J-S83035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
JAY R. IRELAND,                            :
                                           :
                  Appellant                :    No. 536 WDA 2016

           Appeal from the Judgment of Sentence March 16, 2016
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001402-2015

BEFORE:     FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 03, 2017

      Jay R. Ireland (Appellant) appeals from the judgment of sentence

entered after he pled guilty to possession of instruments of crime, simple

assault, terroristic threats, and criminal trespass. We affirm.

      This case arises from Appellant’s assault of his girlfriend (Victim) in

April of 2015.    On April 26, 2015, Victim went to the police station and

informed police that she and Appellant were arguing the prior evening and

he “started hitting her and slamming her to the ground.” Affidavit of

Probable Cause, 4/30/2015. After Appellant punched Victim in the face, he

made Victim pack all of his belongings as well as anything Appellant had

bought for Victim.        In addition, Appellant forced Victim to remove her

clothing because he had given those items to her.       Victim told police that

Appellant “pulled out a silver pocket knife” and “threatened to cut out her



*Retired Senior Judge assigned to the Superior Court.
J-S83035-16


tongue, slice her throat and kill her if she continued to cry.” Id. Victim also

told police that Appellant forced her to have sex with him. In addition, she

stated that Appellant continued abusing her throughout the night, and she

left, taking their three-year-old child with her, the following morning.

      Appellant was charged with numerous crimes as a result of this

incident. On January 11, 2016, Appellant entered into an open guilty plea to

the aforementioned charges.1 Sentencing was scheduled for March 7, 2016,

but was rescheduled to March 16, 2016.         On that day, Appellant did not

appear for sentencing, despite the fact that his family was present in the

courtroom and counsel for Appellant acknowledged Appellant was aware of

the date for sentencing. N.T., 3/16/2016, at 7.          Thus, the trial court

proceeded to sentence Appellant in absentia.

      Counsel for Appellant presented the trial court with a letter Appellant

had sent to the district justice in this case, as well as a letter from

Appellant’s former employer.    Appellant’s mother, father, and brother also

testified on Appellant’s behalf. The Commonwealth presented the trial court

with a letter from Victim. Counsel for Appellant objected to the letter stating

that “this is the first time we are reading [Victim’s] letter….”. Id. at 24. In

addition, counsel for Appellant objected to the contents of the letter to the




1
   The Commonwealth nolle prossed charges of sexual assault and
involuntary deviate sexual intercourse in exchange for Appellant’s guilty
pleas to the remaining charges.

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extent it “involves charges that were [nolle prossed].”2 Id. The trial court

overruled Appellant’s objections and proceeded to sentence Appellant to an

aggregate term of three-and-one-half to 19 years of incarceration.3

      Appellant timely filed a motion for reconsideration, which was denied

by the trial court.   Appellant timely filed a notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant   presents   this   Court   with   one   question:    “Whether

[Appellant’s] sentence is manifestly excessive, clearly unreasonable and

inconsistent with the objectives of the Sentencing Code after the trial court

considered and relied upon impermissible factors.” Appellant’s Brief at 3.

      Appellant challenges the discretionary aspects of his sentence.4     We

consider his question mindful of the following.



2
  The letter detailed the long-term nature of the abuse she suffered from
Appellant. She also presented a detailed account of the events that occurred
on the night of April 25, 2016, including the fact that Appellant “made [her]
have sex with him.” Letter from Victim, 3/3/2016. In addition, Appellant
pointed out that she did not leave the house during the night because she
did not want to leave her three-year-old child, who was sleeping, alone in
the house with Appellant.
3
 This sentence consisted of four separate standard-range sentences for each
charge running consecutively to one another.
4
   “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his or her sentence
other than to argue that the sentence is illegal or that the sentencing court
did not have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 368 n.5 (Pa.
Super. 2005) (emphasis in original).

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     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.

                                    ***

           When imposing sentence, a court is required to consider
     the particular circumstances of the offense and the character of
     the defendant. In considering these factors, the court should
     refer to the defendant’s prior criminal record, age, personal
     characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (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).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).




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      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to reconsider his sentence. Appellant’s brief also contains a

statement pursuant to Pa.R.A.P. 2119(f).            We thus consider whether

Appellant has presented a substantial question for our review.

      Appellant   claims   that   the   trial   court   erred   by   relying   “upon

impermissible factors” including Victim’s letter to the trial court where she

referenced the nolle prossed sexual assault charges. Appellant’s Brief at 6.

This Court has held that “a manifest abuse of discretion exists when a

sentence is enhanced due to charges that have been nolle prossed as part of

a plea agreement, because notions of fundamental fairness are violated.”

Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005). See

also Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009)

(holding that a claim the trial court considered charges that have been nolle

prossed in sentencing an appellant presents a substantial question for

review). Accordingly, we shall address the merits of Appellant’s claim.

      On appeal, Appellant contends that the “admission of said letter was

highly prejudicial in nature … [because of its] numerous references to

charges including rape and other sexual offenses that were either nolle

prossed or withdrawn in exchange for [] Appellant’s guilty plea.” Appellant’s

Brief at 8. Appellant suggests that despite what the trial court stated on the

record at sentencing, the record shows the letter “obviously made an




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impression prior to [imposing the] sentence.” Id. at 9.       Thus, Appellant

requests that he be resentenced without the use of Victim’s letter.

      In considering this issue, we observe that “[u]nder our legislature’s

‘Basic Bill of Rights for Victims,’ victims of all crimes have the [] right to

breathe life with all its emotions into their victim impact statements included

in the PSI Report.” Commonwealth v. Penrod, 578 A.2d 486, 491 (Pa.

Super. 1990). While “[s]uch victim impact statements may understandably

contain harsh statements regarding the defendant, some of which may be

properly classified as irrelevant or inflammatory … a trial court is ordinarily

presumed to be capable of identifying and properly disregarding” such

evidence. Id.

      After reading Victim’s letter, the trial court offered the following in

fashioning Appellant’s sentence.

      If you look at the mosaic of this case, it is not in any
      contemplation a 6 month sentence here.           This is a state
      sentence. He has a Prior Record Score of 5. And what’s
      described in the letter I can’t summarize and do justice to. It’s
      just a night of terror which she thought she was going to die.

                                     ***

            Sentencing is broad. I’m not going to sentence him for
      what he didn’t plead guilty to, but she is entitled to paint in
      minute detail the night of terror that occurred to the extent she
      claimed it was non-consensual sex. I’m a judicial officer. I can
      put that aside. But [what] she claimed about the terror inflicted
      on her and the mental torture he engaged in is fair game for
      these charges of terroristic threats, simple assault and criminal
      trespass.

                                     ***

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            So this is a case which calls for sentencing and at the high
      end of the standard range…. [A]nything else would denigrate
      what’s occurred here.

             Two other points. [Appellant] is quite old in the sense of
      his late twenties. He’s had plenty of time to seek treatment. He
      is secure in his position as a batterer, and I think the
      Commonwealth wins this hands down. He seeks mental health
      treatment only because he feels the [h]ot breath of the law on
      the back of his neck, not for any other purpose.

N.T., 3/16/2016, at 24-25, 32.

      Based on the foregoing, Appellant’s argument that the trial court

considered improperly charges which were nolle prossed in fashioning

Appellant’s sentence is belied by the record.       While the trial court was

certainly aware of the charges and the conduct that led to them, it is clear

from the record that Appellant was sentenced only for the charges for which

he pled guilty. Thus, we conclude that Appellant has failed to demonstrate

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.” Commonwealth v. Johnson, 125 A.3d

822, 826 (Pa. Super. 2015) (quoting Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013)).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/3/2017




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