Com. v. Markus, E.

Citation: Not availableDocket: 1448 WDA 2021

Court: Superior Court of Pennsylvania; September 30, 2022; Pennsylvania; State Appellate Court

Original Court Document: View Document

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Erica Markus appeals her judgment of sentence from the Court of Common Pleas of Allegheny County, imposed on October 18, 2021, after pleading guilty to multiple charges including aggravated assault by vehicle while DUI, DUI of a controlled substance, and possession of drug paraphernalia. Markus challenges the discretionary aspects of her sentence. The incident occurred on June 20, 2020, when Markus, while under the influence of fentanyl, drove recklessly at high speed, striking three individuals—Kelly Bundridge, William Bernard, and Adam Flam—who were standing by their vehicles. Victim impact statements presented at sentencing detailed the severe and lasting effects on Bundridge, who lost her legs and required extensive medical care, as well as the emotional and financial toll on her family. Family members expressed their trauma and requested maximum sentencing for Markus. The trial court accepted Markus's guilty plea and deferred sentencing for a presentence investigation report. At the sentencing hearing, Markus's character witness testified to her efforts in supporting others during rehabilitation. The court ultimately affirmed the trial court's decision.

Markus was recognized for her caring nature and commitment to personal growth, having been elected as a facilitator by 25 women at a three-quarter house, where she has lived since April 2021. She has adhered to house rules, passed drug tests, and served as a role model. Danielle Livingston, the house owner, commended Markus for her progress and dedication to recovery. At sentencing, Mercurio reiterated her impact statement from the guilty plea, while Sheena Lamb, Bundridge’s sister, expressed her family's trauma and anger towards Markus for the accident's consequences. Markus expressed deep remorse, acknowledging her past belief that her substance abuse solely affected her, which changed after the accident. She revealed thoughts of suicide due to the harm caused and voluntarily sought treatment to confront her addiction. The trial court noted that although Markus did not intend to hit the victims, her choice to use heroin before driving demonstrated a disregard for the potential consequences on others. Markus received an 18 to 36 months sentence for each count of aggravated assault by vehicle while DUI, to be served concurrently, and 72 hours plus five months probation for DUI: controlled substance. However, a subsequent written order stated these sentences were to be served consecutively, totaling 4.5 to 9 years of incarceration and five years of probation. On October 18, 2021, the court clarified its intention was for the sentences to be consecutive. Markus was also allowed to read statements from her family, which highlighted her remorse and commitment to sobriety, urging the court to consider her progress during sentencing.

Markus placed statements on record but did not seek reconsideration of her sentence initially. She subsequently filed a timely post-sentence motion for reconsideration, arguing that at 49 years old, she had no prior criminal history and had been law-abiding until her recent drug use. She highlighted her 16 months of treatment and ongoing sobriety since the accident, taking responsibility through an open guilty plea. Markus requested the trial court to amend her sentence to allow concurrent incarceration periods. The trial court denied her motion, and she appealed, challenging the discretionary aspects of her sentence on grounds of excessive and unreasonable sentencing without proper consideration of her character and rehabilitative needs.

The standard for reviewing sentencing discretion is established: a sentence will not be disturbed absent a manifest abuse of discretion. An appellant must show that the court ignored or misapplied the law or acted with bias or ill will. The right to appeal discretionary aspects is not absolute; it requires the appellant to preserve claims, file a timely notice of appeal, and raise a substantial question. Markus met these requirements, asserting that the trial court imposed an excessively severe sentence without considering mitigating factors like her treatment progress and commitment to sobriety.

The sentencing guidelines recommended a minimum of 12 to 24 months for aggravated assault by vehicle while DUI, and Markus received an 18 to 36-month sentence, which is within the standard range. Review of discretionary sentencing aspects affirms unless the guidelines' application is clearly unreasonable. Key considerations include the nature of the offense, the defendant's history, the court's observations, and the findings leading to the sentence.

A trial court must ensure that a sentence protects the public, considers the offense's severity and its impact on victims and the community, and addresses the defendant's rehabilitative needs. While the court does not need to explicitly state every factor from the Sentencing Code, the overall record must show that these statutory considerations were adequately taken into account. The court is not obligated to impose the minimum confinement but should craft a sentence based on the specific circumstances of the case and the defendant's character. Additionally, a defendant is not entitled to concurrent sentences for multiple offenses.

In this case, victim Bundridge provided impactful testimony about her severe injuries, including the loss of both legs and the ongoing emotional and physical challenges faced by her and her family. The trial court also heard from Markus, the defendant, who expressed remorse, voluntarily sought treatment, and maintained sobriety since the accident. Witness statements highlighted her positive progress in treatment programs.

The trial court acted within its discretion by weighing evidence from both sides and acknowledging the serious nature of Markus's actions, which were influenced by her drug use but not premeditated harm. The court concluded that the sentence was appropriate given the circumstances and the impact on the victims and their families. The judgment of sentence was affirmed, with no grounds for relief identified.