J-A17021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ELVINO ALBERTO CAGNARDI

                            Appellant               No. 2681 EDA 2013


              Appeal from the Judgment of Sentence July 3, 2013
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002980-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 29, 2014

       Appellant, Elvino Alberto Cagnardi, appeals1 from the judgment of

sentence entered on July 3, 2013, by the Court of Common Pleas of Monroe

County. We affirm.

       Cagnardi pled guilty, in an open guilty plea, to one count of

aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), stemming from his attack on

a former girlfriend.     Cagnardi pointed a handgun at the victim’s head and

pulled the trigger. When the gun failed to discharge, he struck the victim on

the head with the handgun—three times—causing severe injuries.            At
____________________________________________


1
 Cagnardi purports to appeal from the denial of his post-sentence motions.
See Notice of Appeal, 9/23/13. “[A] direct appeal in a criminal case can
only lie from the judgment of sentence.” Commonwealth v. Lawrence,
___ A.3d ___, ___ n.1, 2014 WL 4212715, *8 n.1 (Pa. Super., filed August
27, 2014) (citation omitted). We have corrected the caption accordingly.
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sentencing, the trial court utilized the deadly weapon enhancement/used

matrix and determined that the offense gravity score was an eleven, as the

victim suffered serious bodily injuries. The sentencing court then departed

from the sentencing guidelines and imposed a sentence of imprisonment of

nine to eighteen years. Cagnardi filed post-sentence motions, which the trial

court denied. This timely appeal follows.

      On appeal, Cagnardi raises claims challenging the discretionary

aspects of sentencing.   He has preserved these claims and has included a

Rule 2119(f) statement in his brief.          See, e.g., Commonwealth v.

Shugars, 895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (explaining

requirements for preserving and enabling review of discretionary aspects of

sentencing claims).    We explain below which claims raise a substantial

question for our review and which do not.

      Our standard of review is as follows:

      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. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted).

      Cagnardi first argues that the trial court utilized an incorrect offense

gravity score as he did not cause the victim serious bodily injury. The claim

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of   improper   calculation   of   the   offense   gravity   score   implicates   the

discretionary aspects of sentencing, raising a substantial question for our

review.   See Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa.

Super. 1998) (en banc). “[T]he trial court must necessarily correctly apply

the guidelines and reach the correct point of departure before sentencing

outside of the guidelines.”    Id., at 210.    Here, the trial court reached the

correct point of departure.

      Chapter 303.15 of the Pennsylvania Sentencing Guidelines provides an

offense gravity score of eleven for the offense of aggravated assault (causes

serious bodily injury) and of ten for the offense of aggravated assault

(attempts to cause serious bodily injury).         See 204 Pa. Code § 303.15.

“Serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301.

      The victim testified that she covered her head with her hands during

the attack and that while Cagnardi repeatedly struck her, she suffered a

laceration on her head that required staples and that her hand is

“deformed.”     N.T., Sentencing, 7/3/13, at 24.       The victim’s hand requires

surgery, which entails a lengthy recovery period. She also suffered broken

blood vessels in her eyelids, a “very sore nose,” a concussion, and continues

to suffer post-traumatic stress. Id., at 23.


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      The victim clearly suffered a serious bodily injury as defined in § 2301

due to the pistol whipping. The sentencing court utilized the correct offense

gravity score.

      Cagnardi next argues that the trial court abused its discretion in

departing from the sentencing guidelines without stating adequate reasons

on the record.    This claim presents a substantial question for our review.

See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).

      The standard range of the sentencing guidelines is 54 to 72 months,

the aggravated range is plus 12 months, and the mitigated range is minus

12 months.       See 204 Pa. Code § 303.18.      The trial court imposed a

minimum sentence of 108 months, well outside the guidelines.

      “When the Sentencing Guidelines are properly applied, the judge may

then exercise his or her discretion to sentence outside the Guidelines.”

Archer, 722 A.2d at 210.

            In every case in which the court imposes a sentence for a
      felony or a misdemeanor, the court shall make as a part of the
      record, and disclose in open court at the time of sentencing, a
      statement of the reason or reasons for the sentence imposed.
      The sentencing guidelines are not mandatory, and sentencing
      courts retain broad discretion in sentencing matters, and
      therefore, may sentence defendants outside the [g]uidelines. In
      every case where the court imposes a sentence ... outside the
      guidelines adopted by the Pennsylvania Commission on
      Sentencing ... the court shall provide a contemporaneous written
      statement of the reason or reasons for the deviation from the
      guidelines. However, [t]his requirement is satisfied when the
      judge states his reasons for the sentence on the record and in
      the defendant's presence. Consequently, all that a trial court
      must do to comply with the above procedural requirements is to


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      state adequate reasons for the imposition of sentence on the
      record in open court.

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation. Where pre-
      sentence reports exist, we shall ... presume that the sentencing
      judge was aware of relevant information regarding the
      defendant’s character and weighed those considerations along
      with mitigating statutory factors.        A pre-sentence report
      constitutes the record and speaks for itself.

Antidormi, 84 A.3d at 760-761 (internal citations and quotation marks

omitted; brackets in original).

      The sentencing court stated adequate reasons on the record to support

the imposition of a sentence outside of the standard guidelines as it

referenced Cagnardi’s criminal history, his risk for recidivism, and the

seriousness of his crime. See N.T., Sentencing, 7/3/13, at 47-52. Cagnardi

tried to kill the victim. The sentencing court was also particularly concerned

that Cagnardi had not fully accepted responsibility for the crime and

explained, “I don’t think that he has put this behind him. I think he is still

carrying those burning coals of rage about this situation an[d] his

relationship with [the victim].”   Id., at 52.   The sentencing court found

Cagnardi to be a “dangerous man” both to the victim and to society. Id. In

addition, the trial court reviewed a pre-sentence investigation report, which

detailed, among other things, his age and rehabilitative needs.           The

sentencing court did not abuse its discretion.



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      Lastly, Cagnardi argues that the sentencing court failed to adequately

consider “the unique circumstances of this case” in imposing sentence—his

age and the letters from two psychiatrists that opined that this attack was

an “isolated incident.”   Appellant’s Brief, at 20.   This information was not

only in the pre-sentence investigation report, but defense counsel informed

the court of these matters at sentencing. See N.T., Sentencing, 7/3/14, at

34-36.

      This claim is nothing more than an assertion that the sentencing court

failed to adequately consider certain mitigating factors. This does not raise

a substantial question for our review. See Commonwealth v. Dodge, 77

A.3d 1263, 1272 n.8 (Pa. Super. 2013) (“Careful litigants should note that

arguments that the sentencing court failed to consider the factors proffered

in 42 Pa.C.S. § 9721 does present a substantial question whereas a

statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”).

      Judgment of sentence affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014



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