Com. v. Hanson

• Decision Date: 23 August 2004
• Citation: 856 A.2d 1254
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory HANSON, Appellant.
• Court: Pennsylvania Superior Court

856 A.2d 1254

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory HANSON, Appellant.

Superior Court of Pennsylvania.

Argued June 23, 2004.

Filed August 23, 2004.

Victor E. Scomillio, Easton, for appellant.

Jacqueline M. Taschner, Asst. Dist. Atty., Easton, for Com., appellee.

BEFORE: HUDOCK, ORIE MELVIN and MONTEMURO¹, JJ.

OPINION BY MONTEMURO, J.:

¶ 1 Appellant Gregory Hanson appeals nunc pro tunc from the judgment of sentence of 15 to 36 months' imprisonment entered following his conviction of terroristic threats.²

¶ 2 On August 1, 2002, Appellant was involved in a domestic altercation with his then-girlfriend, Amber Kacsur-Hanson,³ during which he had refused to allow her to leave his residence and "had hit her in the mouth, arms, neck and bit her on the chest." (N.T., 12/6/02, at 9). Appellant permitted Kacsur-Hanson to leave only after her parents persuaded him to do so, and as she departed said to her, "if you call the police, I'll knock out all of your teeth, I'll cripple you. I may go to prison for it, but when I get out, I'll be able to walk, but you will still be a cripple." (Id. at 11). Appellant then jumped on Kacsur-Hanson's car several times, causing significant damage. He was arrested shortly thereafter.

¶ 3 In addition to the instant offense, the Commonwealth also initially charged Appellant with simple assault, false imprisonment, criminal mischief, and harassment. On August 28, 2002, Appellant filed a petition for writ of habeas corpus. A hearing was held on September 20th, during which he withdrew his petition and entered a plea of nolo contendere to the instant offense. The Commonwealth in return withdrew all of Appellant's other charges, but requested that his violent acts during the incident in question be incorporated in the factual basis for his plea, which the trial court permitted.

¶ 4 The court sentenced Appellant on December 6th. Ten days later, he filed a petition for reconsideration, which the court denied on January 10, 2003. Appellant did not file a direct appeal, but rather, on November 14, 2003, filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq., alleging that sentencing counsel was ineffective for failing to file a direct appeal and for failing to challenge his sentence as excessive. On December 12th, the court restored Appellant's direct appeal rights nunc pro tunc.⁴ This appeal followed.

¶ 5 Appellant's sole claim on appeal asserts that the trial court abused its discretion in imposing a sentence which was excessive in relation to his conviction. He cites Commonwealth v. McMullen, 365 Pa.Super. 556, 530 A.2d 450, 453 (1987), for the proposition that a sentence that does not comply with the appropriate guideline ranges must be vacated. Appellant points out that the sentencing guideline form provided that for his offense the minimum sentence in the aggravated range is 15 months' imprisonment, and asserts that the proper aggravated minimum sentence should have been "less than 15 months." (Appellant's Brief at 11) (emphasis added). Accordingly, he argues that the trial court applied an improper and excessive aggravated minimum sentence, and that, as such, his sentence should be vacated.

¶ 6 Appellant also cites Commonwealth v. Walls, 846 A.2d 152, 158 (Pa.Super.2004), for the proposition that when a sentencing court fails to apply the proper sentencing guideline recommendations regarding a particular offense, it must demonstrate that the circumstances underlying the offense are "compellingly different from [those of a] `typical' case" involving the same offense such that a deviation is warranted. He argues that the court sub judice failed to disclose an adequate factual basis for deviating from the standard range, as, he asserts, the circumstances of the underlying incident are those of a "typical case." (Appellant's Brief at 13). Appellant concedes that he committed egregiously violent acts at the time he threatened Kacsur-Hanson, but contends that these acts were "already considered in the grading of the offense and its computation in its offense gravity score," and did not make his case "compellingly different" from any other incident involving terroristic threats. (Id.).

¶ 7 Further, Appellant argues, inter alia, that the court erred in "penalizing [him] ... for not taking responsibility for conduct for which he was not entering a guilty plea, and penalizing [him] for failing to be remorseful" when the record demonstrates that he displayed remorse at sentencing. (Id.). Additionally, he asserts that the sentencing guideline form was defective in that it reported "total failure of rehabilitation" as the sole reason for departure from the standard range when that was not one of the reasons discussed by the trial court at sentencing. (Id. at 10).

¶ 8 Preliminarily, we note that Appellant's claims challenge the discretionary aspects of his sentence. As such, they are not appealable as of right; rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Appellant has satisfied this requirement by including in his brief a separate statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The Supreme Court of Pennsylvania stated in Tuladziecki that an appellate court will only review claims regarding sentencing if there is a "substantial question" that the sentence is not appropriate under the Sentencing Code. Under 42 Pa.C.S.A. § 9781(c)(3), a claim that "the sentencing court sentenced outside the sentencing guidelines," which Appellant has raised, presents such a substantial question. (Appellant's Brief at 17).

¶ 9 The matter of sentencing is vested within the sound discretion of the trial court; we only reverse the court's determination upon an abuse of discretion. Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.2003). To demonstrate that the trial court has abused its discretion, "the appellant must establish, by...