J-S19037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DARLA MARIE CARRINGTON                     :
                                               :
                      Appellant                :   No. 1459 MDA 2016

              Appeal from the Judgment of Sentence April 19, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000941-2014


BEFORE:      GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 29, 2017

        Appellant Darla Marie Carrington appeals the judgment of sentence

entered by the Court of Common Pleas of Dauphin County after Appellant

pled guilty to third-degree murder. Appellant claims the trial court abused

its discretion in imposing a manifestly excessive sentence. We affirm.

         Appellant’s guilty plea in connection with the murder of Dennis Green

(“the victim”) was based on the following facts: Appellant met the victim,

who was a cab driver, after he had provided her transportation.        On January

4, 2014, Appellant invited the victim to her residence where both individuals

then proceeded to smoke crack cocaine while Appellant’s minor daughters,

ages eight and four, slept in a nearby bedroom.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Appellant contends that, while under the influence of cocaine, she

perceived that the victim was attempting to rape her and wanted to rape her

daughters as well.     In response, Appellant violently attacked the victim,

admitting that she hit him several times with a hammer and repeatedly

stabbed him with a kitchen knife. Appellant’s eight-year-old daughter told

the police that she watched as her mother, who was covered in blood,

strangled the victim.     This statement was corroborated by the victim’s

autopsy, which revealed evidence of strangulation along with six stab

wounds and multiple abrasions, bruises, and cuts. Appellant did not sustain

any injuries from the alleged rape attempt.

     Appellant’s   plea   agreement    provided   that   Appellant’s   minimum

sentence would be determined by the lower court but would fall in the range

of thirteen to twenty years imprisonment.     Appellant’s maximum sentence

would then be calculated as twice Appellant’s minimum sentence.            The

sentencing guidelines recommended a standard range sentence of 7½ to 10

years’ imprisonment.

     Sentencing was deferred for the completion of a presentence report.

At sentencing, the lower court heard oral argument and victim impact

statements.   The defense asked for leniency, given that Appellant had a

traumatic childhood, had been subjected to physical and sexual abuse, had

mental health issues, and turned to alcohol and drugs to self-medicate. The

prosecution emphasized the violent nature of the attack and Appellant’s

history of drug use and violence, which included a 2011 guilty plea to simple

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assault in which Appellant stabbed a man who she mistakenly believed was

trying to rape her.

      At the conclusion of the hearing, the lower court sentenced Appellant

to twenty to forty years’ imprisonment, which was the upper limit of

Appellant’s plea agreement and the statutory maximum.        Appellant filed a

post-sentence motion, which the trial court subsequently denied.         This

timely appeal followed. Appellant complied with the lower court’s direction

to file a concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Appellant’s sole claim on appeal is that the trial court abused its

discretion in imposing a manifestly excessive sentence. It is well-established

that “[a] challenge to the discretionary aspects of sentencing does not

entitle an appellant to review as of right.”   Commonwealth v. Bynum-

Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016).        In order to invoke this

Court’s jurisdiction to address such a challenge, the appellant must satisfy

the following four-part test: the appellant must (1) file a timely notice of

appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing

or in a timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3)

ensure that the appellant’s brief does not have a fatal defect as set forth in

Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code under 42

Pa.C.S. § 9781(b).    Id.   Appellant has filed a timely notice of appeal,




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preserved her sentencing claim before the trial court, and submitted a Rule

2119(f) statement in her appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.         “The determination of what constitutes a

substantial    question   must   be      evaluated   on    a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This

Court has provided as follows:

      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge's actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of the
      defendant. And, of course, the court must consider the
      sentencing guidelines.

Id. (internal citations omitted).

      Specifically, Appellant claims that the imposition of the statutory

maximum in this case was “clearly unreasonable” alleging that the

sentencing court did not consider various mitigating factors, including her

troubled past, mental health issues, substance abuse, and her description of

the murder as simply “overreacting” to the victim’s advances.            Appellant’s

Brief at 15.    This Court has held that an appellant's allegation that the

sentencing     court   imposed      an    aggravated      range   sentence    without

consideration of mitigating circumstances raises a substantial question.


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Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en

banc). As a result, we find Appellant has raised a substantial question for

our review.

      However, Appellant’s challenge to the discretionary aspects of her

sentence clearly fails on the merits. Prior to imposing Appellant’s sentence,

the lower court indicated that it had reviewed the sentencing guidelines,

defense counsel’s sentencing memorandum, and a presentence investigation

report.   “[W]here 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.

Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016).       Further, the trial court

stated on the record it imposed the aggravated sentence based on the

circumstances of the case, the protection of the public, and the need to

provide Appellant rehabilitation for her mental health and the various other

issues she faces. Accordingly, we cannot find the court abused its discretion

in imposing its sentence of twenty to forty years’ imprisonment.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017


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