Commonwealth v. Rominger

199 A.3d 964

COMMONWEALTH of Pennsylvania

v.Karl Ernst ROMINGER, Appellant

No. 1388 MDA 2017

Superior Court of Pennsylvania.

Submitted August 13, 2018

Filed November 28, 2018

Reargument Denied February 4, 2019

Karl E. Rominger, appellant, pro se.

Courtney E. Hair, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER,^* J.

OPINION BY McLAUGHLIN, J.:

Karl Ernst Rominger appeals pro se from the judgment of sentence imposed following his re-sentencing after he pled guilty to one count of theft by deception and 18 counts of misapplication of entrusted property.¹ He raises various challenges to his sentence, and claims the trial court erred in denying his motions to disqualify the Office of the District Attorney and for recusal of the trial judge. We affirm.

Rominger, an attorney, was charged with the above crimes in connection with his handling of client funds. He made a motion at a pretrial hearing in March 2016 to disqualify the Office of the District Attorney.² He maintained that he and the assistant district attorney ("ADA") prosecuting his case had had numerous disagreements regarding prior, unrelated cases in which Rominger was the defense attorney and the ADA was the prosecutor. He claimed that one such disagreement became physical. N.T., 3/9/16, at 5-8, 12. He also maintained that there was a connection between his former client Jerry Sandusky and the District Attorney's loss of an election for Attorney General of Pennsylvania. Id. at 7-8. The trial court denied the motion.

Rominger pled guilty in May 2016, to the above-referenced crimes and the trial court later imposed sentence. On appeal, this Court concluded that the sentence imposed "contain[ed] a computation error and/or a portion of the sentence that is not clearly explained in the record." Commonwealth v. Rominger , 1710 MDA 2016, at 8 (Pa.Super. filed May 11, 2017) (unpublished memorandum). We also determined that the trial court had illegally imposed concurrent terms of probation and incarceration. Id. We therefore vacated the judgment of sentence and remanded for re-sentencing.

At a re-sentencing hearing in June 2017, the ADA stated that Rominger was not eligible for the county's treatment court because Rominger sought treatment for a gambling addiction rather than substance abuse. The ADA explained that although the court verifies abstinence from drugs and alcohol through blood and urine testing, it lacked a mechanism to verify abstinence from gambling. N.T., 6/20/17, at 47-48. The court then imposed an aggregate sentence of 60 to 156 months in prison followed by five years of probation. The sentence consisted of one to five years' incarceration plus 3 years' probation for the theft conviction. The court also imposed consecutive terms of three to six months' incarceration on 16 of the misapplication of entrusted property convictions; for the remaining two counts of misapplication of entrusted property, the trial court imposed consecutive terms of one year of probation.

Rominger was represented by counsel during the re-sentencing proceedings, but after the re-sentencing, counsel filed a motion to withdraw. The trial court conducted a hearing pursuant to Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998), and after concluding that Rominger, an attorney, voluntarily, knowingly, and intelligently waived his right to counsel, permitted Rominger to proceed pro se . Order of Court, filed July 11, 2017.

Rominger filed a post-sentence motion, which he later supplemented twice. He included in an addendum to his post-sentence motion a motion to recuse the trial judge; he also filed a motion for post-sentence discovery. See Second Addendum to Post-Sentence Motion, filed July 17, 2017; Motion to Compel Discovery Post Sentence, filed July 5, 2017. The trial court denied the motions. Rominger timely appealed.

Rominger raises the following issues:

I. Was [Rominger's] minimum aggregate sentence of 60 months an abuse of discretion and impermissible under [North Carolina v. Pearce , 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ], where the Superior Court found the prior minimum aggregate sentence was 54 months?

II. Did the court below err in refusing to disqualify the district attorney due to an actual conflict of interest on either of the two occasions the same was requested below?

III. Was it an abuse of discretion for the court below to refuse to rule or act on [Rominger's] timely request to be admitted into the Cumberland County treatment court for his offenses, when the sentencing judge below was the only judicial officer who could rule on the same?

IV. Was the entry of the aggregate sentence below an abuse of discretion where the sentencing court relied on misleading exhibits and evidence from the Commonwealth and drew incorrect inferences from those exhibits which were not supported by the record?

V. Was [Rominger's] sentence manifestly excessive, too harsh a punishment and unconstitutional because the court focused exclusively on punishment to the exclusion of all the other factors under the sentencing code, including [Rominger's] rehabilitative needs, and where the court treated [Rominger] more harshly because he was an attorney, thereby resulting in a clearly unreasonable application of the sentencing code?

VI. Was [Rominger's] sentence manifestly excessive, too harsh a punishment and unconstitutional because the court relied on a stale and incomplete presentence investigation, failed to consider that as a level 3 offender treatment was recommended over incarceration by the guidelines, chose state incarceration where no treatment is available to [Rominger], failed to consider the harm to [Rominger] by removing him from active treatment for his gambling addiction, failed to consider the substantial restitution that would not be paid while in state incarceration, and where the court imposed the penalty for punishment's sake, thereby resulting in a clearly unreasonable application of the sentencing code and violating the fundamental norms of sentencing?

VII. Did the sentencing judge err in not recusing himself where there was an appearance of a conflict, because his close personal friend donated $500,000.00 to his judicial campaign, and a casino developer with lands a[d]joining that friend's lands donated $500.00, where those donors stand to gain by the development of a casino on those lands, and where [Rominger's] chief mitigation was pathological gambling?

Rominger's Br. at 6-7. For ease of discussion, we will address Rominger's claims out of order.

In issues one, four, five, and six, Rominger challenges the discretionary aspects of his sentence. Before we may entertain the merits of such a challenge, we must determine four things. We must determine whether: (1) the appeal is timely; (2) appellant preserved his issue; (3) appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) there is a substantial question raised under the Sentencing Code. Commonwealth v. Heaster , 171 A.3d 268, 271–72 (Pa.Super. 2017).

Rominger clears all four hurdles. He filed a timely appeal, preserved his issues in a post-sentence motion, and included in his brief a concise statement of the reasons relied upon for allowance of appeal. Further, his claims raise substantial questions. Commonwealth v. Barnes , 167 A.3d 110, 123 (Pa.Super. 2017) (en banc ); Commonwealth v. Serrano , 150 A.3d 470, 473 (Pa.Super. 2016) (finding substantial question where appellant claimed trial court failed to consider individualized needs); Commonwealth v. Coulverson , 34 A.3d 135, 143 (Pa.Super. 2011) (finding substantial question where appellant argued trial court focused on seriousness of offense and did not consider his rehabilitative needs); Commonwealth v. Caldwell , 117 A.3d 763, 770 (Pa.Super. 2015) (en banc ) (finding substantial question where defendant challenged consecutive sentences as excessive and court's alleged failure to consider rehabilitative needs). We will therefore address his sentencing claims.

The Sentencing Code provides that "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). The trial court has discretion within legal limits when sentencing a defendant, and absent an abuse of that discretion, we will not disturb its sentence. Commonwealth v. Perry , 612 Pa. 557, 32 A.3d 232, 236 (2011). An abuse of discretion occurs where "the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. (quoting Commonwealth v. Walls , 592 Pa. 557, 926 A.2d 957, 961 (2007) ). The sentencing judge does not have to give a "lengthy discourse" explaining its reasons for imposing a sentence. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010). However, "the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender." Id.

Rominger first claims the trial court abused its discretion because it imposed a more severe sentence upon re-sentencing. If the court imposes a harsher sentence at re-sentencing, "a presumption of vindictiveness applies." Commonwealth v. Robinson , 931 A.2d 15, 22 (Pa.Super. 2007) (en banc ). "That presumption can be overcome by pointing to ‘objective information in the record justifying the increased sentence.’ " Id. (quoting Commonwealth v. Speight , 578 Pa. 520, 854 A.2d 450, 455 (2004) ).

Here, a presumption of vindictiveness does not arise. Rather than being an increase in sentence, Rominger's new aggregate minimum sentence falls in the middle of the two conflicting indications of Rominger's initial, aggregate minimum sentence. That is, the 60...