J-S46002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KAYLA CARNES,

                            Appellant                No. 2546 EDA 2015


          Appeal from the Judgment of Sentence Entered July 8, 2015
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003898-2014


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 02, 2016

        Appellant, Kayla Carnes, appeals from the judgment of sentence of 1

to 3 years’ incarceration, imposed after she pled guilty to criminal conspiracy

to commit robbery, 18 Pa.C.S. § 3701(a)(1)(v) and 18 Pa.C.S. § 903.

Appellant solely challenges the discretionary aspects of her sentence.     We

affirm.

        At Appellant’s plea proceeding, the Commonwealth stated the facts of

her case, as follows:

        [The Commonwealth]: This incident occurred on May 25, 2014[,]
        at approximately 5:00 a.m.

             Earlier in the night[,] Emit Ordonez and his friend Daniel
        Franco were out at the Fusion Nightclub.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            Mr. Ordonez had with him quite a bit of cash that evening.
       As he left the [c]lub and went to his cousin’s house at 9th and
       Walnut[,] [Appellant] was driving a white Ford Expedition.

             Inside of it [were] two … gentlemen, Frenny [sic] Pena
       and Joshua Rivera. Mr. Pena … saw Mr. Ordonez, recognized
       him from the [c]lub, [and] asked that the vehicle be stopped.
       [Appellant] stopped the vehicle. Mr. Pena got out. The other
       two defendants got out. Mr. Pena approached Mr. Ordonez and
       demanded his money.

             Mr. Ordonez said, “No.” Mr. Pena removed his belt and in
       a whip[-]like fashion struck Mr. [Ordonez] in the face. He
       chipped one of [Mr. Ordonez’s] teeth and made a cut on [Mr.
       Ordonez’s] face requiring stitches. Then they became involved
       in a melee, the two of them. When that was going on, …
       [Appellant] removed Mr. Ordonez’[s] wallet from his back
       pocket.

             [Appellant] then went, retrieved her vehicle, and drove the
       three of them from the scene.

N.T. Plea Hearing, 5/11/15, at 5-6.1

       The court accepted Appellant’s guilty plea to conspiracy to commit

robbery, and it deferred her sentencing for the preparation of a pre-sentence

investigation report (PSI).          On July 8, 2015, the court conducted a

sentencing hearing, at the conclusion of which it imposed a term of 1 to 3

years’ incarceration. Appellant filed a timely post-sentence motion to modify

her sentence, which the court denied. Appellant then filed a timely notice of

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


1
  We note that at the close of the Commonwealth’s factual recitation,
Appellant stated to the court that she was “not the driver[,]” and the
Commonwealth corrected the facts by stating, “I believe Mr. Rivera was the
driver of the vehicle. Other than that, I believe the facts were accurate.”
Id. at 6.



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1925(b) concise statement of errors complained of on appeal.            Herein,

Appellant presents one issue for our review:

      Whether the lower court abused its[] discretion by imposing a
      sentence which was manifestly unreasonable as the court failed
      to set forth acceptable reasons supported by the record for
      departing from the standard guideline range and imposed a
      sentence that is at the top of the aggravated range of the
      sentencing guidelines as applied to [Appellant]?

Appellant’s Brief at 4.

      Appellant’s issue implicates 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).

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. Commonwealth v.
      Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
      question exists “only when the appellant advances a colorable
      argument that the sentencing judge's actions were either: (1)


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      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.” Sierra, supra at 912–13.

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

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

      In the present case, Appellant has set forth a Rule 2119(f) statement,

in which she contends that the court abused its discretion by imposing a

sentence “at the top of the aggravated … range of the Sentencing

Guidelines” without “set[ting] forth acceptable reasons supported by the

record for departing from the standard guideline range….” Appellant’s Brief

at 10.   Appellant contends that “[t]he reasons stated by the [c]ourt are

unsupported by the evidence presented at the guilty plea hearing and

sentencing.”   Id.     Essentially, Appellant argues that the sentencing court

relied on impermissible factors in imposing her aggravated range sentence.

Such a claim constitutes a substantial question for our review.           See

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006)

(citations omitted).

      However, our examination of Appellant’s post-sentence motion reveals

that she did not raise this claim therein. Instead, Appellant stressed several

mitigating factors in her case, and then averred that her “aggravated

sentence is manifestly unreasonable and unwarranted under the facts of the

case and [her] own personal circumstances.”            Post-Sentence Motion,

7/20/15, at 2 (unnumbered).        Appellant also requested a lesser term of

incarceration, explaining why a more lenient sentence was “appropriate in


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light of the aforementioned factors and circumstances[,]” and why a lesser

sentence was “consistent with the gravity of the offenses, adequately

provide[s] for the protection of the public, and addresses [Appellant’s]

rehabilitative needs.”   Id. at 2 (unnumbered).     In sum, at no point did

Appellant mention any challenge to the reasons stated by the court for

imposing an aggravated range sentence. She also did not raise such a claim

at the sentencing hearing.    Consequently, we conclude that Appellant has

waived the specific, discretionary-aspects-of-sentencing issue she presents

herein.   See Griffin, 65 A.3d at 935 (citing Pa.R.Crim.P. 720); see also

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      In any event, even if preserved, we would conclude that Appellant’s

challenge to the discretionary aspects of her sentence is meritless.

          Sentencing is a matter vested in the sound discretion of
          the sentencing judge, and 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. Fullin, 892 A.2d 843, 847 (Pa. Super.
      2006) (citation omitted).

            “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....” Id. Furthermore, “[a] trial court judge has wide
      discretion in sentencing and can, on the appropriate record and

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      for the appropriate reasons, consider any legal factor in imposing
      a sentence in the aggravated range.” Commonwealth v.
      Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (citation
      omitted). The sentencing court, however, must also consider the
      sentencing guidelines. See Fullin, 892 A.2d at 847.

Shugars, 895 A.2d at 1275.         Additionally, this Court “shall vacate the

sentence and remand the case to the sentencing court with instructions if it

finds … []the sentencing court sentenced within the sentencing guidelines

but the case involves circumstances where the application of the guidelines

would be clearly unreasonable….” 42 Pa.C.S. § 9781(c)(2).

      Appellant complains that the court imposed an aggravated range

sentence for reasons that were improper and/or not supported by the

record.     At the sentencing proceeding, the court first stated that it was

imposing an aggravated range sentence “as a result of the [plea]

negotiations reducing [Appellant’s crime] down to a less serious crime than

it actually is.”   N.T. Sentencing, 7/8/15, at 13.   Appellant argues, without

citation to any authority, that the court’s “consideration of [the] plea

negotiation does not fall within the purview of the legitimate sentencing

factors.”    Appellant then incorrectly suggests that the court may only

consider “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.” Appellant’s Brief at 12, 15; see also

42 Pa.C.S. § 9721(b) (“In selecting from the alternatives set forth in

subsection (a), the court shall follow the general principle that the sentence

imposed should call for confinement that is consistent with the protection of


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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.”).

       We reiterate that while the court must consider the 9721(b) factors, it

also has “wide discretion in sentencing and can, on the appropriate record

and for the appropriate reasons, consider any legal factor in imposing a

sentence in the aggravated range.”             Shugars, 895 A.2d at 1275 (citation

omitted; emphasis added).           In any event, the court’s comment, quoted

supra, reflects consideration of a factor set forth in section 9721(b), i.e., the

gravity of Appellant’s offense.          The court essentially stressed that the

reduction of Appellant’s charge did not eviscerate the seriousness of the

underlying offense.        Our interpretation of the court’s comment in this

manner is supported by other statements the court made during the

sentencing proceeding. For instance, at one point the court stated:

       THE COURT: This -- quite frankly, I was shocked at the
       recommendation in the PSI. Four months is not even close to
       what is deserving in this case.

             A belt was used on one of the victims. They had -- two of
       them had injuries including broken teeth, cuts on their mouth[s],
       cuts on their head, bruising on their head, 15 stitches.[2]
____________________________________________


2
  The Commonwealth explained at the sentencing hearing, without any
objection from the defense, that the victims, “[t]wo … young men[,] were
hurt rather badly requiring 15 stitches, [and suffering] two broken teeth.”
N.T. Sentencing at 10. Appellant also did not object to the court’s above-
stated reference to the victims’ injuries.




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       …

              And you [Appellant] were in it up to your eyeballs. You
       weren’t drunk, or you were, but whatever the case is you’re
       lying.[3] One of those -- they can’t both be true.

              And I love when people come in here and they speak in
       these very soft and subdued voices and yet, out on the street,
       this is animal behavior.

            You target someone because you see them with money
       and you take it. And not only do you take it, you beat them
       when you take it.

N.T. Sentencing at 12-13. In light of these statements by the court, and the

record as a whole, we would ascertain no abuse of discretion in the court’s


____________________________________________


3
  This passage refers to an earlier exchange between the court and
Appellant:

       THE COURT: So from midnight to []5 a.m.[] you had nothing to
       drink.

       [Appellant]: Correct.

       THE COURT: Yet in your version of events you said, “I don’t
       know. I didn’t have any intentions with it. It was on the
       ground. I was drunk.” So you weren’t drunk.

       [Appellant]: I had a lot to drink before that.

       THE COURT: Well, that’s not what you said. You said you had a
       couple beers and a drink at 11:00 p.m. This is six hours later.
       What’s the lie?

       [Appellant]: I don’t know.

       THE COURT: You don’t know?

       [Appellant]: (No response.)

N.T. Sentencing Hearing at 12.




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considering the seriousness of Appellant’s actual conduct, despite that she

ultimately pled guilty to a reduced charge.

      Appellant also challenges the two other reasons stated by the court for

imposing an aggravated range sentence: that “there were multiple victims

and   significant   injuries[,]”   and   that   Appellant   “is   a   danger   to   the

community.” Id. at 13-14. Appellant avers that the crime to which she pled

guilty pertained to only one victim, Mr. Ordonez, who suffered two broken

teeth and needed 15 stitches. According to Appellant, these facts do “not

amount to multiple victims or serious injuries.”            Appellant’s Brief at 16.

Appellant also contends that “the record does not support the [c]ourt’s

finding that [she] is a danger to the community.”           Id.   Appellant stresses

that she did not have an extensive criminal record, she “did not harm or

attempt to harm anyone” in the present case, and she “was gainfully

employed and compliant with her [Accelerated Rehabilitative Disposition]

supervision at the time of sentencing.” Id.

      Even if Appellant had preserved her arguments in this regard, we

would deem them meritless.          First, it is undisputed that there were two

victims in this case; the fact that Appellant’s plea deal only involved a

conviction relating to one of those victims does not render it an abuse of

discretion for the court to consider that Appellant’s conduct also impacted

another man who was robbed and injured during the incident.                Moreover,

Appellant cites no legal authority to support her bald assertion that the

victims’ injuries were not ‘serious.’      In any event, the court did not even

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characterize the victims’ injuries as ‘serious’ - it stated that their injuries

were ‘significant.’       N.T. Sentencing at 14.   Appellant offers no developed

argument, nor any supporting legal authority, to demonstrate that the court

abused its discretion in characterizing 15 stitches and two broken teeth as

‘significant’ injuries.

      Finally, even if preserved, Appellant is incorrect in arguing that the

record does not support the court’s determination that she poses a risk to

the community.        According to the facts stated at the plea proceeding,

Appellant was not only present, but also actively participated in the robbery

of two victims.       Notably, as her male cohorts were beating the victims,

Appellant did not try to intervene, get help, or even drive away. Instead,

she used that opportunity to steal Mr. Ordonez’s wallet from his pocket, and

then fled from the scene with her male companions. These facts support the

court’s conclusion that Appellant poses a risk to the community.

      In sum, Appellant has waived the assertions she raises herein by not

presenting them in her post-sentence motion.              Nevertheless, even if

Appellant had preserved her claims, we would conclude that they are

meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2016




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