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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JOAN GENSIAK Appellant No. 677 MDA 2015

Appeal from the Judgment of Sentence October 16 , 2014 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP
- 35
- CR
- 0002134
- 2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E. * 

### MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2016 Appellant, Joan Gensiak, appeals from the judgment of sentence entered October 16, 2014, in the Court of Common Pleas of Lackawanna County, following her guilty plea to Neglect of a Care

- D ependent Person, graded as a felony of the first degree, and Endangering the Welfare of Children, graded as a felony of the third degree. 1 

### We affirm the convictions, but vacate the judgment of sentence and remand for resentencing. The trial court summar ized the history of this case as follows. On March 19, 2013, Robert Gensiak (hereinafter “Robert”), a thirty

- two (32) year old male with Down Syndrome, who was the brother of [the Appellant,] was admitted to the hospital

__________

__________________________________

* 

### Former Justice specially assigned to the Superior Court.

1 

### 18 Pa.C.S.A. §§ 2713 and 4304(a)(1), respectively.

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because he was semi

- responsive an d unable to stand up. [Appellant] resided in the home with Robert. At the preliminary hearing, David Utter testified that he was the lead emergency room technician at the hospital where Robert was admitted. He testified Robert was covered in a rash, and was emitting a strong, foul smelling odor. He testified that Robert weighed sixty[

- ]nine (69) pounds. While at the hospital, Robert went into cardiac arrest and passed away on March 20, 2013. The Lackawanna County District Attorney’s Officer charged [Appe llant] with four (4) charges related to her brother’s death and the endangerment of her two (2) year old daughter, who also resided in the home. [Appellant’s] mother, Susan Gensiak, and [Appellant’s] sister, Rebekah Gensiak, were also charged in relation t o Robert Gensiak’s death. [Appellant] was charged with Murder of the Third Degree ..., Neglect of Care

- Dependent Person ..., Involuntary Manslaughter ..., and Endangering Welfare of Children

- Parent/Guardian/Other Commits Offense.... On May 8, 2014, all three (3 ) co

- defendants pled guilty before [the trial court]. [Appellant] entered a guilty plea to [Neglect of Care

- Dependent Person and Endangering the Welfare of Children.] At the time of the guilty plea, [the trial court] engaged in an extensive colloquy of the [Appellant]. The [Appellant] ... stated that she had the opportunity to go through the four[

- ]page guilty plea colloquy with her attorney. She further stated that her lawyer answered any and all questions about the guilty plea colloquy and that she had an u nderstanding of her guilty plea and what she was doing. She also conceded that there was no agreement between herself, her attorneys and the District Attorney’s Office regarding sentencing. She additionally acknowledged that she understood the [c]ourt was not a party to any agreement she may have had regarding sentencing. When questioned, she answered she knew she had the right to a jury trial, and understood her attorney’s would have the opportunity to cross

- examine any witnesses called by the Commonwealth and to object to any evidence the District Attorney’s Office sought to have admitted to trial. During the colloquy of the [Appellant], the Assistant District Attorney read the allegations of the criminal information for both crimes into the record. [Appe llant accepted responsibility and admitted to committing the crimes with which

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she had been charged.] ... [Appellant] stated that she was freely and voluntarily entering into this plea. ... Accordingly, [the trial court] found [Appellant] entered into the plea knowingly, freely and voluntarily. Prior to sentencing, both attorneys for the [Appellant], on July 21, 2014 and August 26, 2014, respectively, filed separate motions for the appointment of a psychiatrist to aid in the sentencing of the [Appellant]. [ Appellant’s] attorneys requested that a psychiatrist be appointed at the rate of five hundred dollars ($500.00) per hour with a cap of five thousand dollars ($5,000.00). [The court] granted [Appellant’s] request for a psychiatrist, but capped the available amount at two thousand dollars ($2,000.00). Defense Counsel declined to use the psychiatrist, stating in a letter to the [c]ourt that two thousand dollars ($2,000.00) was an insufficient amount. Trial Court Opinion, 6/2/15 at 1

- 4. The court sentenced Ap pellant to a term of six to fifteen years’ imprisonment. Thereafter, Appellant filed a post

- sentence motion to withdraw her guilty plea as well as a motion for reconsideration of sentence. The trial court denied Appellant’s motions following a hearing. Thi s timely appeal followed. Appellant raises the following issues for our review. I. Whether, where Appellant was an [indigent], mentally

- ill person, charged with third degree murder, the lower court erred in [failing to appoint] a mental health expert to ai d Appellant’s court

- appointed counsel at sentencing? II. Whether, where the Commonwealth misled Appellant into pleading guilty, by telling her that her identically

- situated co - defendant was pleading guilty to an identical offense, an untrue fact, the lower cou rt erred in re[f]using to allow Appellant to withdraw her guilty plea and proceed to trial? III. Whether, by failing to articulate sufficient grounds on the record and by failing to properly weigh the mitigating circumstances present and by sentencing Appellant in a wildly disproportionate manner to that of her identically

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- situated co[

- ]defendant, the lower court erred in sentencing Appellant outside of the aggr[a]vated range? Appellant’s Brief at 7 (unnecessary capitalization omitted). Appellant first contends that the trial court erred when it allegedly denied her motion for the appointment of a p sychiatric expert to assist at sentencing. Although Appellant concedes that the trial court agreed to provide funds for an expert, she argues that the court’s decision to provide less money than the $5,000.00 she requested amounted to a tacit denial of App ellant’s motion. Our standard of review, as it relates to the appointment of a defense expert in a criminal matter, is as follows. The provision of public funds to hire experts to assist in the defense against criminal charges is a decision vested in the sound discretion of the court and a denial thereof will not be reversed absent an abuse of that discretion. Commonwealth v. Cannon , 954 A.2d 1222, 1226 (Pa. Super. 2008) (citation omitted). “[T]he Commonwealth is not obligated to pay for the services of an expert simply because a defendant requests one.” Id . at 1225 (citation omitted). Appellant next claims that the trial court erred when it denied her post
- sentence motion to withdraw her guilty plea. We note that,

[p]ost

- sentence motions for withdrawal are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence
- testing devices. A defendant must demonstrate that manifest injustice would result if the court were to deny his post
- sentence motion to withdraw a guilty plea . Manifest injustice may be established if the plea was not tendered knowingly,

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- intelligently, and voluntarily. In determining whe ther a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient plea does not per se establish prejudice on the order of manifest injustice. Commonwealth v. Broaden , 980 A.2d 124, 129 (Pa. Super. 2009) (interna l quotes and citations omitted).

To be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. [A] manifest injustice occurs when a plea is not tendered knowingly, intelligently, voluntarily, and understandingly. The Pennsylvania Ru les of Criminal Procedure mandate pleas be taken in open court and require the court to conduct an on

- the

- record colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Under [Pa.R.Crim.P.] Rule 590, the court sho uld confirm, inter alia, that a defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) he is giving up his right to trial by jury; (4) and the presumption of innocence; (5) he is aware o f the permissible ranges of sentences and fines possible; and (6) the court is not bound by the terms of the agreement unless the court accepts the plea. The reviewing Court will evaluate the adequacy of the plea colloquy and the voluntariness of the resul ting plea by examining the totality of the circumstances surrounding the entry of that plea. Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise. Commonwea lth v. Prendes , 97 A.3d 337, 352 (Pa. Super. 2014), appeal denied , 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted). We have reviewed Appellant’s first two issues raised on appeal, along with the briefs of the parties, the certified record a nd the applicable law. Having determined that the Honorable Margaret A. Bisignani Moyle’s June 2, 2015 opinion ably and comprehensively disposes of these issues, with appropriate reference to the record and without legal error, we affirm

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Appellant’s first two issues on the basis of that opinion. See Trial Court Opinion, 6/2/15 at 6

- 12. We write independently to address Appellant’s final issue, which challenges the discretionary aspects of her sentence. P reliminarily, we must determine whether Appellant has the right to seek permission to appeal the sentencing court’s exercise of its discretion. See Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges the discretionary aspects of his sentence, we utilize a four

- part test to determine: (1) whether appellant has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R. Crim. P. [720]; (3) whether appellant ’s brief has a fatal defect, Pa. R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A

. § 9781(b). Id

. (internal citations omitted). Here, Appellant chall enged her sentence in a post

- sentence motion and filed a timely appeal. Appellant’s appellate brief also contains the requisite Rule 2119(f) concise statement. We must now decide whether Appellant’s challenge to the discretionary aspects of her sentence ra ises a substantial question. “A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental

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norms which underlie the sentencing process.” Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014), appeal denied , 117 A.3d 297 (Pa. 2015) (citation omitted). “[W]e cannot look beyond the statement of questions presented and the prefatory 2119(f) stateme nt to determine whether a substantial question exists.” Commonwealth v. Christine , 78 A.3d 1, 10 (Pa. Super. 2013), affirmed , 125 A.3d 394 (Pa. 2015) (citation omitted). Appellant claims in her Rule 2119(f) statement that the trial court improperly imposed a sentence outside of the aggravated range of the sentencing guidelines. A claim that the sentencing court imposed a sentence outside of the guidelines without specifyin g sufficient reasons presents a substantial question for our review. See Commonwealth v. Holiday , 954 A.2d 6, 10 (Pa. Super. 2008). Our review of the sentencing transcript reveals that although the sentencing court announced that it was imposing an aggravated range sentence for the offense of Neglect of a Care

- Dependent Person, the court proceeded to sentence Appellant outside of the sentencing guidelines. See N.T., Sentencing, 10/16/15 at 21. The “Pennsylvania Commission on Sentencing Guideline Sent encing Form” contained within the certified record indicates that that offense carried an offense gravity store of ten, see also 204 Pa.Code §§ 303.3 and 303.15, and that Appellant had a prior record score of zero. The sentencing guidelines therefore provi de for a standard range sentence of 22 to 36 months imprisonment, with an aggravated range

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sentence of 36 to 48 months imprisonment. See id . at § 303.16(a). The trial court’s sentence of five to ten years’ imprisonment exceeded the guideline range. “In sen tencing outside of the guidelines , the court must demonstrate that it understands the sentencing guidelines ranges.” Commonwealth v. Garcia – Rivera , 983 A.2d 777, 780 (Pa. Super. 2009). The Sentencing Code specifies that “in every case where the court impos es a sentence ... outside the guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b)

. Section 9 781(c)(1) of the Sentencing Code makes clear that “the appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds [that] the sentencing court purported to sentence within the sentencing guidelines bu t applied the guidelines erroneously.” Because the record in the instant case does not indicate that the trial court properly considered the sentencing guidelines , and it appears that the trial court erroneously believed it was sentencing Appellant within the sentencing guidelines, when it in fact sentenced Appellant beyond the guidelines , we are constrained to vacate the judgment of sentence and remand for resentencing. See id

. See also Commonwealth v. Byrd , 657 A.2d 961 (Pa. Super. 1995) (vacating the ju dgment of sentence where the sentencing court failed to set forth the permissible range of sentences under the guidelines , and provided reasons on the record to support what it

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believed was a sentence in the aggravated range , while actually sentencing the appellant outside of the guidelines without providing a contemporaneous statement of its reasons for such deviation). A s our decision upsets the trial court’s sentencing scheme, we must vacate the entire judgment of sentence and remand for resentencing. 2 

### See generally Commonwealth v. Tanner , 61 A.3d 1043, 1048 (Pa. Super. 2013). Convictions affirmed. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/7/2016

__________

__________________________________ 2 

### Due to our disposition of t his issue, we decline to address Appellant’s additional claim that the sentencing court failed to adequately explain the disparity between Appellant’s sentence and that of her co

- defendant, Rebekah Gensiak.

# (

. i ry

· 1~
- L
{ '

1 testified Robert was covered in a rash , and was emitting a strong , fou~ smelling em e rgency room technician at the hospital where Robert was admitted

. He At the preliminary hearing, David Utter testified that he was the lead at p. 46. N.T. 9/27/13 at 

### 113.Q. Defendant resided in the home with Robert. N.T. 9/27/13 admitted to the hospital because he was semi-responsive and unable to stand up. Defendant, Joan Gensiak (hereinafter "Defendant" or "Appellant") was (32) year old male with Down Syndrome, who was the brother of the On March 19, 2013, 

### Robert Gensiak (hereinafter "Robert"), a thirty-two 

### II. FACTUAL/PROCEDURALHISTORY Pa. R.A.P

. 1925(b). Gensiak in her Statement of Errors Complain e d of on Appeal pursuant to 1925(a) , addresses the four (4 ) issues raised by Defendant/Appellant Joan The following Opinion, pursuant to the requirements under Pa. R.A.P. I. 

### INTRODUCTION 11 

# I 

# I 

# I MEMORANDUM OPINION PURSUANT TO Pa. R. A. P. 1925(a) : 2013 CR 2134 JOAN GENSIAK 

### : CRIMINAL DIVISION 

# vs . CLERK OF JUDICJ A L RECO'RDS 

### CRIMHH i L DIVISION
: 1N[llr~,co;μRT:rPF2~9¥MON : ~~;A~l't)p 'LA~K!A 

### WA~A :COUNTY COMM. OF PENNSYLVANIA

BISIGNANI MOYLE, J. Circulated 03/17/2016 03:36 PM2 I Defendant's entire guilty plea colloquy by this Court can be found from pages three (3) through twenty-four (24) in the May 8 , 2 014 tr a nscript. colloquy with her attorney. N.T. 5/18/14 a t p. 5. She further stated that her stated that she had the opportunity to go through the four page guilty plea § 4304. At the time of the guilty plea, this Court engaged in an extensive colloquy of the Defendant. 1 The Defendant, upon this Court's questioning, Children, graded as felony of the third degree, in violation of Title 18 Pa. C.S.A Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering Welfare of Cate-Dependent Person, graded as a felony of the first degree, in violation of Defendant Joan Gensiak entered a guilty plea to one (1) count of Neglect of On May 8 , 2014, all three (3) co-defendants pled guilty before this Court. violation of Title 18 Pa. C.S.A. 4304(a)(l). Endangering Welfare of Children-Parent/Guardian/Other Conunits Offense, in 

# d
1 1 i l Involuntary Manslaughter, in violation of Title 18 Pa. C.S

. A. § 2504, and Neglect of Care-Dependent Person, in violation of Title 18 Pa

. C.S.A. § 2713, with Murder of the Third Degree in violation of Title 18 Pa. C.S.A. § 2502, were also charged in relation to Robert Gensiak's death. Defendant was charged Defendant's mother, Susan Gensiak, and Defendant's sister, Rebekah Gensiak, endangerment of her two (2) year old daughter, who also resided in the home. Joan Gensiak, with four (4) charges related to her brother's death and the The Lackawanna County District 

### Attorney' s Office charged Defendant, arrest and passed away on March 20, 2013. N.T. 9/27/13 at p. 56. pounds. N.T. 9/27/13 at p. 53. While at the hospital, Robert went into cardiac odor. N.T. 9/27/13 at p. 46. He · testified that Robert weighed sixty nine (69) 

# II I3 that in their opinion, the Defendant was entering into the plea freely and voluntarily entering into this plea. N.T. 5/18/14 at p. 23. Her attorneys stated with her also." N.T. 5/18/14 at p. 23. Defendant stated that she was freely and admitted that she did in fact commit that crime and she "should have done more charge of Endangering the Welfare of a Child. N.T. 5/18/14 at p. 23. She at p. 22. The Assistant District Attorney then read the allegations regarding the commit this crime, stating 

### "I should have done more and .... yes. 11 N.T. 5/18/14 Neglect of Care-Dependent Person, Defendant responded that she did in fact the Assistant District Attorney read the allegations regarding the charge of the allegations of the criminal information for both crimes into the record. After During the colloquy of the Defendant, the Assistant District Attorney read N.T. 5/18/14 at p. 18. any evidence the District Attorney's Office sought to have admitted to trial. to cross-examine any witnesses called by the Commonwealth and to object to right to a trial by jury, and understood 

### her attorneys would have the opportunity N.T. 5/18/14 at p. 16. When questioned, she answered she knew she had the Court was not a party to any agreement she may have had regarding sentencing. N.T. 5/18/14 atp. 

### 16. She additionally acknowledged that she understood the herself, her attorneys and the District Attorney's Office regarding sentencing. 5/18/14 at p. 

### 6, 13. She also conceded that there was no agreement between she had an understanding of her guilty plea and what she was doing. N.T. lawyer answered any and 

### all questions about the guilty plea colloquy and that 11 

# !4 

### voluntarily, N.T. 5/18/14 at p. 24. Accordingly, this 

### Court found Defendant entered into the plea knowingly, freely and voluntarily. N.T. 5/18/14 at p. 24. Prior to sentencing, both attorneys for the Defendant, on July 21, 2014 and August 26, 2014, respectively, filed separate motions for the appointment of a psychiatrist to aid in the sentencing of the Defendant. Defendant's attorneys requested that a psychiatrist be appointed at a rate of five hundred dollars ($500.00) per hour with a cap of five thousand dollars ($5,000.00). This Court granted Defendant's request for a psychiatrist, but capped the available amount at two thousand dollars ($2,000.00). Defense Counsel declined to use the psychiatrist, stating in a letter to the Court that two thousand dollars ($2,000.00)
was an insufficient amount. On October 16, 2014, this Court sentenced all three co-defendants. The Defendant was sentenced to six (6) years to fifteen (15) years in a State Correctional Institution. N.T. 10/16/14 at p. 21. On October 23, 2014, she filed a Motion to Withdraw Plea of Guilty as well as a Motion for Reconsideration of Sentence. On November 3, 2014, the Commonwealth filed an Answer to Defendant's Motion to Withdraw Guilty Plea. On December 17, 2014, this Court held a hearing on Defendant's Motions. Although she raised several arguments in her Motion to Withdraw Guilty Plea, by the time of the heating, she abandoned all but one (1) argument. N.T. 12/17/14 at p. 109. Namely, she argued that she was not aware that her co-defendant, Rebekah Gensiak, pled guilty to a misdemeanor charge of Neglect of Care-Dependent Person

. Rather,she was under the mistaken impression her sister pled to Neglect of Care

# I ,,5 below

. Each of Defendant's four (4) issues complained of on appeal is discussed 4

. The trial comi abused its discretion in sentencing Appellant. Specifically, the court sentenced Appellant in a wildly disproportionate manner to her co-defendant , Rebekah Gensiak who was similarly situated to her, without adequate reason for doing s o. 3. The trial court erred in sentencing Appellant in the aggravated range in this case. The court failed to articulate sufficient and/or acceptable grounds for an aggravated range sentence on the record. 2. The trial court erred in refusing to allow Appellant to withdraw her guilty plea after sentencing despite the fact that the Commonwealth made material misstatements to Appellant in inducing her plea in this matter
. following four issues: Complained of on Appeal Pursuant to Rule 1925(b). Defendant raised the On April 13, 2015, Defendant filed her Statement of Matters Defendant's Motions. disparate. On April 8, 2015, this Court issued an Order and an Opinion denying

1. The trial court erred in refusing to appoint an appropriate Psychiatric and/or Psychological Expert Witness to assist Appellant and Appellant's Counsel at Sentencing in this matter. sentence of her sister co-defendant, arguing the range of prison terms were too additional argument. She raised the disparity between her sentence and the Dependent Person graded as a felony. Defendant's Motion for Reconsideration overlapped with her Motion to Withdraw her Guilty Plea , only setting forth one 

# !' ,j


# i1 I

1 1 I6 at 73. where he failed to utilize the experts approved by the court." Carter, 643 A.2d appellant cannot now assert that he was prevented from presenting his case the testimony of the psychiatrist during trial. The Carter Court held "the court granted Defendant's request for a psychiatrist, but Defendant failed to use Commonwealth 

### v. Williams, 561 A.2d 714, 718 (1989). 

### In Carter, the trial services of an expert." Com. 

### v. Cruter, 643 A.2d 61, 73 (1994) citing (1953). "There is no obligation on the part of the Commonwealth to pay for the crime." Id. citing United States ex rel. Smith v. Baldi. 344 U.S. 561, 568 assist in the preparation of a defense whenever requested by one accused of mandate, either federal or state, that experts be appointed at public expense to Gel01mo, 475 A.2d 765, 769 (Pa. Super. 1984). "There is no constitutional of a defense is vested in the sound discretion of the trial court." Comm. v. appointment of an expert witness or an investigator to assist in the preparation "Under the law of Pennsylvania, as in a majority of states, the b. Applicable Law (a) The trial court erred in refusing to appoint an appropriate Psychiatric and/qr Psychological Expert · Witness to assist Appellant and Appellant's Counsel at Sentencing in this matter. Defendant asserts, on appeal, as follows: a. Defendant's Argument 

### A. Appointment of an Appropriate Psychiatric and/or Psychological Expert Witness III. DISCUSSION7 

### Defendant's first matter complained of on appeal is without merit. had no obligation to do so, and Defendant chose not to use the expert, Because this Court granted Defendant's request, even though this Court and/or psychological expert witness." dollars ($2,000.00) as a "refusal refusing to appoint an appropriate psychiatric that amount, and now is attempting to frame this Court's grant of two thousand Defendant the opportunity to use that amount. The Defendant declined to use A.2d at 718. However, this Court was willing to provide a reasonable amount 

# I of money for a psychiatrist or psychologist. This Court calculated a reasonable amount for Defendant to use for a psychiatrist or psychologist and provided the sentencing. "There is no is no obligation on the part of the Commonwealth to pay for the services of an expert." Carter, 643 A.2d at 73 (1994) citing Williams. 561 with sentencing. Defendant then chose to proceed without use of the two thousand dollars ($2,000.00) to hire an expert and proceed directly to allow the appointment of either a psychiatrist or psychological expert to assist psychiatrist or psychological expert to assist with sentencing. Instead, this Court capped the total available funds at a reasonable amount ($2,000.00) to c. Application At the outset, this Court notes that the Court did not refuse to appoint a 118 18 Pa. C.S.A § 2502(C). Defendant then pled, as aforestated, to one (1) count Susan Gensiak pled guilty to Murder of the Third Degree in violation of Title On M a y 8, 2014, all three (3) co-defendants pled guilty before this Court. 9/27 /13 at p. 145

. ~· Ms. Gensiak replied "[t]o plead to Neglect of Care-Dependent." N.T

. "And did I ever offer you anything for your testimony today?" N.T. 9/27/13 at 200. At the preliminary hearing, the District Attorney asked Rebekah Gen s iak, Commonwealth and testified at the preliminary hearing. N.T. 9/27/13 at p. 144- related to the death of Robert Gensiak. Rebekah Gensiak cooperated with the 

# II
1 · I sister, Rebekah Gensiak, were each charged with several criminal offenses

As stated above, Defendant , along with her mother, Susan Gensiak, and argument 

### more clearly, one must look at the procedural history of this case. guilty



### . plea , for which this Court held a hearing. In order to frame Defendant's issue formed the basis of Defendant's argument in her motion to withdraw Rebekah 

### Gen s iak, pled guilty to a misdemeanor. N.T

. 12/17/14 at p

. 10. This posH f ntence because she was unaware that her sister and co-defendant, Defendant asserts that she should be allowed to withdraw her guilty plea (b) The trial court erred in refusing to allow Appellan t to withdraw her guilty plea after sentencing despite the fact that

. the Commonwealth made material misstatements

. to Appellant in inducing her plea in this matter. Defendant asserts, on appeal, as follows: a . Defendant's Argumen t B. · Refusal to Allow Appellant to Withdraw Guilty Plea After Sentencing9 well-established that "a showing of prejudice on the order of manifest injustice" When considering a petition to withdraw a guilty plea after sentencing, it is ( c) Applicable Law credibility as a witness during trial. N.T. 12/17/14 at p. 105. reasoned the co-defendant's plea agreement would have undermined her Defendant not to take the plea offer. N.T

. 12/17/14 at p. 105. Defense counsel that Rebekah Gensiak pled guilty to a misdemeanor, they would have advised Sentence. At the hearing , Defendant's counsel argued that if they had known Withdraw Guilty Plea and Defendant's Motion for Reconsideration of a felony. A hearing was held on December 17, 2014, on Defendant's · Motion to Dependent Person, they assumed she was going to plea to that crime, graded as Rebekah Gensiak stated that she was going to plea to Neglect of a Caremisdemeanor. N.T. 12/17/14 at p. 99. Defendant's counsel argued that when were . unaware, until after sentencing, that Rebekah Gensiak pled guilty to a a Motion for Withdrawal of Guilty Plea. Defendant's counsel argued that they 2014. On October 23, 2014, Defendant filed a Motion for Reconsideration and This Court sentenced Defendant, her mother; and her sister on October 16, graded as a misdemeanor of the first degree. cooperation, pled to one (1) count of Neglect of a Care-Dependent Person, 18 Pa. C.S.A § 4304. Finally, Rebekah Gensiak, in exchange for her Welfare of Children, graded 8;S felony of the third degree, in violation of Title violation of Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering of Neglect of Care-Dependent Person, graded as a felony of the first degree, in

I10 by the decedent just prior to the accident and that the Commonwealth had this Kephaii, the Defendant asserted that a woman witnessed the car being driven averm e nt that another individual was driving at the time of the accident. In guilty plea in light of newly discovered evidence that might have supported his Driving at an Unsafe Speed and Homicide by Vehicle, sought to withdraw his knowledge of the chargers). In Kephart, the Defendant; who pied guilty to DUI, determine whether the plea was entered into involuntarily or without t o withdraw a guilty plea must examine the totality of the circumstances and Pennsylvania Superior Court held that a court reviewing a post-sentence motion In Commonwealth v. Kephart, 594 A.2d 358, 360 (Pa. Super 1991), the A.2d 5, 6 (Pa. Super. 1982). entered without knowledge of the charge.'' Commonwealth v. Warren, 453 manifest injustice requires a showing that the plea was involuntary or was as a sentence-testing device. StalT, 301 A.2d a t 594. "A demonstration of burden because of the recognition that a withdrawal of a guilty plea can be used sentencing attempts to wi t hdraw a guilty plea must sustain this more substantial Commonwealth v. English, 597 A.2d 122, 123 (Pa

. Super. 1991)

. Postplaced on a defendant in such a motion increases significantly after sentencing. Commonwealth v. West 485 A.2d 490, 493(Pa. Super. 1984). The burden Commonwealth v . Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) quoting . was doing and the burden of proving involuntariness is squarely on him." A.2d 592, 595 (Pa. 1973). "A defendant is presumed to be aware of what he is required before withdrawal is properly justified. Commonwealth v. Starr, 301 i i 

# I I
11 

# I '1 1 ,, 

# I 

# I'11 Kephart, this newly discovered "evidence" does not constitute the type of suggesting the deal would have undermined her credibility as a witness. As in been to cro s s-examine the cooperating co-defendant about he r plea agreement, newly discovered evidence. Further they contend their strategy would have 

# I I to a Kephait analysis. Defense counsel contends this discovery is tantamount to that Rebekah Gensiak pled to a misdemeanor, rather than a felony, lends itself

. . circumstances regarding Defendant's plea, this Court finds that her discovery manifes t injustice. Like the Kephatt Court, after reviewing the totality of the circumstances to determine if Defendant has met her burden of establishing Under Kephart, this Court is required to examine the totality of the 

# ! 

# I I. ( d) Application denial of a ppellant's motion to withdraw his guilty plea

. " Id. conclusion, the Court found that "a manifest injustice does not result from the reason to believe that the witness's statement was exculpatory. · Id. In not amount · to exculpatory evidence and second, the Commonwealth had no identity of the driver. Id. The Kephart Court ruled the witness' testimony does interviewing the witness contained no reference to any statement regarding the driving. 

### In addition, the police investigator testified that 

### his notes 

### from further stated that she never told the police investigator the bearded male was determine whether the bearded male was the driver or the passenger . Id. She them was bearded. Id

. However, the witness testified that she could not sentencing hearing, the witness stated she saw two males in the car and one of evidence and did not turn it over to him. Kephart, 594 A.2d at 360. At the

### 12 raised on appeal is without merit. affected the outcome of the trial and therefore, Defendant ' s second matter There is no indication that this newly discovered information would have post-sentence guilty plea withdrawal. does not give rise to · the stringent standard utilized by our courts to warrant a Defense ' s cross-examination, In 

### either event, this type of attenuated speculation on her part
. It 

### is just as plausible that a jury would not have been swayed by the less inclined to believe Rebekah Gensiak's testimony. This is pure speculation of exculpatory evidence. Rather she asserts, if she went to trial, a jury would be co-defendant's plea agreement. This scenario does not equate to the discovery is asserting that she would have proceeded to trial if she had known about her More importantly, the Defendant is not asserting her innocence. Rather , she to both offenses "I should have done more." N.T. 5/18/14 at p. 22-23. record, and Defendant admitted to committing both crimes, stating with respect Assistant District Attorney read the st a tement of facts for each crime into the admitted that she committed the crimes for which she was sentenced. The I 

### misdemeanor and not a felony is not exculpatory evidence. The Defend~nt newly discovered evidence that one of the co-defendants .in this c ase pled to a 

# I I 

# !

I 

# l I 

# l I 

# I 

# l 

# I 

# I exculpatory epiphany that sways this Court to find a manifest injustice. The

### 13 Commonwealth v . Wall, 926 A.2d 957, 961 (2007) quoting Commonwealth v. unreasonable, or the result of partiality , prejudice, bias or ill

- will." "unless the record discl o ses that the judgment exercised was m a nifestly 362, 365 (Pa. Super. 2005). A sentencing court has not abused 

### .its discretion disturbed absent an abuse of discretion." Commonwealth v. Tirado , 870 A.2d "Sentencing is within the sound discretion of the trial court and 

### will not be (B)(l)(a) ; see Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Supe r . 2003). during the sentencing proceedings , or they are waived." Pa. R. Crim

. P. 720 Penn s y l vania, "such challenges must be raised in a post sentence motion or The Defendant is challenging the discretionary aspect of 

### her sentence. In 

### b

. Applicable Law aggregatesentence of six (6) years to fifteen (1.S) years imprisonment. · graded as felony three (3). These sentences were 

### run consecutively 

### for an years for Endangering the Welfare of a Child under Title 

### 18 Pa. C.S

. A § ' 4304 ; · felony one (1). This Court also sentenced Defendant to one (1) year to five (5) Neglect of Care-Dependent Persori under Title 

### 18 Pa : C.S.A § 2713, graded 

# as a This Court sentenced Defend a nt to five (5) years to ten (10) years for ( c) The trial court erred in sentencing Appellant in the

· · aggravated range 

### in this case. The court failed to articulate sufficient and/or acceptable grounds for an aggravated range sentence on the record. Defendant asserts, on appeal, as follows: 

# I !I i' 11 

# I I !t 

### ,1 I I 

# I' · a. Defendant's Argument



### C; This Court Set Forth Sufficient Reasons for Defendant/Appellant's . Sentence in the Aggravated Range I' 

# I 

# l, 

# I14 should be sentenced within the aggravated range. Id. Second, the sentencing sentencing judge may consider any legal factor in deciding whether a defendant 492 A.2d 443, 444 (1985) sets forth the three criteria that are applicable. First, a In order to sentence a Defendant in the aggravated range, Comm. 

### v. Hoover, A.2d 816, 823-24 (1992). 741 A.2d 726, 735 (Pa. Super. 1999) quoting Commonwealth v. Phillips, 601 reasons for the sentence imposed has been given." Commonwealth v. Brown, the court had the benefit of the presentence report, an adequate statement of the personal characteristics and rehabilitative potential, and the record indicates that "shows consideration of the defendant's circumstances, prior criminal record, A.2d 1220, 1228 (1997). Moreover, where the court's sentencing colloquy considerations in a 

### meaningful fashion." Commonwealth v. Cappellini, 690 that the court was aware of the sentencing considerations and weighed the Young. 895 A.2d at 44. "A sentence will not be disturbed where it is evident character of the defendant and the particular circumstances of the offense." trial court must consider the sentencing guidelines as well as the history and Commonwealth. v. Young, 895 A.2d 40, 42 (Pa. Super. 2006). In addition, "the rehabilitative needs of the defendant," 42 Pa.C.S.A; §9721(b); See 11
11 

# I relates to the impact on the 

### life of the victim and on the community, and the consistent with the protection of the public, the gravity of the offense as it several principles: [t]he sentence imposed should call for confinement that is punishment for any convicted defendant, the trial court must be guided 

### by Smith, 673 A.2d 893, 895 (1996). "When determining the appropriate 11 

# I15 prolonged period of time, that Robert Gensiak suffered a painful and prolonged In sum, this Court considered that the Defendant's victims suffered for a (tl.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.) For all of those reason , ma'am, the sentence is imposed here today." 

# I I Another reason · for the sentence here today with respect to Robert

is that by your own statements to the officers at the time of your arrest and your own statements in the presentence investigation is that you did take a more proactive role in the treatment and care of your brother Robert Gensiak, placing you in a better position to observe his deteriorating condition , to be alarmed by it, and to bring that attention to the appropriate authorities even if your mother wouldn't act. The sentences that I'm imposing here today, ma'am, are consistent with the protection of the public and the rehabilitative needs of you, the defendant. [T]he reasons for the sentence being imposed today is that this sentence recognizes the serious nature of the offenses that have been committed by you, the fact that both of your victims suffered and they suffered for a prolonged period of time-unfortunately Mr. Robert Gensiak suffered a painful and prolonged conditionof the Norwegian scabies-that both victims were unable either due to their age or their deteriorating condition or disability to care for themselves. We're talking about a two-year-old child and an adult male but with a deteriorating condition and a disability. Both of the victims were dependent upon you and other members of the family to provide the proper attention and medical care necessary to prevent any further suffering. This Court set forth its reasons for sentencing Defendant in the aggravated

range , as follows: Commonwealth v . Duffy. 491 A.2d 230, 233 (198'5). will not be disturbed absent a manifest abuse of discretion. Id. citing Finally, the sentencing judge's decision regarding the aggravation of a s entence judge's statement of reasons on record must reflect this consideration. Id.

### 16 ( d) The trial court abused its discretion in sentencing Appellant. Specifically, the court sentenced Appellant in a wildly Defendant asserts, on appeal, as follows: a. Defendant's Argument D. This Court Did Not Abuse its discretion in Sentencing

. Defendant/Appellant Disproportionately to her Co-Defendant, Rebekah Gensiak matter raised on a ppeal is without merit. guidelines and based on the reasons set forth on the record, Defendant's third Based on this Court's consideration of the requisite factors, the sentencing above referenced sentence. potential. After careful considerat i on of all these factors, this Court imposed the circumstances, personal characteristics, education level and rehabilitative and the Defendant herself

. This Court also took into consideration Defendant's investigation report, he a rd from the Commonwealth, counsel for the Defendant Further, this Court reviewed and took into consideration the

. presentence The Court set forth these reasons on the record during sentencing. attention to the appropriate authorities even if Defendant's mother wouldn't act. observe his deteriorating condition, to be alarmed by it, and to bring that role in the care of Robert Gensiak , placing Defendant in a better position to suffering. Further, this Court considered that Defendant took a more proactive relied on Defendant for proper attention and medical care 

### to prevent any further their age or condition or disability to care for themselves and that both victims condition of the Norwegian scabies, that both victims were unable either due to17 sentences
.. Commonwealth v. a rticulate differences between sentences on co-defendants, the collj ( i must the co-defendants that jjstify the ~ isparate

. . I

i 

### hurmond 390 A.2d : 

### 1330 ( 1330 

### (Pa; Super. 

### In order to impose different c. Applicable Law the first degree. This sentence a s also in the aggravated 

### range. 

# I I ! 

## I



# , I A trial court is not bound to impose a "like" sentence on ! all particip a nts of a I I crime. Commonwealth. v. Land', 421 A.2d 442, 444 

### (1980) ] "After con b idering i ' I ! the circumstances relating to each defendant, the trial ! court may 

# ! impose

, I I

. j different sentences." Common ealth v. 

### Bu1ion, 301 A.2d 675, 677 (Pe, 1973).
I ' ' i to ten 

### (10) years for Neglect of 

### Care

- Dependent Person under TitJJ 

### 18 Pa. 

## i C.S.A 

### § 21n, graded as a 

### fel ny one 

### (1). This sentence is in the aggravated I I rang e . This Court also sentenc d Defendant to twelve (12) to 

### twenty

- four (24) 

## i months for Endangering the elfare of a Child under Title 

### 18 Pa. C.S,A §

. I

I 4304, graded as felony t hr e (3). The respecti v e sentences wpre run I conse c utively 

### for an aggregate sentence of six 

### (6) years to fifteen 

## Op) years I i imprisonment. This Court sen enced Rebekah Gensiak to six (6). m ~ nths

. to I t wenty-three (23) months impr sonment stemming from her guilty ple~ to one

. I I (1) count of Neglect of a Care- ependent Person , graded as a misdemeanor of sentence
. As noted above, this betw e en her and her 

### cooperati g co-defendant the Court should reconsider h e r

. j

. 

### ourt sentenced Defend a nt to sixty (60Y.months i The Defendant argues th t because there is a disparity in 

### se n tencing disproportionate manne to her co-defendant, Rebekah Gensiak who was s imilarly situ ted to her, without adequate

. reason 

### for doing so .18 C.S.A § 2713, graded as a felony one (1) and Endangering Welfare ofChildren ' ' pled guilty to Neglect of Care-Dependent Person in violation of Title 18 Pa. guilty to different classifications of charges. Namely, Defendant Joan Gensiak reasons were articulated on the record

. . First and foremost, the defendants pied Defendant, Joan Gensiak, and her · co - defendant, Rebekah 

### Gensiak, Th~se Moreover, there are several reasons for the disparity in

. sentences between range. Court articulated specific reasons for Defendant's sentence in the aggravated careful consideration of the reasons listed above. Further, as stated above, this exercised by this Court was manifestly unreasonable, or the result of parti~lity , prejudice, bias or ill-will. Instead, Defendant's 

### sentence was the result

. of sentence. Notably, the Defendant has not demonstrated

. that the judgment

. 

### . . consideration of all these factors, this Court imposed the above referenced cha r acteristics, education level and rehabilitative potential, After

. careful 

# ii 

# I Court also took into consideration Defendant's circumstances, personal Commonwealth, counsel for the Defendant and the Defendant herself. This consideration the presentence investigation report, heard from the At the time of sentencing, this Court had reviewed and · took into d. Application (Pa. Super 1980)

. 960 (Pa. Super

. 

### 1983) citing Commonwealth 

### v. McQuaid, 41

_ 7 

### A.2d 1210, 1216 

## I 

# I 

# I another must be stated on the record. Commonwealth 

### v. Sinwell, 457 

### A.2d 957 , 1978). The reason why one co-defendant receives a more severe sentence than

. 

### . . 

### . . ' ' •. 

### 11 

# I

### 19 Another reason for the sentence here today with respect to Robert is that by your own statements to the officers at the time of your arrest and your own statements in the presentence investigation is that you did take a more proactive role in the treatment and care of your brother Robert Gensiak, placing you in a better position to observe his deteriorating condition, to be alarm e d by it , and to bring that attention to the appropriate authorities even if your mother wouldn't act. The sentences that I'm imposing here today, ma'am, are consistent with the protection of the public and the rehabilitative needs of you, the

. defendant. [T]he reasons for the sentence being imposed today is that this sentence recognizes the serious nature of the offenses that have been committed by you, the fact that both of your victims suffered and they suffered for a prolonged period of time=unfortunately ML Robert Gensiak suffered a painful and prolonged condition of the Norwegian scabies-that both victims were unable either due to their age or their deteriorating condition or dis a bility to care for themselves. We're talking about a two-year-old child and an adult male but with a deteriorating condition and a disability. Both of the victims were dependent upon you and other members of the family to provide the proper attention and medical care necessary to prevent any further suffering. Gensiak's sentence, this Court stated as follows, and as stated above: R e bekah Gensiak on the record. In setting forth the reasons for Defendant Joan Third, this Court articulated the reasons for the sentences of Defendant and range. 

# I

11 

# II 

# I carry different sentencing guidelines

. .

Second, all three (3) co-defendants received a sentence in the aggravated a misdemeanor of the first degree. These different classifications obviously Dependent person in violation Title 18 Pa. Cons. Stat. Ann. § 2713, graded as Defendant Rebekah Genisak pled guilty to one (1) count of Neglect of a Carein violation of Title 18 Pa. C.S.A § -4304, graded as a felony three (3). 

# I 

# II I20 due to school and work. Additionally, she was on bed rest due to her pregnancy. culpable in the eyes of the Court because she was out of the house more often Rebekah Gensiak , while culpable in the d e ath of Robert Gensiak, was not as her daughter in immediate danger and caused her daughter to suffer. Defendant her in a better position to observe his deteriorating condition. Joan also placed more proactive role in her brother's care which, as stated by this Court, placed placing the reasons for the sentences on the record, this Court noted Joan's opportunity to see the pain and suffering Robert suffered before his death. In while both sisters lived 

### in the house with Robert Gensiak , Joan had more of an pled to two (2) felonies, each of which concerned a separate victim. Further, Gensiak was the more culpable of these defendants. Defendant Joan Gensiak It is cle a r from the reasons set forth on the record that Defendant Joan (N.T. Rebekah Gensiak? 

### 2013 CR 

### 2143, 10/16/14 at p. 

### 16) The reasons for my sentence here today are that the sentence is consistent with the protection of the public and the rehabilitative needs of you, the defendant..... that the victim due to his deteriorating condition and his own disability was unable to care for himself and was dependent upon his family members to provide care for him, the fact that your brother suffered a painful and prolonged death. This sentence also recognizes the serious nature of the offense." · stated as follows:

II

11

I ill.T. Joan Gensiak 

### 2013 CR 2134 

### 10/16/14 at p. 22-23.)

In setting forth the reasons for Rebekah Gensiak's Sentence, the Court For· all of those reason, ma'am, the sentence is imposed here today."

### 21



# & - I - 1-sDATE: J. 

### BY THE COURT: raised on appeal 

### are without merit. For the reasons set forth in this Opinion, Defendant/Appellant's matters IV. 

### CONCLUSION appeal is without merit. consider a tion of the requisite factors, Defendant's fourth matter raised on between Rebekah Gensiak and the Defendant, as well as this Court's Based on the reasons set forth in the record for the differences in 

### sentence prosecution. pied

. to a 

### misdemeanor in exchange with her cooperation as a witness for the on care with Robert. N.T

. 12/17/14 at p . 80. Finally , Rebek a h Gensiak only N.T. 12/17/14 at p. 80. Further, Rebekah Gensiak did not participate in hands