Com. v. Sharp, W.

J-S37017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
WHITLEY ELISE SHARP
Appellant No. 1877 MDA 2016
Appeal from the Judgment of Sentence September 27, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002383-2016
CP-22-CR-0002530-2016
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 05, 2017
Whitley Elise Sharp appeals from the September 27, 2016 judgment of
sentence entered in the Dauphin County Court of Common Pleas following her
entry of guilty pleas to endangering the welfare of children (“EWOC”),
possession of a controlled substance, and possession of drug paraphernalia.1
We affirm.
In an August 21, 2017 memorandum, we ordered the trial court to
determine why the sentencing transcript in this matter was not transmitted to
this Court. We further instructed that if an “extraordinary breakdown in the
judicial process” caused the transcript to be excluded from the record, then
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18 Pa.C.S. § 4304(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
1
113(a)(32), respectively.
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Sharp should be allowed to supplement the record with the transcript.
Additionally, we instructed the trial court, upon receipt of the transcript, to
issue a new Pennsylvania Rule of Appellate Procedure 1925(a) opinion
addressing the merits of Sharp’s claim.
At a September 7, 2017 hearing, the parties stipulated that there was a
breakdown in the Clerk of Courts’ office that caused the transcript to not
properly appear on the docket or in the Clerk’s file. “Based upon counsel’s
efforts to timely obtain the transcript and complete the record,” the trial court
allowed the transcript to be filed of record. On November 2, 2017, this Court
received the sentencing transcript and a new Rule 1925(a) opinion from the
trial court.
On August 11, 2016, Sharp pled guilty to the aforementioned offenses.
During that plea,
Sharp acknowledged that she allowed her boyfriend, the
child’s father, James Slaughter III, to repeatedly and
severely physically abuse the child, that she failed to take
any action to protect the child, failed to seek medical
attention[,] and that she told the child not to disclose the
abuse to anyone.
Trial Ct. Op., 10/31/17, at 1-2 (“1925(a) Op.”).
On September 26, 2016, the trial court sentenced Sharp to 3½ to 7
years’ incarceration on the EWOC conviction and imposed no further
incarceration for the other offenses. On September 28, 2016, Sharp filed a
post-sentence motion to modify sentence, alleging that, in imposing a
sentence that was outside the aggravated range, the trial court did not
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consider the factors set forth in section 9721(b) of the Sentencing Code. See
42 Pa.C.S. § 9721(b). The trial court denied the motion on October 19, 2016.
On November 11, 2016, Sharp timely filed a notice of appeal.
Sharp’s sole issue on appeal is whether the trial court abused its
discretion by not considering mitigating factors “where [Sharp]’s conduct was
not so egregious to warrant a three and one half to seven . . . years sentence.”
Sharp’s Br. at 8.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address such a challenge, we must first
determine:
(1) whether the appeal is timely; (2) whether [the
a]ppellant preserved his issue; (3) whether [the appellant’s
brief includes a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement
raises a substantial question that the sentence is
appropriate under the [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Sharp filed a timely notice of appeal, preserved her discretionary
aspects of sentencing claim in a post-sentence motion, and included a concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f). Further, a claim that the
trial court “erred by imposing an aggravated range sentence without
consideration of mitigating circumstances raises a substantial question.”
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Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en
banc).
Sharp was sentenced to a statutory maximum sentence that, based on
application of the sentencing guidelines to Sharp’s conviction, is beyond the
aggravated range. Further, Sharp argues that the trial court did not consider
mitigating circumstances. Accordingly, Sharp has raised a substantial
question for our review.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). In
imposing sentence, the trial court
shall follow the general principle that the sentence imposed
should call for 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. § 9721(b).
Sharp argues that the trial court failed to consider mitigating factors in
imposing a lengthy sentence for EWOC. According to Sharp, the trial court
did not consider efforts she had made to care for the victim and ensure that
he was safe. Sharp also highlights her lack of a prior record score or any
evidence that “she has any violent tendencies.” Sharp’s Br. at 16. In
addition, Sharp asserts that the trial court did not consider information in the
pre-sentence report that “screamed the need for [Sharp]’s rehabilitation as
opposed to an excessive period of incarceration.” Id. at 16-17. Sharp also
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contends that the trial court failed to consider the effect of this incident on
her, as she has “cared and loved this child since birth.” Id. at 17. We
disagree.
In its Rule 1925(a) opinion, the trial court explained its imposition of the
maximum sentence as follows:
In imposing the sentence of 3½ to 7 years incarceration,
we properly considered the gravity of the instant offense of
recklessly endangering a child and [Sharp]’s rehabilitative
needs. We cited our reliance upon a thorough Pre-Sentence
Report and upon photographs which depicted horrific
injuries to [Sharp]’s young child. (Transcript of
Proceedings, Sentencing, p. 9) (hereinafter, “N.T.”). At
sentencing, the Deputy District Attorney stated to the Court
that in her 20 years of prosecution of child abuse cases, only
in homicide cases, she had seen injuries to a child which
looked as these did. (N.T. p. 7). Because the child had
soiled his pants, Slaughter beat him on the face and back.
(N.T. p. 7; N.T. p. 10). In spite of [Sharp]’s knowledge that
Slaughter beat the little boy, she failed to remove him from
further harm or seek medical attention. Id. We found no
mitigation in [Sharp]’s claim that she was victimized by
Slaughter and feared him. [Sharp]’s inadequate
acknowledgement of responsibility for the harm to her child
evidenced significant need for treatment and rehabilitation.
(N.T. p. 10).
We acknowledged on the record that sentence fell
outside the guidelines. (N.T. pp. 10-11). . . .
Here, we stated on the record our reliance upon the
appropriate sentencing factors, namely, that . . . no lesser
sentence would reflect the gravity of [Sharp]’s failure to
protect her child from grave harm and her need for
rehabilitation.
1925(a) Op. at 4-5. At sentencing, the trial court considered mitigating
factors presented by Sharp. Not only did the trial court consider the pre-
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sentence report,2 it also considered the comments of Sharp’s counsel,
including that Sharp told her probation officer that she was attempting to
escape the child’s father, Sharp was staying in contact with her children, and
Sharp had a turbulent childhood marked by abuse. N.T., 9/26/16, at 3-6.
“The [trial] court merely chose not to give the mitigating factors as much
weight as [Sharp] would have liked.” Commonwealth v. Macias, 968 A.2d
773, 778 (Pa.Super. 2009). In these situations, “we cannot re-weigh the
sentencing factors and impose our judgment in the place of the [trial] court.”
Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2017
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2 “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009)
(quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
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