J-S93033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MARY WINBUSH,

                            Appellee                 No. 1792 EDA 2016


             Appeal from the Judgment of Sentence April 12, 2016
               in the Court of Common Pleas of Monroe County
              Criminal Division at No.: CP-45-CR-0000085-2015


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 06, 2017

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed on Appellee, Mary Winbush, following her entry of an open

guilty plea to involuntary manslaughter and two counts of possession of a

controlled substance (oxycodone and alprazolam).1          The Commonwealth

challenges the discretionary aspects of Appellee’s sentence. We affirm.

        We take the relevant facts and procedural history of this matter from

our independent review of the certified record.     This case arises from the

death of four-year-old J.D., Appellee’s granddaughter, while she was in

Appellee’s care.      J.D.’s parents had abandoned J.D. when she was two

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2504(a) and 35 P.S. § 780-113(a)(16), respectively.
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months old, and Appellee cared for her since that time.           Appellee did not

have medical insurance for J.D. In May of 2014, J.D. became seriously ill

with a fever and related symptoms.             Appellee obtained amoxicillin from a

neighbor in an effort to treat J.D. on her own, but J.D’s illness did not

resolve. On May 6, 2014, Appellee gave J.D. an adult dose of oxycodone,

which Appellee had no prescription for, and J.D. died of an overdose.

       On February 3, 2016, Appellee entered a guilty plea to the above-

referenced charges, and the trial court deferred sentencing for preparation

of a pre-sentence investigation report (PSI).          On April 12, 2016, the trial

court imposed a mitigated-range sentence of an aggregate term of not less

than six nor more than twenty-three months’ incarceration to be served in

the county correctional facility, followed by two years’ probation.

       On April 22, 2016, the Commonwealth filed a timely motion for

reconsideration of sentence.        At the June 6, 2016 hearing on the motion,

J.D.’s mother testified that she felt the sentence was too lenient because “it

was [Appellee’s] responsibility to take care of [J.D.] and [J.D. is] gone

because of her.” (N.T. Hearing, 6/06/16, at 8).2 At the conclusion of the

hearing, the trial court denied the motion. However, it added as a condition

of Appellee’s sentence that she complete the drug and alcohol program


____________________________________________


2
  J.D.’s mother did not appear at the sentencing hearing because she
believed that she could only speak on Appellee’s behalf at that time. (See
Trial Court Opinion, 8/04/16, at unnumbered page 3).



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offered at the county correctional facility prior to parole consideration,

because she had tested positive for opiates on the day of sentencing. 3 This

timely appeal followed.4

        The Commonwealth raises the following question for our review: “Did

the trial court abuse its discretion in sentencing the Appellee to [six] months

[of] incarceration for her causing the death of a four year old minor child in

her care after testing positive for opiates and despite the request of the

child’s mother for a lengthy jail sentence?” (Commonwealth’s Brief, at 5).5

        A challenge to the discretionary aspects of sentencing is not
        automatically reviewable as a matter of right. Prior to reviewing
        such a claim on its merits:

                      [W]e conduct a four part analysis to
               determine: (1) whether appellant has filed a timely
               notice of appeal; (2) whether the issue was properly
               preserved at sentencing or in a motion to reconsider
               and modify sentence; (3) whether appellant’s brief
               has a fatal defect; and (4) whether there is a
               substantial question that the sentence appealed from
               is not appropriate under the Sentencing Code.



____________________________________________


3
  Defense counsel indicated that Appellee had a prescription for the
medications she took near sentencing, but was unable to produce the
prescription at the time of the hearing. (See N.T. Hearing, 6/06/16, at 13-
14, 18).
4
   Pursuant to the trial court’s order, the Commonwealth timely filed a
concise statement of errors complained of on appeal on June 28, 2016. The
trial court entered an opinion on August 4, 2016. See Pa.R.A.P. 1925.
5
    Appellee did not file a brief.



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                  When appealing the discretionary aspects of a
            sentence, an appellant must invoke the appellate
            court’s jurisdiction by including in [her] brief a
            separate concise statement demonstrating that there
            is a substantial question as to the appropriateness of
            the sentence under the Sentencing Code . . . .

            See [] Pa.R.A.P. 2119(f).

Commonwealth v. Popielarcheck, 2016 WL 7103930, at *4 (Pa. Super.

filed Dec. 6, 2016) (case citation omitted).

      Instantly,   the   Commonwealth      complied     with    the   first   three

requirements by filing a timely notice of appeal, a motion for reconsideration

of sentence, and by including a separate Pa.R.A.P. 2119(f) statement in its

brief. See id.; (see also Commonwealth’s Brief, at 3).

      Regarding whether the Commonwealth raised a substantial question:
            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.          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.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)

(citation and quotation marks omitted).

      Here, the Commonwealth contends that the trial court imposed an

excessively lenient sentence at the lowest end of the mitigated sentencing

guideline range, and inappropriately deviated from the standard range,

without   providing   adequate   reasons   for   the   light   sentence.      (See

Commonwealth’s Brief, at 3, 17, 19, 21-22, 24). It argues that the court

failed to consider all of the relevant facts and circumstances of this case,

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including Appellee’s character, lack of rehabilitation or acceptance of

responsibility, and the serious gravity of the offense. (See id. at 19-20, 24-

25).    Because we conclude that the Commonwealth has presented a

substantial question for our review, we will address the merits of its

sentencing claim. See Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (finding Commonwealth’s claim that court abused its discretion

in imposing unwarranted lenient sentence without providing sufficient

reasons raised substantial question).

               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.

Commonwealth v. Solomon, 2016 WL 6900802, at *3 (Pa. Super. filed

Nov. 22, 2016) (citations omitted).

       In fashioning a defendant’s sentence, the court must “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.” 42 Pa.C.S.A. § 9721(b).

       We also note:

       . . . [W]here the sentencing judge had the benefit of a
       presentence investigation report, it will be presumed that he or
       she was aware of the relevant information regarding the
       defendant’s character and weighed those considerations along

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      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. The
      sentencing judge can satisfy the requirement that reasons for
      imposing sentence be placed on the record by indicating that he
      or she has been informed by the pre-sentencing report; thus
      properly considering and weighing all relevant factors.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009),

appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted).

      Here, at the sentencing hearing, several of Appellee’s family members

spoke passionately about her propensity for giving to others and for taking

in and helping to raise and financially support many children in the family.

(See N.T. Sentencing, 4/12/16, at 4-14, 24).     Appellee indicated that she

“[took] full responsibility for what happened to [J.D.],” whom she cared for

since J.D. was an infant, with no financial support from J.D.’s parents. (Id.

at 15). She stated: “I loved [J.D.] with my whole heart, and it was a tragic,

tragic—a big mistake on my part, and I take full responsibility[.]”      (Id.).

The Commonwealth acknowledged that this is a very difficult case, and that

Appellee did not intend to hurt J.D.    (See id. at 17).     It also stated its

position that a county sentence would be too light given that J.D. died as a

result of Appellee’s criminal conduct, emphasized Appellee’s drug addiction

and failure to seek timely treatment, and asked the court to impose a

sentence at the top end of the standard range. (See id. at 21-23).

      Before imposing Appellee’s sentence, the trial court indicated that it

had been involved in this case for a long time, and that it had considered all

of the information before it, including the PSI report. (See id. at 23). It

noted the numerous letters written by members of Appellee’s community

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detailing the support she provided to them during their lives, Appellee’s

struggle with opiate addiction, and the terrible mistake she made by giving

unprescribed medication to J.D., resulting in great loss. (See id. at 23-27).

The court explained its rationale for the sentence as follows:

            So now the question becomes, how do we hold [Appellee]
      accountable.   She’s before the [c]ourt, she pled guilty to
      involuntary manslaughter, it’s a felony charge, felony of the
      second degree. The offense gravity score is an eight. I do
      recognize that she has a prior record score of two. And that
      prior record score, I believe, a significant portion of that was
      earned back in around 1998 [for a drug-related conviction.] . . .

             And so I’m left to look at our sentencing guidelines [which]
      call for a period of incarceration in a state correctional
      institution. And I have to balance that against the loss here.
      And I have to consider [Appellee’s] rehabilitative needs, what if
      any retribution should be imposed. I do think that a straight
      probationary sentence would diminish the severity of this
      offense. I’ve given it some thought, and I don’t think that
      probation in this case is appropriate.

            However, on the other side of the coin, a lengthy period of
      incarceration in a state correctional institution doesn’t seem like
      it would be warranted at this time.

            So what I’m going to do, [Appellee], I’m going to consider
      the fact that you’ve lived an otherwise law-abiding life, you have
      helped others who I’ve heard from here in this courtroom, you
      have taken and accepted responsibility for your conduct. I’m
      going to impose a sentence in the county correctional facility in
      the mitigated range of six months. I’m going to impose—that
      will be a [six] to [twenty-three]-month sentence. I’m going to
      impose a consecutive period of probation. So you’re going to be
      under supervision for quite a while when you’re released on this
      case.

(Id. at 28-29).




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        At the hearing on the Commonwealth’s motion for reconsideration, the

court heard from J.D.’s mother, who requested a lengthier sentence, and

from counsel for both parties regarding Appellee’s positive drug screen.

(See N.T. Hearing, 6/06/16, at 3-17). The court stated that it had given the

Commonwealth’s motion a great deal of thought, that it had considered all of

the sentencing alternatives available to it, and that it did not think that

imposition of a state sentence was appropriate in this case. (See id. at 19).

However, it imposed, as a condition of Appellee’s sentence, her completion

of a drug and alcohol treatment program prior to parole consideration. (See

id.).

        Thus, the record reflects that the trial court was well aware of and

carefully considered all of the facts and circumstances of this case in

formulating its mitigated-range sentence.     The court provided extensive

reasons on the record for the sentence, detailed how it balanced the various

relevant factors, and had the benefit of a PSI report.        Based on the

foregoing, we conclude that the trial court did not abuse its discretion in

imposing Appellee’s sentence. See Solomon, supra at *3. Therefore, the

Commonwealth’s sole issue on appeal does not merit relief. Accordingly, we

affirm the judgment of sentence.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2017




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