Commonwealth vs. Adley No. CP-38-CR-1117-2013

Crimes – Sentencing – Aggravated Assault – Endangering the Welfare of Children – Guidelines – Deviation – Consecutively or Concurrently – Abuse of Discretion – Post-Sentence Motions.

Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed absent an abuse of discretion.

The Sentencing Guidelines enumerate aggravating and mitigating circumstances, assign scores based on a defendant’s criminal record and based on the seriousness of the crime, and specify a range of punishments for each crime. The Sentencing Guidelines are not mandatory, however, so trial courts retain broad discretion in sentencing matters, and therefore, may sentence defendants outside of the suggested ranges.

After utilizing the guidelines as a proper starting point, the sentencing court may deviate from the suggested ranges, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.

When imposing sentence, the trial judge may determine, through an examination of the facts of a particular case, whether the defendant’s sentence will run consecutively or concurrently.

The sentencing judge’s discretion is abused when the sentence imposed represents not only an error of judgment, but is manifestly unreasonable, is a misapplication of the law or where the record shows that the action is a result of partiality, prejudice, bias, or ill will.

The Sentencing Guidelines provide that the sentencing court may not impose a sentence less than that required by a statutory mandatory minimum provision.

A person convicted of committing the crime of Aggravated Assault against a victim who is less than thirteen (13) years of age must receive a mandatory minimum sentence of five years.

The Court believed that it did not abuse its discretion in sentencing Defendant in the aggravated range on this charge. The Court based its decision to aggravate on this charge on Defendant’s total disregard of his parental duty to care for his child and to keep her from harm, his child’s total helplessness, and the severity of the injuries inflicted on her.

In the Court’s opinion, a separate punishment for each offense was warranted and consecutive sentences were not manifestly unreasonable under these circumstances.

Upon reflection, the Court did not believe that it abused its discretion in determining this sentence since Defendant abused a helpless victim, his own daughter, to the point where she suffered such severe injuries that she could have been paralyzed for her entire life. The child suffered extreme pain, was forced to undergo considerable medical treatment and was developmentally delayed as a result of Defendant’s actions. The Court stated that Defendant not only disregarded his parental duty to protect and keep his child from harm, but was the one who inflicted this suffering, knowing that his infant daughter was unable to seek help or point blame on him.

Defendant’s Post Sentence Motions. C.P. of Lebanon County, Criminal Division No. CP-38-CR-1117-2013.

Pier N. Hess, Esquire, for the Commonwealth

Kimberly A. Adams, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1117-2013

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT SCOTT ADLEY

ORDER OF COURT

AND NOW, this 3rd day of July, 2014, upon consideration of Defendant’s Post Sentence Motions, the Commonwealth’s Response thereto, and the Brief and Memorandum of Law submitted by the parties, it is hereby Ordered that said Motions are DENIED. Defendant is advised that he has thirty (30) days to appeal in writing to the Superior Court of Pennsylvania. If Defendant desires to appeal, the representation of Kimberly Adams, Esquire, shall continue to the conclusion of this matter.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

PIER N. HESS, ESQUIRE FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

KIMBERLY A. ADAMS, ESQUIRE FOR ROBERT ADLEY

FIRST ASSISTANT PUBLIC DEFENDER

OPINION, TYLWALK, P.J., JULY 3, 2014.

Defendant was charged with one count of Criminal Attempt/Criminal Homicide, one count of Aggravated Assault, one count of Endangering the Welfare of Children, and one count of Simple Assault for subjecting his four-month-old daughter, Cheyenne, to severe physical abuse from March 15 through July 23, 2013 while she was under his care. The Information indicated that Cheyenne suffered multiple injuries, including fractures of the vertebra, ribs and her lower extremities as a result of this abuse. On January 23, 2014, Defendant pled guilty pursuant to a negotiated plea agreement. Under the plea agreement, the charge of Criminal Attempt/Criminal Homicide would be nol prossed and he would enter an open plea on the remaining charges.

A Pre-Sentence Investigation Report was completed by the Lebanon County Probation Department Services and reviewed by the Court. Sentencing was held on February 26, 2014. At Sentencing, we stated the following:

I cannot think of a more innocent victim than a four month old child. The child that you – is immobile, a child that can’t speak, a child that can’t describe what happened to them. Again, I can’t think of a more horrific or despicable kind of offense where a parent victimizes a child.

The aspect of the age of the victim, obviously, is taken into account with regard to the mandatory five year minimum, but this was an open plea situation, and I have selected a sentence which I believe is appropriate based on all of the circumstances of this case.

I really viewed this, frankly, as a twofold kind of circumstance, not just the causing of the injury, the basis for the Aggravated Assault charge, but also that violation of a specific duty as a parent for their child.

You know, you frequently see people in the media who say they would lay down their life for their child or for their loved one, and that would be my expectation of people. If you have a child that’s in danger, you have a loved one that’s in danger, the thought isn’t for yourself it’s for that other person and what you can do to protect that other person from harm, not be the one that causes that harm.

So, I viewed these as two separate kind of things, and I think there’s a separate punishment that’s warranted for each of them.

(N.T. at 10-11)

We then imposed the following Sentence:

Count 1 – Criminal Attempt/Criminal Homicide – nol pros;

Count 2 – Aggravated Assault – SCI for 7 ½ to 15 years;

Count 3 – Endangering the Welfare of Children – SCI for 1 to 5 years,

to run consecutive to Count 2;

Count 4 – Simple Assault – merged with Count 2.

In addition to imposing fines and costs, we also directed that Defendant undergo a drug and alcohol evaluation and comply with any treatment recommendation, complete a program of parenting classes, and complete a program of anger management counseling.

Defendant has filed Post Sentence Motions challenging the discretionary aspect of his Sentence. He charges that the aggregate sentence of 8 ½ to 20 years was excessive and that we abused our discretion in imposing a Sentence in the aggravated range on the charge of Aggravated Assault. Defendant has filed a Memorandum of Law and the Commonwealth has filed a Brief and the matter is before us for resolution.

Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Adams, 760 A.2d 33 (Pa. Super. 2000). The Sentencing Guidelines enumerate aggravating and mitigating circumstances, assign scores based on a defendant’s criminal record and based on the seriousness of the crime, and specify a range of punishments for each crime. … The Sentencing Guidelines are not mandatory, however, so trial courts retain broad discretion in sentencing matters, and therefore, may sentence defendants outside of the suggested ranges. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). After utilizing the guidelines as a proper starting point, the sentencing court may deviate from the suggested ranges, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range. Commonwealth v. Warren, 2014 WL 309643 (Pa. Super. 2014).

When imposing sentence, the trial judge may determine, through an examination of the facts of a particular case, whether the defendant’s sentence will run consecutively or concurrently. Commonwealth v. Lilley, 978 A.2d 995 (Pa. Super. 2009). The sentencing judge’s discretion is abused when the sentence imposed represents not only an error of judgment, but is manifestly unreasonable, is a misapplication of the law or where the record shows that the action is a result of partiality, prejudice, bias, or ill will. Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005).

At Sentencing, Cheyenne’s mother spoke to the Court about the significant pain and suffering that Cheyenne had suffered from over twenty (20) different fractures and the developmental delays which had resulted from her injuries. (N.T. at 4-5) She explained that she had been directed to keep track of Cheyenne’s neurological development due to the fact that the child had suffered some brain mass loss from the abuse. (N.T. at 5) In addition, the Commonwealth noted that Cheyenne’s injuries were inflicted over the course of repetitive episodes of abuse and that Defendant had failed to take responsibility for his actions. (N.T. at 6)

Defendant apologized and did state that he took responsibility for his actions at Sentencing. (N.T. at 8) He explained that he was under the influence of alcohol at the time of one of the incidents. (N.T. at 8) He indicated that he wished to obtain his G.E.D., to learn a trade, and to make better choices for his three children in the future. (N.T. at 8)

Upon reflection, we do not believe that we abused our discretion in determining this sentence. Defendant abused a helpless victim, his own daughter, to the point where she suffered such severe injuries that she could have been paralyzed for her entire life. This innocent child suffered extreme pain, was forced to undergo considerable medical treatment and was developmentally delayed as a result of Defendant’s actions. Defendant not only disregarded his parental duty to protect and keep his child from harm, but was the one who inflicted this suffering, knowing that his infant daughter was unable to seek help or point blame on him. A separate punishment for each of these offenses was warranted and our decision to impose consecutive, rather than concurrent sentences was not manifestly unreasonable under these circumstances. In the face of such reprehensible behavior, we believe that this was simply a case of a punishment which fit the crime. It was based solely on Defendant’s own conduct and not on any partiality, prejudice, bias or ill will toward him.

Defendant also contends that we abused our discretion in imposing an aggravated sentence on the charge of Aggravated Assault. He complains that we improperly considered Cheyenne’s age as that fact was already accounted for by the mandatory minimum set by Section 9718 of the Sentencing Code.

Here, the Sentencing Guidelines called for a standard range of thirty-six (36) to fifty-four (54) months on a charge of Aggravated Assault. 204 Pa. Code §303.16. Section 303.9(h) of the Guidelines provides that the sentencing court may not impose a sentence less than that required by a statutory mandatory minimum provision. Pursuant to 42 Pa.C.S.A. §9718, a person convicted of committing the crime of Aggravated Assault against a victim who is less than thirteen (13) years of age must receive a mandatory minimum sentence of five years. 42 Pa.C.S.A. §9718(2).

We believe that we did not abuse our discretion in sentencing Defendant in the aggravated range on this charge. At Sentencing, we noted that Defendant’s prior record was minimal. (N.T. at 10) However, we further noted that, even with consideration of the standard range and the mandatory minimum, a significant sentence was warranted. (N.T. Sentencing 10-11)

We did consider the fact that Cheyenne’s age was taken into account by the five-year minimum sentence mandated by Section 9718 of the Sentencing Code and, as required, we stated on the record the basis for our deviation from the standard range. We based our decision to aggravate on this charge on Defendant’s total disregard of his parental duty to care for Cheyenne and to keep her from harm, Cheyenne’s total helplessness, and the severity of the injuries inflicted on her. We do not believe that our consideration of Cheyenne’s age was inappropriate. Although Section 9718 includes children under the age of thirteen (13), Cheyenne was so young that her age factored into her helplessness and susceptibility to injury and was a relevant consideration as to her inability to protect herself from Defendant’s actions, either verbally or physically. We believe that this was a proper consideration with regard to the degree of Defendant’s derogation of his parental duties. This was a grave offense which will undoubtedly impact the lives of Cheyenne and her family for many years to come. Cheyenne’s mother indicated that they may not know the full extent of her injuries for some time. This Sentence was necessary to protect Cheyenne, and possibly others, from Defendant. Defendant will not only be punished for this egregious conduct, but will also have the opportunity to participate in programs necessary to address various issues which may have contributed to his behavior.