J-A01002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARLENE RENEE NAKUTIS
No. 463 WDA 2016
Appeal from the Judgment of Sentence October 28, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000165-2014
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 07, 2017
The Commonwealth appeals from the judgment of sentence imposed
upon Appellee Darlene Renee Nakutis. We affirm.
On April 28, 2014, Appellee was charged with burglary, simple assault,
harassment, criminal mischief, and conspiracy to commit aggravated
assault, burglary, simple assault, and criminal mischief. As the transcript of
the guilty plea is not contained in the record, we must rely upon the affidavit
of probable cause in outlining the basis for these charges. At approximately
2:30 a.m. on April 26, 2014, Edward Joseph Passamonte, Appellee, and
Appellee’s daughter entered the home of James and Charlotte Popielarcheck
on 105 Third Street, Jefferson, Pennsylvania. Mr. and Mrs. Popielarcheck
and their thirty-two-year-old daughter Alexis were present.
* Retired Senior Judge assigned to the Superior Court.
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Mrs. Popielarcheck was watching television when she heard the front
door open, and people walk into her home and yell for Alexis. Mrs.
Popielarcheck went to the front door, recognized Appellee, and asked the
three intruders to leave. Appellee then “punched her in the face and
grabbed her hair.” Affidavit of Probable Cause, 4/28/14, at 2. When Mrs.
Popielarcheck screamed for help, Mr. Popielarcheck, who was sleeping in his
bedroom, awoke and came to his wife’s assistance.
Passamonte grabbed Mr. Popielarcheck by the neck, but Mr.
Popielarcheck fought back. Appellee joined in the attack on Mr.
Popielarcheck, jumping on top of him and punching him in the back of the
head. Mr. Popielarcheck wrestled Passamonte to the ground, but
Passamonte was able to “get up and punch [Mr. Popielarcheck] in the face.”
Id. at 1.
In the meantime, Alexis entered the room, and a fight among Alexis,
Appellee, and Appellee’s daughter ensued. Mrs. Popielarcheck went outside
and summoned police. Passamonte, Appellee, and her daughter fled the
house, entered a vehicle, and drove “through the yard as they left.” Id. at
1. When police arrived, they discovered several items left at the scene,
including a cell phone with a picture of Appellee and Passamonte on the
front screen.
On May 1, 2015, Appellee pled guilty to criminal trespass, conspiracy
to commit aggravated assault, conspiracy to commit criminal mischief, and
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criminal mischief. Following entry of the guilty plea, a presentence report
was prepared and the matter proceeded to sentencing. The applicable
guidelines were as follows: 1) restorative sanctions to one year in jail for
trespass; 2) twenty-two to thirty-six months imprisonment for conspiracy to
commit aggravated assault, and 3) restorative sanctions to nine months
incarceration for criminal mischief and conspiracy to commit criminal
mischief. Since the nature of some of the crimes rendered Appellee
ineligible for Recidivism Risk Reduction Incentive (“RRRI”), County
Intermediate Punishment, and State Intermediate Punishment, the
Commonwealth agreed to waive her ineligibility for those programs. N.T.
Sentencing, 8/4/15, at 5.
Appellee presented mitigation evidence. Bonnie Mercer was Appellee’s
neighbor, had known her for about twenty years, and reported the following.
Appellee attended a Baptist church in Clarksville. Ms. Mercer explained that
Appellee went to the Popielarcheck home because Alexis had punched
Appellee’s daughter in a bar just before the incident in question, and
Appellee thought her child was in danger. Prior to this incident, Appellee
“has never been in trouble, she has always been a good neighbor.” Id. at 8.
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Apryle Garbutt, Appellee’s daughter,1 reported the following. Appellee
watched her two children, a toddler and an infant, three or more days a
week. Appellee had always been there to help people in the community and
took one neighbor to the grocery store. Ms. Garbutt testified that Appellee
was “always helping somebody out, going to church functions and
everything. So she is a great woman.” Id. at 17.
Debbie Ely had known Appellee for a long time. Appellee took Ms. Ely,
who had a stroke, into her home after Ms. Ely’s son ejected her from his
residence. Appellee made alterations to her home to accommodate Ms. Ely’s
physical disabilities, and was not charging rent while Ms. Ely looked for other
suitable housing.
Appellee engaged in allocution and expressed a sincere apology to the
victims, who were in the courtroom. She explained that the Popielarchecks
had been their neighbors for a few months, and her actions were a reaction
to Alexis’ attack on Appellee’s daughter.
After the Popielarchecks spoke, the sentencing court took the matter
under advisement, and imposed sentence on October 28, 2015. The court
indicated that it had been informed that Appellee “witnessed her daughter
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1
It is unclear whether this daughter was the one who was involved in the
altercation. The name of Appellee’s daughter is not contained in the affidavit
of probable cause because neither of the Popielarchecks could identify her,
and police did not report what Alexis told them.
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being assaulted while they were out having dinner at a restaurant bar,” and
that the attack was spurred by this prior altercation. N.T. Sentencing,
10/28/15, at 3. It was Appellee’s daughter who opened the door to the
Popielarchecks’ home and began attacking Mrs. Popielarcheck. Then,
Appellee “stepped in, for better or for worse, to try and – she intended to
break up the fight.” Id. at 4.2
The sentencing court credited the mitigation witnesses that Appellee
had been a charitable woman who attended church and actively helped
others in the community. Prior to sentencing, Appellee completed both drug
and alcohol and anger management classes. It noted that Appellee had
accepted responsibility for her actions and expressed remorse by pleading
guilty and apologizing for her actions. After the court accepted the district
attorney’s “waiver of any and all ineligibilities for sentence diversion
programs,” it found her eligible to serve a sentence of County Intermediate
Punishment. Id. at 19. Appellee was sentenced to twenty days of
incarceration in the county jail followed by 710 days of supervised county
probation.
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2
The sentencing court implicitly gave credence to Appellee’s version of
events. While we relied upon the affidavit of probable cause to recite the
facts of the crimes, that affidavit was the one-sided version proffered to
police by Mr. and Mrs. Popielarcheck.
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The Commonwealth filed a timely post-sentence motion. That motion
was denied by operation of law on March 4, 2016, and this timely appeal
followed. The Commonwealth complied with the trial court’s directive to file
a Pa.R.A.P. 1925(b) statement preserving the issues presented on appeal.
The Commonwealth presents these issues:
I. Did the court err in its imposition of a below-mitigated range,
county intermediate punishment sentence which was not in
accordance with the applicable statutory provisions?
II. Did the court abuse its discretion by imposing a below-
mitigated range, county intermediate punishment sentence for
aggravated assault without providing valid supporting reasons?
Appellant’s brief at 4.
As we recently observed in Commonwealth v. McLaine, 150 A.3d
70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to
the review of challenges to the discretionary aspects of a sentence as of
right.” Instead, to invoke our jurisdiction involving a challenge to the
discretionary aspects of a sentence, an appellant must satisfy the following
four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id.
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Herein, the Commonwealth filed a timely appeal, and preserved its
contentions in a post-sentence motion and Pa.R.A.P. 1925(b) statement.
Additionally, it presented a Pa.R.A.P. 2119(f) statement in its brief. See
Commonwealth’s brief at 16. It complains about the fact that the sentence
was below the guideline ranges. A position that the sentencing court failed
to justify a sentence that is not within the applicable guideline ranges raises
a substantial question. McLaine, supra. We thus find that the
Commonwealth has properly invoked our jurisdiction, and we will address
the merits of the Commonwealth’s issues on appeal. We note that:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, 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.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation.
McLaine, supra at 75–76.
The Commonwealth’s first position relates to whether a County
Intermediate Punishment sentence was appropriately imposed and whether
one actually was imposed. The first assertion appears to relate to Appellee’s
failure to meet the eligibility requirements for County Intermediate
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Punishment. Commonwealth’s brief at 18. However, since the
Commonwealth expressly waived those requirements and the sentencing
court accepted that waiver, we find this assertion meritless.
The Commonwealth next suggests that a sentence of County
Intermediate Punishment was not actually imposed. Its argument on this
question is not a model of clarity, but it apparently believes that a County-
Intermediate-Punishment sentence was not levied because there was no
combination of programs and the court did not impose restorative
sanctions.3 Commonwealth’s brief at 19-22. The sentence in question was
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3
The pertinent statute states:
(a) Description.--County intermediate punishment program
options shall include the following:
(1) Restrictive intermediate punishments providing
for the strict supervision of the offender, including
programs that:
(i) house the offender full or part time;
(ii) significantly restrict the offender's
movement and monitor the offender's
compliance with the program; or
(iii) involve a combination of programs
that meet the standards set forth under
subparagraphs (i) and (ii).
(2) When utilized in combination with restrictive
intermediate punishments, restorative sanctions
(Footnote Continued Next Page)
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twenty days in jail followed by 710 days of supervision by the Greene
County Probation and Parole County Intermediate Punishment, which was a
total, flat sentence of two years supervision, in compliance with 42 Pa.C.S. §
9763 (When imposing county intermediate punishment, the court must
specify “the length of the term for which the defendant is to be in a county
intermediate punishment program.”).
Moreover, Appellee’s movement was completely restricted for twenty
days since she was placed in jail, and she already completed a drug and
alcohol rehabilitation program and an anger management program.
Additionally, a restorative sanction was levied in the form of 710 days of
probation. Thus, there was a combination of programs imposed upon
Appellee, including jail, programs addressing anger management and drug
and alcohol issues, and supervised probation. We therefore reject the
Commonwealth’s first issue.
_______________________
(Footnote Continued)
providing for nonconfinement sentencing options
that:
(i) Are the least restrictive in terms of the
constraint of the offender's liberties.
(ii) Do not involve the housing of the
offender, either full or part time.
(iii) Focus on restoring the victim to pre-
offense status.
42 Pa.C.S. § 9804(a) (emphasis added).
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The Commonwealth’s second contention on appeal challenges the
sentencing court’s decision to deviate from the guidelines. A sentencing
court is permitted to deviate from the sentences recommended in the
guidelines, as they are merely advisory. Commonwealth v. Walls, 926
A.2d 957 (Pa. 2007); McLaine, supra. When a court does sentence outside
the guidelines, it “must place on the record its reasons for the deviation.”
Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009).
The Superior Court’s standard of review of a deviation sentence was
extensively analyzed by the seminal Supreme Court decision in
Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The Walls Court
stressed the deferential nature of our examination of any sentence, stating
that the “sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the individual
circumstances before it.” Id. at 961 (citation and quotation marks omitted).
It continued that the sentencing court is in a superior position than this
Court when deciding on an appropriate sentence because it observes the
defendant and his or her articulation of remorse or indifference. “Simply
stated, the sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review.” Id.
Our Supreme Court noted that this Court’s ability to review a sentence
is constrained by 42 Pa.C.S. § 9781(c). That statute provides that we can
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vacate a sentence and remand for re-sentencing only if we find 1) that the
court intended to sentence within the guidelines but “applied the guidelines
erroneously;” 2) a sentence was imposed within the guidelines “but the case
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.” 42 Pa.C.S. §
9781(c). “In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.” Id.
Thus, in this case, we may reverse the sentence if it is “unreasonable.”
While the statute does not contain a definition of what renders a sentence
unreasonable, the Walls Court filled that gap, stating: “‘unreasonable’
commonly connotes a decision that is ‘irrational’ or not guided by sound
judgment.” Id. at 963. Our High Court admonished that the reversal of a
sentence on grounds of unreasonableness should “occur infrequently,
whether the sentence is above or below the guideline ranges, especially
when the unreasonableness inquiry is conducted using the proper standard
of review.” Id. (emphasis added).
Our High Court concluded that this Court can find a sentence not
guided by sound judgment or irrational in only two situations. First, it is
unreasonable if the sentencing court did not weigh the “general standards
applicable to sentencing found in Section 9721, i.e., the protection of the
public; the gravity of the offense in relation to the impact on the victim and
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the community; and the rehabilitative needs of the defendant. 42 Pa.C.S. §
9721(b).” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to
impose a sentence of imprisonment, “the court shall 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.).
In the present case, the sentencing court had the benefit of a
presentence report and articulated that a sentence below the mitigated
range was warranted due to Appellee’s lack of a prior record, “her
willingness to institute change in her character by voluntarily completing
drug, alcohol and anger management classes, her roots in the community
and the pleas of family members dependent upon her.” Trial Court Opinion,
7/8/16, at (unnumbered page) 8. Since a presentence report was prepared,
the court is deemed to have weighed the § 9721(b) factors.
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (when a court has a
presentence report we are required to presume that it weighed the pertinent
sentencing considerations).
Second, we are allowed to reverse a departure sentence if it is
unreasonable under the guidelines provided by 42 Pa.C.S. § 9781(d):
In reviewing the record the appellate court shall have
regard for:
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(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
We cannot conclude that the court’s stated reasons for its sentence
established that the sentence was irrational or not guided by sound
judgment. As to the nature and circumstances of the offense, as explained
by Appellee and accepted by the court, Appellee saw her daughter assaulted
and was reacting to that situation. The facts as set forth in the affidavit of
probable cause do not reveal that Alexis instigated an altercation and
provide only the version of events of the victims. In analyzing Appellee’s
history and characteristics, she lacked a prior criminal history and was a
productive and charitable member of the community, attending church and
helping people who were in need. Appellee addressed issues that triggered
the behavior in question by completing anger management and alcohol and
drug programs.
Moreover, the sentencing court observed and heard Appellee’s apology
at the first sentencing proceeding and credited her expression of sorrow. It
had the unique ability to ascertain whether her expressions of remorse were
heartfelt and whether she was entitled leniency. Additionally, it relied upon
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the aforementioned presentence investigation. The findings upon which the
sentence was based are supported by the record, and the guidelines, as
noted, are not mandatory.
We are aware that the court relied upon Appellee’s lack of a criminal
history as justification for sentencing outside the guidelines, which is
improper since the prior record score, which reflects a defendant’s criminal
history, is already factored into the guidelines. Commonwealth v. Smith,
673 A.2d 893 (Pa. 1996) (lack of prior criminal history cannot be the sole
basis for sentencing below mitigated range because that consideration is
reflected in a defendant’s prior record score); Commonwealth v. Darden,
531 A.2d 1144, 1148–49 (Pa.Super. 1987) (“a sentencing court should not
sentence in the mitigated minimum range, the aggravated minimum range,
or outside the applicable guideline ranges based solely upon criterion already
incorporated into the guidelines”).
However, the sentencing court also articulated other, valid reasons for
sentencing below the mitigated range. Appellee was actively involved in
helping her community. She took a person grocery shopping and was
housing another, disabled friend rent-free while she was homeless. Appellee
also helped care for her grandchildren, and regularly attended church and
engaged in activities there. Finally, she expressed sincere remorse at her
actions. Since the sentencing court articulated that the basis for sentencing
Appellee in the mitigated range rested not just upon her lack of a prior
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criminal history but also upon other permissible sentencing factors that were
sound and guided by reason, we must affirm. Smith, supra (while court
erroneously relied upon lack of criminal history for departure sentence,
sentence must be affirmed since it was also premised upon other, valid
considerations).
Viewed through the lens of the factors outlined in § 9781(d), we
cannot conclude that the sentence herein was one of those rare ones that
can be termed unreasonable. As there was no abuse of discretion and the
sentence was neither irrational nor unguided by sound judgment, we must
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
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