J-S15005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARBARA JEAN KRAUSE                        :
                                               :
                       Appellant               :   No. 933 WDA 2019

          Appeal from the Judgment of Sentence Entered April 22, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                        No(s): CP-17-CR-0000770-2018


BEFORE:       BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED APRIL 15, 2020

        Appellant, Barbara Jean Krause, appeals from the judgment of sentence

of an aggregate term of 7 to 40 years’ incarceration, imposed after she pled

guilty to 22 counts of misdemeanor and summary offenses, including

endangering the welfare of a child, simple assault, terroristic threats, and

recklessly endangering another person.             Appellant solely challenges the

discretionary aspects of her sentence. We affirm.

        The trial court summarized the facts and procedural history of this case,

as follows:

              The case at bar involves the pervasive and severe abuse by
        [Appellant] … against her six adopted children (LAK - sixteen years
        old; JLK - fifteen years old; MPK - fourteen years old; IDK -
        fourteen years old; RSK - thirteen years old; MJK - twelve years
        old) (“children”).1 The abuse occurred between 2011 and 2018.
        No trial was held, but [Appellant] entered an open plea of guilt
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S15005-20


     and accepted all the facts in the affidavit of probable cause as set
     forth below. [Appellant] and her husband regularly referred to
     their children as “niggers.” [A] paddle would be used to beat the
     children upon the buttocks until they bled through their
     underwear. [A] walking stick was used to beat the children on
     their heads, leaving lumps and knots. The children would be
     forced to do ‘Halfways,’ which involved standing against the wall
     with their knees bent for extensive periods of time. The children
     were malnourished and deprived of food for lengthy periods of
     time as punishment. A few of the children were fed only eggs and
     water for weeks as punishment. [Appellant] and her husband
     used the family dogs to bite the children as they were being
     punished, and many of the children still have scars from said
     abuse as the wounds went untreated. The children had their
     heads thrown into the wall. The children were additionally
     threatened with axes and guns. [Appellant] threatened one of the
     children that she would slit his throat with an ax[] while he was
     sleeping. [Appellant] threatened another child by placing the
     edge of an ax[] on his neck and telling him he would be shot. The
     youngest child, after calling the police about the abuse he
     received, was told by [Appellant] that she would shoot him if he
     touched the phone again. All six children slept in the same room,
     two of which had to sleep on the floor on one [half-]inch thick
     mattress. All of the children were homeschooled, and when
     examined at Geisinger Medical Center, it was determined that they
     were lacking in academics and [were] at least 1 [to] 2 years
     behind.
        1This [c]ourt notes that this is a companion case to that of
        Timothy Dean Krause, CP-17-CR-769-2018. [Mr. Krause
        also filed an appeal from his judgment of sentence, which is
        docketed at 931 WDA 2019.]

           On April 22, 2019, [Appellant] entered an Open Plea of Guilt,
     which provided the [s]entencing [c]ourt full discretion in
     determining sentencing, to one [c]ount of Endangering the
     Welfare of Children (Misdemeanor of the First Degree), one
     [c]ount of Conspiracy to Endanger the Welfare of Children
     (Misdemeanor of the First Degree), two counts of Simple Assault
     (Misdemeanor of the First Degree), two [c]ounts of Terroristic
     Threats (Misdemeanor of the First Degree), four counts of Simple
     Assault (Misdemeanor of the Second Degree), six counts of
     Recklessly Endangering Another Person (Misdemeanor of the
     Second Degree), and six counts of Harassment (Summary


                                    -2-
J-S15005-20


     Offense). The standard [sentencing guideline] range for
     Endangering the Welfare of a Child and Conspiracy to Endanger
     the Welfare of a Child is Restorative Sanctions [to] nine months[’
     incarceration]. The aggravated range is nine … [to] twelve
     months[’ incarceration]. The Probation [O]ffice recommended
     twelve … [to] forty-eight months[’ incarceration], consecutive for
     each charge. This [c]ourt agreed with the Probation [O]ffice’s
     recommendation. The standard [sentencing guideline] range for
     Simple Assault (Misdemeanor of the First Degree) is Restorative
     Sanctions [to] three months[’ incarceration]. The aggravated
     range is three … [to] six months[’ incarceration]. The Probation
     [O]ffice recommended six … [to] forty-eight months[’
     incarceration], consecutive.      This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Terroristic Threats (Misdemeanor of the First
     Degree) is Restorative Sanctions [to] one month [incarceration].
     The aggravated range is one … [to] four months[’ incarceration].
     The Probation [O]ffice recommended four … [to] twenty-four
     months[’ incarceration], consecutive. This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Simple Assault (Misdemeanor of the Second
     Degree) is Restorative Sanctions [to] one month [incarceration].
     The aggravated range is one … [to] four months[’ incarceration].
     The Probation [O]ffice recommended four … [to] twenty-four
     months[’ incarceration], consecutive. This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Recklessly Endangering Another Person is
     Restorative Sanctions to one month [incarceration].           The
     aggravated range is one … [to] four months[’ incarceration]. The
     Probation [O]ffice recommended four … [to] twenty-four months[’
     incarceration], consecutive.      This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The Harassment charge is
     a summary offense[,] so a $1.00 fine was imposed.

           At the original sentencing hearing, it was determined that
     [Appellant] had a prior record score of [zero]. Defense [c]ounsel
     argued that the [c]ourt should ignore the [Probation Office’s]
     recommendation and instead sentence [Appellant] within the
     standard range. To support this request, [d]efense [c]ounsel
     stated that there were previously aggravated charges, and those
     were dropped in negotiations during the guilty plea arrangement.
     The [c]ourt took this testimony under advisement, and
     subsequently [Appellant] was sentenced in accordance with what
     is enumerated above. In making its determination, this [c]ourt

                                   -3-
J-S15005-20


      listed the violation of the parent/child trust, the severity and
      nature of the charges, and the young ages of the victims as
      reasons for the imposition of the aggravated sentencing range.

             On May 21, 2019, a Post[-]Sentence Motion to Modify
      Sentence was heard before the [c]ourt. At that hearing, defense
      counsel argued the [sentences] were not individualized, not
      necessary to protect the public, did not address the rehabilitative
      needs of [Appellant], [were] not proportionate to [the] reasons
      stated for [sentencing in the] aggravated range, [constituted]
      essentially a life-term, and … that the reasons cited [by the court
      for imposing the sentences were already] incorporated in the
      sentencing guidelines.     The Commonwealth argued that the
      sentence was within the [guideline] range. Additionally, the
      Commonwealth argued that the actions by [Appellant] were a
      course of conduct that lasted seven years and targeted six
      children. The Assistant District Attorney (“ADA”) noted that this
      was not an isolated incident, and that the children had numerous
      scars from [Appellant’s] consistent conduct. The ADA further
      argued that due to the nature of the relationship between
      [Appellant] and the victims, as that of a [mother] and [her]
      children, this case involved the betrayal of trust. Finally, the ADA
      argued that Simple Assault could be proven with far less than
      [what] occurred in this case. Slapping a child in the face once
      would support a Simple Assault charge, but beating children until
      they bleed makes the nature and severity of these charges
      warrant the aggravated range in this case. Upon consideration of
      all the testimony and evidence, the Motion for Modification was
      denied.

Trial Court Opinion (TCO), 8/14/19, at 1-4.

      Appellant filed a timely notice of appeal, and she also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court filed its Rule 1925(a) opinion

on August 14, 2019.

      Herein, Appellant states two issues for our review:

      1. Did the [trial c]ourt fail to adequately consider the [s]entencing
      [g]uidelines when fashioning the sentence imposed?


                                      -4-
J-S15005-20


      2. Did the [trial c]ourt impose a sentence that is unreasonable and
      excessive under the circumstances of the case?

Appellant’s Brief at 4.

      Appellant’s issues are interrelated and, thus, we will address them

together.   Both of her claims implicate the discretionary aspects of her

sentence. We have explained:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] 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 [the]
         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.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
      the discretionary aspects of a sentence are generally waived if
      they are not raised at the sentencing hearing or in a motion to
      modify the sentence imposed. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
      exists “only when the appellant advances a colorable argument
      that the sentencing judge’s actions were either: (1) inconsistent
      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.




                                     -5-
J-S15005-20



Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Here, Appellant has satisfied the procedural prerequisites for raising and

preserving her discretionary-aspects-of-sentencing claims.        In her Rule

2119(f) statement, she contends that the court’s sentence is excessive in light

of the fact that she pled guilty to only misdemeanor charges, and that “the

trial court applied the sentencing guidelines in a formulistic manner by

sentencing to the maximum of the aggravated range of the sentencing

guidelines on each and every count.” Appellant’s Brief at 11. Appellant insists

that “[t]he combination of excessive consecutive sentencing and merely

formulistic consideration of the sentencing guidelines should be found to raise

a substantial question.” Id.

      We consider Appellant’s claims as constituting substantial questions for

our review.   See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.

Super. 2003) (en banc) (“[The a]ppellant’s claim that the court erred by

imposing an aggravated range sentence without consideration of mitigating

circumstances raises a substantial question.”). However, Appellant has not

demonstrated an abuse of discretion by the sentencing court. See Moury,

992 A.2d at 169 (“[T]he proper standard of review when considering whether

to affirm the sentencing court’s determination is an abuse of discretion.”)

(citation omitted). As this Court explained in Moury:

      [A]n abuse of discretion is more than a mere error of judgment;
      thus, a sentencing court will not have abused its discretion unless
      the record discloses that the judgment exercised was manifestly

                                     -6-
J-S15005-20


      unreasonable, or the result of partiality, prejudice, bias or ill-will.
      In more expansive terms, our Court recently offered: An abuse of
      discretion may not be found merely because an appellate court
      might have reached a different conclusion, but requires a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support so as to be clearly erroneous.

      The rationale behind such broad discretion and the concomitantly
      deferential standard of appellate review is 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 169-70 (citations omitted).

      Here, in explaining its rationale for imposing an aggravated range,

consecutive sentence, the trial court explained:

      [T]his [c]ourt looked at the sentencing guidelines for the standard
      range, and did not deem it appropriate for this individual case.
      The severity and nature of the abuse laid on these children
      weighed towards granting a sentence in the aggravated range.
      [Appellant] chose to adopt these six children and provide a home
      for them. With that choice[] comes responsibility, and [Appellant]
      abused that responsibility. She not only refused to adequately
      feed and educate her children, but she subjected them to
      incredible punishment and abuse. These children were threatened
      with deadly weapons, beaten until they bled, and [Appellant] did
      not even take them to have their wounds treated once the harm
      occurred. Additionally, these children were at impressionable and
      vulnerable ages. The youngest of the children was twelve years
      old.   Based on these considerations, this [c]ourt made its
      determination regarding sentencing, and [Appellant] has not met
      [her] burden of proving this [c]ourt abused its discretion.

                                       ***

      A. The sentences were individualized.

           It appears to this [c]ourt that the argument that the
      sentencing was not individualized results from an assumption that
      because [Appellant] and her husband both received the same




                                       -7-
J-S15005-20


       sentences, they could not have been individual[ized].[1] That is
       not the case. Here, a husband and wife, the parents of the six
       victim children, were charged with the same crimes. [Appellant]
       and her husband acted together to create the conditions and
       impose the punishments that ultimately resulted in their
       appearance before this [c]ourt. Additionally, when arguments
       were presented by defense counsel for [Appellant] and her
       husband, defense counsel referred to each other and incorporated
       each other’s statements into each[ other’s] own argument before
       this [c]ourt. This exemplifies how inter-connected these two
       [d]efendants are in this case. It naturally follows that the
       sentence[s] would reflect that. This [c]ourt individually examined
       and heard from each [d]efendant’s counsel, and based on that
       information, this [c]ourt chose to sentence [Appellant] and her
       husband with the same sentences.            Therefore, while the
       [Appellant’s] sentence was the same as her husband’s, this
       [c]ourt came to that decision after individual analysis of the facts
       before it and did not abuse its discretion.

       B. The sentence was necessary to protect the public.

              The nature and severity of these crimes shocked the
       conscience of this [c]ourt. These six children were brutalized. The
       crimes were violent and persisted for seven years. This [c]ourt
       determined that the aggravated sentences were appropriate to
       protect the public from these violent criminals and did not abuse
       its discretion.

       C. The sentence considered the rehabilitative needs of [Appellant].
____________________________________________


1 We note that Appellant now argues on appeal that her sentences were not
individualized because at each count, the court imposed the guidelines’
maximum, aggravated-range term. This claim was not explicitly raised in
Appellant’s Rule 1925(b) statement, and the trial court did not address it in
its opinion. Therefore, we deem this specific argument waived. Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). We
also deem waived Appellant’s claim, raised for the first time in her Argument
section, that the court improperly “considered the gravity of the more serious,
felony allegations which were withdrawn.” Appellant’s Brief at 14. This claim
was not raised in her post-sentence motion, Rule 1925(b) statement, or Rule
2119(f) statement. Therefore, it is waived.



                                           -8-
J-S15005-20


           There was minimal testimony provided to persuade this
     [c]ourt that [Appellant] would be able to rehabilitate herself.
     [Appellant] submitted to the [c]ourt one statement acknowledging
     her love of her children and a brief apology. This [c]ourt did not
     find that [Appellant] exhibited remorse for her actions, and the
     fact that not only would [Appellant] beat her children, but she
     would threaten them with deadly weapons, and refuse to seek
     treatment for their injuries, established to this [c]ourt that
     [Appellant] would need a significant amount of time incarcerated
     in order to be rehabilitated. Based on these factors, and the lack
     of any mitigating argument provided by defense counsel, this
     [c]ourt did not abuse its discretion.

     D. The sentence imposed was proportional to the charges, and the
     reasons cited are not incorporated into the guidelines.

           It is impermissible for a court to consider factors already
     included within the sentencing guidelines as the sole reason for
     increasing or decreasing a sentence to the aggravated or
     mitigated range. Commonwealth v. Simpson, 829 A.2d 334[,
     339] ([Pa. Super.] 2003) [(citation omitted)]. However, this
     [c]ourt is permitted to use factors already included in the
     guidelines if they are used to supplement other extraneous
     sentencing information. [Id.] at 340 [(citation omitted)]. Here,
     the young ages [of the victims], betrayal of parent/child trust, and
     nature and severity [of the offenses] are not considered in the
     sentencing guidelines, and therefore, this [c]ourt did not use
     factors already included. Even if the nature and severity were
     included [in the guidelines], the young ages and betrayal of
     parent/child trust are extraneous sentencing information that
     would supplement the factors already included in the guidelines.
     Therefore, this [c]ourt has not abused its discretion.

     E. The sentence is not essentially a life-term, and if it was, the
     violent nature of the crimes warranted the sentence[]

           [Appellant] is fifty-two years old. She was sentenced to
     seven [to] forty years of incarceration for her crimes. This would
     give [Appellant] the opportunity to be released on parole after
     seven years. Being released at fifty-nine years old is hardly a life
     sentence.

            Even if it is determined that this was essentially a life term,
     this [c]ourt has made clear that the nature and severity of these
     violent crimes warrants a lengthy sentence behind bars. While it
     is possible that [Appellant] could die behind bars, her age alone is

                                     -9-
J-S15005-20


      not a significant factor to warrant a lessened sentence. In
      [Commonwealth v. Dodge, 957 A.2d 1198 (Pa. 2008)], the
      Court held that imposition of a life sentence for nonviolent
      offenses with limited financial impact was clearly unreasonable.
      However, that is not the nature of this case. The crimes were
      violent and [were committed] against multiple victims. The
      sentences are additionally within the sentencing guidelines.
      Therefore, this [c]ourt did not abuse its discretion.

TCO at 5-10 (some citations omitted).

      Based on the court’s discussion, we discern no abuse of discretion in

Appellant’s sentence.     The court offered multiple reasons for imposing

consecutive,   aggravated-range       sentences   for   each   of   Appellant’s

misdemeanor offenses, and it clearly considered the requisite statutory

factors, the particular circumstances of this case, and the mitigating factors

of Appellant’s age and lack of a prior criminal record. The court determined

that a lengthy term of incarceration was warranted due to the gravity of

Appellant’s crimes, the need to protect the public from her violent criminal

propensities, and to best serve Appellant’s rehabilitative needs. We do not

agree with Appellant that her sentence of 7 to 40 years’ incarceration for her

7 years of violent abuse towards her six adopted children is excessive. The

court did not abuse its discretion.

      Judgment of sentence affirmed.




                                      - 10 -
J-S15005-20



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2020




                          - 11 -
