Com. v. Hathaway, J. (memorandum)

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J-S30011-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JACQUELINE M. HATHAWAY, Appellant No. 2089 MDA 2013 Appeal from the Judgment of Sentence Entered July 1, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005136-2011 BEFORE: BENDER, P.J.E. MUNDY, J., and JENKINS, J. MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2014 Appellant, Jacqueline M. Hathaway, appeals from the judgment of Appellant challenges the discretionary aspects of her sentence. After careful review, we affirm. On May 6, 2013, Appellant entered a plea of no contest to homicide by vehicle while driving under the influence, and a plea of guilty to homicide by vehicle, driving under the influence, and three summary traffic offenses. At would have been established at trial: On October 28, 2010, Appellant was under the influence of alcohol and decided to operate a motor vehicle. While driving, Appellant crossed over into the on-coming lane and struck a vehicle driven by Angela Orday. Ms. Orday and her passenger, Deanna Winemiller, lost their lives as a result of the injuries sustained in the collision. J-S30011-14 Trial Court Opinion (TCO), 1/27/14, at 1. Appellant admitted to the police that she had consumed alcohol prior to the incident. N.T., 5/6/13, at 5. addition contained detectable amounts of amphetamines and THC (the principal psychoactive constituent of marijuana). Id. On July 1, 2012, Appellant was sentenced to an aggregate term of four notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant now presents the following question for our review: [1.] Individualized Sentencing. The sentencing process controlling norm is that sentencing courts must formulate sentences individualized to the particular case and the particular offense, she has strong community support, and she exhibits the scientifically lowest possible risk to recidivate. The court sentenced "within the guideline range" as to the minimum, but "maxed" her out in terms of the "tail." The court seemingly rticular needs when it sentenced her to 4 years, 10 months, to 17 years for one count [of] Homicide by Vehicle while DUI and one count Homicide by Vehicle. Did the Court err when it imposed a sentence not individualized to A Commonwealth v. Mouzon, 812 -2- J-S30011-14 ourt for review by submission of a statement as required by Pa.R.A.P. 2119(f). See id. Rule 2119(f) states that an appellant must allowance of appeal with respect to the discretionary aspects of the [T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm (e.g., the sentence is unreasonable or the result of prejudice because it is 500 percent greater than the extreme end of the aggravated range). If the Rule 2119(f) statement meets these requirements, we can decide whether a substantial question exists. Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the s Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999) (quoting Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 1994)). sentence is manifestly excessive such that it constitutes too severe a -3- J-S30011-14 Appellant raises a plausible argument that the sentencing court did not follow the directives of 42 Pa.C.S. § 9721. See Commonwealth v. Hill, 66 justifiable as substantial questions based on the circumstances of the case and the extent to which the appellant's Rule 2119(f) statement suggests the See also Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (holding reviewable the hether the sentencing [c]ourt erred in disregarding factors mandated under the Sentencing Code, such as rehabilitation and the nature question for our review. presentence investigation report, and a sentencing memorandum submitted by Appellant. N.T.. 7/1/13, at 1, 16. The trial court was also provided with oral and written victim impact statements. Id. at 2 6. The trial court also heard witness testimony on behalf of Appellant. Id. at 10 counsel noted that Appellant had the support of her family. Id. at 14. The the Commonwealth as to whether or not [Appellant] truly appreciates the nature Id. would have expected someo -4- J-S30011-14 Id. e crime of homicide by vehicle while driving under the influence. The threeyear term was a mandatory minimum sentence. In addition, Appellant was sentenced to a consecutive term of twentyincarceration for the crime of homicide by vehicle. The standard range of the guidelines for this offense was twenty-two to thirty- standard range of the sentencing guidelines. Appellant subsequently filed timely a post-sentence motion seeking of a recidivism risk assessment performed after sentencing. Supplemental post-sentence motion, 6/12/13, at 1. after an extensive hearing. The trial court denied this motion Appellant now claims that the seventeen-year maximum sentence imposed by the trial court fails to take into account inter alia, the assessment suggesting that she is at low risk to re-offend. -year maximum sentence is the result of consecutive sentences does not render that sentence an abuse of discretion, -5- J-S30011-14 acts by having all sentences run concurrently. Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). It is well-established that when given the facts of a particular case, a given sentence should be consecutive Commonwealth v. Rickabaugh, 706 A.2d 826, 847 (Pa. Super. 1997). As we have already noted, supra, the trial court was presented with ample information about Appellant, the victims, and the crime at the time of sentencing. The record reflects that the trial court carefully considered this information, and detailed made a record of its extensive consideration of additional evidence submitted by Appellant after sentencing. As such, we conclude the trial court did not abuse its discretion in Judgment of sentence affirmed. Judge Mundy concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 -6-

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