J-S45032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN PATRICK MCHUGH                        :
                                               :
                       Appellant               :   No. 2534 EDA 2018

          Appeal from the Judgment of Sentence Entered July 18, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005884-2017


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 09, 2019

        Ryan Patrick McHugh (McHugh) appeals from the judgment of sentence

imposed following his entry of a guilty plea in the Court of Common Pleas of

Philadelphia County (trial court) to aggravated assault by vehicle while driving

under the influence, driving under the influence of a controlled substance,

homicide by vehicle while driving under the influence, and homicide by

vehicle.1 We affirm.

        We derive the following facts and procedural history from the trial

court’s September 26, 2018 opinion and our independent review of the record.

On February 2, 2018, McHugh pleaded guilty to the above-listed offenses. The


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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. §§ 3735.1(a), 3802(d)(1)(iii), 3735(a), and 3732(a).
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charges stem from his striking and killing of a twenty-eight-year old woman,

Rosa Rojas, while she was walking on a sidewalk with her two children after

exiting a restaurant. Although Rojas attempted to push her children out of

the path of McHugh’s oncoming vehicle, it struck and seriously injured her

eight-year old son. McHugh was under the influence of marijuana, Xanax,

Fentanyl and Methadone at the time. On July 18, 2018, after preparation of

a pre-sentence investigation report (PSI), the trial court sentenced McHugh to

an aggregate term of not less than twelve and one-half nor more than twenty-

five years’ incarceration.2       McHugh timely appealed, following the court’s

denial of his post-sentence motion. McHugh and the trial court complied with

Rule 1925(b). See Pa.R.A.P. 1925(a), (b).

       McHugh raises two issues on appeal challenging the discretionary

aspects of his sentence. (See McHugh’s Brief, at 3). Specifically, he claims

the court imposed a manifestly excessive sentence without adequately

considering his long history of heroin and prescription pill addition, his

expression of remorse, and his acceptance of responsibility for his offenses.

(See id. at 16-17). McHugh also argues that the court imposed a sentence

that deviated from the Sentencing Guidelines without providing adequate




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2 Relevant to McHugh’s claims herein, the court sentenced him to a minimum
term of forty-two months’ incarceration on the homicide by vehicle charge.
(See N.T. Sentencing, 7/18/19, at 43; McHugh’s Brief, at 17).


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reasons on the record. (See id. at 17-18). We begin by setting forth the

applicable legal principles.

      “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. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018), appeal

denied, 206 A.3d 1029 (Pa. 2019) (citation omitted).        “An appellant must

satisfy a four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. (citation omitted). “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.” Id. (citation omitted). “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. Nevels,

203 A.3d 229, 246 (Pa. Super. 2019) (citation omitted).

      Instantly, McHugh has complied with the first three prongs of this test

by raising his claims in a timely post-sentence motion, filing a timely notice of

appeal, and including a Rule 2119(f) concise statement in his brief. McHugh’s

excessiveness claim in conjunction with his assertion that the court did not


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adequately consider mitigating factors presents a substantial question. See

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).

Additionally, his claim that “the trial court failed to state its reasons for

deviating from the [sentencing] guidelines presents a substantial question for

review.” Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super.

2009) (citation omitted). We will, therefore, address his issues on the merits.3

        As noted, in arguing that his sentence is excessive, McHugh focuses on

mitigating factors, specifically, his long history of substance abuse, his

remorse, and acceptance of responsibility for his actions.          (See McHugh’s

Brief, at 16-17).     McHugh also maintains that the court deviated from the



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3   Our standard of review is as follows:

               Sentencing is a matter vested in the sound discretion of the
        sentencing judge. The standard employed when reviewing the
        discretionary aspects of sentencing is very narrow. We may
        reverse only if the sentencing court abused its discretion or
        committed an error of law. 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. 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.

Nevels, supra at 247 (citation omitted).




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guidelines without placing adequate reasons on the record. (See id. at 17-

18).4

        The record reflects that at sentencing, the trial court heard from defense

counsel regarding McHugh’s lengthy struggle with heroin and prescription drug

addiction and his willingness to accept responsibility for his offenses. (See

N.T.    Sentencing,    7/18/18,     at   35-36).   McHugh   also   expressed   his

remorsefulness, stating, “from the bottom of my heart, I am truly sorry.” (Id.

at 38). The court then sentenced McHugh within the guidelines to a sentence

both defense counsel and the Commonwealth agreed on, explaining:

              Mr. McHugh, speaking from my own heart, I’m at least
        pleased that you have the decency to express your truthful sorrow
        and the way you truly feel about the loss for everyone involved.

              And I agree that two of the biggest losers are your own
        children; I agree with that.

              But no one has lost as much as the two children of this
        heroic woman.

             Your words are inadequate, but at least they were presented
        in what I view as a meaningful fashion.

              The Commonwealth has placed on the record what the
        guidelines are in this case, and the Commonwealth made its
        recommendation.

              Your attorney has joined in that recommendation.



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4 To the extent McHugh challenges the court’s imposition of consecutive
sentences, this issue is waived for his failure to raise it in his post-sentence
motion. (See Motion to Modify and Reduce Sentence, 7/23/18, at 1-2);
Zeigler, supra at 662.

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             The sentences recommended in this case are
       guideline sentences and do comply with the guidelines for
       tragedies such as this.

             As inadequate as the guidelines may seem to family
       members, the guidelines are appropriate for cases, even cases
       with tragic instances.

(Id. at 42-43; see also id. at 35-36) (emphasis added).

       The record, therefore, demonstrates that the trial court formulated its

sentence, taking into consideration all relevant mitigating information in

McHugh’s personal history.     Further, because the court considered a PSI

report, it is presumed that it adequately considered relevant mitigating

factors. See Zeigler, supra at 662.

       Finally, the record belies McHugh’s claim that the court deviated from

the guidelines without providing sufficient reasons; the sentence was plainly

within the guidelines and the court fully explained its sentence. With regard

to McHugh’s contention regarding the minimum sentence for the homicide by

vehicle offense, i.e., that forty-two months was above the twenty-seven to

thirty-three month guideline range, he neglects to point out that the range is

plus   or   minus   twelve   months.     (See   Commonwealth’s    Sentencing

Memorandum, 6/29/18, at 9; Trial Ct. Op., at 4).      Because we discern no

abuse of discretion in the court’s imposition of McHugh’s sentence, his

challenges thereto fail.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/19




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