the bench. However, to do so transparently and effectively necessitates a shift to the first person singular pronoun. I begin every sentencing analysis with a review of the guidelines. Barring a plea agreement, I start in the middle of the standard range and thoroughly examine the pre-sentence report for any reasons to increase or decrease the sentence while remaining in the standard range. I complete my preparation by drafting a chart of my own with a range of possibilities, which ultimately are -3- CP-21-CR-0351-2010 dependent on what I hear from counsel, the defendant, and, where applicable, the victim. In the matter sub judice, the only reason to reduce the Defendant’s term of imprisonment was the relatively minor nature of the offense. However, the combination of Defendant’s prior record, her periods of state and county incarceration, several failed attempts at rehabilitation, and the recommendation of the probation office, not to mention pending matters in Lycoming and Lancaster counties, all militated against a county sentence. Therefore, my “chart” for the Defendant was narrow – from 11½-23 months in the county to 1-2 years in the state. As the sentencing transcript reveals, my chief question was “why should I not send her to SCI?” Neither counsel nor the Defendant impressed upon me any valid reason to believe that the county would be able to assist the Defendant. Consequently, I resolved that a low-end state sentence was more appropriate than a high- end county sentence. More importantly, I can state unequivocally that the sentence would have been the same no matter who was in the courtroom. Practically, I believed that the previously sentenced defendant would be impacted by either sentence on my “chart.” Although my primary focus at sentencing is on the individual in the dock, I am aware that there is an audience behind the bar. I recognize that sentences are imposed in public for many reasons, and the impact on others should not be understated, but to make that the sole impetus for a particular sentence would not only grossly overstate the significance, but would also be a disservice to the -4- CP-21-CR-0351-2010 subject of the sentence. My first obligation is to get it right for the person being sentenced. I do not seek nor do I need to “set an example” of any defendant. For better or worse, defendants set an example on their own. Again, the Defendant’s sentence was based solely on her actions over the past 15 years and not on any “partiality, prejudice, bias or ill will.” Finally, all sentences, particularly those that include state incarceration, contain a deterrent component. The principle of deterrence is explicitly embraced by the Sentencing Code. The Code establishes, “a sentencing system with a primary focus on retribution, but one in which the recommendations allow for the fulfillment of other sentencing purposes including rehabilitation, deterrence, and incapacitation.” 204 Pa. Code § 303.11(a). Thus, a sentence that includes a deterrent purpose furthers rather than frustrates fundamental norms underlying the sentencing process. III. Conclusion For the aforementioned reasons, Defendant has failed to present a substantial question that her sentence is not appropriate under the Sentencing Code. Accordingly, the Superior Court should deny her petition for permission to appeal and affirm this court’s judgment of sentence. By the Court, Albert H. Masland, J. -5- CP-21-CR-0351-2010 Matthew P. Smith, Esquire Assistant District Attorney John M. Shugars, Esquire For Defendant :saa -6-