J-S37022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STERLING ENOS : : Appellant : No. 27 EDA 2023
Appeal from the Judgment of Sentence Entered June 14, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003712-2021
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JAUNARY 5, 2024
Sterling Enos (“Enos”) appeals from the judgment of sentence imposed
after he pled guilty to aggravated assault and possessing an instrument of
crime (“PIC”).1 We affirm.
Enos’s conviction arises from his assault of his longtime friend, Ashley
Mercer (“Mercer”),2 at a small gathering Mercer held with her adult son and
her twelve-year-old granddaughter in attendance. See Trial Court Opinion,
1/31/23, at 1. When Mercer asked Enos to leave, he grabbed a butcher knife,
and chased her around her apartment. See id. at 1. During the altercation,
Enos took a fire extinguisher from the hallway outside Mercer’s apartment and
____________________________________________
1 See 18 Pa.C.S.A. §§ 2702(a)(4), 907(a).
2 Mercer, whose birth name was “Shawn,” testified she has used the name “Ashley” for the last thirty-eight years. See N.T., 6/14/22, at 15, 20. J-S37022-23
struck Mercer in the head several times with it. See N.T., 12/1/21, at 11.3
Mercer is blind.
Enos entered an open guilty plea to aggravated assault and PIC. On
June 14, 2022, the trial court convened a sentencing hearing and had a
presentence investigation report (“PSI”). See N.T., 6/14/22, at 3-4. Enos,
through counsel, highlighted mitigating factors including abuse he suffered as
a child due to his sexual orientation4 and requested a “county sentence and
immediate parole.” See id. at 7-8. The Commonwealth requested a sentence
of three-and-a-half to seven years of imprisonment and a probationary tail
and emphasized several aggravating factors. See id. at 9-13, 29. Mercer
gave a statement to the court. See id. at 16-27. Enos exercised his right of
allocution and noted, in relevant part, that he suffers from two forms of cancer
3 We note the trial court’s and Enos’s summary of the facts differs slightly from
the facts Enos admitted at the guilty plea hearing, particularly as to when Enos attacked Mercer with the fire extinguisher. Compare Trial Court Opinion, 1/31/23, at 1 (indicating that Enos used the fire extinguisher before police arrived); Enos’s Brief at 5 (same) with N.T., 12/1/21, at 11 (suggesting that Enos used the fire extinguisher after police arrived). It appears that the trial court and the parties have relied on the transcript of the preliminary hearing. At the preliminary hearing, Mercer testified that after Enos attacked her inside her apartment, Enos assaulted her in the hallway outside with the fire extinguisher before police arrived. See N.T., 4/29/21, at 8-10. Mercer also indicated that after being struck with the fire extinguisher, she managed to get back in her apartment. See id. at 12, 14. She testified Enos used a table as a battering ram against her door while paramedics were outside her apartment building. See id. at 14-15. Mercer stated she waited for a lull in Enos’s attack to run out of her apartment, but Enos attacked her again before she escaped through the front of her apartment building. See id. at 15-16.
4 Counsel did not specify Enos’s sexual orientation.
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and his mother is ill. See id. at 31-33. Enos expressed his desire not to die
in jail and to see his mother one more time. See id. Enos apologized to
Mercer and asked for her forgiveness. See id. at 31-32.
The trial court sentenced Enos to three-and-a-half to seven years of
imprisonment and a consecutive three years of reporting probation for
aggravated assault.5 The court found it “frightening” that Enos attacked his
longtime friend inside her home and in front of other people, including Mercer’s
granddaughter. See id. at 34. The court also noted that Enos renewed his
attack when Mercer attempted to flee from her apartment building and the
paramedics did not enter the building out of fear for their safety. See id. The
court further ordered anger management and dual diagnoses programs and
indicated that it was aware that Enos previously had difficulties complying with
probation. See id.6
5 As noted at sentencing, Enos had a prior record score of five and the offense
gravity score for aggravated assault was eight. See N.T., 6/14/22, at 28. The sentencing guidelines recommended a minimum sentence of between twenty-seven to thirty-three months of incarceration, plus or minus nine months for aggravating or mitigating factors. See id.; see also 204 Pa. Code § 303.16(a) (7th edition amendment 5, effective 1/1/20). Thus, the trial court’s minimum sentence of three-and-a-half years (forty-two months) was at the top end of the sentencing guidelines’ aggravated range.
The trial court imposed no further penalty for PIC.
6 The PSI indicated that Enos had a history of non-compliance with court ordered conditions and homelessness. See PSI, 2/3/22, at 3.
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Enos timely filed a post-sentence motion, which was denied by operation
of law. Enos timely appealed, and both he and the trial court complied with
Pa.R.A.P. 1925.
Enos presents the following issue for our review:
. . . Did the lower court abuse its discretion in sentencing [him] to three-and-a-half to seven] years [of] confinement based solely on the offense, but the court gave no consideration to [his] mitigation and rehabilitative needs?
Enos’s Brief at 3.
Enos’s sole issue on appeal implicates the discretionary aspects of
sentencing. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Moury, 992
A.2d 162, 170 (Pa. Super. 2010). Rather, when an appellant challenges the
discretionary aspects of her sentence, we must consider his brief on this issue
as a petition for permission to appeal. See Commonwealth v. Yanoff, 690
A.2d 260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki,
522 A.2d 17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b). Prior to reaching the
merits of a discretionary sentencing issue, this Court conducts a four-part
analysis 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, [see] 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, [see] 42 Pa.C.S.A.§ 9781(b).
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Moury, 992 A.2d at 170 (citation omitted).
In the instant case, Enos filed a timely notice of appeal, preserved his
claim in a timely post-sentence motion, and included in his appellate brief a
separate Rule 2119(f) statement. Moreover, Enos’s Rule 2119(f) statement,
asserting that the trial court failed to consider all required factors pursuant 42
Pa.C.S.A. § 9721(b), raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (stating that “[a]
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J-S37022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STERLING ENOS : : Appellant : No. 27 EDA 2023
Appeal from the Judgment of Sentence Entered June 14, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003712-2021
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JAUNARY 5, 2024
Sterling Enos (“Enos”) appeals from the judgment of sentence imposed
after he pled guilty to aggravated assault and possessing an instrument of
crime (“PIC”).1 We affirm.
Enos’s conviction arises from his assault of his longtime friend, Ashley
Mercer (“Mercer”),2 at a small gathering Mercer held with her adult son and
her twelve-year-old granddaughter in attendance. See Trial Court Opinion,
1/31/23, at 1. When Mercer asked Enos to leave, he grabbed a butcher knife,
and chased her around her apartment. See id. at 1. During the altercation,
Enos took a fire extinguisher from the hallway outside Mercer’s apartment and
____________________________________________
1 See 18 Pa.C.S.A. §§ 2702(a)(4), 907(a).
2 Mercer, whose birth name was “Shawn,” testified she has used the name “Ashley” for the last thirty-eight years. See N.T., 6/14/22, at 15, 20. J-S37022-23
struck Mercer in the head several times with it. See N.T., 12/1/21, at 11.3
Mercer is blind.
Enos entered an open guilty plea to aggravated assault and PIC. On
June 14, 2022, the trial court convened a sentencing hearing and had a
presentence investigation report (“PSI”). See N.T., 6/14/22, at 3-4. Enos,
through counsel, highlighted mitigating factors including abuse he suffered as
a child due to his sexual orientation4 and requested a “county sentence and
immediate parole.” See id. at 7-8. The Commonwealth requested a sentence
of three-and-a-half to seven years of imprisonment and a probationary tail
and emphasized several aggravating factors. See id. at 9-13, 29. Mercer
gave a statement to the court. See id. at 16-27. Enos exercised his right of
allocution and noted, in relevant part, that he suffers from two forms of cancer
3 We note the trial court’s and Enos’s summary of the facts differs slightly from
the facts Enos admitted at the guilty plea hearing, particularly as to when Enos attacked Mercer with the fire extinguisher. Compare Trial Court Opinion, 1/31/23, at 1 (indicating that Enos used the fire extinguisher before police arrived); Enos’s Brief at 5 (same) with N.T., 12/1/21, at 11 (suggesting that Enos used the fire extinguisher after police arrived). It appears that the trial court and the parties have relied on the transcript of the preliminary hearing. At the preliminary hearing, Mercer testified that after Enos attacked her inside her apartment, Enos assaulted her in the hallway outside with the fire extinguisher before police arrived. See N.T., 4/29/21, at 8-10. Mercer also indicated that after being struck with the fire extinguisher, she managed to get back in her apartment. See id. at 12, 14. She testified Enos used a table as a battering ram against her door while paramedics were outside her apartment building. See id. at 14-15. Mercer stated she waited for a lull in Enos’s attack to run out of her apartment, but Enos attacked her again before she escaped through the front of her apartment building. See id. at 15-16.
4 Counsel did not specify Enos’s sexual orientation.
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and his mother is ill. See id. at 31-33. Enos expressed his desire not to die
in jail and to see his mother one more time. See id. Enos apologized to
Mercer and asked for her forgiveness. See id. at 31-32.
The trial court sentenced Enos to three-and-a-half to seven years of
imprisonment and a consecutive three years of reporting probation for
aggravated assault.5 The court found it “frightening” that Enos attacked his
longtime friend inside her home and in front of other people, including Mercer’s
granddaughter. See id. at 34. The court also noted that Enos renewed his
attack when Mercer attempted to flee from her apartment building and the
paramedics did not enter the building out of fear for their safety. See id. The
court further ordered anger management and dual diagnoses programs and
indicated that it was aware that Enos previously had difficulties complying with
probation. See id.6
5 As noted at sentencing, Enos had a prior record score of five and the offense
gravity score for aggravated assault was eight. See N.T., 6/14/22, at 28. The sentencing guidelines recommended a minimum sentence of between twenty-seven to thirty-three months of incarceration, plus or minus nine months for aggravating or mitigating factors. See id.; see also 204 Pa. Code § 303.16(a) (7th edition amendment 5, effective 1/1/20). Thus, the trial court’s minimum sentence of three-and-a-half years (forty-two months) was at the top end of the sentencing guidelines’ aggravated range.
The trial court imposed no further penalty for PIC.
6 The PSI indicated that Enos had a history of non-compliance with court ordered conditions and homelessness. See PSI, 2/3/22, at 3.
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Enos timely filed a post-sentence motion, which was denied by operation
of law. Enos timely appealed, and both he and the trial court complied with
Pa.R.A.P. 1925.
Enos presents the following issue for our review:
. . . Did the lower court abuse its discretion in sentencing [him] to three-and-a-half to seven] years [of] confinement based solely on the offense, but the court gave no consideration to [his] mitigation and rehabilitative needs?
Enos’s Brief at 3.
Enos’s sole issue on appeal implicates the discretionary aspects of
sentencing. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Moury, 992
A.2d 162, 170 (Pa. Super. 2010). Rather, when an appellant challenges the
discretionary aspects of her sentence, we must consider his brief on this issue
as a petition for permission to appeal. See Commonwealth v. Yanoff, 690
A.2d 260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki,
522 A.2d 17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b). Prior to reaching the
merits of a discretionary sentencing issue, this Court conducts a four-part
analysis 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, [see] 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, [see] 42 Pa.C.S.A.§ 9781(b).
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Moury, 992 A.2d at 170 (citation omitted).
In the instant case, Enos filed a timely notice of appeal, preserved his
claim in a timely post-sentence motion, and included in his appellate brief a
separate Rule 2119(f) statement. Moreover, Enos’s Rule 2119(f) statement,
asserting that the trial court failed to consider all required factors pursuant 42
Pa.C.S.A. § 9721(b), raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (stating that “[a]
claim that the court erred by imposing an aggravated range sentence without
consideration of mitigating circumstances raises a substantial question”).
Therefore, we will consider the merits of Enos’s claim.
Our standard of review for challenges to the discretionary aspects of
sentencing is well-settled:
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. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation
omitted). When the sentencing court applies the sentencing guidelines, this
Court may only vacate if the case involves circumstances where the
application of the guidelines would be clearly unreasonable. See 42 Pa.C.S.A.
§ 9781(c)(2); Commonwealth v. McCarthy, 180 A.3d 368, 380 (Pa. Super.
2018).
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Our legislature has determined that “the sentence imposed should call
for total confinement that is consistent with . . . the protection of the public,
the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b). Moreover, “[i]n every case in which the court imposes
a sentence for a felony or misdemeanor . . . the court shall make as a part of
the record, and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.” Id. The trial court,
however, need not undertake a lengthy discourse for its reasons for imposing
a sentence. See Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa.
Super. 2022) (citation omitted), appeal denied, 285 A.3d 883 (Pa. 2022).
“[W]here the sentencing judge had the benefit of a [PSI], it will be
presumed that he or she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Akhmedov, 216 A.3d 307, 329 (Pa.
Super. 2019) (en banc) (citation omitted). “The sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on the record
by indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” See id. (citation omitted).
In the matter sub judice, Enos insists that the court failed to consider
mitigating factors, including his health issues, homelessness, acceptance of
responsibility, and expressions of remorse. He acknowledges that the trial
court had the benefit of a PSI but argues the court’s failure to give any weight
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to his rehabilitative needs and its emphasis on the facts of the case entitles
him to resentencing.
The trial court asserts it considered the PSI before sentencing and that
the record belies Enos’s claim that it failed to consider mitigating factors. See
Trial Court Opinion, 1/31/23, at 3-4. The court concludes it properly
sentenced in the aggravated range where, inter alia, the extent and
persistence of Enos’s assault of Mercer in the presence of Mercer’s twelve-
year-old granddaughter justified the imposition of an aggravated range
sentence and made greater leniency inappropriate. See id. at 3.
We conclude Enos’s argument that the trial court failed to consider all
Enos’s rehabilitative needs and other mitigating evidence merits no relief. The
parties presented thorough arguments concerning the mitigating and
aggravating circumstances in this case. See N.T., 6/14/22, at 7-13. Enos
offered his own statement before sentencing. See id. at 31-33. The court
had the benefit of a PSI, and the court stated that it reviewed the PSI and
fashioned its sentence accordingly. See id. at 3-4, 30-31, 34; Trial Court
Opinion, 1/31/23, at 4. We discern no basis that the sentence is clearly
unreasonable under the circumstances of this case. See 42 Pa.C.S.A.
§ 9781(c)(2), (d). Thus, Enos’s sentencing claim fails.
Judgment of sentence affirmed.
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Date: 1/5/2024
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