J-A01002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

DARLENE RENEE NAKUTIS

                                                     No. 463 WDA 2016


         Appeal from the Judgment of Sentence October 28, 2015
             In the Court of Common Pleas of Greene County
           Criminal Division at No(s): CP-30-CR-0000165-2014


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 07, 2017

      The Commonwealth appeals from the judgment of sentence imposed

upon Appellee Darlene Renee Nakutis. We affirm.

      On April 28, 2014, Appellee was charged with burglary, simple assault,

harassment, criminal mischief, and conspiracy to commit aggravated

assault, burglary, simple assault, and criminal mischief. As the transcript of

the guilty plea is not contained in the record, we must rely upon the affidavit

of probable cause in outlining the basis for these charges. At approximately

2:30 a.m. on April 26, 2014, Edward Joseph Passamonte, Appellee, and

Appellee’s daughter entered the home of James and Charlotte Popielarcheck

on 105 Third Street, Jefferson, Pennsylvania.     Mr. and Mrs. Popielarcheck

and their thirty-two-year-old daughter Alexis were present.


* Retired Senior Judge assigned to the Superior Court.
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        Mrs. Popielarcheck was watching television when she heard the front

door open, and people walk into her home and yell for Alexis.                           Mrs.

Popielarcheck went to the front door, recognized Appellee, and asked the

three intruders to leave.         Appellee then “punched her in the face and

grabbed her hair.” Affidavit of Probable Cause, 4/28/14, at 2. When Mrs.

Popielarcheck screamed for help, Mr. Popielarcheck, who was sleeping in his

bedroom, awoke and came to his wife’s assistance.

        Passamonte    grabbed      Mr.    Popielarcheck      by   the    neck,    but   Mr.

Popielarcheck     fought   back.         Appellee   joined   in    the   attack   on    Mr.

Popielarcheck, jumping on top of him and punching him in the back of the

head.       Mr.   Popielarcheck    wrestled      Passamonte       to   the   ground,    but

Passamonte was able to “get up and punch [Mr. Popielarcheck] in the face.”

Id. at 1.

        In the meantime, Alexis entered the room, and a fight among Alexis,

Appellee, and Appellee’s daughter ensued. Mrs. Popielarcheck went outside

and summoned police.        Passamonte, Appellee, and her daughter fled the

house, entered a vehicle, and drove “through the yard as they left.” Id. at

1.   When police arrived, they discovered several items left at the scene,

including a cell phone with a picture of Appellee and Passamonte on the

front screen.

        On May 1, 2015, Appellee pled guilty to criminal trespass, conspiracy

to commit aggravated assault, conspiracy to commit criminal mischief, and

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criminal mischief.    Following entry of the guilty plea, a presentence report

was prepared and the matter proceeded to sentencing.                The applicable

guidelines were as follows: 1) restorative sanctions to one year in jail for

trespass; 2) twenty-two to thirty-six months imprisonment for conspiracy to

commit aggravated assault, and 3) restorative sanctions to nine months

incarceration for criminal mischief and conspiracy to commit criminal

mischief.     Since the nature of some of the crimes rendered Appellee

ineligible   for   Recidivism    Risk   Reduction    Incentive   (“RRRI”),   County

Intermediate       Punishment,    and   State   Intermediate     Punishment,    the

Commonwealth agreed to waive her ineligibility for those programs.             N.T.

Sentencing, 8/4/15, at 5.

      Appellee presented mitigation evidence. Bonnie Mercer was Appellee’s

neighbor, had known her for about twenty years, and reported the following.

Appellee attended a Baptist church in Clarksville. Ms. Mercer explained that

Appellee went to the Popielarcheck home because Alexis had punched

Appellee’s daughter in a bar just before the incident in question, and

Appellee thought her child was in danger.           Prior to this incident, Appellee

“has never been in trouble, she has always been a good neighbor.” Id. at 8.




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       Apryle Garbutt, Appellee’s daughter,1 reported the following. Appellee

watched her two children, a toddler and an infant, three or more days a

week. Appellee had always been there to help people in the community and

took one neighbor to the grocery store. Ms. Garbutt testified that Appellee

was “always helping somebody out, going to church functions and

everything. So she is a great woman.” Id. at 17.

       Debbie Ely had known Appellee for a long time. Appellee took Ms. Ely,

who had a stroke, into her home after Ms. Ely’s son ejected her from his

residence. Appellee made alterations to her home to accommodate Ms. Ely’s

physical disabilities, and was not charging rent while Ms. Ely looked for other

suitable housing.

       Appellee engaged in allocution and expressed a sincere apology to the

victims, who were in the courtroom. She explained that the Popielarchecks

had been their neighbors for a few months, and her actions were a reaction

to Alexis’ attack on Appellee’s daughter.

       After the Popielarchecks spoke, the sentencing court took the matter

under advisement, and imposed sentence on October 28, 2015. The court

indicated that it had been informed that Appellee “witnessed her daughter

____________________________________________


1
   It is unclear whether this daughter was the one who was involved in the
altercation. The name of Appellee’s daughter is not contained in the affidavit
of probable cause because neither of the Popielarchecks could identify her,
and police did not report what Alexis told them.



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being assaulted while they were out having dinner at a restaurant bar,” and

that the attack was spurred by this prior altercation.      N.T. Sentencing,

10/28/15, at 3.      It was Appellee’s daughter who opened the door to the

Popielarchecks’ home and began attacking Mrs. Popielarcheck.           Then,

Appellee “stepped in, for better or for worse, to try and – she intended to

break up the fight.” Id. at 4.2

       The sentencing court credited the mitigation witnesses that Appellee

had been a charitable woman who attended church and actively helped

others in the community. Prior to sentencing, Appellee completed both drug

and alcohol and anger management classes.         It noted that Appellee had

accepted responsibility for her actions and expressed remorse by pleading

guilty and apologizing for her actions. After the court accepted the district

attorney’s “waiver of any and all ineligibilities for sentence diversion

programs,” it found her eligible to serve a sentence of County Intermediate

Punishment. Id. at 19.            Appellee was sentenced to twenty days of

incarceration in the county jail followed by 710 days of supervised county

probation.



____________________________________________


2
    The sentencing court implicitly gave credence to Appellee’s version of
events. While we relied upon the affidavit of probable cause to recite the
facts of the crimes, that affidavit was the one-sided version proffered to
police by Mr. and Mrs. Popielarcheck.



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      The Commonwealth filed a timely post-sentence motion. That motion

was denied by operation of law on March 4, 2016, and this timely appeal

followed. The Commonwealth complied with the trial court’s directive to file

a Pa.R.A.P. 1925(b) statement preserving the issues presented on appeal.

The Commonwealth presents these issues:

      I. Did the court err in its imposition of a below-mitigated range,
      county intermediate punishment sentence which was not in
      accordance with the applicable statutory provisions?

      II. Did the court abuse its discretion by imposing a below-
      mitigated range, county intermediate punishment sentence for
      aggravated assault without providing valid supporting reasons?

Appellant’s brief at 4.

      As we recently observed in Commonwealth v. McLaine, 150 A.3d

70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to

the review of challenges to the discretionary aspects of a sentence as of

right.” Instead, to invoke our jurisdiction involving a challenge to the

discretionary aspects of a sentence, an appellant must satisfy the following

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, 42 Pa.C.S.A. § 9781(b).

Id.




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      Herein, the Commonwealth filed a timely appeal, and preserved its

contentions in a post-sentence motion and Pa.R.A.P. 1925(b) statement.

Additionally, it presented a Pa.R.A.P. 2119(f) statement in its brief.        See

Commonwealth’s brief at 16. It complains about the fact that the sentence

was below the guideline ranges. A position that the sentencing court failed

to justify a sentence that is not within the applicable guideline ranges raises

a   substantial   question.   McLaine,   supra.    We    thus   find   that   the

Commonwealth has properly invoked our jurisdiction, and we will address

the merits of the Commonwealth’s issues on appeal. We note that:

           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.

          When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the    defendant's   prior    criminal    record, age,   personal
      characteristics and potential for rehabilitation.

McLaine, supra at 75–76.

      The Commonwealth’s first position relates to whether a County

Intermediate Punishment sentence was appropriately imposed and whether

one actually was imposed. The first assertion appears to relate to Appellee’s

failure   to   meet the   eligibility requirements for   County Intermediate



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Punishment.         Commonwealth’s         brief   at    18.       However,   since   the

Commonwealth expressly waived those requirements and the sentencing

court accepted that waiver, we find this assertion meritless.

        The   Commonwealth        next    suggests      that   a   sentence   of   County

Intermediate Punishment was not actually imposed.                  Its argument on this

question is not a model of clarity, but it apparently believes that a County-

Intermediate-Punishment sentence was not levied because there was no

combination of programs and the court did not impose restorative

sanctions.3 Commonwealth’s brief at 19-22. The sentence in question was


____________________________________________


3
    The pertinent statute states:

        (a) Description.--County intermediate punishment program
        options shall include the following:

              (1) Restrictive intermediate punishments providing
              for the strict supervision of the offender, including
              programs that:

                     (i) house the offender full or part time;

                     (ii) significantly restrict the offender's
                     movement and monitor the offender's
                     compliance with the program; or

                     (iii) involve a combination of programs
                     that meet the standards set forth under
                     subparagraphs (i) and (ii).

              (2) When utilized in combination with restrictive
              intermediate punishments, restorative sanctions
(Footnote Continued Next Page)


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twenty days in jail followed by 710 days of supervision by the Greene

County Probation and Parole County Intermediate Punishment, which was a

total, flat sentence of two years supervision, in compliance with 42 Pa.C.S. §

9763 (When imposing county intermediate punishment, the court must

specify “the length of the term for which the defendant is to be in a county

intermediate punishment program.”).

      Moreover, Appellee’s movement was completely restricted for twenty

days since she was placed in jail, and she already completed a drug and

alcohol   rehabilitation     program      and    an   anger   management    program.

Additionally, a restorative sanction was levied in the form of 710 days of

probation.    Thus, there was a combination of programs imposed upon

Appellee, including jail, programs addressing anger management and drug

and alcohol issues, and supervised probation.                 We therefore reject the

Commonwealth’s first issue.
                       _______________________
(Footnote Continued)

             providing for nonconfinement sentencing options
             that:

                       (i) Are the least restrictive in terms of the
                       constraint of the offender's liberties.

                       (ii) Do not involve the housing of the
                       offender, either full or part time.

                       (iii) Focus on restoring the victim to pre-
                       offense status.

42 Pa.C.S. § 9804(a) (emphasis added).



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     The Commonwealth’s second contention on appeal challenges the

sentencing court’s decision to deviate from the guidelines.      A sentencing

court is permitted to deviate from the sentences recommended in the

guidelines, as they are merely advisory.      Commonwealth v. Walls, 926

A.2d 957 (Pa. 2007); McLaine, supra. When a court does sentence outside

the guidelines, it “must place on the record its reasons for the deviation.”

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009).

     The Superior Court’s standard of review of a deviation sentence was

extensively   analyzed   by   the   seminal    Supreme   Court   decision   in

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).            The Walls Court

stressed the deferential nature of our examination of any sentence, stating

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 961 (citation and quotation marks omitted).

It continued that the sentencing court is in a superior position than this

Court when deciding on an appropriate sentence because it observes the

defendant and his or her articulation of remorse or indifference.     “Simply

stated, the sentencing court sentences flesh-and-blood defendants and the

nuances of sentencing decisions are difficult to gauge from the cold

transcript used upon appellate review.” Id.

     Our Supreme Court noted that this Court’s ability to review a sentence

is constrained by 42 Pa.C.S. § 9781(c). That statute provides that we can

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vacate a sentence and remand for re-sentencing only if we find 1) that the

court intended to sentence within the guidelines but “applied the guidelines

erroneously;” 2) a sentence was imposed within the guidelines “but the case

involves circumstances where the application of the guidelines would be

clearly unreasonable;” or 3) “the sentencing court sentenced outside the

sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S. §

9781(c). “In all other cases the appellate court shall affirm the sentence

imposed by the sentencing court.” Id.

      Thus, in this case, we may reverse the sentence if it is “unreasonable.”

While the statute does not contain a definition of what renders a sentence

unreasonable, the Walls Court filled that gap, stating: “‘unreasonable’

commonly connotes a decision that is ‘irrational’ or not guided by sound

judgment.” Id. at 963. Our High Court admonished that the reversal of a

sentence on grounds of unreasonableness should “occur infrequently,

whether the sentence is above or below the guideline ranges, especially

when the unreasonableness inquiry is conducted using the proper standard

of review.” Id. (emphasis added).

      Our High Court concluded that this Court can find a sentence not

guided by sound judgment or irrational in only two situations.     First, it is

unreasonable if the sentencing court did not weigh the “general standards

applicable to sentencing found in Section 9721, i.e., the protection of the

public; the gravity of the offense in relation to the impact on the victim and

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the community; and the rehabilitative needs of the defendant. 42 Pa.C.S. §

9721(b).” Id. at 964; see 42 Pa.C.S. § 9721(b) (In determining whether to

impose a sentence of imprisonment, “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.).

      In the present case, the sentencing court had the benefit of a

presentence report and articulated that a sentence below the mitigated

range was warranted due to Appellee’s lack of a prior record, “her

willingness to institute change in her character by voluntarily completing

drug, alcohol and anger management classes, her roots in the community

and the pleas of family members dependent upon her.” Trial Court Opinion,

7/8/16, at (unnumbered page) 8. Since a presentence report was prepared,

the   court    is   deemed    to   have    weighed   the   §   9721(b)   factors.

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (when a court has a

presentence report we are required to presume that it weighed the pertinent

sentencing considerations).

      Second, we are allowed to reverse a departure sentence if it is

unreasonable under the guidelines provided by 42 Pa.C.S. § 9781(d):

              In reviewing the record the appellate court shall have
              regard for:



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            (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).

      We cannot conclude that the court’s stated reasons for its sentence

established that the sentence was irrational or not guided by sound

judgment. As to the nature and circumstances of the offense, as explained

by Appellee and accepted by the court, Appellee saw her daughter assaulted

and was reacting to that situation. The facts as set forth in the affidavit of

probable cause do not reveal that Alexis instigated an altercation and

provide only the version of events of the victims.    In analyzing Appellee’s

history and characteristics, she lacked a prior criminal history and was a

productive and charitable member of the community, attending church and

helping people who were in need. Appellee addressed issues that triggered

the behavior in question by completing anger management and alcohol and

drug programs.

      Moreover, the sentencing court observed and heard Appellee’s apology

at the first sentencing proceeding and credited her expression of sorrow. It

had the unique ability to ascertain whether her expressions of remorse were

heartfelt and whether she was entitled leniency. Additionally, it relied upon

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the aforementioned presentence investigation. The findings upon which the

sentence was based are supported by the record, and the guidelines, as

noted, are not mandatory.

      We are aware that the court relied upon Appellee’s lack of a criminal

history as justification for sentencing outside the guidelines, which is

improper since the prior record score, which reflects a defendant’s criminal

history, is already factored into the guidelines. Commonwealth v. Smith,

673 A.2d 893 (Pa. 1996) (lack of prior criminal history cannot be the sole

basis for sentencing below mitigated range because that consideration is

reflected in a defendant’s prior record score); Commonwealth v. Darden,

531 A.2d 1144, 1148–49 (Pa.Super. 1987) (“a sentencing court should not

sentence in the mitigated minimum range, the aggravated minimum range,

or outside the applicable guideline ranges based solely upon criterion already

incorporated into the guidelines”).

      However, the sentencing court also articulated other, valid reasons for

sentencing below the mitigated range.          Appellee was actively involved in

helping her community.      She took a person grocery shopping and was

housing another, disabled friend rent-free while she was homeless. Appellee

also helped care for her grandchildren, and regularly attended church and

engaged in activities there.   Finally, she expressed sincere remorse at her

actions. Since the sentencing court articulated that the basis for sentencing

Appellee in the mitigated range rested not just upon her lack of a prior

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criminal history but also upon other permissible sentencing factors that were

sound and guided by reason, we must affirm.      Smith, supra (while court

erroneously relied upon lack of criminal history for departure sentence,

sentence must be affirmed since it was also premised upon other, valid

considerations).

      Viewed through the lens of the factors outlined in § 9781(d), we

cannot conclude that the sentence herein was one of those rare ones that

can be termed unreasonable. As there was no abuse of discretion and the

sentence was neither irrational nor unguided by sound judgment, we must

affirm.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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