J-S51013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

THOMAS MUIR

                            Appellant               No. 3748 EDA 2015


          Appeal from the Judgment of Sentence November 5, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0000946-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED AUGUST 12, 2016

       Appellant, Thomas Muir, appeals from the judgment of sentence

entered in the Chester County Court of Common Pleas, following his open

guilty plea to two counts each of homicide by vehicle while driving under the

influence, aggravated assault by vehicle while driving under the influence,

recklessly endangering another person (“REAP”), and one count of driving

under the influence (“DUI”).1 We affirm.

       The relevant facts and procedural history of this case are as follows.

Between 6:00 p.m. and 7:00 p.m. on February 14, 2015, Appellant rear-

ended the Hannagan’s minivan while driving his truck approximately 98
____________________________________________


1
  75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 18 Pa.C.S.A. § 2705, and 75
Pa.C.S.A. § 3802(c), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S51013-16


miles per hour in inclement weather. The accident severely injured Paul and

Maggie Hannagan, and killed their children, Miles and Charlotte Hannagan.

After Appellant performed poorly on field sobriety tests, police arrested

Appellant and transported him to the hospital where he consented to a blood

test.   The blood test revealed that Appellant was under the influence of

alcohol and had a blood alcohol content of .164. The test also revealed that

Appellant was under the influence of Klonopin, an anti-anxiety drug that

enhances the effects of alcohol.    During the investigation of the accident,

police discovered that numerous individuals had called 911 to report

Appellant’s erratic behavior and driving in the hour prior to the crash.

        On March 27, 2015, the Commonwealth charged Appellant with two

counts each of homicide by vehicle while DUI, homicide by vehicle,

aggravated assault by vehicle while DUI, and aggravated assault by vehicle,

six counts of REAP, and one count each of DUI, reckless driving, and

prohibiting text-based communications. On September 18, 2015, Appellant

entered an open guilty plea to two counts each of homicide by vehicle while

DUI, aggravated assault while DUI, and REAP, and one count of DUI. The

court deferred sentencing pending the preparation of a pre-sentence

investigation (“PSI”) report.

        On November 5, 2015, the court conducted a sentencing hearing,

where both the Commonwealth and Appellant presented extensive testimony

about the effects of the accident on the Hannagan family, Appellant,


                                     -2-
J-S51013-16


Appellant’s family, and the community.        Paul and Maggie Hannagan,

Appellant’s parents and siblings, and numerous family members and friends

of the Hannagan family and Appellant were among the individuals who

testified at the hearing.   Appellant also testified and apologized to the

Hannagan family and the court for his actions on the night of the accident.

Prior to imposing Appellant’s sentence, the court stated it had read the PSI

report, pre-sentence memoranda filed by both the Commonwealth and

Appellant, and numerous letters to the court written on behalf of Appellant

and the Hannagan family. The court then engaged in a lengthy discussion of

the following: (1) Appellant’s rehabilitative needs; (2) the gravity of the

offense; (3) the impact on the Hannagan family; and (4) Appellant’s

acceptance of responsibility for his actions and genuine remorse. The court

ultimately sentenced Appellant to five (5) to ten (10) years’ incarceration on

each conviction for homicide by vehicle while DUI, three (3) to six (6) years’

incarceration for each conviction for aggravated assault while DUI, and five

(5) to twelve (12) months’ incarceration for each REAP conviction. The court

also imposed a sentence of fourteen (14) to twenty-eight (28) months’

incarceration at a separate docket for Appellant’s possession of a controlled

substance with the intent to deliver (“PWID”) conviction, which stemmed

from an incident that occurred prior to the accident.     The court ordered

Appellant to serve all of the sentences consecutively; thus, the court

imposed an aggregate term of eighteen (18) to thirty-six (36) years’


                                    -3-
J-S51013-16


imprisonment.

      On November 13, 2015, Appellant timely filed a post-sentence motion,

which asked the court to reconsider and reduce his sentence.              The court

denied the motion on November 17, 2015. Appellant timely filed a notice of

appeal on December 15, 2015. On December 17, 2015, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on December

29, 2015.

      Appellant raises the following issue for our review:

         WHETHER THE COURT ABUSED ITS DISCRETION IN
         SENTENCING APPELLANT TO AN UNDULY HARSH AND
         EXCESSIVE SENTENCE (AGGREGATE PRISON TERM OF 18-
         36 YEARS OF INCARCERATION) BY IMPOSING A
         SENTENCE THAT WILL, IN EFFECT, WAREHOUSE
         [APPELLANT] FOR A SUBSTANTIAL PERIOD OF HIS LIFE?

(Appellant’s Brief at 4).

      Appellant challenges the consecutive sentences he received for each of

his convictions, which were either in the aggravated range or outside the

aggravated range of the sentencing guidelines.            Specifically, Appellant

complains   the   court     based   its   lengthy   sentence   on   its   erroneous

determination that the Commonwealth could have charged Appellant with

third-degree murder.        Appellant maintains the Commonwealth did not

charge him with third-degree murder, and it was improper for the court to

impose a sentence based on this uncharged offense.              Appellant further

contends the court failed to consider certain mitigating factors such as

                                          -4-
J-S51013-16


Appellant’s genuine remorse for the Hannagan family, prompt admission of

guilt, strong employment and education background, supportive family, non-

violent past, addiction problems, and mental health issues.            Appellant

concludes the court’s reliance on an uncharged offense and failure to

consider certain mitigating factors led to the imposition of a manifestly

excessive sentence, which will imprison Appellant for a significant portion of

his adult life. As presented, Appellant challenges the discretionary aspects

of his sentence.2 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.

2002) (stating claim that sentence is manifestly excessive challenges

discretionary aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspect of sentencing issue:

          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
____________________________________________


2
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…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, 365 n.5
(Pa.Super 2005). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.



                                           -5-
J-S51013-16


         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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of

a sentence are waived if they are not raised at the sentencing hearing or

raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal

denied, 574 Pa. 759, 831 A.2d 599 (2003). Inclusion of objections to the

discretionary aspects of sentencing in a Rule 1925(b) statement will not cure

a waiver stemming from failure to raise objections at the sentencing hearing

or in a post-sentence motion. Commonwealth v. Oree, 911 A.2d 169, 174

n.4 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007).

      Instantly, Appellant timely filed a post-sentence motion on November

13, 2015; however, Appellant’s motion merely asked the court to, “consider

reducing the amount of incarceration imposed.” (See Appellant’s Motion for

Reconsideration   and   Reduction   in   Sentence,   filed   11/13/15,   at   2).

Significantly, Appellant’s motion did not raise the claims he now presents on

appeal concerning the court’s alleged consideration on an uncharged offense

or the court’s failure to consider certain mitigating factors.   Appellant also


                                     -6-
J-S51013-16


failed to raise these claims at the time of sentencing. Appellant’s failure to

raise these claims at sentencing or specify these claims in his post-sentence

motion constitutes waiver for purposes of our review. See Griffin, supra;

Mann, supra.      Further, Appellant’s inclusion of these claims in his Rule

1925(b) statement does not cure this waiver. See Oree, supra.

      Moreover, even if properly preserved, Appellant’s claims would merit

no relief.    The court had the benefit of a PSI report at sentencing.

Therefore, we can presume the court considered the relevant factors when it

sentenced Appellant. See Tirado, supra at 368 (holding where sentencing

court had benefit of PSI, law presumes court was aware of and weighed

relevant information regarding defendant’s character and mitigating factors).

Additionally, the court engaged in an extensive discussion on the record of

its reasons for Appellant’s sentence.        Specifically, the court stated it

considered the information in the PSI report, pre-sentence memoranda filed

by both the Commonwealth and Appellant, and numerous letters written on

behalf of Appellant and the Hannagan family.         The court then discussed

Appellant’s: (1) numerous wake up calls and chances provided by the court;

(2) previous unsuccessful attempts at rehabilitation; (3) criminal conduct

while in treatment through Drug Court; (4) careless driving citation a month

before the accident; (5) strong education background; and (6) supportive

family.   The court concluded that Appellant’s continued criminal behavior

despite all of his opportunities to turn his life around increases the likelihood


                                      -7-
J-S51013-16


that Appellant will reoffend.    The court next detailed the gravity of the

offense and highlighted the following facts: (1) the inclement weather at the

time of the accident; (2) Appellant’s sustained period of drunk driving, as

demonstrated by the numerous 911 calls made during the hour prior to the

accident; (3) Appellant’s speed at the time of the accident; (4) the injuries

and deaths caused by Appellant’s drunk driving; (5) Appellant was texting at

the time of the accident; (6) the Klonopin in Appellant’s system, which

enhanced the effect of the alcohol in Appellant’s system; and (7) Appellant

was driving on a major thoroughfare during peak travel time on Valentine’s

Day.   The court further discussed the impact of the accident on the

Hannagan family, Appellant’s family and the community.        The court finally

explained that it would not impose the maximum sentence for each

conviction, given Appellant’s genuine remorse and prompt acceptance of

responsibility for his actions. Only after this lengthy discussion did the court

impose an aggregate term of eighteen (18) to thirty-six (36) years’

imprisonment.     Importantly, the court did not rely on a belief that

Appellant’s case warranted a third-degree murder charge at any time during

sentencing.   In fact, the court mentioned third-degree murder only to

explain that the facts of Appellant’s case did not support a third-degree

murder charge.    Thus, even if Appellant had properly preserved his claim,

we would rely on the court’s analysis and deny relief on appeal. Based upon

the foregoing, we affirm.


                                     -8-
J-S51013-16


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




                                 -9-
