Com. v. Foust, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEREMY LYNN FOUST :
:
Appellant : No. 1172 MDA 2021
Appeal from the Judgment of Sentence Entered July 14, 2021
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000062-2021
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: MAY 16, 2022
Appellant Jeremy Lynn Foust appeals from the judgment of sentence
imposed after he pled guilty to simple assault, recklessly endangering another
person (REAP), and harassment.1 Appellant challenges the discretionary
aspects of his sentence. We affirm.
The trial court summarized the factual history of this matter as follows:
[O]n or about February 6, 2021[,] [Appellant] intentionally,
knowingly and recklessly caused serious bodily injury to the victim
by striking the victim’s[] face with a closed fist multiple times
resulting in swelling and bruising to the victim’s left eye, bruising
of her left cheek, [and a] bloody nose. Thereafter, [Appellant]
chased the victim and grabbed the victim[,] causing her to fall to
the ground and injure[] her left leg. [Appellant] again struck the
victim with a closed fist. The victim suffered serious bodily injury
in the nature of compound fractures to her tibia and fibula, lost
consciousness, suffered acute blood loss and had to be life-flighted
to a trauma center for treatment for her injuries . . . . Following
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1 18 Pa.C.S. §§ 2701(a)(1), 2705, and 2709(a)(4), respectively.
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the brutal attack, [Appellant] left the victim, his wife, laying
outside in the cold while the victim was bleeding until emergency
responders arrived.
Trial Ct. Op., 11/19/21, at 2 (formatting altered).
On May 7, 2021, Appellant entered an open guilty plea to simple assault,
REAP, and harassment. In exchange for Appellant’s plea, the Commonwealth
withdrew the remaining charges, which included aggravated assault,
terroristic threats, stalking, and an additional count of both simple assault and
harassment.2
On July 14, 2021, the trial court sentenced Appellant to an aggregate
term of eleven months to five years’ incarceration.3 Appellant filed a timely
post-sentence motion seeking reconsideration of his sentence, which the trial
court denied.
Appellant subsequently filed a timely appeal. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court abused its discretion in imposing a
sentence in the aggravated range?
2. Whether the trial court failed to give appropriate consideration
to the purposes of sentencing: protection of the public, gravity
of the offense, and rehabilitative needs of the defendant when
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2 18 Pa.C.S. §§ 2702(a)(1), 2706(a)(1), 2709.1(a)(1), 2709.1(a)(2),
2701(a)(3), and 2709(a)(1), respectively.
3 The trial court imposed consecutive terms as follows: four to twenty-four
months’ incarceration for simple assault and REAP, and a consecutive term of
three to twelve months’ incarceration for harassment.
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it imposed an excessive sentence in the aggravated range of
the guidelines?
3. Whether the trial court imposed a sentence in the aggravated
range without considering mitigating factors?
4. Whether the trial court’s imposition of sentence disregarded
the recommendation of Adult Probation in the presentence
investigation [(PSI)] report?
Appellant’s Brief at 12 (formatting altered).
All of Appellant’s claims relate to the discretionary aspects of his
sentence. Id. at 16-21. First, Appellant argues that the trial court abused its
discretion by imposing consecutive, aggravated-range sentences based on a
factor already included in the sentencing guidelines, i.e., the seriousness of
the offense. Id. at 17-18, 20-21. Next, Appellant contends that the trial court
failed to consider Appellant’s rehabilitative needs, namely, additional drug and
alcohol treatment. Id. at 21. Appellant also claims that the trial court failed
to consider mitigating factors, including that Appellant (1) voluntarily
underwent mental health counseling; (2) voluntarily entered drug and alcohol
treatment; and (3) provided financial support and health insurance to his
family, which includes the victim. Id. at 18-19, 21. Finally, Appellant argues
that the trial court abused its discretion by disregarding the sentencing
recommendation included in the PSI. Id. at 18, 21.
Initially, we note that “[g]enerally, 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
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omitted). It is well settled that a defendant “who pleads guilty and receives
a negotiated sentence may not then seek discretionary review of that
sentence.” Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super.
2008). “However, when the plea agreement is open, containing no bargain
for a specific or stated term of sentence, the defendant will not be precluded
from appealing the discretionary aspects of his sentence.” Commonwealth
v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super. 1999) (citation omitted).
Here, Appellant entered an open guilty plea that did not contain an
agreed-upon sentence. See Plea Agreement, 5/7/21. Therefore, Appellant is
not precluded from challenging the discretionary aspects of his sentence on
appeal. See Guth, 735 A.2d at 711 n.3.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct 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. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
when the appellant advances a colorable argument that the sentencing judge’s
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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.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing claims in a post-sentence
motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in
his brief. See id. Further, Appellant has presented a substantial question for
our review. See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.
Super. 2003) (en banc) (holding that a claim that the trial court erred by
“imposing an aggravated range sentence without consideration of mitigating
circumstances raises a substantial question”). Therefore, we will address the
merits of Appellant’s claims.
Our well-settled standard of review is as follows:
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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
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(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted).
The trial court has discretion to impose a “sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (citation omitted). Generally, this Court will not find an
abuse of discretion when the trial court imposes consecutive sentences unless
the aggregate sentence is “grossly disparate to [the a]ppellant’s conduct or
viscerally appear as patently unreasonable.” Id. at 809 (citation omitted and
formatting altered).
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“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
Additionally, the trial court “must consider the sentencing guidelines.” Id. at
848 (citation omitted). Further, “[w]here the sentencing judge had the benefit
of a [PSI], it will be presumed that he was aware of relevant information
regarding [the defendant’s] character and weighed those considerations along
with the mitigating statutory factors.” Id. at 849-50 (citation omitted).
“It is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing or
decreasing a sentence to the aggravated or mitigated range.”
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003) (citation
omitted).
With respect to imposing an aggravated-range sentence, the Fullin
Court explained that
the guidelines were implemented to create greater consistency
and rationality in sentencing. The guidelines accomplish the
above purposes by providing a norm for comparison, i.e., the
standard range of punishment, for the panoply of crimes found in
the crimes code and by providing a scale of progressively greater
punishment as the gravity of the offense increases.
The provision of a “norm” also strongly implies that deviation from
the norm should be correlated with facts about the crime that also
deviate from the norm for the offense, or facts relating to the
offender’s character or criminal history that deviates from the
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norm and must be regarded as not within the guidelines
contemplation. Given this predicate, simply indicating that an
offense is a serious, heinous or grave offense misplaces the proper
focus. The focus should not be upon the seriousness, heinousness
or egregiousness of the offense generally speaking, but, rather,
upon how the present case deviates from what might be regarded
as a “typical” or “normal” case of the offense under consideration.
An aggravated range sentence for [the defendant] will thus be
justified to the extent that the individual circumstances of his case
are atypical of the crime for which [the defendant] was convicted,
such that a more severe punishment is appropriate.
Fullin, 892 A.2d at 848 (citations omitted and formatting altered).
In Fullin, the defendant pled guilty to endangering the welfare of
children after he crashed his car while driving at 112 miles per hour in a fifty-
five miles per hour zone. Fullin, 892 A.2d at 846. The defendant’s son was
also in the car, and the son suffered severe injuries in the crash, rendering
him paralyzed. Id. at 846-47. The trial court imposed a sentence in the
aggravated range. Id. at 847. On appeal, the defendant argued that “the
trial court improperly based his aggravated range sentence on a factor that
constituted an element of the offense . . . .” Id. at 848. This Court affirmed
the sentence, agreeing with the trial court that “not only did [the defendant]
commit a crime, but he committed it in an atypically objectionable way and it
had an atypically harmful result.” Id. at 849.
Here, at sentencing, the trial court stated the reasons for Appellant’s
sentence as follows:
This sentence is in the aggravated range due to the following
reasons: one, although [Appellant] has taken actions to address
what had occurred, the court cannot overlook that the conduct of
[Appellant] was one of the most severe assaults on a spouse that
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this court has ever encountered. [Appellant’s] actions have
violated the trust between a husband and wife. [Appellant’s]
actions were in careless disregard for human life. The court notes,
at [the] guilty plea, the victim has obvious injuries which will affect
her for the rest of her life, both mentally and physically. The court
is aware that minor children were at the residence at the time of
this offense, although they may have not witnessed the same.
Any lesser of a sentence would depreciate the seriousness of
[Appellant’s] actions. Again, we’ll note that this is in the
aggravated range due to those reasons. We’ll also include in
reasons for sentence, the court notes, in review of the criminal
information, specifically this offense, which [Appellant] openly
pled guilty to, that the victim had to be life flighted to a trauma
center for treatment for her injuries, requiring the victim for
surgery to treat those injuries. We’ll note that the victim had[]
fractures to both her tibia and fibula, lost consciousness, and
suffered acute blood loss with respect to those injuries.
N.T. Sentencing Hr’g, 7/14/21, at 15-16 (some formatting altered).
In its Rule 1925(a) opinion, the trial court further explained:
[This court] relied on the extensive [PSI] as completed by the
Adult Probation Department . . . . Furthermore, this court
sentenced [Appellant] in the aggravated range because of the
seriousness of the [Appellant’s] conduct. [Appellant] brutally beat
his wife and after the brutal assault, [Appellant] left his wife lying
lifeless in the cold. The assault of [Appellant] on his wife was so
severe that she had to be life-flighted to a trauma center. There,
the victim had to undergo surgeries. Her injuries included
fractures to her tibia and fibula; loss of consciousness and acute
blood loss. [Appellant’s] attack has left the victim with injuries
which will affect her for the rest of her life both physically and
mentally. Any lesser of a sentence would depreciate the
seriousness of [Appellant’s] actions.
As was set forth at the time of sentencing, this court noted the
actions that [Appellant] had taken to address what had occurred,
but sentenced [Appellant] in the aggravated range given the
extent of the brutal assault on [Appellant’s] wife. [Appellant]
violated the trust between a husband and wife and [Appellant’s]
actions were in careless disregard for human life. The brutal
attack on his wife occurred at the marital home where the children
were present.
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Trial Ct. Op. at 3-4.
Based on our review of the record, we discern no abuse of discretion by
the trial court in imposing Appellant’s sentence. See Raven, 97 A.3d at 1253.
The trial court clearly stated that the circumstances of this case were
atypical for the charged offenses and warranted aggravated-range sentences.
See Fullin, 892 A.2d at 848-49. Although the trial court referred to the
“seriousness” of Appellant’s crimes, the court also noted that Appellant acted
with careless disregard for human life and that the victim sustained serious
injuries including broken bones, a loss of consciousness, and acute blood loss,
which required her to be flown to a trauma center for treatment. See Trial
Ct. Op. at 3; see also N.T. Sentencing Hr’g at 16. These factual findings
demonstrate that the circumstances of this case were atypical for the crimes
of simple assault, REAP, and harassment. See Fullin, 892 A.2d at 848-49.
Further, Appellant’s aggregate sentence is neither grossly disparate to his
conduct nor is it patently unreasonable. See Austin, 66 A.3d at 809.
Therefore, we discern no abuse of discretion by the trial court in imposing
consecutive aggravated-range sentences for these charges.
As noted previously, the trial court reviewed the PSI report prior to
sentencing. Therefore, we presume that the trial court was aware of
Appellant’s rehabilitative needs, his pre-sentencing attempts at mitigation,
and the financial support he provided to his family, including the victim, and
that the court weighed those considerations along with other mitigating
factors. See Fullin, 892 A.2d at 849-50. Further, the trial court was not
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bound by the sentencing recommendation included in the PSI. See
Commonwealth v. Sexton, 222 A.3d 405, 422 (Pa. Super. 2019) (stating
that the Commonwealth’s sentencing recommendations are not binding on the
trial court). Therefore, to the extent Appellant claims that the trial court failed
to adequately consider the information contained in the PSI report, he is not
entitled to relief.
For these reasons, we conclude that Appellant is not entitled to relief on
his discretionary sentencing claims. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/16/2022
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