Com. v. Davis, A.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2023
• Docket: 1570 MDA 2021
• Status: Unpublished

Opinion

J-S26027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ASHLEY STEPHEN DAVIS : : Appellant : No. 1570 MDA 2021

Appeal from the Judgment of Sentence Entered November 3, 2021 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001460-2019

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 6, 2023

Ashley Stephen Davis (Appellant) appeals from the judgment of

sentence entered in the Franklin County Court of Common Pleas following his

no contest plea to attempted homicide (causing serious bodily injury).1

Contemporaneous with this appeal, Appellant’s counsel, Kevin M. Taccino,

Esquire (Counsel), has filed a petition to withdraw from representation and an

Anders brief.2 The Anders brief presents a claim that challenges the

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 901, 2501(a). See also 18 Pa.C.S. § 1102(c) (permitting maximum 40-year sentence for conviction of attempted homicide when serious bodily injury results).

2See Anders v. California, 386 U.S. 738, (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S26027-22

discretionary aspects of Appellant’s sentence. For the reasons below, we

affirm the judgment of sentence and grant Counsel’s petition to withdraw.

The facts underlying Appellant’s guilty plea were summarized at the plea

hearing as follows:

On August 3, 2019[,] in the Borough of Chambersburg, [Appellant] did stab Shawna [Day (Victim)] with a knife multiple times, slicing her neck, stabbing her in the torso, creating multiple puncture wounds which did do serious bodily injury to her and [Appellant] did all of that with the intent to kill [Victim].

N.T., 7/29/21, at 14. The trial court also stated, and the Commonwealth

agreed, that “one can infer intent to kill through the use of a deadly weapon

on a vital part of the body.” Id.

Appellant was charged with attempted homicide, aggravated assault,

and possession of a weapon.3 On July 29, 2021, Appellant entered an open

no contest plea to one count of attempted homicide. In exchange for his plea,

the Commonwealth dismissed the remaining charges and agreed to stay silent

during sentencing. See N.T., 7/29/21, at 2.

On November 3, 2021, the trial court held a sentencing hearing where

it acknowledged the standard sentencing guideline range for Appellant’s

conviction was 168 to 240 months’ (14 to 20 years’) incarceration. During

the hearing, Counsel requested a 14 to 28 year sentence, which was on the

low end of the standard range. N.T., 11/3/21, at 9-10. Counsel based this

request on a prior plea offer from the Commonwealth, which was rescinded ____________________________________________

3 18 Pa.C.S. §§ 2702(a)(4) and 907(b), respectively.

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before sentencing “through no fault” of Appellant. Id. at 9. After hearing

statements from Victim and Appellant, and having reviewed a pre-sentence

investigation (PSI) report, the court sentenced Appellant to a term of 18 to 36

years’ incarceration, a sentence within the standard guideline range and below

the statutory maximum sentence. Appellant did not object to the sentence

imposed during the hearing, nor did he file a post-sentence motion. Appellant

then filed this timely appeal and complied with the trial court’s directive to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

When, as here, counsel files a petition to withdraw and accompanying

Anders brief, we must first examine the request to withdraw before

addressing any of the substantive issues raised on appeal. Commonwealth

v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to

withdraw from representation on appeal must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc). Pursuant to Santiago, supra, counsel must also:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state

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counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id., quoting Santiago, 978 A.2d at 361.

In the present case, the brief and petition to withdraw submitted by

Counsel substantially comply with the requirements of Anders and Santiago.

See Cartrette, 83 A.3d at 1032. Moreover, Counsel has provided this Court

with a copy of the letter he sent to Appellant, advising him of his right to

proceed pro se or retain private counsel, and to raise any additional claims.

See Attorney Taccino’s letter to Appellant, 5/31/22. Appellant did not file a

response. Thus, we may proceed to address the substantive claim presented

on appeal.

The Anders4 brief identifies one potential claim for our review:

Did the trial court abuse its discretion by sentencing [Appellant] to 18 to 36 years, which was within the standard range of sentences available, after acceptance of an open plea[?]

Anders Brief at 8.5

Appellant challenges the discretionary aspects of his sentence following

his open no contest plea to attempted homicide. Specifically, he argues his

4 We note Counsel refers to his brief as an Anders/McClendon brief. See Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). However, Santiago overruled McClendon in part, dictating that counsel must include an explanation of why an appellant’s appeal is wholly frivolous in an Anders brief. See Santiago, 978 A.2d at 360. Thus, we refer to the brief simply as an Anders brief.

5 The Commonwealth did not file a responsive brief before this Court.

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sentence of 18 to 36 years’ incarceration was “manifestly excessive in light of

the sentencing factors within the Sentencing Code.” Anders Brief at 12.

Preliminarily, we note:

Generally, a plea of guilty [or no contest] amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea.

Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation

omitted). Nevertheless, an appellant who enters an open plea may challenge

the discretionary aspects of their sentence on appeal. Commonwealth v.

Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017). However, they are not

entitled to review of their claim as of right. See Commonwealth v. Mulkin,

228 A.3d 913, 916 (Pa. Super. 2020). To determine whether this Court will

reach the merits of a discretionary aspects claim, we consider whether the

appellant complied with the following four-part test:

(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.

Id. (citation omitted).

Here, as noted above, Appellant did not preserve his sentencing claim

in a post-sentence motion. However, Counsel indicates, in his Anders brief,

that he preserved this claim at sentencing when he argued for the imposition

of a sentence of 14 to 28 years’ incarceration. See Anders Brief at 11.

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Specifically, at sentencing, Counsel stated: (1) during the incident Appellant

injured himself causing blood loss so severe he was “catatonic and

unresponsive” in the hospital for a period of time after the attack; (2) due to

this blood loss, Appellant “blacked out” during “part” of the attack; (3)

Appellant did not want to “prolong [Victim’s] trauma” by going to trial; (4) the

Commonwealth previously offered Appellant a plea deal including a 14 to 28

year sentence, which was rescinded “through no fault of his own[;]” and (5)

Appellant accepted responsibility for his actions. See N.T., 11/3/21, at 8-10.

On appeal, however, Appellant only argues his sentence is manifestly

excessive. Anders Brief at 12. Counsel’s request for a specific sentence of

14 to 28 years is not the equivalent of a claim that the 18 to 36 year sentence

imposed was manifestly excessive. Thus, Appellant failed to preserve his

sentencing challenge with the trial court, and it is waived for our review.6

In any event, had Appellant preserved this claim, we would still conclude

he is not entitled to relief. Appellant’s claim rests simply on his assertion that

his sentence is manifestly excessive. Anders Brief at 12.

We consider the relevant standard of review: ____________________________________________

6 We also point out that Counsel did not include a Pa.R.A.P. 2119(f) statement in his brief. Despite his assertion that the Rule 2119(f) requirement was satisfied “with the filing of [his] brief[,]” Counsel provided no support for this contention. See Anders Brief at 11. Nevertheless, because the Commonwealth did not object to the lack of a Rule 2119(f) statement, we may overlook this omission. See Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (this Court may ignore the omission of a Rule 2119(f) statement where the Commonwealth has not objected to its absence) (citation omitted).

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Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019) (citation

omitted). Further, “when imposing sentence, the trial court is granted broad

discretion, as it is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it.” Mulkin, 228 A.3d at 917. We also note, this Court will vacate a

sentence imposed within the sentencing guidelines only where “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Here, the trial court extensively reviewed the record and provided a

detailed and well-reasoned explanation supporting the sentence it imposed. .

Thus, if we were to address Appellant’s claim, we would rest on the basis of

the trial court’s opinion. See Trial Ct. Op., 1/11/22, at 9-15. (concluding the

court did not abuse its discretion in fashioning Appellant’s sentence where the

court: (1) “carefully considered the relevant factors” before imposing sentence

within the standard guideline range; (2) noted the standard range and

maximum sentences were “explicitly” set forth in Appellant’s signed plea

agreement; (3) considered arguments from Counsel, as well as Appellant’s

statement; (4) considered Victim’s statement about the lasting impact the

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attack has had on her daily life; (5) imposed a sentence which addressed

Appellant’s rehabilitative needs; (6) weighed any mitigating factors against

the seriousness of the offense and impact on Victim and others; and (7)

imposed a sentence that reflected all the information provided at the

sentencing hearing).

For the foregoing reasons, we conclude Appellant waived his

discretionary aspects of sentencing claim on appeal. Furthermore, even if the

claim were not waived, we would rest upon the well-reasoned opinion of the

trial court.

We direct a copy of the trial court’s January 11, 2022, opinion be filed

along with this memorandum, and attached to any future filings of this

memorandum.

Judgment of sentence affirmed. Petition to withdraw as counsel

granted.

Judge Kunselman joins the Memorandum.

President Judge Emeritus Stevens Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/06/2023

-8- Circulated 12/29/2022 11:35 AM

IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action — Law

V. No. 1460-2019

Ashley Davis, Defendant Honorable Angela R. Krom, J.

Opinion sur Pa.R.A.P. 1925(a)

This Court submits an Opinion pursuant to Pennsylvania Rule of Appellate

Procedure 1925(a) in response to the Notice of Appeal and Concise Statement of

Matters Complained of on Appeal filed by Ashley Davis ("Defendant") on

December 3, 2021, and December 27, 2021, respectively. For the reasons that

follow, this Court respectfully requests that the Superior Court affirm the judgment

of sentence.

STATEMENT OF THE CASE

Defendant was charged by separate criminal informations on September 12,

2019, with one count of Criminal Attempt—Homicide, Ione count of Aggravated

Assault 2 and one count of Possession of aWeapon, 3 based upon allegations by the

Commonwealth that on August 3, 2019, Defendant stabbed Shawna Day multiple

times in the torso and neck during adomestic dispute.

1 18 Pa.C.S. § 901(a) to 18 Pa.C.S. §2501(a). 2 18 Pa.C.S. §2702(a)(4). 3 18 Pa.C.S. § 907(b). 1 On May 19, 2021, Defendant filed aMotion for Modification of Bail and

Motion for Nominal Bail; these Motions were denied after ahearing on June 15,

2021, based upon our finding that no condition or set of conditions short of

incarceration would be sufficient to ensure the safety of the victim and the

community.

On July 29, 2021, Defendant entered aplea of nolo contendere to one count

of Criminal Attempt-Homicide, pursuant to an agreement with the

Commonwealth; the plea was an open plea, and the Commonwealth agreed to

remain silent at sentencing Sentencing was deferred until September 23, 2021 ,

and the Franklin County Probation Department was directed to prepare aPre-

Sentence Investigation Report (PSI) to aid the Court in sentencing. After two

continuances at Defendant's request, Defendant was ultimately sentenced on

November 3, 2021, to aterm of 18 to 36years' incarceration in astate correctional

institution, with credit for time served from August 4, 2019, to November 3, 2021.

On December 3, 2021, Defendant filed the instant Notice of Appeal. By

Order of Court dated December 6, 2021, we directed Defendant to file aconcise

statement of matters complained of on appeal within twenty-one days; Defendant

complied on December 27, 2021.

4 Also as part of the agreement, the Commonwealth agreed to dismiss the remaining charges.

2 DISCUSSION

In the Concise Statement, counsel infouns the Court that he intends to file an

Anders/McClendon brief in this matter.

In that regard, Pa.R.A.P. 1925(c)(4) provides:

In acriminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to 1925(a), or both. Upon remand, the trial court may, but is not required to replace appellant's counsel.

Pa.R.A.P. 1925(c)(4).

Though counsel indicated his intent to file an Anders brief, he nevertheless

set forth the claim Defendant wishes to raise on appeal in the Concise Statement,

as follows:

The Defendant believes and therefore avers that the Court abused its discretion by sentencing him to 18 to 36 years in prison, as the sentence is manifestly excessive in light of the sentencing factors pursuant to the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq, specifically, 42 Pa.C.S. § 9721.

Concise Statement of Matters Complained of on Appeal, at ¶5a.

As counsel raised the issue in the Concise Statement, we will address it here.

3 I. Right to Appellate Review

Initially, we note that Defendant's claim involves the discretionary aspects

of sentencing. See Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).

Significantly, adefendant challenging the discretionary aspects of sentencing is not

entitled to appellate review as of right. Id. Rather, the defendant must satisfy the

following four-part test to invoke the Superior Court's jurisdiction:

(1) whether appellant has filed atimely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). We find that

Defendant arguably failed to satisfy two prongs of this test.

First, under the second prong, "` issues challenging the discretionary aspects

of asentence must be raised in apost-sentence motion or by presenting the claim

to the trial court during the sentencing proceedings."' Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013)(quoting Commonwealth v. Kittrell, 19 A.3d

532, 538 (Pa. Super. 2011)). "` Absent such efforts, an objection to adiscretionary

aspect of asentence is waived."' Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.

Super. 2003).

In the instant case, no post-sentence motions were filed following

Defendant's November 3, 2021, sentencing proceeding. Further, we have reviewed

4 the sentencing transcript and record in this case and find nothing to indicate that

any objections were made during or immediately following sentencing. As such,

Defendant failed to preserve this sentencing claim, and it is thus waived.

Second, it is this Court's opinion that, at least at this stage, Defendant has

not established that asubstantial question exists. "` A substantial question will be

found where the defendant advances acolorable argument that the sentence

imposed is either inconsistent with aspecific provision of the code or is contrary to

the fundamental norms which underlie the sentencing process."' Commonwealth v.

Zurburg, 937 A.2d 1131, 1135 (Pa. Super. 2007)(quoting Commonwealth v. Eby,

784 A.2d 204, 205-06 (Pa. Super. 2001)). 5

The analysis by the Superior Court of whether aparticular issue forms a

substantial question is made on acase-by-case basis upon aconsideration of the

particular appeal. Feucht, 955 A.2d at 384. As such, the Superior Court has made

clear that it does not "include or exclude any entire class of issues as being or not

being substantial[,]" but instead evaluates each claim based on the particulars of

the defendant's statement. Id.

Therefore, our Supreme Court has held that claims of excessive sentence

may, in appropriate cases, present asubstantial question. Commonwealth v.

5"More specifically, the [defendant] must explain where the sentence falls in relation to the sentencing guidelines, identify what specific provision of the Code and/or what fundamental norm was violated, and explain how and why the sentencing court violated that particular provision and/or norm." Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008).

5 Mouzon, 812 A.2d 617, 627 (Pa. 2002). However, for that to occur, the defendant

must "compl[y] with all statutory and procedural requirements regarding a

challenge to the discretionary aspects of sentencing," which notably includes

sufficiently "articulat[ing] in his Rule 2119(f) statement asubstantial question so

as to warrant appellate review[.]" Id. In that regard, our appellate courts have

repeatedly held that bald allegations of excessiveness or non-specific claims of

error in aconcise statement do not raise asubstantial question to warrant appellate

review. Mouzon, 812 A.2d at 627; see also Feucht, 955 A.2d at 384. 6 Instead, a

defendant "` must, at aminimum, explain specifically why he thinks his sentences

were improper."' Mouzon, 812 A.2d at 627 (quoting Commonwealth v. Saranchak,

675 A.2d 268, 277 n. 18 (Pa. 1996)).

As discussed, though we do not have Defendant's Rule 2119(f) available to

us, Defendant's Concise Statement has provided little more than abald assertion.

Simply referencing the § 9721(b) factors in his claim, without any effort to prove

the manner in which, on the facts of the individual case, the sentence was in fact

6 For instance, aflat assertion that asentence "` flies in the face of fairness' because `[he] was given asentence of three (3) months [incarceration] for the theft by deception of a $20.00 bottle of perfume[,]"' fails to raise asubstantial question, relying on the proposition that "an argument concerning the weight that asentencing court gives to legitimate sentencing factors ... does not raise asubstantial question..." See Commonwealth v. Rose, 641 A.2d 617, 618 (Pa. Super. 1994); see also Commonwealth v. Smith, 575 A.2d 150, 167 (Pa. 1990)(finding the claim that the sentence "` was so manifestly excessive as to constitute an abuse of discretion where the defendant received asentence at the top of the aggravated range of the sentencing guidelines [j"' did not raise asubstantial question). 6 excessive, does little to substantiate this claim. 7, g Claims of excessive sentence are

not self-proving, especially where, like here, the sentence is not so obviously

excessive on its face. Thus, at this point, Defendant has failed to demonstrate a

substantial question exists.

Nevertheless, we will continue our analysis of Defendant's sentencing claim,

in the event the claim is ultimately heard by the Superior Court on its merits.

II. Merits of Defendant's Claim

Once adefendant has proven entitlement to appellate review, the following

standard of review shall apply:

Sentencing is amatter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill-will, or arrived at a manifestly unreasonable decision.

'Relevantly, in Commonwealth v. Ousley, the Superior Court held that the defendant's statement that "the sentence exceeds the guidelines and the conclusion... that the sentence ` is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the [defendant],"' does not raise asubstantial question, as the defendant failed to advise the court of what the applicable guideline range is and has not articulated any facts to support his claim that the sentence was not appropriately tailored to the relevant considerations. 573 A.2d 599, 601 (Pa. Super. 1990). 8 We also note that from Defendant's Concise Statement, it does not appear he is claiming the Court failed to consider the Section 9721(b) factors in imposing sentence. We acknowledge that such aclaim would typically be deemed to present asubstantial question. See Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016).

7 Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016). Moreover, "when

atrial court imposes asentence that is within the statutory limits, there is no abuse

of discretion unless the sentence is manifestly excessive so as to inflict too severe a

punishment." Mouzon, 812 A.2d at 624-25 (internal quotations omitted). 9Here,

Defendant does not argue that his sentence is outside the statutory maximum;

instead, he contends that the sentence is manifestly excessive given the relevant

sentencing factors that must be considered.

We acknowledge that appellate courts have found an abuse of discretion

"when the sentencing court fails to give ` careful consideration to all relevant

factors in sentencing [adefendant]."' Parlante, 823 A.2d at 930 ( quoting Sierra,

752 A.2d at 913). In determining the appropriate sentence, the sentencing court "is

required to consider the particular circumstances of the offense and the character of

the defendant." Id. (internal quotations omitted)(quoting Commonwealth v.

McClendon, 589 A.2d 706 (Pa. Super. 1991)(en Banc)). The law is clear, "the

sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is,

the protection of the public, gravity of offense in relation to impact on victim and

community, and rehabilitative needs of the defendant. [A]nd, of course, the court

9"In determining whether asentence is manifestly excessive, ` the appellate court must give great weight to the sentencing judge's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference."' Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super. 1998)(quoting Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997)(internal citations omitted)).

8 must consider the sentencing guidelines." Commonwealth v. Fullin, 892 A.2d 843,

847--48 (Pa. Super. 2006)(inteinal quotations and citation omitted).

Similarly, acourt imposing sentence "shall make part of the record, and

disclose in open court during sentencing, astatement of the reasons for the

sentence." Feucht, 955 A.2d at 383. However, the law does not require that the

Court "parrot the words of the Sentencing Code, stating every factor that must be

considered under Section 9721(b)." Id.; see also Commonwealth v. Hallock, 603

A.2d 612, 616 (Pa. Super. 1992)("[T]he fact that the sentencing court did not state

expressly that it considered each of these factors does not warrant reversal. ").

Here, we carefully considered the relevant factors and sentenced Defendant

within the standard range of the sentencing guidelines. Prior to sentencing, we

presided over Defendant's nolo contendere plea hearing, where Defendant

expressly agreed to an open plea pursuant to an agreement with the

Commonwealth; the standard range and maximum penalty for the pled-to charge

were explicitly set forth on the plea agreement form, which Defendant initialed at

the time of entry of the plea, indicating his acknowledgment. We also previously

presided over Defendant's pre-trial hearings, where we had the opportunity to view

anumber of relevant photographs depicting the injuries caused by Defendant; as

we stated at sentencing, the pictures made alasting impression on the Court. At the

9 sentencing hearing itself, we heard argument from counsel for Defendant, as well

as astatement by Defendant himself.

We also heard from Shawna Day, the victim of Defendant's crime. She told

the Court that the incident with Defendant has completely impacted her life,

explaining that her anxiety has reached an all-time high to the point where she has

trouble going out in public and has lost jobs because of it, that her two children

have been significantly affected by the incident, that she has moved afew times

because she is too afraid to stay in that area, and that she is still dealing with

resulting health issues and has needed to continue receiving medical treatment.

Finally, prior to sentencing, we reviewed the Probation Department's full

Pre- Sentence Investigation (PSI) report for this case.

Significantly, the Superior Court has stated:

where apre-sentence report exists, we must presume that the sentencing judge was aware of relevant infoiniation regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself .. we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in ameaningful fashion. It would be foolish, indeed, to take the position that if a

10 court is in possession of the facts, it will fail to apply them to the case at hand.

Hallock, 603 A.2d at 616 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988)). "Since the sentencing court in this case did have apre-sentence report, we

must presume that it did consider the factors outlined by appellant..." Hallock, 603

A.2d at 616. Here, not only did we have aPSI available, but we also provided a

meaningful explanation of our considerations at the time of sentencing.

At Defendant's sentencing proceeding, we were made aware of and

considered the relevant behavior and character of Defendant. During Defendant's

statement to the Court, he expressed that he was sorry for what happened to Ms.

Day, that he never wanted to hurt her, and that he took the plea to save her more

suffering through the court system. Further, counsel for Defendant explained that

at Defendant's previous court appearances, Defendant had such adifficult time

describing what happened because he blacked out during part of the incident and

does not remember those parts. Counsel claimed this resulted from Defendant

breaking out awindow during the incident and suffering asevere laceration to his

hand and wrist which caused asignificant loss of blood and led Defendant to be

catatonic and unresponsive for asignificant period of time.

We then inquired of Defendant as follows:

[THE COURT]: All right. When Ilook at your version of events on it's listed on page two of the Pre- Sentence Investigation Report you indicate—well, after discussing your rocky relationship and the acts of

11 violence committed against you by Ms. Day, you then suggest that you don't know where this knife came from. The only thing you remember is being in handcuffs and going in and out of consciousness due to blood loss. You cut your left hand and received three stitches.

So, this severe laceration that resulted in significant blood loss and your blacking out required only three stitches to repair.

[DEFENDANT] : That's what Iwas told, yes, ma'am.

[THE COURT]: And you were in York Hospital for aday?

[DEFENDANT] : To my knowledge, yes, ma'am.

[THE COURT] : What Ihaven't heard from you, and probably the reason why your plea was no contest and not guilty, is I'm hearing remorse at the suffering for Ms. Day, but I'm not hearing an acceptance of responsibility that it is your fault.

[DEFENDANT] : Your Honor, with all due respect, with this court system...

[THE COURT]: You keep saying that.

[DEFENDANT] : Itake full responsibility of what Idid, and Iwas wrong for that, and I'm sorry for what Idid. There is nothing Ican say or do to take that back.

[THE COURT]: So what you did was what?

[DEFENDANT] : It was wrong.

[THE COURT] : What you did was what? What did you do?

[DEFENDANT] : Itried to kill Ms. Day. It was wrong.

[THE COURT]: How did you try to kill her?

12 [DEFENDANT]: That Icouldn't tell you. What Iwas told was Iused a knife. That's the only thing Iknow because Iblacked out, Your Honor.

[THE COURT]: Okay. Thank you. Well, [] I have had the opportunity, of course, to hear everything that you heard here today.

Transcript of Proceedings of Sentencing, November 3, 2021 ("T.P., 11/3/2021"),

atl 1-13. Based upon the foregoing, it is clear that we made an effort to be fully

infomied regarding Defendant's character and attitude, keeping in mind that as the

sentencing court, we are "in the best position to view the defendant's character,

displays of remorse, defiance or indifference, and the overall effect and nature of

the crime." Hallock, 603 A.2d at 617 (citing Commonwealth v. Fries, 523 A.2d

1134 (Pa. Super. 1987)).

We also addressed Defendant's rehabilitative needs. Counsel informed the

Court that he discussed obtaining amental health evaluation with Defendant, but

Defendant did not want to do so prior to sentencing, as it would most likely

prolong his case. In imposing sentence, we stated that we agree with counsel that

Defendant's mental health is something that needs to be reviewed, and,

accordingly, imposed mental health evaluation and treatment as acondition of

Defendant's sentence. We further ordered adrug and alcohol assessment and any

recommended treatment and periodic testing, in addition to adomestic violence

treatment requirement.

13 Moreover, we weighed any mitigating factors against the nature and

seriousness of Defendant's conduct and its impact on the victim and others. We

explained:

Iknow that Ms. Day was not responsive to the Probation Department, but she did appear here today, and Iheard her comments and Iunderstand that this event had a profound, and has continued to have, aprofound impact on her life, her mental health, her physical health, her feeling of safety, her feeling of well-being at her home, at her work, and this incident has affected the lives of her children who feel now the need, understandably so, to be her protectors or her guardians, perhaps. So this event had a profound impact on many lives, not just Ms. Day[`s] physical health.

Iunderstand that you are now accepting responsibility in demonstrating some level of remorse, and Ido appreciate that, and that's probably the reason why Iam not going to impose a sentence of 20 years to 40 years, which is arguably what Ithink you deserve. So what Iam going to do is imprison you in the State Correctional Institution for aperiod of 18 years to 36 years because that is what I believe is appropriate... This sentence recognizes that Ms. Day nearly died and at your hands.

T.P., 11/3/2021, at 14-15. These comments demonstrate that we did not merely

pay lip service to the relevant considerations. Instead, we carefully considered all

of the information before us and imposed asentence that reflected that information.

14 Lastly, we imposed asentence within the guideline range- 10 We explained

that Defendant's conviction is afelony of the first degree, with an offense gravity

score of 14. We further noted that based upon aprior conviction for rape in

Kentucky, Defendant has aprior record score of 4. We accurately recited the

standard range ( 168 to 240 months) and mitigated range ( 156 months) of the

offense, and ultimately sentenced Defendant to 18 to 36 years' incarceration, or

216 to 432 months. This was consistent with the plea agreement, which set forth

the standard range. Further, the Court "did not impose [an] impermissibly

excessive maximum sentence[], as [it is] within the maximum temi[] provided by

the statutes of our Commonwealth." Boyer, 856 A.2d at 154. Additionally, there is

no indication of any bias, partiality, prejudice, or ill-will on the part of the Court.

In the present case, we carefully considered the appropriate factors and

imposed asentence in the standard guideline range. Accordingly, we find that

Defendant's sentencing claim does not entitle him to relief on appeal. See Mouzon,

812 A.2d at 620 ("Traditionally, the trial court is afforded broad discretion in

sentencing criminal defendants because of the perception that the trial court is in

the best position to detenniine the proper penalty for aparticular offense based

10 "This is true because the sentencing guidelines provide for minimum and not maximum sentences." See Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004).

15 upon an evaluation of the individual circumstances before it.")(internal citations

omitted).

CONCLUSION

Ultimately, this Court finds Defendant's appeal to be without merit and

respectfully requests that the Superior Court affina the judgment of sentence

imposed on November 3, 2021.

16 IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY BRANCH

ORDER OF COURT

AND NOW, this ( day of January, 2022, pursuant to Pa.R.A.P.

1931(c),

IT IS HEREBY ORDERED that the Clerk of Courts shall promptly

transmit to the Prothonotary of the Superior Court the record in this matter along

with the attached Opinion sur Pa.R.A.P. 1925(a).

Pursuant to the requirements of Pa.R.Crim.P. Rule 114, the Clerk of Courts shall immediately docket this Order and record in the docket the date it was made. The Clerk shall forthwith furnish acopy of the Order, by mail or personal delivery, to each party and attorney, and shall record in the docket the time and manner thereof.

By the Court,

Distribution: Franklin County District Attorney Kevin Taccino, Esq., Counsel for Defendant