Commonwealth v. Kinzey

1

COMMONWEALTH OF PENNSYLVANIA v. CORBY JO KINZEY Appellant

No. 1421 WDA 2022

No. J-S34019-23

Superior Court of Pennsylvania

January 16, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 16, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No: CP-65-CR-0003653-2018

BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.

MEMORANDUM

STABILE, J.

Appellant Corby Jo Kinzey, appeals from the judgment of sentence the Court of Common Pleas of Westmoreland County entered on September 16, 2022.^[1] On appeal, Appellant challenges the discretionary aspects of her sentence. Upon review, we affirm.

The trial court summarized the relevant factual and procedural background as follows.

The instant case arises out of an investigation into allegations of sexual abuse of [Appellant]'s biological child [by Appellant and co-defendant, Charles Jason Hunter]. Pursuant to the investigation, [Appellant] was arrested on August 15, 2018 and subsequently charged [with 35 counts of multiple sex offenses and related crimes perpetrated against Appellant's 5-year-old son].

On June 17, 2022, [Appellant] entered a general guilty plea to all counts before [the trial court]. Sentencing was deferred ninety (90) days pending a pre-sentence investigation and a Megan's Law/SORNA assessment. On September 15, 2022, [the trial court sentenced Appellant to serve an aggregate sentence of 55 to 110 years' incarceration] followed by three years of consecutive probation.^[2] On September 26, 2022, [Appellant] filed a post-sentence motion before the [trial court] seeking modification of sentence. Following a hearing, [the trial court] denied [Appellant's post-sentence motion] on December 5, 2022.^[3] On December 6, 2022, [Appellant] filed a timely notice of appeal[. Both the trial court and Appellant complied with Pa.R.A.P. 1925].

Trial Court Opinion, 12/19/22, at 1-4 (unnecessary capitalization removed).

On appeal, Appellant argues that the sentencing court abused its discretion in imposing an excessive sentence ("a de facto life sentence"), failing to consider, and/or not giving sufficient weight to, the following factors:

a. Appellant's mental health history.

b. The history of sexual abuse which was perpetrated against Appellant.

c. The domineering and coercive relationship co-defendant Hunter had with Appellant.

d. The extensive and substantial assistance provided by Appellant regarding the prosecution and conviction of co-defendant Hunter, including, but not limited to her testimony at both the preliminary hearing and jury trial.

e. Appellant's continued willingness to assist the prosecution despite the Commonwealth's refusal to offer her any sort of plea agreement nor any consideration for her testimony.

See Appellant's Brief at 9.

Appellant's issue raises a challenge to the discretionary aspects of her sentence. See, e.g., Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). We note that "[a]n appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction." Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014). To determine whether this Court's jurisdiction has been properly invoked, we consider whether: (1) Appellant has filed a timely notice of appeal; (2) the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) the brief includes a statement pursuant to Pa.R.A.P. 2119(f); and (4) Appellant has presented a "substantial question" that the sentence appealed from is not appropriate under the Sentencing Code. Id.

Appellant timely appealed and preserved her claim that her sentence was excessive in a motion for modification of sentence. See Motion for Post-Sentence Relief, 4/17/23. Appellant failed to include a Pa.R.A.P. 2119(f) statement. However, the Commonwealth did not object. It is well-established that when an appellant fails to include a Rule 2119(f) statement and the appellee has not objected, we may ignore the omission. Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004). We will proceed, therefore, to consider whether Appellant's claim presents a substantial question.

"An appellant making an excessiveness claim raises a substantial question when he sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (internal quotations and citation omitted). This is not the case here. The sentences in question do not violate a particular provision of the sentencing code, nor has Appellant demonstrated that the sentences imposed were contrary to the fundamental norms underlying the sentencing schemes.

Appellant merely argues that the trial court abused its discretion in not giving adequate credit to certain factors. However, it is well-established that

[a]n allegation that the sentencing court "failed to consider" or "did not adequately consider" various factors is, in effect, a request for this [C]ourt to substitute its judgment for that of the lower court in fashioning appellant's sentence. Such an allegation does not raise a substantial question that the sentence imposed was in fact inappropriate.

Commonwealth v. Rivera, 637 A.2d 1015, 1016 (Pa. Super. 1994) (citing Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super 1989) (en banc)).

The Williams court reasoned that allegations of this type, in the absence of contrary allegations, concede that the lower court was provided with adequate information on which to base its sentencing decision. [Williams, 562 A.2d at 1388]. This is particularly so where a pre-sentence report exists. Having such information in its possession, Pennsylvania law presumes that the sentencing court will act properly. Id., (citing Commonwealth v. Devers, [546 A.2d 12, 18 (Pa. 1988)] ("It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand")). The record in this case clearly indicates that the lower court possessed and consulted a pre-sentence report.

Rivera, 637 A.2d 1016-17.

Appellant's allegations in the instant case are similar to those which were presented to the court in Williams. Appellant has not contended that the sentencing court relied upon inadequate information. Rather, appellant argues that the lower court inappropriately applied correct information when imposing sentence. Since appellant is effectively asking this [C]ourt to substitute our judgment for that of the lower court, he has failed to present us with a substantial question which will allow us to review the discretionary aspects of his sentence.

Rivera, 637 A.2d at 1017.

Subsequently, we have "held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)); Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010) ("court['s] refus[al] to weigh the proposed mitigating factors as [a]ppellant wished, absent more, does not raise a substantial question."); Commonwealth v. Berry, 785 A.2d 994 (Pa. Super. 2001) (explaining allegation that sentencing court failed to consider certain mitigating factor generally does not raise a substantial question); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of substantial question where appellant argued the trial court failed to adequately consider mitigating factors and to impose an individualized sentence); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) ("[a]n allegation that a sentencing [judge] 'failed to consider' or 'did not adequately consider' certain factors does not raise a substantial question that the sentence was inappropriate,"), appeal denied, 676 A.2d 1195 (Pa. 1996). Finally, "nothing prohibits a trial court from imposing a de facto life sentence on an adult offender." Commonwealth v. Garner, 2021 WL 4261334, unpublished memorandum, at *4 (Pa. Super. September 20, 2021). Accordingly, Appellant's claim of excessiveness does not raise a substantial question. Id.

Consistent with the foregoing cases, we conclude that Appellant failed to raise a substantial question with respect to her excessiveness claim premised on inadequate consideration of mitigating factors or the age of Appellant.

Even if we were to address the merits of the contention, we would find that the trial court did not abuse its sentencing discretion.^[4] To this end, the trial court noted:

It is the opinion of [the trial court] that [Appellant]'s sentence was reasonable under the circumstances and well within the court's discretion. When weighing and fashioning a sentence, the [trial c]ourt took into consideration the circumstances and severity of the offenses as well as mitigating factors, including, but not limited to [Appellant]'s mental health history. The [trial court] also took into consideration the fact that the victim is [Appellant]'s biological child. Additionally, [the trial court] had the benefit of reviewing a Pre-Sentence Investigation Report prior to sentencing [Appe

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