J-S78012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TRACY KENNEDY,

                            Appellant                 No. 1918 WDA 2015


        Appeal from the Judgment of Sentence Entered October 21, 2015
                 In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-CR-0000455-2013


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 7, 2016

        Appellant, Tracy Kennedy, appeals from the judgment of sentence of 8

to 16 years’ incarceration, imposed after a jury convicted her of committing

sexual offenses against a minor, including indecent assault, statutory sexual

assault, and involuntary deviate sexual intercourse.      Appellant raises one

issue challenging the discretionary aspects of her sentence. We affirm.

        The facts underlying Appellant’s conviction are not necessary to our

disposition of her appeal.        On October 21, 2015, the court imposed the

above-stated, aggregate sentence for her crimes. Notably, Appellant did not

file any post-sentence motions. Instead, she filed a timely notice of appeal,

and also timely complied with the trial court’s order to file a Pa.R.A.P.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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1925(b) concise statement of errors complained of on appeal.            Herein,

Appellant raises one issue for our review:

      I. Did the [c]ourt commit reversible error when it sentenced
      [Appellant] to 8 to 16 years of incarceration, [where] although
      she had a prior criminal record, there was no basis in fact that
      merited such a sentence, [it] was considerably more harsh than
      the plea offer from the District Attorney, and though within the
      standard range of [the sentencing] guidelines, [it] is clearly
      unreasonable[?]

Appellant’s Brief at 3.

      Appellant is challenging the discretionary aspects of her sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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.A. § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the                 sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).


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      Appellant has failed to satisfy two prongs of the test for invoking this

Court’s jurisdiction to review her sentencing claim. First, she did not raise

any challenge to her sentence at the October 21, 2015 sentencing

proceeding, and she also failed to file a post-sentence motion presenting

that claim to the trial court.   Therefore, her challenge to the discretionary

aspects of her sentence is waived. See Griffin, supra.

      Additionally, Appellant has not included a Rule 2119(f) statement in

her appellate brief, and the Commonwealth has objected to that omission.

See Commonwealth’s Brief at 5.       Consequently, her discretionary-aspects-

of-sentencing claim is waived on this basis, as well. See Commonwealth

v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (“[I]f the appellant

fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the

issue is waived for purposes of review.”) (citations omitted).

      In any event, even if Appellant had properly preserved her claim (and

we found that she had presented a substantial question for our review), we

would not conclude that the trial court abused its discretion in fashioning her

sentence. The court had the benefit of a pre-sentence report and ultimately

imposed a standard-range term of incarceration.

      As we indicated in Commonwealth v. Moury, 992 A.2d 162,
      171 (Pa. Super. 2010), where the sentencing court imposed a
      standard-range sentence with the benefit of a pre-sentence
      report, we will not consider the sentence excessive. In those
      circumstances, we can assume the sentencing court “was aware
      of relevant information regarding the defendant’s character and
      weighed those considerations along with mitigating statutory
      factors.” Commonwealth v. Devers, 519 Pa. 88,546 A.2d 12,
      18 (1988); see also Commonwealth v. Tirado, 870 A.2d 362,

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     368 (Pa.Super.2005) (if sentencing court has benefit of pre-
     sentence investigation, law expects court was aware of relevant
     information regarding defendant's character and weighed those
     considerations along with any mitigating factors). Moreover, we
     can reverse a standard-range sentence only if the sentence is
     clearly unreasonable when viewed in light of the four statutory
     factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v.
     Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also
     Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009).
     Section 9781(d) provides that when we review this type of
     question, we have regard for:

        (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.

     Walls, supra at 963. Furthermore, “rejection of a sentencing
     court's imposition of sentence on unreasonableness grounds
     [should] occur infrequently, whether the sentence is above or
     below the guidelines ranges.” Macias, supra at 777 (quoting
     Walls, supra at 964).

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citations

omitted).

     The thrust of Appellant’s argument is that her sentence is ‘clearly

unreasonable’ because her conduct throughout trial, and her statements at

the sentencing hearing, demonstrate that she has mental health issues that

require treatment in “a therapeutic setting,” rather than in a state

correctional institution. Appellant’s Brief at 10. However, Appellant did not

present any evidence at the sentencing hearing to establish that she has

been diagnosed with mental health issues, aside from her own testimony



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that she is on various medications.    As Appellant acknowledges, her “trial

counsel [did not] help to elucidate[,] to any great degree[,] what the

medications are for and their side effects.” Id. at 9. Because Appellant did

not fully explain, or present evidence to support, her claim that she has

mental health issues warranting ‘therapeutic treatment’ rather than a

sentence of incarceration, she cannot now challenge her sentence on this

basis. Accordingly, even had Appellant properly preserved her discretionary

aspects of sentencing issue, her argument would fail to convince us that the

trial court abused its discretion in imposing a standard-range sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2016




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