Com. v. McGarvie, T. ( 2020 )

J-S75037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREVOR A. MCGARVIE :
:
Appellant : No. 1148 WDA 2019
Appeal from the Judgment of Sentence Entered June 28, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000821-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREVOR ALLEN MCGARVIE :
:
Appellant : No. 1149 WDA 2019
Appeal from the Judgment of Sentence Entered June 28, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000944-2018
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 4, 2020
In these consolidated cases, Trevor Allen McGarvie (McGarvie) appeals
from the judgment of sentence imposed following his entry of guilty pleas at
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S75037-19
the above-listed docket numbers to Theft by Unlawful taking and Contraband.1
McGarvie challenges the discretionary aspects of his sentence. We affirm.
On May 2, 2019, McGarvie entered the above-mentioned pleas. The
convictions arose from separate incidents in which he stole a motorcycle and
brought contraband (marijuana) into a correctional facility. On June 28, 2018,
the trial court sentenced McGarvie to an aggregate term of not less than thirty
nor more than seventy-two months’ incarceration. The sentence included a
mandatory minimum term of imprisonment of not less than two years for the
contraband offense.2 McGarvie did not file a post-sentence motion. He timely
appealed and he and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b).
As previously noted, McGarvie challenges the discretionary aspects of
his sentence. He argues that the trial court failed to adequately weigh several
mitigating factors in his background, specifically, that he had no prior criminal
history; that he took responsibility for his possession of the marijuana upon
arrival at the correctional facility; his young age; and past military service.
(See McGarvie’s Brief, at 6-8). However, we agree with the trial court and
the Commonwealth that this issue is waived. (See Trial Court Opinion,
8/23/19, at 1-2; Commonwealth’s Brief, at 9-11).
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1 18 Pa.C.S. §§ 3921(a) and 5123(a).
2 See 18 Pa.C.S. § 5123(a.1).
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J-S75037-19
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018), appeal
denied, 206 A.3d 1029 (Pa. 2019) (citation omitted). “An appellant must
satisfy a four-part test to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence.” Id. (citation omitted). “We conduct this
four-part test to determine whether: (1) the appellant preserved the issue
either by raising it at the time of sentencing or in a post[-]sentence motion;
(2) the appellant filed a timely notice of appeal; (3) the appellant set forth a
concise statement of reasons relied upon for the allowance of his appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial
question for our review.” Id. (citation omitted).
It is well-settled that objections to the discretionary aspects of a
sentence are waived if a defendant does not raise them at the sentencing
hearing or in a post-sentence motion. See Commonwealth v. Padilla-
Vargas, 204 A.3d 971, 976 (Pa. Super. 2019); see also Pa.R.A.P. 302(a).
Instantly, McGarvie did not raise the issue of the court’s lack of consideration
of mitigating factors at sentencing or in a post-sentence motion and,
therefore, it is waived.3
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3 Moreover, the record reflects that a pre-sentence investigation report was
prepared in this case. (See N.T. Sentencing, at 4). In cases where “the trial
court has the benefit of a pre-sentence report, we presume that the court was
-3-
J-S75037-19
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/04/2020
____________________________________________
aware of relevant information regarding the defendant’s character and
weighed those considerations along with any mitigating factors.”
Commonwealth v. Johnson, 125 A.3d 822, 827 (Pa. Super. 2015) (citation
omitted).
Further, the notes of testimony from the sentencing hearing demonstrate that
the trial court did consider mitigating factors in imposing its sentence, but
noted that the contraband offense was serious and carried a mandatory
minimum sentence, and that consecutive sentences were appropriate given
that the crimes were separate and distinct, occurring on different days. (See
N.T. Sentencing Hearing, at 8-9; Trial Ct. Op., at 2).
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