J-S37017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

 WHITLEY ELISE SHARP

                             Appellant             No. 1877 MDA 2016


           Appeal from the Judgment of Sentence September 27, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002383-2016
                                          CP-22-CR-0002530-2016


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 05, 2017

       Whitley Elise Sharp appeals from the September 27, 2016 judgment of

sentence entered in the Dauphin County Court of Common Pleas following her

entry of guilty pleas to endangering the welfare of children (“EWOC”),

possession of a controlled substance, and possession of drug paraphernalia.1

We affirm.

       In an August 21, 2017 memorandum, we ordered the trial court to

determine why the sentencing transcript in this matter was not transmitted to

this Court. We further instructed that if an “extraordinary breakdown in the

judicial process” caused the transcript to be excluded from the record, then


____________________________________________


       18 Pa.C.S. § 4304(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
       1

113(a)(32), respectively.
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Sharp should be allowed to supplement the record with the transcript.

Additionally, we instructed the trial court, upon receipt of the transcript, to

issue a new Pennsylvania Rule of Appellate Procedure 1925(a) opinion

addressing the merits of Sharp’s claim.

      At a September 7, 2017 hearing, the parties stipulated that there was a

breakdown in the Clerk of Courts’ office that caused the transcript to not

properly appear on the docket or in the Clerk’s file. “Based upon counsel’s

efforts to timely obtain the transcript and complete the record,” the trial court

allowed the transcript to be filed of record. On November 2, 2017, this Court

received the sentencing transcript and a new Rule 1925(a) opinion from the

trial court.

      On August 11, 2016, Sharp pled guilty to the aforementioned offenses.

During that plea,

          Sharp acknowledged that she allowed her boyfriend, the
          child’s father, James Slaughter III, to repeatedly and
          severely physically abuse the child, that she failed to take
          any action to protect the child, failed to seek medical
          attention[,] and that she told the child not to disclose the
          abuse to anyone.

Trial Ct. Op., 10/31/17, at 1-2 (“1925(a) Op.”).

      On September 26, 2016, the trial court sentenced Sharp to 3½ to 7

years’ incarceration on the EWOC conviction and imposed no further

incarceration for the other offenses. On September 28, 2016, Sharp filed a

post-sentence motion to modify sentence, alleging that, in imposing a

sentence that was outside the aggravated range, the trial court did not


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consider the factors set forth in section 9721(b) of the Sentencing Code. See

42 Pa.C.S. § 9721(b). The trial court denied the motion on October 19, 2016.

On November 11, 2016, Sharp timely filed a notice of appeal.

      Sharp’s sole issue on appeal is whether the trial court abused its

discretion by not considering mitigating factors “where [Sharp]’s conduct was

not so egregious to warrant a three and one half to seven . . . years sentence.”

Sharp’s Br. at 8.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we address such a challenge, we must first

determine:
         (1) whether the appeal is timely; (2) whether [the
         a]ppellant preserved his issue; (3) whether [the appellant’s
         brief includes a concise statement of the reasons relied upon
         for allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise statement
         raises a substantial question that the sentence is
         appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Sharp filed a timely notice of appeal, preserved her discretionary

aspects of sentencing claim in a post-sentence motion, and included a concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pennsylvania Rule of Appellate Procedure 2119(f). Further, a claim that the

trial court “erred by imposing 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).

      Sharp was sentenced to a statutory maximum sentence that, based on

application of the sentencing guidelines to Sharp’s conviction, is beyond the

aggravated range. Further, Sharp argues that the trial court did not consider

mitigating circumstances.     Accordingly, Sharp has raised a substantial

question for our review.

      “Sentencing is a matter vested within the discretion of the trial court

and will not    be   disturbed absent    a manifest abuse       of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                 In

imposing sentence, the trial 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.

42 Pa.C.S. § 9721(b).

      Sharp argues that the trial court failed to consider mitigating factors in

imposing a lengthy sentence for EWOC. According to Sharp, the trial court

did not consider efforts she had made to care for the victim and ensure that

he was safe. Sharp also highlights her lack of a prior record score or any

evidence that “she has any violent tendencies.”       Sharp’s Br. at 16.     In

addition, Sharp asserts that the trial court did not consider information in the

pre-sentence report that “screamed the need for [Sharp]’s rehabilitation as

opposed to an excessive period of incarceration.” Id. at 16-17. Sharp also

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contends that the trial court failed to consider the effect of this incident on

her, as she has “cared and loved this child since birth.”        Id. at 17.   We

disagree.

      In its Rule 1925(a) opinion, the trial court explained its imposition of the

maximum sentence as follows:

            In imposing the sentence of 3½ to 7 years incarceration,
         we properly considered the gravity of the instant offense of
         recklessly endangering a child and [Sharp]’s rehabilitative
         needs. We cited our reliance upon a thorough Pre-Sentence
         Report and upon photographs which depicted horrific
         injuries to [Sharp]’s young child.             (Transcript of
         Proceedings, Sentencing, p. 9) (hereinafter, “N.T.”). At
         sentencing, the Deputy District Attorney stated to the Court
         that in her 20 years of prosecution of child abuse cases, only
         in homicide cases, she had seen injuries to a child which
         looked as these did. (N.T. p. 7). Because the child had
         soiled his pants, Slaughter beat him on the face and back.
         (N.T. p. 7; N.T. p. 10). In spite of [Sharp]’s knowledge that
         Slaughter beat the little boy, she failed to remove him from
         further harm or seek medical attention. Id. We found no
         mitigation in [Sharp]’s claim that she was victimized by
         Slaughter and feared him.              [Sharp]’s inadequate
         acknowledgement of responsibility for the harm to her child
         evidenced significant need for treatment and rehabilitation.
         (N.T. p. 10).

            We acknowledged on the record that sentence fell
         outside the guidelines. (N.T. pp. 10-11). . . .

            Here, we stated on the record our reliance upon the
         appropriate sentencing factors, namely, that . . . no lesser
         sentence would reflect the gravity of [Sharp]’s failure to
         protect her child from grave harm and her need for
         rehabilitation.

1925(a) Op. at 4-5.     At sentencing, the trial court considered mitigating

factors presented by Sharp.     Not only did the trial court consider the pre-



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sentence report,2 it also considered the comments of Sharp’s counsel,

including that Sharp told her probation officer that she was attempting to

escape the child’s father, Sharp was staying in contact with her children, and

Sharp had a turbulent childhood marked by abuse. N.T., 9/26/16, at 3-6.

“The [trial] court merely chose not to give the mitigating factors as much

weight as [Sharp] would have liked.” Commonwealth v. Macias, 968 A.2d

773, 778 (Pa.Super. 2009).          In these situations, “we cannot re-weigh the

sentencing factors and impose our judgment in the place of the [trial] court.”

Id.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2017




____________________________________________


       2 “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009)
(quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

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