Com. v. Terrell, S.

• Court: Superior Court of Pennsylvania
• Decided: December 12, 2024
• Docket: 350 MDA 2024
• Status: Unpublished

Opinion

J-S33028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHARRITA SHANICE TERRELL : : Appellant : No. 350 MDA 2024

Appeal from the Judgment of Sentence Entered May 17, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002401-2020

BEFORE: OLSON, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 12, 2024

Sharrita Terrell appeals from the judgment of sentence imposed after

she pled guilty to various offenses arising from Terrell’s assault of her three

young children. She challenges the discretionary aspects of her sentence.

Upon review, we affirm.

The trial court set forth the facts, established at the guilty plea hearing,

as follows:

In 2020, [Terrell] had three children. At the time, the children were twelve, eleven, and nine years old. [Terrell’s] disciplinary actions involved the use of belts, hangers, and fists to strike the children. [On one occasion, Terrell] struck her nine-year-old child in the head with a frying pan [which drew blood]. During [another] incident involving Little Bites muffins, [Terrell put the children in a room and] tazed all three children multiple times while asking who ate the muffins. This action caused the children to drop to the floor. One child stated that he felt like he was going to [crawl] up the walls after being tazed [because of the pain]. J-S33028-24

Trial Court Opinion, 4/24/24, at 3. Terrell was arrested and charged with

multiple offenses.

On April 18, 2023, Terrell pled guilty to three counts of aggravated

assault of a child less than 13 years of age, two counts of using an

incapacitation device, and one count of endangering the welfare of a child

(“EWOC”).1 In exchange, the Commonwealth withdrew the ten remaining

charges. Additionally, the plea agreement provided for a “range” sentence:

the bottom range was 11 ½ to 23 months’ incarceration and the top range

was 3 to 6 years’ incarceration.

On May 17, 2023, the trial court sentenced Terrell to: 3 to 6 years for

each count of aggravated assault concurrent to each other; 1 to 2 years’

incarceration for each count of use of an incapacitation device, concurrent to

each other and the aggravated assault sentences; and two years’ state

supervision for EWOC, following incarceration. Terrell filed a post-sentence

motion, which the court denied. No appeal was taken at that time.

Following an amended petition under the Post Conviction Relief Act,2 the

court reinstated Terrell’s direct appeal rights on February 9, 2024. Terrell filed

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(9), 908.1(a)(1), and 4304.

2 42 Pa.C.S.A. §§ 9541-46.

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the instant timely appeal. She and the trial court complied with Pennsylvania

Rule of Appellate Procedure 1925.

On appeal, Terrell raises the following single issue:

Whether the trial court abused its discretion by imposing an excessive sentence and failing to take into consideration mitigating factors and [Terrell’s] history and character.

Terrell’s Brief at 4.

Terrell challenges the discretionary aspects of her sentence.

“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). This Court has explained that, to reach the merits of

a discretionary sentencing issue, we must conduct a four-part analysis to

determine:

(1) whether the appeal is timely; (2) whether [a]ppellant preserved his issue; (3) whether [a]ppellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [in accordance with 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)

(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).

Terrell has satisfied the first three requirements under Colon. Accordingly,

we must determine whether Terrell has raised a substantial question.

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In her Rule 2119(f) statement, Terrell claims that the trial court abused

its discretion by imposing an excessive sentence and failing to consider certain

factors. Terrell argues the court did not consider her character and history,

particularly her zero prior record score. She also argues that the court did not

consider various mitigating factors including her treatment needs and her

substantial personal growth since being charged in this case. Terrell’s Brief at

17.

A claim that the court failed to consider relevant sentencing criteria

when imposing a sentence of total confinement, which includes the history,

character, and condition of the defendant raises a substantial question. See

Commonwealth v. Luketic, 162 A.3d 1149, 1160 (Pa. Super. 2017); 42

Pa.C.S.A. § 9725. Additionally, a claim that the court failed to consider

mitigating factors, in conjunction with a claim that the sentence was

excessive, raises a substantial question. See Commonwealth v. Velez, 273

A.3d 6, 9 (Pa. Super. 2022), appeal denied, 283 A.3d 792 (Pa. 2022).

Therefore, we will consider the merits of Terrell’s sentencing claim.

Our standard of review of a sentencing claim is as follows:

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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

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Terrell claims that the trial court abused its discretion by sentencing her

to 3 to 6 years’ incarceration, which was the top end of the range of sentences

agreed upon by the parties. Specifically, Terrell argues that the court failed

to consider her history and character: she was a 32-year-old mother of four

children;3 she had no prior convictions. Terrell’s Brief at 20. Additionally,

Terrell maintains that the court did not consider various mitigating factors

including: Terrell requires medical treatment/supervision for a heart

blockage, cancer follow-up, and pregnancy; Terrell herself was a victim of

domestic abuse and suffers from psychological and emotional issues as a

result; and Terrell completed various courses in the areas of parenting and

family, anger management, drug and alcohol, and mental health to improve

herself. Id. at 23. Terrell acknowledges that her sentences were within the

sentencing guidelines but claims that her sentence was excessive. Id. at 16.

We disagree.

Our Supreme Court has stated that the “sentencing court is in the best

position to determine the proper penalty for a particular offense based upon

an evaluation of the individual circumstances before it.” Commonwealth v.

Walls, 926 A.2d 957, 961 (Pa. 2007) (citation and quotation marks omitted).

When imposing a sentence, the court must consider 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.

3 At the time of sentencing, Terrell was pregnant with her fifth child.

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42 Pa.C.S.A. § 9721(b). Additionally, a court must consider the applicable

sentencing guidelines when sentencing a defendant. 42 Pa.C.S.A. § 9721(b).

2024). When imposing a sentence of total confinement, the court must have

regard for “the nature and circumstances of the crime and history, character,

and condition of the defendant . . . .” 42 Pa.C.S.A. § 9725. “In particular,

the court should refer to the defendant's prior criminal record, [] age, personal

characteristics and [] potential for rehabilitation.” Commonwealth v.

Griffin, 804 A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa.

2005), cert. denied, 545 U.S. 1148 (2005). On appeal, this Court “shall vacate

the sentence and remand the case to the sentencing court with instructions if

it finds that . . . the sentencing court sentenced within the sentencing

guidelines, but the case involves circumstances where the application of the

guidelines would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

Initially, we observe that Terrell agreed the trial court could impose a 3

to 6-year sentence as part of her plea. However, because the trial court still

had discretion to impose a sentence within the agreed upon ranges, we do not

view this as a negotiated plea. Moreover, Terrell’s agreement weighs heavily

against a conclusion that the court abused its discretion or that her sentence

was unreasonable given that it was within the negotiated range. In fact,

without this agreement, the court could have imposed a much lengthier

sentence under the Sentencing Guidelines.

As Terrell emphasizes, her prior record score (“PRS”) was zero.

However, the offense gravity score (“OGS”) for two of her crimes was high.

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The OGS for each count of aggravated assault of a child less than 13, was 12.

As such a standard minimum sentence was 48 to 66 months with a maximum

sentence of 10 to 20 years’ incarceration (Terrell pled to three counts of

aggravated assault). The OGS for each count of use of an incapacitation

device was 8 (Terrell pled guilty to two counts of this crime). Thus, the

standard minimum sentence for Terrell was 9 to 16 months’ incarceration with

a maximum sentence of 5 to 10 years’ incarceration.

The trial court sentenced Terrell to 3 to 6 years’ incarceration for

aggravated assault and 1 to 2 years’ incarceration for use of an incapacitation

device. Significantly, the court ran the sentences concurrently; it could have

run them consecutively but for the plea agreement. Both sentences were in

the middle of the standard range, which, in part, was based upon Terrell’s PRS

under the Sentencing Guidelines.

Where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code. See Commonwealth v. Cruz–Centeno, 668 A.2d 536 (Pa. Super.

1995) (stating combination of PSI and standard range sentence, absent more,

cannot be considered excessive or unreasonable). Furthermore, the court

clearly was aware of and considered Terrell’s PRS. It noted that the top end

of the standard range under the guidelines for just the aggravated assaults

was 66 months, much higher than the agreement. N.T., 5/17/23, at 15.

Additionally, our review of the record discloses that the trial court

considered Terrell’s history and character and relevant mitigating factors. Id.

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at 16. The court had Terrell’s pre-sentence investigation report (“PSI”) and

reviewed it. Id. at 7, 16. “[W]here the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations, and that where the court has been so

informed, its discretion should not be disturbed.” Commonwealth v.

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted); see also

Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005) (stating if

the court has the benefit of a PSI, the law expects that the court was aware

of relevant information regarding defendant's character and weighed those

considerations along with any mitigating factors). The court reviewed the

Commonwealth and Terrell’s sentencing memoranda as well. Id.

The trial court also heard argument from Terrell’s counsel, who

advocated for the shorter, 11 ½ month, county sentence at the bottom of the

agreed upon range. Counsel argued that there were sufficient resources at

the county level to help Terrell. Counsel further argued that Terrell

endeavored to better herself since the incidents and had undergone counseling

on her own. Counsel argued that work release would enable Terrell to get

necessary services and start building a life for herself. Id. at 5-6. Terrell

personally told the court that she had been working to make improvements

and asked the court for grace. Id. at 15-16.

However, the trial court also heard from the children’s guardian ad litem

(“GAL”) who told the court about the significant impact Terrell’s conduct and

the resulting aftermath (i.e., placements, facilities, lack of a mother to attend

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the children’s events or guide them) had on her children and will have into the

future. The GAL further noted that this case was unusually complicated. She

further emphasized that Terrell delayed resolving her criminal matter for

years, which further affected the children. Finally, the GAL acknowledged that

although there was some “pretty bad stuff,” Terrell had done some good

things for her children, and, despite everything, the children thought favorably

of their mother. Id. at 7-11.

The Commonwealth told the trial court that, in 2015 (five years prior to

the incident at issue here), there was another incident where Terrell beat the

children with belts and received ARD. Further, it argued that Terrell had not

accepted responsibility for her conduct and failed to recognize the emotional

and psychological impact her conduct had on the children even though there

was no long-standing physical impact. The Commonwealth argued that Terrell

continued to minimize her conduct and claim that the matter was overcharged.

Id. at 11-14.

Immediately before sentencing Terrell, the court noted that it based

Terrell’s sentence on the PSI and sentencing memoranda which detailed

Terrell’s history and character and relevant mitigating factors. Id. at 16. It

also relied on Terrell’s counsels’ argument to the court. Trial Court Opinion,

4/24/24, at 6. Further, the court was aware of Terrell’s PRS. Thus, the trial

court considered all factors required by the Sentencing Code and imposed a

sentence in accordance with the plea agreement. On appeal, “[w]e cannot

re-weigh the sentencing factors and impose our judgment in place of the

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sentencing court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.

Super. 2009). In short, the trial court did not abuse its discretion when

imposing Terrell’s sentence in this case.

Judgment of sentence affirmed. Judge Olson joins. Judge Nichols

concurs in result.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/12/2024

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