J-A15005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

RITA JO ANN ARNOLD,

                           Appellant                  No. 108 EDA 2014


           Appeal from the Judgment of Sentence October 15, 2013
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001421-2013


BEFORE: BOWES, MUNDY, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 17, 2015

       Rita Jo Ann Arnold appeals from the aggregate judgment of sentence

of one year and four months to two years and eight months incarceration

imposed by the court after she pled guilty to tampering with public records

and obstruction of justice. We affirm.

       Appellant is a former magisterial district judge. The criminal conduct

in this matter stems from her actions in that capacity. On January 19, 2010,

Appellant’s two adult sons were involved in an altercation at her home.

Pennsylvania State Police responded and issued a summary citation to one

of Appellant’s sons.      That son was on probation at the time.   The citation

was received in Appellant’s office on January 20, 2010, and placed in the

docketing bin.


*
    Former Justice specially assigned to the Superior Court.
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      That same day, Appellant placed a telephone call to the Pennsylvania

State Police.    She informed Sergeant Brandon Daniels that the incident

occurred at her house with her son and asked why a citation had been

issued.     Sergeant Daniels was not involved in issuing the citation and

indicated that he would inquire about it. Before Sergeant Daniels responded

to Appellant’s inquiry, he received the citation from Appellant’s district court

in an envelope with his name on it. He then called Appellant and informed

her that the citation was properly issued and needed to be filed.            He

returned the citation to Appellant’s court.     The citation was stamped as

received on February 8, 2010, but Appellant failed to have the citation

docketed.

      Subsequently, on February 15, 2010, Appellant provided an employee

with the citation and instructed that individual that Appellant would advise

the employee when to docket it. She indicated that her son had a probation

hearing approaching and that she did not know if the citation would affect

his probation. Approximately one month later, the trooper who had written

the citation informed Sergeant Daniels that the citation had not yet been

docketed. Accordingly, Sergeant Daniels called Appellant’s office. Appellant

personally spoke with Sergeant Daniels. She informed Sergeant Daniels that

her court was backlogged and that the citation would be filed soon.

      Subsequently, on April 5, 2010, Appellant docketed the citation and

transferred the case to another district magistrate.    In doing so, however,

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Appellant did not follow proper protocol for transferring cases in Chester

County and incorrectly filled out the docket information.        Specifically,

Appellant entered an incorrect birthdate and indicated that the defendant

was a black female.

        The irregularities with the citation were discovered by the Chester

County Court Administration during a routine review. President Judge James

P. MacElree II directed Appellant to provide a written explanation for the

unusual handling of the citation. Appellant responded that the delay in the

docketing occurred because her courtroom had been closed due to noxious

fumes for a period beginning on February 8, 2010, and that her courtroom

was moved to a different location. The Chester County Court Administration

reviewed if any other citations received on the first day Appellant’s

courtroom was closed was similarly delayed. That review revealed that all

other citations received on February 8, 2010 were docketed by February 23,

2010.

        As a result of these actions, a Judicial Conduct Board investigation

occurred. As part of that investigation, Appellant’s office manager testified

that Appellant had told her in February not to docket the citation. She also

submitted that Appellant asked her to testify before the Judicial Conduct

Board that the office manager did not learn of the citation until Appellant

gave it to her to transfer to another magistrate. The Judicial Conduct Board

suspended Appellant for three months, after which Appellant resumed her

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judicial duties.    Prior to being reinstated, Appellant asked that her office

manager be relieved of her duties and requested that she be replaced. The

Commonwealth ultimately filed criminal charges as a result of Appellant’s

actions. Appellant resigned her position and, on June 24, 2013, entered an

open guilty plea to the aforementioned charges.1

        Thereafter, the court conducted a sentencing hearing on October 15,

2013.    After considering a pre-sentence report, the court heard testimony

from several character witnesses, argument from counsel, and Appellant’s

own statement.       At the time, Appellant was suffering from breast cancer,

and the court was aware of that fact. The court imposed a sentence of one

to two years incarceration for the tampering count and a consecutive

sentence of four to eight months imprisonment for the obstruction charge.

        Appellant filed a timely post-sentence motion seeking reconsideration

of the sentence as well as a motion for bail pending appeal.         The court

conducted a hearing on December 19, 2013, and denied Appellant’s post-

sentence motion.        This timely appeal ensued.   The trial court directed

Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant complied, and the matter is now ready

for our review. Appellant raises three issues for this Court’s consideration.
____________________________________________


1
   The entire Chester County Court of Common Pleas bench recused.
Accordingly, the Pennsylvania Supreme Court assigned Senior Judge John L.
Braxton to handle this matter.



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      A. Whether the trial court abused its discretion by imposing a
         sentence twice the outer end of the aggravated range under
         the sentencing guidelines for tampering with public records
         and in the aggravated range for obstruction of law, thus
         ignoring significant mitigating factors especially the
         Appellant’s lack of prior criminal record, her otherwise
         exemplary decades of judicial service, her acceptance of
         responsibility/remorse and resignation as a judge, and her
         grave cancerous condition, which is a manifestly excessive
         sentence and too harsh a punishment?

      B. Whether the trial court further abused its discretion by
         ordering that Appellant’s two individual sentences run
         consecutively, thereby resulting in a total aggregate sentence
         of 16 to 32 months’ incarceration, which is a manifestly
         excessive sentence and too harsh a punishment?

      C. Whether the trial court failed to articulate sufficient reasons
         on the record for imposing the sentences (one beyond the
         aggravated range and the other in the aggravated range) as
         mandated by the sentencing code?

Appellant’s brief at 4.

      Each of Appellant’s issues challenges the discretionary aspects of her

sentence.   To preserve such a sentencing claim, the defendant must raise

the issue either in a post-sentence motion or during the sentencing

proceedings.      Commonwealth      v.   Cartrette,   83   A.3d   1030,    1042

(Pa.Super. 2013) (en banc).     In addition, a defendant must “preserve the

issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a

Pa.R.A.P. 2119(f) statement.”    Id. Further, “There is no absolute right to

appeal when challenging the discretionary aspect of a sentence.”            Id.

Instead, “an appeal is permitted only after this Court determines that there

is a substantial question that the sentence was not appropriate under the

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sentencing code.” Id.       In considering the merits of a discretionary

sentencing matter, we review the sentencing court’s decision for an abuse of

discretion.   Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.

2013). In performing this review, we consider the statutory requirements of

42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides that this Court

shall vacate a sentence and remand under three circumstances:

      (1)     the sentencing court purported to sentence within the
              sentencing   guidelines but   applied  the guidelines
              erroneously;

      (2)     the sentencing court sentenced within the sentencing
              guidelines but the case involves circumstances where the
              application   of  the    guidelines   would  be   clearly
              unreasonable; or

      (3)     the sentencing court sentenced outside the sentencing
              guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). Further, we examine:

      (1)     The nature and circumstances of the offense and the
              history and characteristics of the defendant.

      (2)  The opportunity of the sentencing court to observe the
           defendant, including any presentence investigation.
      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Appellant timely filed a post-sentence motion asserting her claims

therein. She further preserved the issue by including it in her Rule 1925(b)

concise statement and has provided Rule 2119(f) statement.       Accordingly,



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we must examine whether her three issues present substantial questions for

our review. Appellant’s initial contention is that the sentencing court abused

its discretion and imposed an excessive sentence by sentencing her outside

the aggravated range of the sentencing guidelines and ignoring mitigating

factors.    This issue presents a substantial question for our review.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.Super. 2012);

Commonwealth v. Hernandez, 755 A.2d 1, 13 (Pa.Super. 2000);

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005); but see

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008)

(“Appellant's assertion of abuse of discretion for imposing consecutive

sentences without properly considering mitigating factors fails to present a

substantial question to justify this Court's review of his claim.”).

      Appellant’s   second   issue   is    that   the   court   erred   in    imposing

consecutive sentences resulting in an excessive sentence.           Appellant relies

on Dodge, supra, and Commonwealth v. Gonzalez-Dejusus, 994 A.2d

595 (Pa.Super. 2010), in support. However, in Dodge the defendant was

sentenced to forty years and seven months to eighty-one years and two

months     imprisonment.      Similarly,    in    Gonzalez-Dejusus,          the   court

sentenced the defendant to twenty to forty years incarceration. Moreover,

the Gonzalez-Dejusus Court found no substantial question.                    Here, the

aggregate sentence of one year and four months to two years and eight

months is not, on its face, excessive in light of Appellant’s conduct. We add

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that Appellant is also incorrect that Dodge denied allowance of appeal.

Rather, the Dodge Court reached the merits of the sentencing issues and

denied relief.   To the extent that Appellant highlights that one of her

sentences was outside the aggravated sentencing guideline range and

another was in the aggravated range, and the sentences in Dodge and

Gonzalez-Dejusus were within the standard ranges, those cases involved

imposition of consecutive sentences resulting in lengthy prison sentences

and not two consecutive sentences resulting in an aggregate sentence of

less than three years. Therefore, we hold that Appellant’s allegation that the

sentences imposed consecutively resulted in a harsh and excessive sentence

does not present a substantial question for our review.      See Gonzalez-

Dejusus, supra; Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.

2005). The final claim Appellant levels is that the court erred in failing to

provide sufficient reasons for its sentence.       This position presents a

substantial question.   Commonwealth v. Wagner, 702 A.2d 1084, 1086

(Pa.Super. 1996).

      Having determined that two of Appellant’s issues present substantial

questions, we now proceed to examine their merits.         First, we consider

Appellant’s argument that the court abused its discretion by sentencing her

outside the sentencing guidelines and allegedly failing to consider certain

mitigating factors.   Appellant maintains that the court did not impose an

individualized sentence and focused only on the aggravating fact that she

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committed her crimes in her capacity as a judicial official. She asserts that

the court did not give any weight to her rehabilitative needs or potential for

redemption.

      Appellant also submits that the court did not address the protection of

the public or the gravity of the offense. According to Appellant, the court

“harped on the fact that the Appellant had violated her judicial oath in

committing the crimes of tampering and obstruction[.]” Appellant’s brief at

29. She adds that the court focused extensively on Appellant’s attempt to

remove her office manager from her job and construed Appellant’s efforts as

an attempt to fire the office manager. Appellant argues that the sentencing

court did not consider her aggressive breast cancer and need for

chemotherapy treatment as mitigation evidence.

      In addition, Appellant points out that her sentence for tampering was

outside the aggravated range of the sentencing guidelines. Appellant had no

prior record score and the standard sentencing guideline range for the

tampering offense was restorative sanctions, i.e., probation, to three months

incarceration. The aggravated range was three to six months imprisonment.

Accordingly, Appellant’s tampering sentence was twice the aggravated

range.

      Appellant continues that the court did not mention these ranges, which

she posits was a “blatant violation of the Sentencing Code.” Appellant’s brief

at 32 (emphasis removed). Further, Appellant argues that the court did not

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note that it reviewed the presentence report and ignored her “lack of any

prior criminal record as well as her age, personal characteristics and life

situation.” Id. at 36. Appellant does acknowledge that the sentencing court

was aware of her cancer condition, but she contends that the court ignored

that factor.

      Additionally, Appellant complains that the sentencing court did not

consider her prior distinguished service as a public servant, her remorse and

acceptance of guilt, and the forfeiture of her pension and health insurance.

In Appellant’s view, “the [c]ourt exhibited a certain vindictiveness and

mean-spiritedness when sentencing Ms. Arnold, which is buttressed by its

conduct in connection the bail pending appeal.” Id. at 41. In this respect,

the court sua sponte set Appellant’s bail pending appeal at one million

dollars. This Court, in another appeal, reversed that decision.

      The Commonwealth responds that there is no requirement that a

sentencing court state that it has read a presentence report in order to

presume that the court was aware of the information provided therein. It

posits that this Court has frequently concluded that a court is assumed to be

aware of the information in a presentence report where such a report has

been prepared.    The Commonwealth adds that the sentencing court did

consider Appellant’s lack of a prior record because it was factored into the

sentencing guidelines and that the court found it insignificant since

Appellant’s conduct took place over three years.

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      The Commonwealth notes that Appellant undertook extensive and

“protracted efforts” to prevent her son from being prosecuted for a summary

offense and then attempted to cover up those efforts.            Commonwealth’s

brief at 15. It highlights that Appellant lied to Sergeant Daniels and to the

President Judge of Chester County.         Further, Appellant lied under oath

before the Judicial Conduct Board and attempted to persuade an employee

to lie on her behalf before that same tribunal.

      The Commonwealth continues that Appellant’s age, 57, was not a

mitigating factor and that the court did consider her personal characteristics,

but was unpersuaded by her arguments for a lighter sentence. It points out

that the sentencing court did not find Appellant’s claim that she did not

attempt to fire her office manager for not lying on her behalf to be credible.

The Commonwealth also disputes Appellant’s assertion that the sentencing

court did not adequately consider her medical situation. Indeed, the court

expressly stated that it considered her illness. See N.T., 10/15/13, at 34.

The Commonwealth maintains that the court did consider Appellant’s health;

it simply did not afford it the weight that Appellant wished.

      With   respect   to   Appellant’s   service   as   a   public   servant,   the

Commonwealth provides that the sentencing court stated that it was “very

sensitive to [Appellant’s] years of service.”       Commonwealth’s brief at 30

(quoting N.T., 10/15/13, at 25).     It argues, however, that the sentencing

court considered her years of service as an aggravating factor warranting

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harsher treatment since Appellant should have known, as a judicial official,

that she was held to a higher standard.

      As to Appellant’s assertion that the sentencing court ignored her

expressions of remorse, the Commonwealth maintains that the court

disbelieved her claim of remorse and instead was concerned that she

attempted to retaliate against a subordinate by seeking that person’s

removal.      Further,   the   Commonwealth    rejects   Appellant’s   claim   of

acceptance of responsibility. In this respect, it repeats the lengths to which

Appellant went to delay the filing of the citation against her son and to cover

up her actions.      The Commonwealth submits that Appellant’s actions

spanned a three year period and that “[h]er claims that she accepted

responsibility border on offensive.” Commonwealth’s brief at 36.

      The Commonwealth further disputes Appellant’s position that the court

acted in a vindictive and mean-spirited manner.            It sets forth that

Appellant’s only support for her position is what occurred with respect to

bail, which transpired two months after her sentence.          Relying on the

sentencing transcript, the Commonwealth proffers that the sentencing court

accorded Appellant and her witnesses respect and took no pleasure in

sentencing her.

      We find that Appellant is entitled to no relief. Contrary to Appellant’s

assertions, it is evident that the sentencing court considered the factors that

Appellant alleges were mitigating.     The sentencing court simply did not

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afford those facts more weight than what it considered were aggravating

circumstances.         Specifically,    the    court   was   aware   and   repeatedly

acknowledged Appellant’s medical condition.             Further, it noted Appellant’s

years of judicial service. It also acknowledged that its tampering sentence

was outside the guideline ranges, but set forth reasons for imposing such a

sentence. Notably, the court considered Appellant’s position as a magisterial

district judge, her attempts to cover up her misconduct, including repeated

lies, and found that Appellant did attempt to have her office manager fired.

These factors, it reasoned, all warranted departing from the guideline

ranges. We discern no abuse of discretion in finding that a judicial officer is

held to high ethical and legal standards and that a continuing course of

conduct in derogation of those duties justified a sentence outside the

guidelines. The sentence herein was not unreasonable.

       Having disposed of Appellant’s initial issue, we now address her

remaining position that raised a substantial question.2 Appellant asserts that

the trial court failed to articulate sufficient reasons for sentencing beyond

the aggravated range for the tampering crime and in the aggravated range

for the obstruction charge.            Portions of Appellant’s position are largely

____________________________________________


2
    Even assuming arguendo that Appellant’s second claim regarding the
consecutive nature of her sentences presents a substantial question for our
review, it would fail for the same reasons outlined with respect to her first
issue.



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repetitive of earlier arguments; namely, that the court did not indicate it

reviewed a presentence investigation report or provide an on-the-record

statement of its reasons for deviating from the standard guideline ranges.

Appellant submits that the court’s brief acknowledgment that it had

sentenced her outside the aggravated range was insufficient to support her

aggregate sixteen to thirty two month sentence of imprisonment.

      The Commonwealth rejoins that the sentencing court was aware that it

had exceeded the sentencing guideline range for tampering and provided

that it had set forth its reasons for doing so. In addition, the Commonwealth

submits that Appellant’s motion for reconsideration included the guideline

ranges and counsel argued at a hearing that the sentence exceed the

aggravated range. The court, nonetheless, despite being well aware of the

ranges, elected to retain its original sentence.   We find Appellant is not

entitled to relief. Compare Commonwealth v. Rodda, 723 A.2d 212, 214

-215 (Pa.Super. 1999) (en banc) (“we have affirmed sentence where the

record demonstrated that the sentencing court considered the guidelines and

was aware that the sentence it imposed exceeded the guidelines range,

though it did not, in fact, recite the range.”).

      The sentencing court provided lengthy reasons for its sentence.       It

highlighted that Appellant concocted a story to the President Judge, provided

a different story and lied to the Judicial Conduct Board, violated her oath of

office, and attempted to retaliate against a person with whom she had

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worked for over thirty years.    The court noted the disrepute Appellant’s

conduct placed on the judicial system as a whole. Appellant’s position that

the sentencing court did not provide reasons for its sentence is belied by the

record.

      Judgment of sentence affirmed.

      Fitzgerald, J. joins the Memorandum.

      Mundy, J. concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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