Com. v. Gardner, T. ( 2015 )

J-S51014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS L. GARDNER
Appellant No. 754 EDA 2015
Appeal from the Judgment of Sentence February 26, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006750-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2015
Appellant, Thomas L. Gardner, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following his
guilty plea to two counts each of rape of a child and endangering the welfare
of children.1 On November 25, 2014, Appellant entered an open guilty plea
following the rape of his two stepdaughters on an almost daily basis for
three years. The court sentenced Appellant on February 26, 2015, to an
aggregate term of 19 to 38 years’ imprisonment, and deemed Appellant to
be a sexually violent predator. Appellant did not file any post-sentence
motions. Appellant timely filed a notice of appeal on March 16, 2015. The
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1
18 Pa.C.S.A. §§ 3121(c), and 4304(a)(1), respectively.
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*Retired Senior Judge assigned to the Superior Court.
J-S51014-15
court ordered Appellant to file a Rule 1925(b) statement, and Appellant’s
public defender responded with an intent to file an Anders brief. Appellant
subsequently obtained private counsel, who filed a motion to amend the
Rule 1925(b) statement. The court granted new counsel’s request, and
Appellant timely filed a Rule 1925(b) statement that challenged the
discretionary aspects of his sentence as manifestly excessive.2
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct 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, 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
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2
“[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.
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denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Instantly, Appellant failed to raise his discretionary aspects of
sentencing claim at sentencing, or in a post-sentence motion. See
Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003) (stating
challenges to discretionary aspects of sentencing are generally waived if
they are not raised during sentencing proceedings or in timely post-sentence
motion). Appellant’s pre-sentence request for a standard range sentence at
the bottom of the guidelines did not preserve his specific claim of excessive
sentence. Thus, Appellant waived his sentencing issue. Accordingly, we
affirm the judgment of sentence. See generally In re K.L.S., 594 Pa. 194,
197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived
on appeal, we should affirm rather than quash appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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