Com. v. McHugh, R.

J-S45032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN PATRICK MCHUGH :
:
Appellant : No. 2534 EDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005884-2017
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 09, 2019
Ryan Patrick McHugh (McHugh) appeals from the judgment of sentence
imposed following his entry of a guilty plea in the Court of Common Pleas of
Philadelphia County (trial court) to aggravated assault by vehicle while driving
under the influence, driving under the influence of a controlled substance,
homicide by vehicle while driving under the influence, and homicide by
vehicle.1 We affirm.
We derive the following facts and procedural history from the trial
court’s September 26, 2018 opinion and our independent review of the record.
On February 2, 2018, McHugh pleaded guilty to the above-listed offenses. The
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3735.1(a), 3802(d)(1)(iii), 3735(a), and 3732(a).
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charges stem from his striking and killing of a twenty-eight-year old woman,
Rosa Rojas, while she was walking on a sidewalk with her two children after
exiting a restaurant. Although Rojas attempted to push her children out of
the path of McHugh’s oncoming vehicle, it struck and seriously injured her
eight-year old son. McHugh was under the influence of marijuana, Xanax,
Fentanyl and Methadone at the time. On July 18, 2018, after preparation of
a pre-sentence investigation report (PSI), the trial court sentenced McHugh to
an aggregate term of not less than twelve and one-half nor more than twenty-
five years’ incarceration.2 McHugh timely appealed, following the court’s
denial of his post-sentence motion. McHugh and the trial court complied with
Rule 1925(b). See Pa.R.A.P. 1925(a), (b).
McHugh raises two issues on appeal challenging the discretionary
aspects of his sentence. (See McHugh’s Brief, at 3). Specifically, he claims
the court imposed a manifestly excessive sentence without adequately
considering his long history of heroin and prescription pill addition, his
expression of remorse, and his acceptance of responsibility for his offenses.
(See id. at 16-17). McHugh also argues that the court imposed a sentence
that deviated from the Sentencing Guidelines without providing adequate
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2 Relevant to McHugh’s claims herein, the court sentenced him to a minimum
term of forty-two months’ incarceration on the homicide by vehicle charge.
(See N.T. Sentencing, 7/18/19, at 43; McHugh’s Brief, at 17).
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reasons on the record. (See id. at 17-18). We begin by setting forth the
applicable legal principles.
“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). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Nevels,
203 A.3d 229, 246 (Pa. Super. 2019) (citation omitted).
Instantly, McHugh has complied with the first three prongs of this test
by raising his claims in a timely post-sentence motion, filing a timely notice of
appeal, and including a Rule 2119(f) concise statement in his brief. McHugh’s
excessiveness claim in conjunction with his assertion that the court did not
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adequately consider mitigating factors presents a substantial question. See
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).
Additionally, his claim that “the trial court failed to state its reasons for
deviating from the [sentencing] guidelines presents a substantial question for
review.” Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super.
2009) (citation omitted). We will, therefore, address his issues on the merits.3
As noted, in arguing that his sentence is excessive, McHugh focuses on
mitigating factors, specifically, his long history of substance abuse, his
remorse, and acceptance of responsibility for his actions. (See McHugh’s
Brief, at 16-17). McHugh also maintains that the court deviated from the
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3 Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Nevels, supra at 247 (citation omitted).
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guidelines without placing adequate reasons on the record. (See id. at 17-
18).4
The record reflects that at sentencing, the trial court heard from defense
counsel regarding McHugh’s lengthy struggle with heroin and prescription drug
addiction and his willingness to accept responsibility for his offenses. (See
N.T. Sentencing, 7/18/18, at 35-36). McHugh also expressed his
remorsefulness, stating, “from the bottom of my heart, I am truly sorry.” (Id.
at 38). The court then sentenced McHugh within the guidelines to a sentence
both defense counsel and the Commonwealth agreed on, explaining:
Mr. McHugh, speaking from my own heart, I’m at least
pleased that you have the decency to express your truthful sorrow
and the way you truly feel about the loss for everyone involved.
And I agree that two of the biggest losers are your own
children; I agree with that.
But no one has lost as much as the two children of this
heroic woman.
Your words are inadequate, but at least they were presented
in what I view as a meaningful fashion.
The Commonwealth has placed on the record what the
guidelines are in this case, and the Commonwealth made its
recommendation.
Your attorney has joined in that recommendation.
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4 To the extent McHugh challenges the court’s imposition of consecutive
sentences, this issue is waived for his failure to raise it in his post-sentence
motion. (See Motion to Modify and Reduce Sentence, 7/23/18, at 1-2);
Zeigler, supra at 662.
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The sentences recommended in this case are
guideline sentences and do comply with the guidelines for
tragedies such as this.
As inadequate as the guidelines may seem to family
members, the guidelines are appropriate for cases, even cases
with tragic instances.
(Id. at 42-43; see also id. at 35-36) (emphasis added).
The record, therefore, demonstrates that the trial court formulated its
sentence, taking into consideration all relevant mitigating information in
McHugh’s personal history. Further, because the court considered a PSI
report, it is presumed that it adequately considered relevant mitigating
factors. See Zeigler, supra at 662.
Finally, the record belies McHugh’s claim that the court deviated from
the guidelines without providing sufficient reasons; the sentence was plainly
within the guidelines and the court fully explained its sentence. With regard
to McHugh’s contention regarding the minimum sentence for the homicide by
vehicle offense, i.e., that forty-two months was above the twenty-seven to
thirty-three month guideline range, he neglects to point out that the range is
plus or minus twelve months. (See Commonwealth’s Sentencing
Memorandum, 6/29/18, at 9; Trial Ct. Op., at 4). Because we discern no
abuse of discretion in the court’s imposition of McHugh’s sentence, his
challenges thereto fail.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/19
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