J-S29014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KELSEY ANN TUNSTALL

                            Appellant                No. 1185 WDA 2014


             Appeal from the Judgment of Sentence March 18, 2014
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001610-2013
                                          CP-11-CR-0001914-2013


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JUNE 30, 2015

        Appellant, Kelsey Ann Tunstall, appeals from the judgment of sentence

entered on March 18, 2014, after pleading guilty to aggravated assault by

motor vehicle while driving under the influence (“AA-DUI”)1 as well as to the

unrelated crime of receiving stolen property2 and other charges not relevant

to this appeal. Tunstall contends the sentencing judge erred in imposing

terms of imprisonment in the aggravated range of the sentencing guidelines

for the two separate, consecutive terms of imprisonment. As we conclude

that the sentencing court failed to disclose in open court the reasons for the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3735.1.
2
    18 Pa.C.S.A. § 3925.
J-S29014-15



sentence for receiving stolen property, we vacate the judgment of sentence

and remand for resentencing.

      On May 17, 2013, Tunstall was driving her parents’ SUV with her

infant daughter as a passenger. Around 1:30 p.m., Tunstall veered into the

wrong lane of traffic and struck Troy Jordan, who was riding a motorcycle.

The impact catastrophically injured Jordan. His lower spine was crushed and

fractured and he was permanently paralyzed from the waist down. Jordan

was 41, married, and the father of two teenage girls. When Tunstall finally

exited her vehicle, officers noticed she “had a staggered gait, slurred

speech, and needed assistance walking at the scene.” N.T., Guilty Plea,

1/30/14, at 7. Tunstall later tested positive for Alprazolam and Methadone.

See Id. Tunstall is a drug addict. She has been battling her addiction for

roughly ten years and has “multiple convictions” for the same. N.T.,

Sentencing, 3/18/14, at 18. In July, 2013 a criminal complaint was filed

charging Tunstall with AA-DUI, among other offenses.

      While free on bail, Tunstall stole a ring and money from a motor home.

The police immediately arrested her at a mall attempting to pawn the ring,

at which time Tunstall admitted to the crime and was charged. Failing to

post bail, Tunstall was placed in jail and has been incarcerated ever since.

      Tunstall eventually accepted a plea bargain and pled guilty to AA-DUI

as well as to the unrelated crime of receiving stolen property and other

charges not relevant.




                                     -2-
J-S29014-15



     At the sentencing hearing, the Commonwealth presented testimony

from both Jordan and his wife, Debra. Debra spoke of the devastating effects

of the crash. Jordan’s paralysis has caused substantial hardship upon their

family, including their two children, forcing their extended family to help

because she is legally blind. See N.T., Sentencing, 3/18/14, at 9-11. Jordan

related that he was no longer able to work as a welder and provide for his

family. See id., at 14-15.

     Following the Jordans’ testimony, the court indicated its intention to

sentence Tunstall in the aggravated range. The court imposed a sentence of

36 to 72 months’ imprisonment for AA-DUI and a consecutive term of 4 to

12 months’ imprisonment for receiving stolen property. Tunstall’s final

aggregated sentence was 40 to 84 months’ imprisonment.

     Tunstall filed a timely post-sentence motion, arguing that the court

relied upon improper factors in sentencing her in the aggravated range. She

claimed that the principal reasons that the court relied upon—the injury to

Jordan and her drug use—were already contemplated in the offense gravity

score for AA-DUI. Further, Tunstall challenged the sentence for receiving

stolen property, noting that the court provided no justification for the

departure from the standard sentencing range. After hearing argument, the

court declined any modification. This timely appeal followed.

     On appeal, Tunstall argues that the sentencing court abused its

discretion in imposing two sentences outside the standard range guidelines.

This claim challenges the discretionary aspects of Tunstall’s sentence. “A

                                    -3-
J-S29014-15



challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004) (citation omitted).

     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
     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).

Commonwealth v. Moury, 992 A.2d 12, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

     Here, Tunstall challenged her sentence in a post-sentence motion and

filed a timely appeal. Tunstall’s appellate brief also contains the requisite

Rule 2119(f) concise statement. See Appellant’s Brief, at 11. We must now

determine whether Tunstall’s challenge to the discretionary aspects of her

sentence raises a substantial question.

     “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,



                                     -4-
J-S29014-15


107 A.3d 127, 132 (Pa. Super. 2014) (citation omitted). “[W]e cannot look

beyond the statement of questions presented and the prefatory 2119(f)

statement    to   determine    whether     a   substantial   question   exists.”

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation

omitted).

      Here, Tunstall claims in her Rule 2119(f) statement that “because the

sentencing court imposed an aggravated sentence, there exists a substantial

question for merits review of the discretionary aspects of sentence for both

issues.” Appellant’s Brief, at 11. Tunstall further claims “the sentencing court

relied upon impermissible factors in its sentence for AA-DUI … [and] the

sentencing court violated the norms of sentencing by failing to state any

reason for its departure for its sentence of Receiving Stolen Property.” Id. A

claim that a sentencing court imposed a sentence outside the standard

guidelines without stating adequate reasons on the record presents a

substantial question. See Commonwealth v. Antidormi, 84 A.3d 736, 759

(Pa. Super. 2014) (citation omitted). Therefore, we conclude that Tunstall

has presented a substantial question.

      Both issues raised in this appeal challenge the imposition of terms of

imprisonment in the aggravated range of the sentencing guidelines. For such

challenges, the following standard of review has been set forth.

      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 judgement.

                                     -5-
J-S29014-15


        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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).

        It is well-established that Pennsylvania has an indeterminate guided

sentencing scheme. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1117

(Pa. 2007). The sentencing judge is required to consider the sentencing

guidelines that have been adopted by the Legislature. See 42 Pa.C.S.A. §

9721(b). It is recognized however that the sentencing guidelines are purely

advisory in nature and are merely one factor among many that the court

must consider in imposing a sentence. See Yuhasz, 923 A.2d at 1118. “[A]

trial court judge has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at

1275.

        In her first claim, Tunstall claims the sentencing court relied upon

impermissible factors in its sentence for AA-DUI. She raises the valid point

that it is impermissible for a court to consider factors already included within

the sentencing guidelines as the sole reason for increasing a sentence into

the aggravated range. See Commonwealth v. Simpson, 829 A.2d 334,

339 (Pa. Super. 2003). While this is a correct statement, Tunstall overlooks

the fact that the purported illegal reason for deviation must be the sole

                                      -6-
J-S29014-15


reason. See id. Sentencing courts are permitted to use factors already

included in the guidelines if they are used to supplement other extraneous

sentencing information. See id. The sentencing court listed a myriad of

reasons for opting for the aggravated range sentence including the crime’s

impact on the victim’s life and family in consideration of his permanent

paraplegia, Tunstall’s intoxicated operation of a motor vehicle while notably

traveling with and caring for her infant child, her multiple current convictions

for drug usage, her ten year history of drug abuse, and her prior failed drug

rehabilitation. See N.T., Guilty Plea, 3/13/14, at 18.

      It could be argued that some parts of the numerous reasons given are

contemplated in the elements of the sentencing guidelines. However, they

are plainly not the sole reason for departure and thus taken in the aggregate

were appropriate considerations for sentencing in the aggravated range for

the charge of AA-DUI. We therefore conclude Tunstall’s first issue on appeal

is without merit.

      Tunstall next alleges that the sentencing court failed to state any

justification for the departure into the aggravated range for her sentence for

receiving stolen property. We agree.

      It is simply not clear from the record that the reasons the sentencing

court relied upon for aggravation of her sentence applied to any charge

outside those arising directly from the accident with Jordan. The sentencing

court stated its intention to sentence Tunstall in the aggravated range after


                                     -7-
J-S29014-15


hearing testimony from the Jordans, the victims of the AA-DUI charge. See

N.T., Sentencing, 3/18/14, at 18. The charge for receiving stolen property

was unrelated to the AA-DUI charge and involved a separate victim who was

not at all mentioned by the sentencing court. Further, after listing its other

reasons, the sentencing judge makes note that “[a] lesser sentence would

depreciate the seriousness of the crime of aggravated assault by a motor

vehicle while under the influence of drugs.” Id. It is clear from this

statement that the reasons supplied were meant to apply to the charges

arising from the accident.

      The Commonwealth asserts that Tunstall’s inability to properly treat

her drug addiction was the impetus for all of her charges, and therefore

could apply to the receiving stolen property charge. See Appellee’s Brief, at

5. They further acknowledge that another “obvious reason” for aggravation

of this sentence is the fact that she committed the theft to fund her drug

habit after the accident that destroyed Jordan’s spinal column. Id. at 5-6.

This would have been an appropriate consideration for sentencing in the

aggravated range—had it been stated on the record. See 42 Pa.C.S.A. §

9721(b) (“the court shall make as a part of the record, and disclose in open

court at the time of the sentencing, a statement of the reason or reasons for

the sentence imposed”). But it was not. And as the Commonwealth

concedes, the sentencing court did not acknowledge this during sentencing.

See Appellee’s Brief, at 5.


                                    -8-
J-S29014-15


      As a result of the sentencing court failing to follow the proper

procedure under the Sentencing Code, we must vacate the sentence.

      If vacating the sentence disturbs the overall sentencing scheme of the

sentencing court, we must remand so the court can restructure its sentence

plan. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

On the other hand, if the decision does not alter the overall scheme, there is

no need for a remand. See id. We have little doubt we have upset the

sentencing scheme. Accordingly, we vacate the judgment of sentence and

remand.

      Judgement of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




                                    -9-
