Commonwealth v. J.P.
| Decision Date | 25 July 2013 |
| Docket Number | J-S46018-13,No. 1855 EDA 2012,1855 EDA 2012 |
| Parties | COMMONWEALTH OF PENNSYLVANIA Appellant v. J.P., Appellee |
| Court | Superior Court of Pennsylvania |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
The Commonwealth appeals from the judgment of sentence entered against J.P. ("Appellee") after she pled guilty to three counts of aggravated assault, three counts of unlawful restraint, and three counts of endangering the welfare of a child with regard to the minor victims, her grandchildren, B.P., Z.P. and Q.P.1 We vacate the judgment of sentence and remand for resentencing.
The pertinent facts were summarized at the guilty plea hearing as follows: On October 29, 2007, Lauren Adels, a social worker at the Department of Human Services, was assigned to investigate the children of R.P. ("Mother"), after a nurse from Temple Hospital reported that thechildren had not been seen for medical treatment for a long time. N.T., 3/19/12, at 55, 85. On October 29, 2007, Ms. Adels visited the home of Mother and encountered Appellee, who advised her that Mother was not home. Id. at 85-87. Ms. Adels returned the following day and upon entering the home, found B.P. and Z.P., six-year-old twin boys, confined in umbrella strollers and Q.P., a three-year-old girl, on a mattress on the living room floor. Id. at 86. The children were severely emaciated and unable to walk. Id. at 55-65, 85-89. Ms. Adels observed that the house was full of bags of trash, the stove did not work, the house contained no significant food, and there was no hot water in the home. The second floor contained bags piled to the ceiling in all of the rooms, and the walls were disintegrating due to water damage and mold. Black trash bags had been taped over the windows on the first floor to prevent a view into the interior. Id. at 85-89. The only food in the house consisted of a container of milk and a bag of cereal. Id. Mother and her children shared the one mattress on the living room floor, and Mother did not permit the children to leave the house. Id. at 67, 88. The children were removed from the home the following day. Id. at 89. When the children were removed from the house, they experienced a reaction from being exposed to light. Id. at 88.
T.D., who became the foster mother and then adoptive mother of the children, testified that when she assumed custody of the children, they could not walk, could not talk, were not toilet trained, and were severely underweight and malnourished. Id. at 27-30. B.P. and Z.P., the six-year-old boys, each weighed 31 pounds. Pre-Sentence Investigation Report, 5/7/12. B.P. and Z.P. slept in a "folded up" position with their bodies "bent directly in half", in a manner conforming to the shape of an umbrella stroller, to which they had been confined for extended periods. Id. at 31-48; Criminal Complaint, 10/20/2008. Their manner of movement consisted of "dragging" themselves across the floor. Id. at 32, 40. When they later learned to stand, as a result of intensive medical intervention, they maintained their bent posture. Id. at 31-33, 36-40. Both B.P. and Z.P. remained in diapers for up to a year and half after their removal from Mother's home. Id. at 42. Q.P.'s injuries were less severe. Id. at 45-46. Her posture, though bent, was not as severely malformed as her brothers'. Id. Once in T.D.'s care, the children gained weight, and with rigorous therapy, learned to talk, walk upright; they also began to attend school. Id. at 31-53.
Dr. Lauren Brennan, who reviewed the children's medical records, reported that the injuries, failure to thrive, and developmental delays of the children resulted from neglect, lack of care, failure to seek medical treatment, and social deprivation. Id. at 89-92. Dr. Brennan reported that the atrophy in the leg muscles of the children had occurred over a substantial period of time due to malnutrition and lack of use. Id. at 91. Neither B.P. nor Z.P. had seen a doctor in over two and a half years. In the four years prior to October, 2007, B.P. and Z.P. had gained less than five pounds. Id. at 92. Appellee, who is the children's maternal grandmother,lived at the residence, and cared for the children daily between 3 p.m. and 11 p.m. while Mother was at work. Id. at 93.
Appellee was subsequently arrested and charged with the aforementioned crimes. A non-jury trial commenced on March 19, 2012. However, in the course of trial, Appellee opted to enter a guilty plea.
Following a sentencing hearing on May 22, 2012, the trial court sentenced Appellee to 11½ to 23 months of house arrest, on each count, with the sentences to run concurrently, followed by 10 years of probation under the supervision of the mental health unit of the Department of Probation and Parole.
The Commonwealth filed a post-sentence motion for reconsideration, which the trial court denied on June 1, 2012. This appeal followed. Both the Commonwealth and the trial court have complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issue for our review:
Where [Appellee] was convicted of multiple counts of aggravated assault, unlawful restraint and endangering the welfare of children for her five years of unfathomable cruelty to three young children who sustained crushing injuries, was the imposition of an aggregate sentence of 11½ to 23 months of house arrest followed by probation manifestly unreasonable and illegal?
The Commonwealth asserts that the sentences imposed by the trial court were illegal, and, in the alternative, that the sentences constituted an abuse of the trial court's discretion. Commonwealth Brief at 20-36. We willfirst address the Commonwealth's claim that the aggregate sentence of 11½ to 23 months of house arrest was illegal.
Commonwealth v. Arest, 734 A.2d 910, 912 (Pa. Super. 1999). Commonwealth v. Griffith, 950 A.2d 324, 325 (Pa. Super. 2008) quoting Commonwealth v. Kinney, 777 A.2d 492, 494 (Pa. Super. 2001) (citations omitted).
Section 9721 of the Pennsylvania Sentencing Code sets forth general sentencing alternatives, and provides in pertinent part:
In this case, the trial court sentenced Appellee to house arrest. "House arrest or home confinement is a form of county intermediate punishment."2 Commonwealth v. Ruffin, 16 A.3d 537, 539 (Pa. Super. 2011).3 County intermediate punishment is a statutorily authorizedsentencing alternative pursuant to 42 Pa.C.S.A. § 9721(a)(6). Commonwealth v. Williams, 941 A.2d 14, 21 (Pa. Super. 2008) (en banc). However, only "eligible offenders" may benefit from county intermediate punishment. Section § 9802 of the County Intermediate Punishment Act defines "eligible offenders" as follows:
"Eligible offender." ... The term does not include ... an offender with a current conviction or a prior conviction within the past ten years for any of the following offenses:
***
18 Pa.C.S. § 2702 ().
42 Pa.C.S.A. § 9802 (emphasis added).
Thus, section 9802 clearly renders Appellee ineligible for a county intermediate punishment sentence of house arrest, because of her aggravated assault convictions. See Commonwealth v. DiMauro, 642 A.2d 507 (Pa. Super. 1994) (). The imposition of a sentence of house arrest upon Appellee, who was convicted of aggravated assault, was therefore illegal. We are therefore compelled to vacate the judgment of sentence and remand for resentencing. If we were to uphold the sentence imposed here, we would effectively alter the eligibility requirements for county intermediate punishment that are set forth in 18 Pa.C.S.A. § 9802. Id.
Furthermore, even if the sentence was legal, we agree with the Commonwealth that the trial court abused its sentencing discretion by unreasonably deviating from the sentencing guidelines. The Commonwealth argues the trial court failed to consider the gravity of the offense and the impact of the crime on the victims, and placed undue emphasis on Appellee's mental health in imposing a sentence well below the mitigated range of the sentencing guidelines. Commonwealth Brief at 15-19. As required by Pa.R.A.P. 2119(f), the Commonwealth has included in its brief a statement of reasons relied upon for allowance of appeal. Id. The Commonwealth's allegations raise a substantial question as to the appropriateness of Appellee's sentence, permitting us to review the sentence. Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999) (...
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