Opinion
J-S82015-18 No. 874 EDA 2018
01-28-2019
COMMONWEALTH OF PENNSYLVANIA v. CARMELLA ROSE KLOTZ-COOPER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 26, 2018
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003000-2017 BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Carmella Rose Klotz-Cooper (Cooper) appeals from the judgment of sentence, entered in the Court of Common Pleas of Montgomery County, following her conviction of four counts of robbery and one count of conspiracy to commit robbery. After our review, we affirm the judgment of sentence based on the opinion authored by the Honorable William R. Carpenter.
On April 3, 2017, at 11:50 p.m., Cooper and her three co-conspirators committed a home invasion robbery at a residence on County Line Road in Lower Moreland. While her husband (Matthew Cooper), another woman (Carmen Giddings) and two other men (Xavier Tucker and Daniel Tucker) beat and held the adult victims at gunpoint, Cooper, wearing a gold "Scream" mask, went upstairs to the bedroom of an eight-year old girl. Cooper hit the child with an unknown object, grabbed her by the hair and forced her down the hallways and stairs. The home invaded was that of Matthew Cooper's foster parents.
The "Scream" mask, known as "Ghostface," is from the Scream horror movie series and features an elongated open mouth. The mask was inspired by The Scream painting by Edvard Munch.
Following a stipulated bench trial, the court convicted Cooper, and on February 26, 2018, the court sentenced her to a term of imprisonment of nine to twenty years. Cooper filed a post-sentence motion, which was denied. This appeal followed. Both Cooper and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Cooper challenges the discretionary aspects of her sentence, claiming the court failed to consider mitigating factors, including her age, her prior history of sexual abuse and post-traumatic stress disorder, and her potential for rehabilitation. She also challenges her sentence relative to two of her co-conspirators:
Was there an inadequate statement of reasons particular to each defendant as to why Carmella Klotz-Cooper received a sentence of 9-20 years when co-defendant Xavier Tucker received a sentence of 5½ - 12 years after he was found guilty of grabbing a woman by the throat to wake her up then taking her cane and beating another man over the head; and when co-defendant Carmen Giddings received a sentence of 3-10 years when she was a full participant in the home invasion?Appellant's Brief, at 2.
Cooper properly preserved these issues in her February 28, 2018 post-sentence motion, filed a timely appeal on March 28, 2018, and has provided a statement pursuant to Pa.R.A.P. 2119(f) in her appellate brief. See Appellant's Brief, at 7. See also Commonwealth v. Allen , 24 A.3d 1058, 1064 (Pa. Super. 2011); Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). With respect to her claim that the court failed to consider mitigating factors, we find no substantial question. See Commonwealth v. Kane , 10 A.3d 327, 335-36 (Pa. Super. 2010) (finding claim "that the court gave inadequate consideration to certain mitigating factors, does not raise a substantial question"); Commonwealth v. Rhoades , 8 A.3d 912, 918-19 (Pa. Super. 2010) ("an allegation that the sentencing court failed to consider mitigating factors generally does not raise a substantial question for our review."); see also Commonwealth v. DiSalvo , 70 A.3d 900 (Pa. Super. 2013) (failure to give adequate weight to mitigating circumstances does not present substantial question); Commonwealth v. Rhoades , 8 A.3d 912 (Pa. Super. 2012) (same).
We note that this same allegation raised in the context of an aggravated-range sentence may raise a substantial question. See , e.g., Commonwealth v. Felmlee , 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (substantial question raised where appellant alleged sentencing court imposed sentence in aggravated range without adequately considering mitigating circumstances). Here, Cooper faced a maximum sentence of 50-100 years' imprisonment; the court sentenced her in the standard range of the Sentencing Guidelines. Moreover, Cooper's claim that the court failed to consider mitigating circumstances is contradicted in the record. See N.T. Sentencing, 2/26/18, at 49-51. See also Commonwealth v. Fowler , 893 A.2d 758, 766-67 (Pa. Super. 2006) (where sentencing court had presentence report, we are required to presume court properly weighed mitigating factors).
With respect to her claim of disparate sentences, we find Cooper has raised a substantial question. See Commonwealth v. Cleveland , 703 A.2d 1046 (Pa. Super. 1997) (holding substantial question raised where appellant averred unexplained disparity between his sentence and that of co-defendant); Commonwealth v. Krysiak , 535 A.2d 165, 167 (Pa. Super. 1987) ("[D]isparate sentences between two or more co-defendants constitutes a substantial question necessitating our exercise of jurisdiction to review."). However, we conclude Cooper is not entitled to relief on this claim.
The two co-defendants to whom Cooper refers, Xavier Tucker and Carmen Giddings, were sentenced on April 20, 2018, after Cooper filed this appeal and after the trial court filed its Rule 1925(a) opinion. Cooper filed a motion in this Court seeking amendment of her Rule 1925(b) statement, which this Court granted. See Order, 6/13/18. The trial court filed a supplemental Rule 1925(a) opinion on July 30, 2018.
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. Rodda , 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (internal quotations and citations omitted).
Our legislature has determined that for each defendant, "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). Because each co-defendant in a crime may pose a different threat to the community and may have different rehabilitative needs, it is not required that co-defendants receive identical sentences. See Commonwealth v. Mastromarino , 2 A.3d 581, 589 (Pa. Super. 2010); Commonwealth v. Krysiak , 535 A.2d 165, 167 (Pa. Super. 1987). Further, it is well-settled that "there should not be a great disparity in the sentences imposed on co-defendants unless facts exist to warrant the unequal sentences." Commonwealth v. Szczesniewski , 591 A.2d 1055, 1056 (Pa. Super. 1991) (quoting Commonwealth v. Holler , 473 A.2d 1103, 1107 (Pa. Super. 1984)). Our Superior Court further cautioned that judges "should endeavor to mete out similar sentences to co-defendants when justice so dictates." Szczesniewski , 591 A.2d at 1057 n.2. In order for different sentences to withstand appellate scrutiny, a sentencing court must give reasons particular to each defendant explaining why each received individual sentences. Mastromarino , 2 A.3d at 589 (citing Krysiak , 535 A.2d at 167).
In this case, the sentencing court provided ample reasons for Cooper's sentence, including, in particular, her role in terrorizing an eight-year child, the lifelong impact that her crimes will have on that child and the other victims, as well as her role in planning the home invasion. The court set forth the reasons for sentencing Cooper in its on-the-record statement in open court, see N.T. Sentencing, supra at 51-52 ("This defendant is instrumental in the planning and the execution of the crimes here. . . . These victim were brutally terrorized, . . . and this defendant, in particular, grabbed the young child by the arm and pulled her by the hair. There was force throughout this crime that was excessive and unnecessary[.]"). Additionally, in its supplemental opinion, the court clearly explained its reasons for the disparate sentences, noting that Cooper awakened the child by striking her with an object on the head, and that when the child opened her eyes, she saw a person wearing a gold "Scream" mask above her. The court gave reasons particular to Cooper and co-defendants Tucker and Giddings, explaining why each received a specific and individualized sentence, and stating that Cooper's sentence "is appropriately longer than of her two co-defendants because it reflects her serious involvement in this crime where she willingly terrorized and brutalized an 8-year old victim. It also reflects that she was instrumental in planning and executing the crime." Pa.R.A.P. 1925(a) Supplemental Opinion, 7/30/18, at 11. See Commonwealth v. Cleveland , supra at 1048 ("[W]hen there is a disparity between co-defendants' sentences, a sentencing court must give reasons particular to each defendant explaining why [he or she] received [his or her individual sentence]."). We find no abuse of discretion. Rodda , supra.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/28/19
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