Com. v. Garner, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TARRANCE GARNER :
:
Appellant : No. 2367 EDA 2021
Appeal from the Judgment of Sentence Entered August 12, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003318-2020
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JULY 22, 2022
Tarrance Garner appeals from the judgment of sentence imposed
following his guilty plea to aggravated assault and aggravated assault of an
unborn child. See 18 Pa.C.S.A. §§ 2702(a)(4); 2606(a). We affirm.
In August 2020, Garner assaulted Leah Klinger, who was seven-weeks
pregnant at the time. Specifically, Garner became upset when Klinger
informed him that she was going to tell her mother about the pregnancy.
Garner then dragged Klinger around his residence, struck her multiple times
on her head, held a gun to her stomach and threatened to kill the unborn
child, and punched and kneed her in the stomach. Klinger suffered bruises
____________________________________________
* Former Justice specially assigned to the Superior Court.
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and red marks on her body and a swollen lip, and experienced vaginal
bleeding. Both Klinger and the unborn child recovered.
The police arrested Garner and the Commonwealth charged Garner with
numerous crimes. On July 1, 2021, Garner entered a negotiated guilty plea to
aggravated assault and aggravated assault of an unborn child. In exchange
for the plea, the Commonwealth amended the aggravated assault charge to a
second-degree felony and agreed that the minimum sentences for the two
counts would be 22 months and the sentences would run concurrently.
Notably, the parties did not agree to the maximum sentences as part of the
plea deal.
The trial court accepted the plea, and ultimately sentenced Garner to 22
months to 10 years in prison for the aggravated assault conviction and a
concurrent prison term of 22 months to 15 years for the aggravated assault
of an unborn child conviction. Garner filed a motion to reconsider his sentence,
which the trial court denied. This timely appeal followed.
On appeal, Garner raises the following question for our review:
Whether the Lower Court abused its discretion in imposing
manifestly excessive and unreasonable sentences which deviate
from sentencing norms, including a statutory maximum sentence,
when the Court failed to consider any significant mitigating factors
and failed to apply and review all the necessary factors as set forth
in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(e) and (d)[?]
Brief for Appellant at 4.
Here, Garner’s argument that the trial court abused its discretion in
imposing manifestly excessive maximum sentences challenges the
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discretionary aspects of his sentence. “Generally, a plea of guilty amounts to
a waiver of all defects and defenses except those concerning the jurisdiction
of the court, the legality of the sentence, and the validity of the guilty plea.”
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation
omitted). Additionally, “[w]here a defendant pleads guilty without any
agreement as to sentence, the defendant retains the right to petition this
Court for allowance of appeal with respect to the discretionary aspects of
sentencing.” Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super.
2009) (citation omitted). “However, where a defendant pleads guilty pursuant
to a plea agreement specifying particular penalties, the defendant may not
seek a discretionary appeal relating to those agreed-upon penalties.” Id.(citation omitted). “Permitting a defendant to petition for such an appeal
would undermine the integrity of the plea negotiation process and could
ultimately deprive the Commonwealth of sentencing particulars for which it
bargained.” Id. (citation omitted).
Here, as part of his negotiated guilty plea, Garner and the
Commonwealth agreed that the minimum sentences for each crime would be
22 months in prison, and that the sentences would be imposed concurrently.
See N.T., 7/1/21, at 2-3, 4-5. The parties did not agree to a maximum
sentence. See id. at 4, 5. Accordingly, Garner can challenge the trial court’s
exercise of discretion in determining the maximum term of his sentences. See
Brown, 982 A.2d at 1019 (concluding that the appellant, who entered a
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negotiated guilty plea that specifically left the maximum term of his sentence
to the trial court’s discretion, could challenge the discretionary aspects of that
sentence).
Preliminarily, “[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right.” Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a
discretionary sentencing issue, this Court conducts
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).
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, Garner filed a timely notice of appeal and raised his sentencing
claim in a timely post-sentence motion. Garner also included a separate Rule
2119(f) Statement in his brief; accordingly, we will review his Rule 2119(f)
statement to determine whether he has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013). “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;
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or (2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citation omitted).
In his Rule 2119(f) statement, Garner argues that the trial court
imposed an excessive and unreasonable maximum sentence, which is grossly
disproportionate to his minimum sentence, by failing to properly weigh his
limited prior record, remorse, and rehabilitation needs. See Brief for Appellant
at 9. This claim raises a substantial question. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (concluding that “an
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”) (citation
omitted); Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super.
2011) (finding that claim that maximum term was manifestly excessive
because the sentence did not account for his rehabilitative needs and was
disproportionate to the totality of the circumstances raised a substantial
question).
Our standard of review of a challenge to the discretionary aspects of a
sentence is well settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and 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.
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Commonwealth v. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
Garner contends that the trial court abused its discretion in imposing
the maximum sentence because the trial court only focused on the seriousness
of the crime and the impact on Klinger, and did not meaningfully consider
mitigating factors, including his rehabilitative needs, his lack of prior criminal
history, and his remorse. See Brief for Appellant at 10, 14. Garner specifically
argues that, although the trial court had the benefit of the presentence
investigation report (“PSI”), the record is devoid of any indication that the trial
court meaningfully considered any of the relevant sentencing factors. See id.
at 12-14. Garner concludes that the trial court’s failure to properly weigh the
sentencing factors resulted in an excessive sentence that was grossly
disproportionate to the minimum prison terms. See id. at 14.
Here, as Garner concedes, the record reflects that the trial court had the
benefit of a PSI prior to imposing its sentence. See N.T., 8/12/21, at 3, 6, 8-
9; see also Trial Court Opinion, 10/19/21, at 3 n.3. Further, the trial court
considered Garner’s limited prior criminal record; his acceptance of
responsibility for his acts; the fact that he was abused by his mother; his
problems with anger; his mental health status; his rehabilitative needs; and
the seriousness of the crime. See N.T., 8/12/21, at 6-7, 8, 12; see also Trial
Court Opinion, 10/19/21, at 3 n.3. The trial court also heard testimony from
Klinger, who explained that she agreed that Garner’s minimum sentence
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should be 22 months in prison. See N.T., 8/12/21, at 5. Finally, Garner spoke
on his own behalf, proclaiming that he was sorry and that he would work on
his issues. See id. at 7.
Thereafter, the trial court reviewed the evidence of the case and
imposed the statutory maximum sentences, finding that: total confinement
was necessary due to the harm caused by Garner’s actions; there was an
undue risk that Garner would commit another crime; a lesser sentence would
depreciate the serious nature of the crimes; and confinement was more likely
to contribute to Garner’s rehabilitation. See id. at 10, 12.
Accordingly, contrary to Garner’s claim, the trial court did not impose
the sentence merely based upon the seriousness of the crimes. Indeed, the
trial court did consider the mitigating factors, including Garner’s rehabilitative
needs, his lack of criminal history, family history, and remorse. Moreover, the
trial court had the benefit of the PSI, which establishes that it was aware of
relevant information regarding Garner’s character and mitigating factors. See
Watson, 228 A.3d at 936 (stating that where the trial court is informed by a
PSI, it is presumed that the court is aware of all appropriate sentencing factors
and considerations, and that where the court has been so informed, its
discretion should not be disturbed). Accordingly, based upon the totality of
the trial court’s considerations, we discern no abuse of the trial court’s
discretion in imposing Garner’s sentence. See id.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2022
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