Com. v. Mellinger, N. (memorandum)
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J-A14025-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. NICOLE LORETTA MELLINGER Appellant No. 1851 MDA 2013 Appeal from the Judgment of Sentence September 24, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005948-2012 BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED JULY 08, 2014 Appellant, Nicole Mellinger, appeals from the judgment of sentence entered on September 24, 2013, as made final by the denial of her postsentence motion on October 8, 2013. We affirm. The trial court aptly summarized the facts as follows: During the overnight hours from June 14, 2012 to June 15, 2012, Appellant possessed heroin. She received the heroin from [her] co-defendant Lindsay [K]arlin sidence in Derry Township, combination of the consumption of the heroin, Vicodin, and alcohol caused [Otto] to overdose. He became unconscious sometime during the early morning hours. Rather than seeking medical attention, Appellant researched on the computer how to deal with a heroin overdose. Eventually she called her sister [and cohelp her with trying to aid [Otto]. Again, they conducted research and tried home remedies. They finally called 9-1-1 at about 5:30 a.m. At that point, professionals tried to give medical treatment to [Otto], but he succumbed to * Retired Senior Judge assigned to the Superior Court. J-A14025-14 the overdose. . . . Appellant gave [S]ister the heroin to hide so the police would not find any drugs on her person. Trial Court Opinion, 12/10/13, at 3 (internal citations omitted). On June 25, 2013, Appellant pled guilty to unlawful delivery of a controlled substance,1 two counts of criminal conspiracy,2 unlawful possession of a controlled substance,3 criminal use of a communication facility,4 tampering with or fabricating physical evidence,5 and recklessly endangering another person.6 The trial court ordered a pre-sentence mber 24, 2013, the trial court sentenced Appellant to an aggregate term of one to two Appellant filed a post-sentence motion to modify sentence pursuant to Pennsylvania Rule of Criminal Procedure 720 on October 3, 2013. The trial court denied the post-sentence motion on October 8, 2013. This timely appeal followed.7 ____________________________________________ 1 35 P.S. § 780-113(a)(30). 2 18 Pa.C.S.A. § 903(c). 3 35 P.S. § 780-113(a)(16). 4 18 Pa.C.S.A. § 7512(a). 5 18 Pa.C.S.A. § 4910(1). 6 18 Pa.C.S.A. § 2705(a). 7 On October 17, 2013, the trial court ordered Appellant to file a concise See (Footnote Continued Next Page) -2- J-A14025-14 Appellant presents one issue for our review: Whether the trial court abused its discretion in sentencing Appellant to an aggregate sentence of one to two years of incarceration and a consecutive probationary period of five years where the [trial] court focused exclusively on the seriousness of circumstances, relevant history, and rehabilitative needs[?] failed to take into consideration mitigating factors and only focused on the severi challenges the discretionary aspects of her sentence. See Commonwealth v. Disalvo judge, and a sentence will not be disturbed on appeal absent a manifest Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (citation omitted). As Appellant was sentenced within the case involves circumstances where the application of the guidelines would be clearly .C.S.A. § 9781(c)(2); see Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). (Footnote Continued) _______________________ Pa.R.A.P. 1925(b). Appellant filed her concise statement on October 29, 2013. The trial court issued its Rule 1925(a) opinion on December 10, statement. -3- J-A14025-14 Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of her sentence. § 9781(b). See 42 Pa.C.S.A. Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of her sentence. Id. As this Court has explained: To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. 720; 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation omitted). Appellant filed a timely notice of appeal and properly preserved the issue for our review in her postcontains a statement pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). We now turn to whether the appeal presents a substantial question. actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing proc Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013), appeal denied issue raises a substantial question is to be evaluated on a case-by-case -4- J-A14025-14 Id. 119(f) statement alleges that the sentence: (2) was contrary to the norms of sentencing because the trial court focused exclusively on the seriousness of the crimes; (3) was flawed because the trial court failed to consider the required sentencing criteria; and (4) was disproportionate when considered in light of her coId. A claim that sentence was manifestly excessive presents a substantial Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010), appeal denied 14 A.3d 825 (Pa. 2011) (citation omitted) (A hat there is] an unexplained disparity between h[er] sentence and that of h[er] co- to the discretionary aspects of her sentence. Appellant first contends that the trial court placed undue influence on the severity of the crime and ignored the other factors outlined in Section 9721.8 Appellant alleges that the trial court focused exclusively upon the seriousness of the crime and ignored her rehabilitative needs. However, sentencing an appellant, the trial court is permitted to consider the ____________________________________________ 8 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. The court shall -5- J-A14025-14 Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005) (citations conclusion regarding [her] rehabilitative potential does not render the Id. on the assumption that although a PSI was ordered, the trial court did not review it. However, the record belies criminal record. N.T., 9/24/2013 at 21. The only document in the certified record containing the information cited by the trial court is the PSI. Thus, although the trial court did not reference the PSI by name, it is evident that the trial court reviewed the PSI. benefit of a [PSI], we can assume the sentencing court was aware of Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (internal quotation marks and citations omitted). By ordering a PSI and reviewing it at sentencing, the trial court properly considered all of the factors set forth in Section 9721. Appellant also claims that her sentence is disproportionate when considered in light of her co- First, we note that -6- J-A14025-14 sentencing is an individualized process. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Mechanically imposing the same sentence on each co-defendant would violate this principle. As Appellant acknowledges, the charges lodged against her co-defendants and to which they pled guilty Sister pled guilty to unlawful possession of a controlled substance, recklessly endangering another person, and conspiracy to tamper with or fabricate physical evidence. See Commonwealth v. Mellinger, CP-22-CR0004519-2012. Karlin pled guilty to possession with intent to deliver, possession of a controlled substance, and criminal use of a communication facility. See Commonwealth v. Karlin, CP-22-CR-0005940-2012. Unlike her co-defendants, Appellant pled guilty to seven charges. She supplied Otto with heroin and, although she could have prevented his death, her there were sufficient reasons for the trial court to impose a more severe sentence on Appellant than on her co-defendants. Lastly, Appellant contends her sentence was excessive, as it constituted too severe a punishment. In the instant case, Appellant was in a position where she could have called medical professionals to help Otto. Instead of doing so, however, she contacted Sister for assistance, and researched home remedies for heroin overdoses on the internet for several hours before finally contacting authorities. -7- N.T., 6/25/13, at 5. Although J-A14025-14 Appellant later expressed remorse for her actions, during (and immediately after) the incident at issue, she hid the heroin in her possession so the police would not find it on her person. Id at 6. Further, she cleared her internet search history for that night in an attempt to conceal the amount of time she spent online researching home treatments for a heroin overdose. 9/24/13, at 25. N.T., From these facts, it was reasonable for the trial court to infer that Appellant acted to conceal both her criminal activity and her deserves a serious punishment and as such, we find that her sentence of essive. guidelines, Pennsylvania law views the sentence as appropriate under the Griffin no reason to place this case outside of the standard range, which is Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (citation omitted). Thus, we conclude that a guideline sentence in this case was not clearly unreasonable. Accordingly, the trial court did not abuse its discretion by Judgment of sentence affirmed. -8- J-A14025-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/8/2014 -9-
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