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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

STEPHAN ERNST

                            Appellant                No. 571 EDA 2014


            Appeal from the Judgment of Sentence January 8, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002990-2013


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED JANUARY 14, 2015

        Stephan Ernst appeals the judgment of sentence imposed January 8,

2014, in the Lehigh County Court of Common Pleas. Ernst was sentenced to

a term of three to 10 years’ imprisonment following his guilty plea to one

count of aggravated assault by vehicle while driving under the influence

(DUI).1 His sole issue on appeal challenges the discretionary aspects of his

sentence. For the reasons that follow, we affirm.

        On April 29, 2013, at approximately 2:00 a.m., Ernst was involved in a

one-vehicle crash on Lehigh Street in Allentown.       Ernst was driving his

vehicle at a speed of 75 mph, when he sideswiped a telephone pole, which


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1
    75 Pa.C.S. § 3735.1.
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caused the vehicle to spin, and, eventually, strike a traffic light. 2 See N.T.,

11/18/2013, at 8-9.          Ernst’s passenger, Jason Labowski, was severely

injured in the crash, and now suffers from C5 paraplegia and is confined to a

wheelchair. Ernst’s blood alcohol level was later determined to be .14. Id.

at 9.

        Ernst was subsequently arrested and charged with aggravated assault

by vehicle while DUI, accidents involving death or personal injury while not

properly licensed, DUI (two counts), reckless driving, exceeding maximum

speed limits by 35 mph, and recklessly endangering another person (REAP). 3

On November 18, 2013, Ernst entered a negotiated guilty plea to one count

of aggravated assault by vehicle while DUI. In exchange for the plea, the

Commonwealth withdrew the remaining charges, and agreed to cap Ernst’s

minimum sentence at no more than three years’ incarceration.4             After

accepting the plea, the trial court ordered a presentence investigation report

(PSI) and scheduled a sentencing hearing for January 7, 2014.

        At the sentencing hearing, the court indicated that it had reviewed the

PSI, and proceeded to hear testimony from the victim and his family, who
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2
    The posted speed limit in the area is 40 mph. N.T., 11/18/2013, at 10.
3
 75 Pa.C.S. §§ 3735.1, 3742.1, 3802(a)(1) and (b), 3736, and 3362, and
18 Pa.C.S. § 2705, respectively.
4
  The parties agreed during the hearing that the standard range of the
guidelines called for a minimum sentence of six to 14 months’ incarceration.
N.T., 11/18/2013, at 2.



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asked the court to impose the maximum sentence available.           Ernst and

members of his family testified on Ernst’s behalf to express his remorse and

ask for leniency.       Ernst also provided the court with several character

reference letters. At the conclusion of the hearing, the trial court imposed a

sentence of three to 10 years’ imprisonment.          Acknowledging that the

sentence exceeded the aggravated range of the sentencing guidelines, the

trial court explained that it imposed a more severe sentence based upon the

victim’s impact statement and recommendation, as well as the fact that

Ernst’s actions “seriously injured the victim beyond that which is anticipated

in the guidelines[.]” N.T., 1/7/2014, at 35. This timely appeal follows.5

       The sole issue raised on appeal challenges the discretionary aspects of

Ernst’s sentence.       Specifically, Ernst argues the trial court abused its

discretion when it imposed an unreasonable sentence that exceeded the

aggravated range of the guidelines, and when it failed to consider his

remorse and efforts at rehabilitation.

       A defendant’s right to appeal the discretionary aspects of his sentence

is not absolute.      Rather, “[a] challenge to the discretionary aspects of a

sentence must be considered a petition for permission to appeal[.]”


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5
  On February 14, 2014, the trial court ordered Ernst to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Ernst complied with the court’s directive and filed a concise statement on
March 2, 2014.




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Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation

omitted).     In order to reach the merits of such a claim, this Court must

determine:

        (1) whether appellant has filed a timely notice of appeal; (2)
        whether the issue was properly preserved at sentencing or in a
        motion to reconsider and modify sentence; (3) whether
        appellant's brief has a fatal defect; and (4) whether there is a
        substantial question that the sentence appealed from is not
        appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted). Here, Ernst filed a timely notice of appeal, and included

in his appellate brief a concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f). However, our review of

both the docket entries and the certified record reveals no post sentence

motion filed by Ernst to preserve his sentencing claim. Moreover, he did not

raise    a   challenge   to   his   sentence    during   the   sentencing   hearing.

Accordingly, it appears that this issue is waived.             Commonwealth v.

Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012), appeal denied, 75 A.3d

1281 (Pa. 2013).

        Nevertheless, the trial court, in its opinion, refers to a “Post Sentence

Motion” filed by Ernst, which purportedly raised a challenge to the

discretionary aspects of his sentence.         Trial Court Opinion, 3/7/2014, at 2

(stating Ernst asserted in his post sentence motion that the court imposed a

“harsh and excessive sentence” and failed to consider mitigating factors).

The court then addressed that claim in its opinion. While we recognize it is


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Ernst’s duty to present this Court with a complete record for review, we will,

however, proceed to a consideration of the discretionary claim on appeal in

the interest of judicial economy.6 Compare Commonwealth v. Rush, 959

A.2d 945, 949-950 (Pa. Super. 2008) (declining to address discretionary

sentencing claim as interpreted in trial court’s opinion when post sentence

motion was not included in record, nor reflected on docket), appeal denied,

972 A.2d 521 (Pa. 2009).          Accordingly, we must next determine whether

Ernst has raised a substantial question for our review.

       A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Ernst contends the trial court imposed a sentence

outside the guideline ranges without providing sufficient reasons on the

record for doing so, and without properly considering mitigating factors.

This claim raises a substantial question for our review.    See 42 Pa.C.S. §

9781(c)(3) (stating appellate court “shall vacate the sentence and remand

the case to the sentencing court with instructions if it finds … the sentencing
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6
  Because the trial court has indicated Ernst did file the requisite motion,
and the court proceeded to address the claim in its opinion, we decline to
delay consideration of this claim as an ineffectiveness challenge in an
inevitable collateral appeal.



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court sentenced outside the sentencing guidelines and the sentence is

unreasonable.”);     Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.

Super. 2012) (finding substantial question when “appellant alleges the

sentencing court erred by imposing an aggravated range sentence without

consideration   of   mitigating   circumstances”)    (citation   omitted),   appeal

denied, 64 A.3d 630 (Pa. 2013).

      When reviewing a challenge to a sentence imposed outside the

guideline ranges:

      We look, at a minimum, for an indication on the record that the
      sentencing court understood the suggested sentencing range.
      When the court so indicates, it may deviate from the guidelines,
      if necessary, to fashion a sentence which takes into account the
      protection of the public, the rehabilitative needs of the
      defendant, and the gravity of the particular offenses as it relates
      to the impact on the life of the victim and the community, so
      long as the court also states of record “the factual basis and
      specific reasons which compelled him to deviate from the
      guideline range.”

      In evaluating a claim of this type, an appellate court must
      remember that the sentencing guidelines are merely advisory,
      and the sentencing court may sentence a defendant outside of
      the guidelines so long as it places its reasons for the deviation
      on the record. “Our Supreme Court has indicated that if the
      sentencing court proffers reasons indicating that its
      decision to      depart    from     the guidelines is        not
      unreasonable, we must affirm a sentence that falls
      outside those guidelines....”

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(internal   citations   omitted    and    emphasis    supplied).       See    also

Commonwealth v. Walls, 926 A.2d 957, 964-964 (Pa. 2007) (reaffirming




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that sentencing guidelines “have no binding effect, create no presumption in

sentencing, and do not predominate over other sentencing factors”).

       Here, the trial court had the benefit of a PSI, and was, therefore,

aware of both the sentencing guidelines and the relevant mitigating

circumstances.       See Trial Court Opinion, 3/7/2014, at 5. See also

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (stating

that when trial court has the benefit of a PSI, “it will be presumed that [it]

was aware of the relevant information regarding the defendant's character

and weighed those considerations along with mitigating statutory factors”)

(quotation omitted), appeal denied, 85 A.3d 481 (Pa. 2014). In its opinion,

the court explained that it imposed a sentence beyond the aggravated range

of the guidelines for the following reasons:

       (1) the nature of the plea agreement entailed a cap of the
       minimum sentence at three (3) years;[7] (2) the permanent and
       life-threatening injuries suffered by the victim; and (3) the
       serious nature of the crime.

Trial Court Opinion, 3/7/2014, at 5.             The court’s comments during the

sentencing hearing reveal that the trial court did not consider Ernst’s

remorse and efforts at rehabilitation to be significant factors in fashioning his

sentence.       See N.T., 1/7/2014, at 33 (commenting that “Your (sic) …


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7
  The statutory maximum sentence for the crime, a second degree felony,
was 10 years’ imprisonment. 18 Pa.C.S. § 1103(2). Therefore, the trial
court could have legally imposed a sentence of five to 10 years’
incarceration.



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having the birth of your child to look forward to, being surrounded by your

family, exploring your relationship with God, getting work, getting jobs,

talking to me about how inconvenient it will be to your family while you are

incarcerated.     Look on the other side.        That’s what you carry.”).

Accordingly, our review of the record reveals the trial court considered all

relevant factors before imposing a sentence outside the aggravated range of

the guidelines.

      Moreover, to the extent Ernst argues the trial court “inappropriately

increased [his] sentence based upon a factor anticipated by the sentencing

commission[,]” i.e., serious bodily injury, we again find Ernst is entitled to

no relief. Ernst’s Brief at 12.

      Ernst pled guilty to the charge of aggravated assault by vehicle while

DUI, which includes, as an element of the offense, that the defendant

“negligently cause[d] serious bodily injury to another person.” 75 Pa.C.S. §

3735.1. Serious bodily injury is defined in the Vehicle Code as “[a]ny bodily

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.” 75 Pa.C.S. § 102. However, serious bodily

injury encompasses varying degrees of injury.      See Commonwealth v.

Spotti, 94 A.3d 367, 381 (Pa. Super. 2014) (en banc) (finding evidence

sufficient to support determination that victim suffered “serious bodily

injury” when victim suffered bone infection in arm injured in car crash, spent




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almost a week in the hospital following surgery to combat infection, and

continues to have limited use of arm).

      In the present case, the victim suffered C5 paraplegia as a result of

the accident, and is “confined to a motorized wheelchair” with “limited use of

his arms.”    N.T., 11/18/2013, at 9.    During the sentencing hearing, the

victim testified that he is “totally dependent now” and unable to feed or

bathe himself. N.T., 1/7/2014, at 8.      We detect no abuse of discretion on

the part of the trial court in considering the victim’s life-altering, permanent

injuries as an aggravating factor at sentencing.

      Accordingly, because we conclude the trial court did not abuse its

discretion in imposing a sentence of three to 10 years’ imprisonment

following Ernst’s guilty plea, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Bowes joins this memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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