J-S53014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
CARLOS R. GARCIA,                         :
                                          :
                  Appellant               :   No. 2119 MDA 2014

        Appeal from the Judgment of Sentence September 22, 2014,
                 Court of Common Pleas, Lancaster County,
             Criminal Division at No. CP-36-CR-0001382-2014

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 28, 2015

      Appellant, Carlos R. Garcia (“Garcia”), appeals from the judgment of

sentence entered on September 22, 2014 by the Court of Common Pleas of

Lancaster County, Criminal Division, following his guilty plea to multiple

violations of the Motor Vehicle and Crimes Codes.        For the reasons that

follow, we affirm Garcia’s judgment of sentence.

      We summarize the facts and procedural history of this case as follows.

On February 22, 2014, Garcia was driving at high rate of speed (over sixty-

five miles per hour in a thirty-five mile per hour zone) near the 1300 block

of East King Street in Lancaster Township. N.T., 7/15/14, at 3, 5. Garcia

was driving erratically, weaving in and out of traffic without signaling and

cutting off vehicles as he passed them. Id. at 3-4. When the gray Honda in

front of Garcia slowed for a vehicle that was turning left from the left lane of
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traffic, Garcia suddenly swerved into the oncoming lane of traffic to avoid

the Honda and hit a Subaru driven by Lisa Stamper (“Stamper”). Id. The

crash resulted in the death of Stamper’s daughter, Kaitlyn Berry, serious

bodily injury to Stamper, and serious bodily injury to Garcia’s seven-year-old

son, who was the front seat passenger of Garcia’s vehicle. Id. at 4. Blood

testing revealed that Garcia’s blood alcohol content was .144 at the time of

the crash. Id.

       Consequently, Garcia was charged with several violations of the Motor

Vehicle and Crimes Codes, including one count each (unless otherwise

specified) of the following:     homicide by vehicle while driving under the

influence (“homicide by vehicle – DUI”),1 aggravated assault by vehicle while

driving under the influence (“aggravated assault by vehicle – DUI”),2 three

counts of accidents involving death or personal injury while not properly

licensed,3 endangering the welfare of a child,4 three counts of recklessly

endangering another person (“REAP”),5 DUI – general impairment,6 DUI –




1
    75 Pa.C.S.A. § 3735(a).
2
    75 Pa.C.S.A. § 3735.1(a).
3
    75 Pa.C.S.A. § 3742.1(a).
4
    18 Pa.C.S.A. § 4304(a)(1).
5
    18 Pa.C.S.A. § 2705.
6
    75 Pa.C.S.A. § 3820(a)(1).


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high rate of alcohol,7 reckless driving,8 driving while operating privilege

suspended or revoked – DUI related,9 driving at an unsafe speed,10 failing to

drive within a single lane,11 and failure to yield the right of way.12

        On July 15, 2014, Garcia entered an open guilty plea to all of the

above-referenced crimes. On September 22, 2014, the trial court sentenced

as follows:

           Homicide by vehicle – DUI – five to ten years;

           Aggravated assault by vehicle – DUI – five to ten years;

           Accidents involving death or personal injury while not properly

            licensed – three and half to seven years;

           Accidents involving death or personal injury while not properly

            licensed – three and half to seven years;

           REAP – one to two years;

           REAP – one to two years;

           Driving while operating privilege suspended or revoked – DUI

            related – ninety days.


7
     75 Pa.C.S.A. § 3802(b).
8
     75 Pa.C.S.A. § 3736(a).
9
     75 Pa.C.S.A. § 1543(b)(1.1)(i).
10
     75 Pa.C.S.A. § 3361.
11
     75 Pa.C.S.A. § 3309(1).
12
     75 Pa.C.S.A. § 3302.


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For all remaining counts, Garcia received no sentence or the crimes merged

for purposes of sentencing.     The trial court ordered Garcia to serve each

sentence consecutively for an aggregate sentence of nineteen years and

ninety days to thirty-eight years of incarceration.

       On October 1, 2014, Garcia filed a timely post-sentence motion to

modify sentence seeking a reduction in his sentence to an aggregate

sentence of ten to twenty years of incarceration, which the trial court denied

on November 17, 2014. On December 11, 2014, Garcia filed a timely notice

of appeal. On December 29, 2014, the trial court ordered Garcia to file a

concise statement of the errors complained of pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure. On January 20, 2015, Garcia

timely filed his Rule 1925(b) statement.

       On appeal, Garcia raises the following issues for our review and

determination:

             I.    Were statutory maximum sentences above the
             aggravated range of the sentencing guidelines for
             [accidents involving death or personal injury while
             not properly licensed] unreasonable?

             II.   Was an aggregate sentence of nineteen years
             ninety days to thirty-eight years so manifestly
             excessive as to constitute an abuse of discretion?

Garcia’s Brief at 7.13




13
     We have reordered the issues Garcia raises on appeal for ease of review.


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     Both issues that Garcia raises on appeal challenge the discretionary

aspects of his sentence. “The right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered a petition for

permission to appeal.”   Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014).           “An

appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether,

           (1) the appellant preserved the issue either by
           raising it at the time of sentencing or in a post[-
           ]sentence motion; (2) the appellant filed a timely
           notice of appeal; (3) the appellant set forth a concise
           statement of reasons relied upon for the allowance of
           his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
           appellant raises a substantial question for our
           review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Garcia preserved his discretionary aspects of sentencing claims

by raising them in a post-sentence motion.     See Post-Sentence Motion to




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Modify Sentence, 10/1/14, at 1-8. Garcia also filed a timely notice of appeal

and included in his appellate brief a concise statement of the reasons relied

upon for the allowance of his appeal pursuant to Rule 2119(f) of the

Pennsylvania Rules of Appellate Procedure.     See Garcia’s Brief at 13-16.

Thus, we must determine whether Garcia’s discretionary aspects of

sentencing claims raise substantial questions for our review.

      For each issue Garcia raises on appeal, he actually raises two

discretionary aspects of sentencing claims. In his first issue, Garcia argues

that the trial court imposed sentences outside the aggravated range for his

accidents involving death or personal injury while not properly licensed

convictions without stating sufficient reasons for doing so. Garcia’s Brief at

15. Additionally, Garcia claims that the trial court imposed these sentences

without considering mitigating factors, such as Garcia’s remorse, his decision

to plead guilty, and his history of never committing a violent crime. Garcia’s

Brief at 15-16.   “A claim that the sentencing court imposed a sentence

outside of the guidelines without specifying sufficient reasons presents a

substantial question for our review.” Commonwealth v. Holiday, 954 A.2d

6, 10 (Pa. Super. 2008). Furthermore, a claim that the trial court imposed a

sentenced above the aggravated range without considering mitigating

factors also raises a substantial question.       See Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (holding that a

“claim that the court erred by imposing an aggravated range sentence



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without consideration of mitigating circumstances raises a substantial

question”).

      In his second issue, Garcia argues that the consecutive nature of his

sentences resulted in an aggregate sentence that was clearly unreasonable

and manifestly excessive. Garcia’s Brief at 14. Consequently, Garcia asserts

that his sentence is not consistent with the protection of the public, the

gravity of the offenses, and his rehabilitative needs.    Id. at 14-15.   This

Court has held that a claim that the imposition of consecutive sentences

resulted in an aggregate sentence disproportionate to the crimes committed,

“in combination with allegations that a sentencing court did not consider the

nature of the offenses …, presents a plausible argument that the length of

the sentence violates fundamental sentencing norms[,]” and therefore raises

a substantial question.    Dodge, 77 A.3d at 1271-72. Because Garcia has

complied with each of the technical requirements for consideration of a

challenge to the discretionary aspects of a sentence, and because all of his

claims raise a substantial question, we will consider each of his claims on

their merits.

      Our standard of review when considering discretionary aspects of

sentencing claims is as follows:

              Sentencing is a matter vested in the sound discretion
              of the sentencing judge. Commonwealth v. Paul,
              925 A.2d 825 (Pa. Super. 2007). The standard
              employed when reviewing the discretionary aspects
              of sentencing is very narrow. [Commonwealth v.



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           Marts, 889 A.2d 608, 613 (Pa. Super. 2005)]. We
           may reverse only if the sentencing court abused its
           discretion or committed an error of law. Id. “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.”   Commonwealth v. Littlehales, 915
           A.2d 662, 665 (Pa. Super. 2007). We must accord
           the sentencing court’s decision great weight because
           it was in the best position to review the defendant’s
           character, defiance or indifference, and the overall
           effect and nature of the crime. Marts, 889 A.2d at
           613.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007).

     For his first issue on appeal, Garcia argues that the trial court imposed

sentences outside the aggravated range for his accidents involving death or

personal injury while not properly licensed convictions, without stating

sufficient reasons for doing so.14   Garcia’s Brief at 22-25.    Additionally,

Garcia claims that the trial court imposed these sentences without



14
    To the extent Garcia argues that the trial court considered improper
factors in sentencing him, see Garcia’s Brief at 24-25, this claim is waived.
As discussed above, it is well settled that “‘issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.’” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa. Super. 2013) (en banc) (quoting Commonwealth v. Kittrell, 19 A.3d
532, 538 (Pa. Super. 2011)). Garcia did not raise this claim in his post-
sentence motion to modify his sentence and cannot raise it for the first time
on appeal. See Pa.R.A.P. 302(a).


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considering mitigating factors, such as Garcia’s remorse, his decision to

plead guilty, and his history of never committing a violent crime. Id. at 25-

29.

      Section 9721(b) of the Sentencing Code provides, in pertinent part, as

follows:

            (b) General standards.-- … the court shall follow
            the general principle that the sentence imposed
            should call for confinement that is consistent with
            the protection of the public, the gravity of the
            offense as it relates to the impact on the life of the
            victim and on the community, and the rehabilitative
            needs of the defendant. … In every case in which the
            court imposes a sentence for a felony or
            misdemeanor, modifies a sentence, resentences an
            offender following revocation of probation, county
            intermediate punishment or State intermediate
            punishment or resentences following remand, the
            court shall make as a part of the record, and disclose
            in open court at the time of sentencing, a statement
            of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

      The trial court explained its reasoning for Garcia’s sentence as follows:

            All right.   I have considered the arguments of
            counsel, the statements of everybody here, as well
            as the [p]resentence [i]nvestigation.

            Although you have some good things in your
            Presentence Investigation, Mr. Garcia, there are
            some things that certainly go against you, and that
            is your basically terrible criminal prior record [sic].

            When you put that into account with the facts of this
            case, which, to be quite frank, are horrendous, this
            case, in my mind, could have been a situation where
            the Commonwealth could have charged you with



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          third degree murder because of the nature of your
          actions here. They did not do that; however, you
          still face a number of very serious charges.

          What I think is particularly shocking about this, this
          could have been avoided in any of three ways, Mr.
          Garcia:

          Number one, the easiest way, you shouldn’t have
          been out on the road. You had a license suspension,
          and I believe your license has been suspended for
          years. Suspended license means you don’t drive.
          So if you didn’t drive, this obviously never could
          have happened.

          Secondly, you were under the influence of alcohol,
          roughly a .14 on this. If you hadn’t consumed any
          alcohol, this probably never would have happened.

          Third, to be quite frank, you drove like a maniac on
          that particular day. This is extremely aggressive
          driving.

          I think you have to consider the fact of where this
          was, what time this was and what you were doing.
          It was aggressive driving, and there were a number
          of serious violations. You were driving a relatively
          large SUV on a crowded city street at 1:20 p.m. in
          the afternoon.

          That’s what makes the facts of this case so horribly
          horrendous. Your prior convictions include a prior
          DUI back in 2003, which is why the driving under
          suspension is a DUI-related suspension.

          You don’t do very well under supervision.        You
          actually have been in court -- today makes the 20th
          time you have been in court in front of a judge, and
          nine of those times were for violation of your
          probation and parole. I note that you still owe
          outstanding to the County of Lancaster over
          $16,000.




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            We’ve heard a lot of things about how this has
            affected the family, and I’m sure it’s affected your
            family, too, because I’m working under the
            assumption you love them and they love you. I’m
            assuming you love your son, and what I was really
            impressed about here is even the victims in this case
            were concerned -- they were concerned about your
            son. They wanted to know what happened to the
            little boy in this case.

            So I agree that your family loves you and you love
            them. However, I just can’t possibly forget what you
            did to this family here. One person is dead. One
            person is very seriously injured. Their life is shot,
            basically, from here on in.

            And regarding what happened to them, for the
            reasons I stated before, I think all of the incidents
            that occurred regarding that family, in fact, deserve
            the maximum sentence allowable by law.

N.T., 9/22/14, at 15-17.

      Therefore, the trial court provided ample reasoning for why it

sentenced Garcia as it did.    Additionally, the trial court’s explanation of

Garcia’s sentence further reflects that the court took into consideration

mitigating factors such as Garcia’s son and family and the positive aspects of

Garcia’s presentence investigation report. This Court has held that “where

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. Clarke, 70 A.3d

1281, 1287 (Pa. Super. 2013) (quotations, brackets, and citation omitted),




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appeal denied, 85 A.3d 481 (Pa. 2014).         Thus, we conclude that the trial

court stated sufficient reasons for        Garcia’s sentence    and took into

consideration all necessary factors in determining his sentence.            See

42 Pa.C.S.A. § 9721(b).    Accordingly, we conclude that Garcia’s first issue

does not entitle him to any relief.

      For his second issue on appeal, Garcia argues that the consecutive

nature of his sentences resulted in an aggregate sentence of nineteen years

and ninety days to thirty-eight years of incarceration, which was manifestly

excessive and an abuse of discretion. Garcia’s Brief at 19. Garcia further

asserts that his sentence was not consistent with the protection of the

public, the gravity of the offenses, and his rehabilitative needs. Id. at 20-

21.

      As stated above, a sentence must be “consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b). “Generally, Pennsylvania law affords

the sentencing court discretion to impose its 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) (quotations and citation omitted), appeal denied, 77 A.3d

1258 (Pa. 2013).




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      Here, the certified record on appeal reflects the following. On the day

of the crash, Garcia was driving erratically, weaving in and out of traffic, at a

high rate of speed, while under the influence of a high-rate of alcohol, with

his seven-year-old son in the passenger’s seat of his vehicle. N.T., 7/15/14,

at 3-5. Because of Garcia’s extraordinarily reckless actions, Garcia caused a

motor vehicle crash in which his vehicle slammed head-on into the vehicle of

Stamper. Id. at 3-4. The crash resulted in the death of Stamper’s daughter

and caused serious bodily injury to Stamper.         Id. at 4.    Moreover, the

certified record further reflects that at the time of the accident, Garcia was

driving with a suspended license and that this was not his first DUI. N.T.,

9/22/14, at 15-16.     Finally, the record reveals that Garcia has performed

poorly under supervision, as the trial court noted that Garcia had been

before a judge twenty times, and nine of those appearances were for

violating his probation or parole. Id. at 16. Therefore, based on our review

of the circumstances of the offense, the trial court’s findings as fully set forth

above, and Garcia’s history, we conclude that the trial court’s aggregate

sentence for Garcia was not manifestly excessive and was consistent with

the protection of the public, the gravity of the offenses, and his rehabilitative

needs. Accordingly, the trial court did not abuse its discretion in sentencing

Garcia.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015




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