Opinion
J-S48017-15 No. 1709 WDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LAUREN RUTH BUZARD, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence September 9, 2014, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0012042-2013 BEFORE: PANELLA, DONOHUE and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Appellant, Lauren Ruth Buzard ("Buzard"), appeals from the judgment of sentence entered on September 9, 2014 by the Court of Common Pleas of Allegheny County, Criminal Division, following her convictions of aggravated assault, endangering the welfare of a child, and recklessly endangering another person. For the reasons that follow, we affirm.
The trial court summarized the facts and procedural history of this case as follows:
[Buzard] was charged with Aggravated Assault, Endangering the Welfare of a Child and Recklessly Endangering Another Person. She appeared before this [c]ourt on June 9, 2014 and, pursuant to a plea agreement with the Commonwealth, pled guilty to all of the charges. [Buzard] next appeared before this [c]ourt on September 2, 2014 for sentencing, however[,] after hearing testimony, this [c]ourtTrial Court Opinion, 4/24/15, at 1-2 (footnotes omitted).
deferred the hearing to investigate mental health treatment options in sentencing. The hearing reconvened on September 9, 2014, at which time this [c]ourt imposed a term of imprisonment of [five to twenty] years at the Aggravated Assault charge. Timely Post-Sentence Motions were filed and were denied on September 18, 2014. This appeal followed.
Briefly, the evidence summarized at the plea hearing indicated that [Buzard]'s six (6) month old son was brought to UPMC Children's Hospital with an unexplained illness. The physicians were unable to make a diagnosis as the child's illness did not follow any known pattern. The child would get better and then worse without explanation. Video surveillance was set up in the child's room, and [Buzard] was observed putting feces in the child's IV and gastrointestinal tube. The child became septic, required sedation and was in the Pediatric Intensive Care Unit for [ten] days.
On appeal, Buzard raises the following issues for our review and determination: "Did the trial court abuse its discretion at sentencing by failing to properly consider [Buzard]'s rehabilitative needs along with her history, character, and condition?" Buzard's Brief at 5. The sole issue that Buzard raises on appeal challenges the discretionary aspects of her sentence. "The right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal." Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014). "An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence." Id. We conduct this four-part test to determine whether,
(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013) (citation omitted), appeal denied, 86 A.3d 231 (Pa. 2014). "A defendant presents a substantial question when he sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." Commonwealth v. Dodge , 77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted), appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Buzard preserved her discretionary aspects of sentencing claim by raising it in a post-sentence motion. See Motion to Reconsider Sentence, 9/17/14, at 1-3. Buzard also filed a timely notice of appeal and set forth a concise statement of the reasons relied upon for the allowance of her appeal pursuant to Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure in her appellate brief. See Buzard's Brief at 12-16. Thus, we must determine whether Buzard's discretionary aspects of sentencing claim raises a substantial question for our review.
Here, Buzard argues that the trial court failed to consider her rehabilitative needs along with her history, character, and mental health condition. Id. A claim that a sentencing court failed to consider the rehabilitative needs of the defendant does not present a substantial question for our review. See Commonwealth v. Griffin , 65 A.3d 932, 936-37 (Pa. Super. 2013) (holding that the appellant's allegation that the sentencing court failed to take into account his rehabilitative needs entitled him to no relief), appeal denied, 76 A.3d 538 (Pa. 2013). Likewise, a claim that a sentencing court did not consider a defendant's mitigating factors does not raise a substantial question. See Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) ("An allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question."). Because Buzard has not raised a substantial question, her discretionary aspects of sentencing claim must fail.
Even if we were to determine that Buzard's claim did raise a substantial question, we find no merit to the underlying allegation. Buzard contends that the record does not support the trial court's decision to sentence Buzard to a period of state incarceration as opposed to a county sentence or mental health treatment. Buzard's Brief at 17-22. Buzard asserts that her actions were the result of severe mental illness and that she was progressing well while receiving treatment in the Allegheny County Jail. Id. Thus, Buzard contends the trial court did not adequately justify its sentence.
Here, however, the record reflects that the trial court did consider Buzard's rehabilitative needs and mental health condition in sentencing her. See N.T., 9/9/14, at 7-8. The trial court explained:
I would also point out that the child was your child and the child was five months old. He didn't have a fighting chance, and had it not been for the doctors at Children's deciding to put in a nanny cam and caught you in the act of smearing feces and harming your child and, you know, he could have died. He almost died. He was in intensive care for ten days.Id. Therefore, because the trial court took into consideration Buzard's rehabilitative needs and mental health condition, her argument that the trial court did not contemplate her rehabilitative needs and other mitigating factors fails. Accordingly, we conclude that even if a substantial question had been raised, the trial court did not abuse its discretion in sentencing Buzard.
And I recognize that you have mental health problems; however, the horrendous actions which you took against your own child are enough to lead me to conclude that incarceration is the proper route in this case.
I have read the pre-sentence report ten times. I have gone back and forth. I have talked myself in and out of different sentencing, and I have concluded that I'm going to sentence you to pay the costs and order you to serve not less than five nor more than [twenty] years to be committed to the state correctional institute at Muncy with credit for time you have serve[d].
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015