Com. v. Carrington, D.

J-S19037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARLA MARIE CARRINGTON :
:
Appellant : No. 1459 MDA 2016
Appeal from the Judgment of Sentence April 19, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000941-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 29, 2017
Appellant Darla Marie Carrington appeals the judgment of sentence
entered by the Court of Common Pleas of Dauphin County after Appellant
pled guilty to third-degree murder. Appellant claims the trial court abused
its discretion in imposing a manifestly excessive sentence. We affirm.
Appellant’s guilty plea in connection with the murder of Dennis Green
(“the victim”) was based on the following facts: Appellant met the victim,
who was a cab driver, after he had provided her transportation. On January
4, 2014, Appellant invited the victim to her residence where both individuals
then proceeded to smoke crack cocaine while Appellant’s minor daughters,
ages eight and four, slept in a nearby bedroom.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S19037-17
Appellant contends that, while under the influence of cocaine, she
perceived that the victim was attempting to rape her and wanted to rape her
daughters as well. In response, Appellant violently attacked the victim,
admitting that she hit him several times with a hammer and repeatedly
stabbed him with a kitchen knife. Appellant’s eight-year-old daughter told
the police that she watched as her mother, who was covered in blood,
strangled the victim. This statement was corroborated by the victim’s
autopsy, which revealed evidence of strangulation along with six stab
wounds and multiple abrasions, bruises, and cuts. Appellant did not sustain
any injuries from the alleged rape attempt.
Appellant’s plea agreement provided that Appellant’s minimum
sentence would be determined by the lower court but would fall in the range
of thirteen to twenty years imprisonment. Appellant’s maximum sentence
would then be calculated as twice Appellant’s minimum sentence. The
sentencing guidelines recommended a standard range sentence of 7½ to 10
years’ imprisonment.
Sentencing was deferred for the completion of a presentence report.
At sentencing, the lower court heard oral argument and victim impact
statements. The defense asked for leniency, given that Appellant had a
traumatic childhood, had been subjected to physical and sexual abuse, had
mental health issues, and turned to alcohol and drugs to self-medicate. The
prosecution emphasized the violent nature of the attack and Appellant’s
history of drug use and violence, which included a 2011 guilty plea to simple
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assault in which Appellant stabbed a man who she mistakenly believed was
trying to rape her.
At the conclusion of the hearing, the lower court sentenced Appellant
to twenty to forty years’ imprisonment, which was the upper limit of
Appellant’s plea agreement and the statutory maximum. Appellant filed a
post-sentence motion, which the trial court subsequently denied. This
timely appeal followed. Appellant complied with the lower court’s direction
to file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant’s sole claim on appeal is that the trial court abused its
discretion in imposing a manifestly excessive sentence. It is well-established
that “[a] challenge to the discretionary aspects of sentencing does not
entitle an appellant to review as of right.” Commonwealth v. Bynum-
Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke this
Court’s jurisdiction to address such a challenge, the appellant must satisfy
the following four-part test: the appellant must (1) file a timely notice of
appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing
or in a timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3)
ensure that the appellant’s brief does not have a fatal defect as set forth in
Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code under 42
Pa.C.S. § 9781(b). Id. Appellant has filed a timely notice of appeal,
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preserved her sentencing claim before the trial court, and submitted a Rule
2119(f) statement in her appellate brief.
We may now determine whether Appellant has raised a substantial
question for our review. “The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.”
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This
Court has provided as follows:
A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the
defendant. And, of course, the court must consider the
sentencing guidelines.
Id. (internal citations omitted).
Specifically, Appellant claims that the imposition of the statutory
maximum in this case was “clearly unreasonable” alleging that the
sentencing court did not consider various mitigating factors, including her
troubled past, mental health issues, substance abuse, and her description of
the murder as simply “overreacting” to the victim’s advances. Appellant’s
Brief at 15. This Court has held that an appellant's allegation that the
sentencing court imposed 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). As a result, we find Appellant has raised a substantial question for
our review.
However, Appellant’s challenge to the discretionary aspects of her
sentence clearly fails on the merits. Prior to imposing Appellant’s sentence,
the lower court indicated that it had reviewed the sentencing guidelines,
defense counsel’s sentencing memorandum, and a presentence investigation
report. “[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016). Further, the trial court
stated on the record it imposed the aggravated sentence based on the
circumstances of the case, the protection of the public, and the need to
provide Appellant rehabilitation for her mental health and the various other
issues she faces. Accordingly, we cannot find the court abused its discretion
in imposing its sentence of twenty to forty years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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