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HomeMy WebLinkAboutCP-21-CR-0931-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-931-2004 CHARGE: (1) SEXUAL ASSAULT (2) AGGRAVATED INDECENT ASSAULT (3) INDECENT ASSAULT (4) CORRUPTION OF MINORS AFFIANT: DET. RONALD EGOLF MATTHEW ROBERT OLIVER OTN: H925458-2 CONTEMPORANEOUS STATEMENT The above captioned matter comes before us at the direction of the Superior Court. On December 7, 2005, that Court vacated our earlier sentences in these matters and remanded the case for resentencing. We will resentence on all charges. We will follow the direction of the Superior Court that a separate sentence be entered with regard to each count. It is the sentence of the court on a count of sexual assault that necessitates the writing and filing of this contemporaneous memorandum. At our sentencing proceeding on October 12,2005, we sentenced the defendant "jointly and severally" on counts of sexual assault and aggravated indecent assault. This inartful sentence was imposed despite the vastly different sentencing guidelines between the two charges. This prompted the Superior Court, understandably, to conclude that I misunderstood the sentencing guidelines applicable to this case. Further confusion resulted from my suggestion, during the sentencing proceeding, that force was somehow a necessary component to the crime of sexual assault. We now make it clear that we understand the sentencing guidelines applicable to the count of sexual assault to be thirty-six to fifty-four months in the standard range and twenty-four to thirty-six months in the mitigated range. We understand that the sentence imposed is approximately fifty percent of the mitigated range sentence. We respect and accept the admonition of the Superior Court that it is not our role to question the wisdom of legislative guidelines and we acknowledge that sentencing guidelines serve the important purpose of promoting uniformity in sentencing across the Commonwealth. We have not meant, however, to depreciate the value of sentencing guidelines. This judge, in fact, is a firm proponent of sentencing guidelines. A review of my past sentences will reveal that only a tiny fraction of the sentences imposed deviate from those guidelines and, of those, as many were above the guidelines as below. Our courts have repeatedly observed that a judge may sentence outside the guidelines as long as the court places its reasons for deviation from the guidelines on the record. Com. v. Johnson, 666 A.2d 690 (Pa.Super. 1995) citing Com. v. Dutter, 617 A.2d 330 (Pa.Super. 1992); Com. v. Cornish, 589 A.2d 718 (Pa.Super. 1991); Com. v. Canfield, 639 A.2d 46 (Pa.Super. 1994); and Com. v. Clever, 576 A.2d 1108 (1990). Even if reasons are stated, the sentence of the trial court may still be vacated if it is found to be manifestly unreasonable. Com. v. Rodda, 723 A.2d 212 (Pa.Super. 1999). We do not believe that this sentence is unreasonable. When a sentencing court makes the decision to deviate from the sentencing guidelines, "it is especially important that the court consider all factors relevant to the determination of a proper sentence. . .. This means that a sentencing court must give consideration not only to the nature of the crime, but also to the individual character and circumstances of the offender. Com. v. Eby, 784 A.2d 204 (Pa.Super. 2001). 2 The victim in this case, who we will identify by his initials M.K., became acquainted with the defendant who worked at Sears. Mr. Oliver became something of a mentor to M.K. They were friendly despite the disparity in their ages. M.K. visited Mr. Oliver in his home and, eventually, spent the night where he slept on a couch. N.T. 36. There was initially no sexual activity nor overtures of any kind. Id Eventually, however, the two began to discuss the topic ofbi-sexuality. N.T. 38. On the night in question, M.K. again found himself at the defendant's home. They were watching movies. M.K. had stripped to his boxer shorts and covered himself with a light blanket. Sexual topics were again discussed. At one point, the defendant approached M.K., pulled down his boxer shorts and began to engage in oral sex. Mr. Oliver ceased this activity when M.K. made it clear that he did not want this to happen. On cross-examination, M.K. admitted that he and Mr. Oliver had discussed the topic ofbi-sexuality that evening and that he, M.K., had voluntarily stripped to his underwear. He also agreed that on a previous occasion he had testified that as soon as he had said "no," Mr. Oliver ceased his advances. There is no dispute that after this incident, M.K. remained at Oliver's home and, in fact, spent the rest of the night. The crime of sexual assault occurs when, inter alia, there is oral sexual contact without the consent of the victim. A sexual assault occurred in this case. There were, however, no threats of violence nor was a weapon used. This is not a case involving prolonged sexual activity with a person who was unconscious or otherwise incapable of consent. In fact, the indications are that the defendant did not appreciate the victim's nonconsent until it was stated. 3 We do not mean, by these observations, to minimize what happened. One would think, however, given the protestations surrounding our sentence that we had imposed no penalty at all. The sentence in this case, in fact, involves the maximum jail sentence allowed under the law which still retains parole authority in the Court of Common Pleas. This is not a situation where incarceration was minimal and where the defendant paid no debt to society. This is a case in which (as the Superior Court has noted) the "selection of an appropriate sentence is a vexing issue." See Superior Court Memorandum, Footnote 5. This is because of the unusual nature of the offense and, as we shall discuss, the attributes of the defendant. It would seem, therefore, to be a case particularly appropriate to the exercise of judicial discretion and a case where that discretion may involve a departure from guidelines. According to the presentence investigation, which we have made a part of the record, Mr. Oliver not only has no prior record score but has no prior record of any kind. He has been gainfully employed. In correspondence submitted with the presentence investigation report, he was described by acquaintances as a reliable worker, a kind man and a good friend, etc. Though separated from his wife, he has a daughter to whom he is, by all reports, extremely devoted. As can be seen by attached papers, he recently re-established his rights of partial custody. In the meantime, Mr. Oliver's therapist has opined that he poses no threat to the welfare and safety of his daughter "or any other minor for that matter." In preparation for resentencing in this case, we directed an updated presentence report. This would appear to be provided for in the law. In fact, one case has gone so far as to say that 4 when a sentence is vacated and the case remanded for resentencing (as is the case here), the "sentencing judge should start afresh." The mere attempt on the part of the sentencing judge to justify his original sentence does not satisfy the law. Com. v. Losch, 535 A.2d 115 (Pa.Super. 1987). Reimposing the judgment of sentence should not be a mechanical exercise. What is at stake in a sentencing decision is nothing less than the liberty of the individual and the safety of the public. If the trial judge ignores the defendant's conduct during the months preceding the final sentencing hearing, he may reach an inaccurate determination as to whether the defendant is a danger to society or is capable of being a productive and law abiding citizen. Id at 122. As noted in the updated presentence material, Mr. Oliver had no misconducts during his incarceration at the Cumberland County Prison. He successfully completed sex offender's class and has continued in a similar group on an outpatient basis. He has made all his scheduled parole appointments with the Cumberland County Probation Department. He has provided all necessary information to the Pennsylvania State Police for the purpose of Megan's Law. The updated sentence report contains the Special Offenders' Program AssessmentlEvaluation and Discharge Report. That report contains a lengthy explanation with respect to the commission of the underlying offense. The report concludes that Mr. Oliver does not pose a risk to re-offend. When this matter was remanded, we began anew a reflection on an appropriate sentence. Even after lengthy review, we have reached the same conclusion as before. We do not write merely to justify our earlier sentence but to indicate that, after two opportunities, 5 we reach the same result. The Superior Court has previously affirmed a trial court even where the same sentence was reimposed after remand. See Com. v. Jones, 640 A.2d 914 (Pa.Super. 1994). March 28, 2006 Kevin A. Hess, J. Jaime Keating, Esquire First Assistant District Attorney Karl Rominger, Esquire F or the Defendant :rlm 6