J-S21011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAUREN O'CONNOR                            :
                                               :
                       Appellant               :   No. 879 WDA 2019

          Appeal from the Judgment of Sentence Entered April 4, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0014388-2016


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 08, 2020

        Lauren O’Connor appeals from the judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, following her convictions for

conspiracy to commit third-degree murder,1 carrying a firearm without a

license,2 and possession of drug paraphernalia.3        Upon careful review, we

affirm.

        The Honorable Beth A. Lazzara relied on the Commonwealth’s factual

recitation at O’Connor’s guilty plea hearing in summarizing the facts of the

case as follows:

        On or about August 22[,] 2016, [] Lauren O’Connor arranged to
        meet with Ryan Ramirez[.] O’Connor drove to Settlers Cabin
____________________________________________


1   18 Pa.C.S.A. §§ 903, 2502(c).

2   18 Pa.C.S.A. § 6106(a)(1).

3   35 P.S. § 780-113(a)(32).
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     Park, and [] Kristopher [] Lott got into the vehicle with Ramirez
     and O’Connor. Lott had never met Ramirez but had been
     romantically involved with O’Connor. Shortly into the drive[,] Lott
     [] physically assault[ed] Ramirez and brandished a firearm.

     O’Connor then drove to a PNC Bank in Burgettstown,
     Pennsylvania. [T]here was a Google search for [“]PNC Banks near
     me[”] [made from O’Connor’s cellular phone] and a surveillance
     video at the Burgettstown PNC Bank branch location [captured
     video of O’Connor’s actions at that location.]

     While at the PNC Bank, Lott accompanied Ramirez to an ATM and
     to a teller inside the bank to ensure that Ramirez emptied out his
     bank account and handed over the funds. [R]emaining in the
     parking lot, O’Connor is seen engaging in a discussion with Lott
     and Ramirez [] prior to [their entrance] into the bank [].

                                   ***

     Ultimately, withdrawals in the amount of $60 and $18 [] were
     completed and handed over to Lott. Following the event at PNC
     Bank, O’Connor and Lott drove Ramirez to a remote location
     outside of Burgettstown. [T]here, approximately 20 feet from the
     roadway, [] Kristopher Lott shot Ryan Ramirez in the forehead. []
     Further, the Commonwealth would have presented audio-
     recorded statements from [] O’Connor following the homicide in
     which she met with the police [for two separate interviews],
     handed over her cell phone and consented to searches of her
     home and vehicle.

     O’Connor took investigators to the scene of the homicide [and
     testified at Lott’s preliminary hearing].

                                    ***

     [Jean] Ott[, manager of Gander Mountain,] would have
     authenticated video captured before the homicide that showed
     O’Connor entering Gander Mountain [alone] and purchasing
     bullets compatible with the firearm that was used to murder
     Ramirez.

     [Following Ramirez’ murder,] Lott and O’Connor separated, as
     O’Connor went into her parents’ home alone. However, at no time
     did O’Connor contact the authorities as to the whereabouts or the
     death of Ryan Ramirez [when she was away from Kristopher Lott
     and in her parents’ home].1


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           1 The [italics] portion was added pursuant to defense
           counsel’s request at the hearing. []

        [Later that day], O’Connor and Lott re-joined outside of her
        [parent’s home. F]ollowing loitering complaints by neighbors, Lott
        and O’Connor were apprehended by Robinson Township Police [].
        They were [] in possession of a firearm inside a pink/peach canvas
        bag, which also contained numerous personal items belonging to
        O’Connor. [An] Allegheny County Medical Examiner Scientist
        [ballistically tested the firearm] and determined [it was] the
        weapon [] used in the murder of [] Ramirez. [A]lso [] in this
        pink/peach canvas bag [were] keys belonging to [] Ramirez[, and]
        his cell phone. []

Trial Court Opinion, 9/20/19, at 7-10 (italics in original).

        On January 10, 2019, O’Connor pled guilty to the above charges. On

April 4, 2019, the court sentenced O’Connor to twenty to forty years’

imprisonment for her conspiracy conviction.4 O’Connor filed a timely post-

sentence motion to modify sentence.            Following a hearing, the trial court

denied O’Connor’s motion. O’Connor filed a timely appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

        In this appeal, O’Connor raises the following claim for our review:

        Was the statutory maximum sentence imposed on [] O’Connor
        unreasonable, manifestly excessive, contrary to the dictates of the
        [S]entencing [C]ode, and an abuse of discretion in that: 1) the
        court failed to consider and apply all of the required sentencing
        factors under [42 Pa.C.S. §§ 9721(b) and 9725]; 2) the court
        focused exclusively on the seriousness of the crime, including the
        same factors which constituted the elements of the crime; and 3)
        the court did not engage in individualized sentencing?

Appellant’s Brief, at 6.

____________________________________________


4   O’Connor’s other convictions are not at issue in this appeal.

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      O’Connor’s claim raises a challenge to the discretionary aspects of her

sentence.    Such   challenges   are   not   entitled   to   review   as   of   right.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). In

Caldwell, we restated our four-part test for reaching the merits of challenges

to discretionary aspects of sentencing:

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a 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.

Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

      Here, O’Connor filed a timely notice of appeal and preserved the issue

in a post-sentence motion. She also included a statement of reasons to allow

an appeal to the discretionary aspects of her sentence pursuant to Rule

2119(f).    See Appellant’s Brief, at 19-24.    We must, therefore, determine

whether O’Connor raises a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code. See Caldwell, supra.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). “A defendant presents a substantial question when

he sets forth a plausible argument that the sentence violates a provision of

the sentencing code or is contrary to the fundamental norms of the sentencing

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process.” Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018)

(quoting Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)).

      O’Connor raises several claims in her 2119(f) statement:

      First, the lower court failed to state on-the-record, meaningful
      reasons that comport with the considerations required under 42
      Pa.C.S. §9721(b), for imposing the maximum allowable sentence.
      . . . In addition, the court relied on an impermissible, duplicative
      factor, that is, the seriousness of the offense, in particular, an
      element of the offense, which was already accounted for in
      calculating the sentencing guidelines. . . . [Finally,] although her
      sentence was within the statutory limits and the period of
      incarceration imposed fell within the standard range, the court
      failed to impose an individualized sentence tailored to her and the
      attendant facts of her case, contrary to the Sentencing Code.

Appellant’s Brief, at 19-24.

      We have previously held that a trial court’s failure “to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense, and the rehabilitative needs of [the] Appellant, as 42

Pa.C.S.A.   §    9721(b)       requires,”     raises   a   substantial   question.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012); see also

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (trial

court’s failure to sufficiently state reasons for sentence imposed raises

substantial question).   Also, a claim that the sentencing court relied on

impermissible factors by considering factors already included in the sentencing

guidelines raises a substantial question. Simpson, 829 A.2d at 338; see also

Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003) (claim that

sentence is excessive due to sentencing court’s reliance on impermissible

factors raises substantial question).

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       As an initial matter, for ease of consideration, we re-categorize

O’Connor’s three sub-claims into the following two:5        (1) the trial court’s

failure to consider all of the required sentencing factors, and (2) the trial

court’s consideration of impermissible factors. Each of these claims raises a

substantial question and permits us to review the merits of O’Connor’s appeal.

See Riggs, supra; see Simpson, supra.

       We recently restated our standard of review for excessive sentencing

claims as follows:

       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.

       Additionally, our review of the discretionary aspects of a sentence
       is confined by the statutory mandates of 42 Pa.C.S. §§
       9781(c) and (d). Subsection 9781(c) provides:

          The appellate court shall vacate the sentence and remand
          the case to the sentencing court with instructions if it finds:

                                          ***

          (2) the sentencing court sentenced within the sentencing
          guidelines but the case involves circumstances where the
          application of the guidelines would be clearly unreasonable;

                                          ***

____________________________________________


5 O’Connor’s third sub-claim, that the sentencing court did not engage in
individualized sentencing, is essentially the same claim as her first—that the
sentencing court did not consider the required sentencing factors. See
Appellant’s Brief, at 6; 19-24.

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         In all other cases the appellate court shall affirm the
         sentence imposed by the sentencing court.

      42 Pa.C.S. § 9781(c).

      In reviewing the record, we consider:

         (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).

Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014)

(internal citation omitted).

      Here, O’Connor concedes that her sentence falls within the sentencing

guidelines. See Appellant’s Brief, at 28. Therefore, she must demonstrate

that the application of the guidelines was clearly unreasonable.         See §

9781(c)(2); Raven, 97 A.3d at 1254.

      O’Connor claims that the sentencing court failed to consider the criteria

set forth in section 9721(b). Specifically, O’Connor notes that the sentencing

court failed to consider mitigating factors such as her prior record score of 0,

her position within her community, supportive witness impact statements

made on her behalf, her history of being the victim of multiple sexual assaults,

her Type 1 Diabetes diagnosis, the sudden death of a boyfriend, her history

of alcohol and drug abuse, her cooperation with law enforcement throughout




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the course of the Commonwealth’s investigation into Ramirez’ death, and the

control exerted over her by Lott. See Appellant’s Brief, at 39-40; 42-43.

     Contrary to O’Connor’s allegation, the sentencing court’s statements

prior to imposing its sentence demonstrate that the court did consider this

mitigating   information.   See   N.T.   Sentencing,   4/4/19,   at   126-30.

Additionally, at the sentencing hearing, the court noted it had read the pre-

sentence report twice prior to commencing the hearing. Id. at 5. We have

previously said that, “where [] the sentencing court had the benefit of a pre-

sentence investigation report, we can assume the sentencing court was aware

of relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotations omitted);

see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).                The

sentencing court also noted that it received the “Psychiatric Presentence

Evaluation” which was a separate document provided by O’Connor to the

court. See N.T. Sentencing, 4/4/19, at 4; 98. Moreover, the sentencing court

heard testimony from eleven witnesses, received twenty-four victim impact

letters, and heard testimony from O’Connor herself. Id. at 116; 119-22. At

the conclusion of the lengthy sentencing hearing, the court stated to

O’Connor:

     I understand that you are telling me that you have learned
     something in the time that you have been incarcerated so far. You
     certainly will have an additional amount of time to continue that
     learning journey, to hopefully stay clean, to hopefully get some


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      skills and things that when you come out, that this entire type of
      episode will never happen again. Good luck to you.

Id. at 133-34.

      Despite O’Connor’s claims to the contrary, the sentencing court was

aware of her background and took her individual characteristics into account.

The sentence of twenty to forty years’ of imprisonment was within the

standard range, albeit the statutory maximum, and the record reflects that

the sentencing court carefully considered all of the evidence presented at the

sentencing hearing. Id. at 124-34. Even so, “[t]he [sentencing] court is not

required to parrot the words of the Sentencing Code, stating every factor that

must be considered under [s]ection 9721(b) [so long as] the record as a whole

[] reflect[s] due consideration by the court of the statutory considerations.”

Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).

Consequently, there was no abuse of discretion, and the sentencing court did

not arrive at a clearly unreasonable decision. See Raven, supra; 42 Pa.C.S.

§ 9781(c)(2).

      Next, O’Connor claims the sentencing court relied upon impermissible

factors, leading to “double-counting.” Appellant’s Brief, at 40. O’Connor urges

that, pursuant to Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super.

2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006), and

Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000), “‘double-

counting’ of a sentencing factor to justify the imposition of a sentence where

that factor is already accounted for by the sentencing guidelines is an abuse

of discretion.” Appellant’s Brief, at 40.

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        First, O’Connor claims the sentencing court’s focus on the seriousness

of her offense caused the court to double-count the offense gravity score,

which is already accounted for within the guidelines.                   Second, she claims the

court focused on her complicity in the shooting, which is an element of the

crime of conspiracy, and therefore is already accounted for in the guidelines.

Although O’Connor correctly states the law on double-counting, Whitmore

and Goggins are inapplicable to the facts of her case because, instantly, there

was no double-counting.

        Whitmore and Goggins involved defendants sentenced in the

aggravated range of the guidelines. In Whitmore, we held that a trial court

committed       reversible     error   in double-counting           a    prior   conviction   by

considering it as the basis for imposing a statutory maximum sentence.

Whitmore, 860 A.2d at 1037-38.                  In Whitmore, the trial court initially

sentenced a defendant to what it believed was a statutory maximum sentence.

Upon discovering that the defendant’s prior record exposed him to a greater

maximum sentence, the trial judge reconsidered the sentence and amended

it to the true statutory maximum under the circumstances. In so doing, the

trial   court   stated,   “I    felt   that    five    to   [ten]       was   the   appropriate

sentence because that's what I thought was the maximum sentence. . . .

[Five to ten years’ imprisonment] was appropriate at that time because it was

the maximum. It sounds like Mr. Whitmore should go to jail for about fifty

years, quite frankly.”         Id. at 1037 (italics in original).             In reversing, we

observed that,

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     there is no indication of record that Whitmore’s prior conviction
     was not already factored into his prior record score under the
     sentencing guidelines. In fact, the record reveals that the
     Commonwealth was aware of Whitmore’s prior conviction and in
     accord with [the sentencing judge’s] recitation of the suggested
     standard range sentence.

Id. at 1038.

     In Goggins, we held that a trial court impermissibly doubled-counted

the defendant’s prior record when it sentenced him above the mandatory

minimum sentence because of that defendant’s prior record. Goggins, 748

A.2d at 732. In Goggins, we held that the trial court’s consideration of the

defendant’s “amenability to rehabilitation” amounted to reversible double-

counting because the legislature had already factored that consideration into

the mandatory minimum sentence under the applicable recidivist statute. Id.

     Here, the court sentenced O’Connor within the standard guideline range,

albeit at the top of that range—indeed, the statutory maximum sentence for

third-degree murder. Judge Lazzara found that the mitigating factors relied

upon by O’Connor failed to outweigh imposition of the standard range

sentence. N.T. Sentencing, 4/4/19, at 130 (“You made those choices and you

are responsible for those choices. And I find nothing mitigating about those

choices.”) (emphasis added). Although this sentence may appear harsh on

its face, in actuality, the Commonwealth allowed O’Connor to plead down to

third-degree murder instead of trying her for second-degree murder. N.T.

Post-Sentence Motion Hearing, 5/16/19, at 23. As a result of her plea to the

lesser offense, O’Connor received a significant reduction in the maximum



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allowable sentence from life without parole.6       Unlike the defendant in

Whitmore, O’Connor was not sentenced to the statutory maximum; here, a

standard-range sentence was the statutory maximum. Moreover, unlike the

defendant in Goggins, O’Connor was not sentenced under a recidivist statute

providing for mandatory minimum sentences. There is no evidence of any

double-counting in the record; thus, there was no abuse of discretion, and the

sentencing court did not arrive at a clearly unreasonable decision.      See

Raven, supra; 42 Pa.C.S. § 9781(c)(2).

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/08/2020




____________________________________________


6   See 18 Pa.C.S.A. § 1102.

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