Commonwealth v. Tobin

• Decision Date: 01 April 2014
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Scott Charles TOBIN, Appellant.

89 A.3d 663

2014 PA Super 61

COMMONWEALTH of Pennsylvania, Appellee

v.Scott Charles TOBIN, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 18, 2014.

Filed April 1, 2014.

Deborah Albert–Heise, Tunkhannock, for appellant.

Jeffrey Mitchell, District Attorney, Tunkhannock, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, and FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Scott Charles Tobin appeals from the judgment of sentence of fifteen to sixty months incarceration imposed by the trial court after he pled guilty to possession with intent to deliver (“PWID”) marijuana. We vacate and remand for imposition of a Recidivism Risk Reduction Incentive (“RRRI”) minimum sentence.

The Commonwealth charged Appellant with PWID, conspiracy to commit PWID, possession of marijuana, possession of drug paraphernalia, and three counts each of corruption of minors, and recklessly endangering another person (“REAP”). After undergoing an oral colloquy, Appellant entered a guilty plea to the PWID charge only. Specifically, Appellant admitted to possessing with intent to deliver twenty marijuana plants. This was Appellant's first offense. As a result of the plea agreement, the Commonwealth withdrew the remaining charges. The court, after considering a pre-sentence investigation report, a sentencing memorandum filed by Appellant, and listening to Appellant, sentenced Appellant on March 13, 2013, to fifteen to sixty months incarceration.¹ Appellant filed a timely motion for modification, contending that his aggravated range sentence was improper. He averred that there were no facts in the record demonstrating that he was a threat to the public, or that the severity of the offense warranted an aggravated sentence. Appellant also challenged the court's reasoning that he committed the offense in the presence of his three children. According to Appellant, the record showed that his children were thriving and honor roll students. The sentencing court denied that motion, and this appeal ensued.

The court directed Appellant to file and serve a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal. Appellant's plea counsel withdrew and the court appointed present counsel. Substitute counsel requested and was granted an extension to file a concise statement. Appellant timely filed his concise statement, and the court authored its Pa.R.A.P. 1925(a) opinion. Therein, the court indicated that it sentenced Appellant in the aggravated range based on his lack of remorse and because he operated a sophisticated marijuana growing operation in the presence of his three children. The matter is now ripe for our review. Appellant presents two issues for this Court's consideration.

A. Whether the sentencing court abused its discretion by considering allegations which formed the basis of charges nolle prossed pursuant to Appellant's plea agreement as a factor justifying enhancing his sentence.

B. Whether the Appellant's sentence is illegal in that it violates his due process rights as embodied in the Fourteenth Amendment of the United States Constitution and Article

I § 9 of the Pennsylvania Constitution because his sentence was enhanced upon consideration of allegations which formed the basis of charges that were nolle prossed pursuant to his plea agreement.

Appellant's brief at 4.

Appellant's initial issue relates to the discretionary aspects of his sentence. This Court recently reiterated that, “[t]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Cartrette, 2013 PA Super 325, 83 A.3d 1030, 1042 ( en banc ). Instead, “an appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code.” Id. Further, to properly preserve such a claim for appellate review, the defendant must present the issue in either a post-sentence motion or raise the claim during the sentencing proceedings. Id. In addition, the defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.” Id.

Instantly, Appellant did not precisely level the issue made in his Pa.R.A.P.1925(b) statement or on appeal in his post-sentence motion. Nonetheless, a fair reading of his motion to modify could encompass his position. Accordingly, we find that Appellant adequately preserved his discretionary sentencing claim before the sentencing court. In addition, Appellant has included within his brief a Rule 2119(f) statement. Appellant submits that imposing a sentence in the aggravated range based on allegations that were nolle prossed presents a substantial question for review. According to Appellant, both Commonwealth v. Miller, 965 A.2d 276 (Pa.Super.2009), and Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super.2005), support his position that he has raised a substantial question. We agree, and proceed to the merits of his contention.

Appellant maintains that this case is governed by Stewart, supra. In Stewart, this Court concluded that “a manifest abuse of discretion exists when a sentence is enhanced due to charges that have been nolle prossed as part of a plea agreement, because notions of fundamental fairness are violated.” Id. at 593. Therein, the sentencing court stated at sentencing that the “sentence is in the aggravated range because two counts of IDSI.... have been nolle prossed as well as another count of statutory sexual assault.” Id. at 593 (quoting sentencing court) (emphasis in original). Since the trial court explicitly relied upon nolle prossed charges, and the record did not indicate what sentence the court would have imposed absent considering those charges, and the sentencing judge could no longer explain its sentence due to retirement, we vacated the sentence.

Concomitantly, Appellant distinguishes this case from Miller, supra. In that case, the defendant pled guilty to third-degree murder based on shooting the victim in the head. The court imposed a standard range sentence of fifteen to forty years incarceration. As part of the plea agreement, the Commonwealth withdrew charges of aggravated assault, arson, and tampering with evidence. The arson and tampering with evidence claims related to the burning of the victim's residence.

This Court found that,

[c]ontrary to [Miller's] assertion that the trial court improperly considered the charge of arson that was nolle prossed as part of the plea agreement, we do not find that the court's mere reference to the fact that the lives of firefighters and police were at risk due to [the victim's] residence being ablaze when these individuals arrived on the scene indicates that the court specifically considered the charge of arson and enhanced [Miller's] sentence based thereon.

Miller, supra at 280.

Appellant argues that the sentencing court did not merely reference the “allegations underpinning the nolle prossed counts of Corruption of Minors and Recklessly Endanger[ing] Another Person[.]” Appellant's brief at 15 (italics added). Rather, Appellant suggests that the “only cognizable reason for the enhancement was the presence of the Appellant's children in the home where he grew marijuana.” Appellant's brief at 15. In this respect, Appellant points out that the nature of the offense and risk to the community were incorporated into the standard guideline ranges. He adds that the sentencing court only belatedly referenced his lack of remorse in its opinion and did not place this reason on the record at sentencing.

The Commonwealth counters that the sentencing court's reference to Appellant's children's presence “is not a reference to a nolle prossed charge, but acquired from information in the pre-sentence investigation report.” Commonwealth's brief at 3. In its view, the sentencing court appropriately considered Appellant's lack of remorse, the safety of the public, and the presence of his children in the home where he was operating his marijuana growing business.

We note that the Stewart Court opined that, “The record before us reflects that the trial court considered many factors in imposing sentence. The court's reference to the counts that had been nolle prossed does not lead to the immediate conclusion that the trial court manifestly abused its discretion in imposing the sentence that it did.” Stewart, supra at 593. Despite this finding, the Stewart panel vacated the sentence because clarification by the sentencing court was not possible.

While it is apparent that Stewart precludes imposition of an enhanced sentence based solely on nolle prossed charges, here, the sentencing court did not reference the corruption of minors or REAP charges. Appellant maintains that this is a distinction without a difference since it implicitly was referring to these allegations; we cannot agree. As in Miller, we do not find reference to the children's presence indicates that the sentencing court was expressly considering the nolle prossed charges. That the children were present in the home along with the marijuana does not ipso facto mean that Appellant committed REAP or corruption of minors. Moreover, Appellant utilized his role as a good father to his children as mitigating evidence. The court, therefore, could consider Appellant's role as a father in determining whether to mitigate or aggravate his sentence. Consideration of the children being in Appellant's home was not improper.

Appellant's second claim is almost identical to his first except he labels it as an illegal sentencing claim. In this respect, he contends that his due process rights were violated by the court's alleged consideration of the nolle prossed charges. Appellant asserts that Superior Court precedent is ambiguous as to “whether a challenge to a sentence enhanced due to charges nolle prossed pursuant to a plea agreement sounds in ‘legality’ or ‘discretionary aspects [.]’ ” Appellant's brief at 19.

We reject Appellant's position that his constitutional...