J-S94035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHNNA LEE GORDNER

                               Appellant              No. 1183 MDA 2016


              Appeal from the Judgment of Sentence June 10, 2016
       in the Court of Common Pleas of Sullivan County Criminal Division
                       at No(s): CP-57-CR-0000011-2016

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 21, 2017

        Appellant, Johnna Lee Gordner, appeals from the judgment of

sentence entered in the Sullivan County Court of Common Pleas following

her open guilty plea to one count of criminal trespass, 1 graded as a third-

degree felony.       Appellant challenges the discretionary aspects of her

sentence of four to twenty-four months’ imprisonment.2 We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3503(a)(1).
2
  An open plea of guilty does not preclude a subsequent challenge to the
discretionary aspects of the sentence. See Commonwealth v. Brown, 982
A.2d 1017, 1019 (Pa. Super. 2009) (stating where defendant pleads guilty
without any agreement as to sentence, defendant retains right to petition
Superior Court for allowance of appeal with respect to discretionary aspects
of sentencing).
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      On April 5, 2016, Appellant was arrested in connection with a burglary

at 8414 Route 220 in Sullivan County. At the time of arrest, the arresting

officer filed an affidavit of probable cause that included the following

statement of the property owner’s son:

         On 4/4/16 @ 2020 hours, I was coming home and
         observed a van parked in my father’s driveway. I then
         went home and dropped off my son, who lives a short
         distance away. I returned and parked my car in the
         driveway to block in the van. I opened the front door,
         yelled in who was here. I then observed a woman coming
         out of the kitchen. I asked her what she was doing here.
         She replied, she was looking for her Uncle Don. I told her
         that there has never been a Don that lives here. She then
         said she used to come and visit him here before he died. I
         then called the police. I then told her to go outside and
         wait in her van for the police. When I was walking by the
         van, I noticed a wheelbarrow in the van. When I asked
         her about it, she admitted taking the wheelbarrow. She
         then put the wheelbarrow back on the ground and told me
         she would give me $20.00 to let her go, to which I
         refused. She then backed up her van almost hitting my
         car and tried to drive over the front yard to leave but
         couldn’t make it.

         She then backed up close to the house, got out and
         proceeded to remove multiple items from the rear of the
         van throwing them on the ground. The police then showed
         up and discovered multiple rifles on the ground in the
         exact place where I observed her removing and throwing
         items from her van onto the ground.

Criminal Compl., Aff. of Probable Cause, 4/5/16 (with minor grammatical

revisions).

      On April 21, 2016, the Commonwealth filed a criminal information

charging Appellant with burglary—overnight accommodation, no person




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present,3 two counts of theft by unlawful taking,4 two counts of receiving

stolen property,5 and the aforementioned count of criminal trespass.

Appellant pleaded guilty to criminal trespass on May 3, 2016, and the

Commonwealth withdrew the remaining charges.

        On June 2, 2016, following review of a pre-sentence investigation

report, the trial court sentenced Appellant to four to twenty-four months’

imprisonment, which fell within the aggravated range of the Sentencing

Guidelines.6 The court gave the following reasons for sentencing Appellant

in the aggravated range:

           1. [Appellant] has not taken any responsibility for her
           actions nor has shown any remorse for her actions during
           the course of the investigation and the court proceedings.
           2. The [property owner] is a cancer patient currently
           struggling with that illness. 3. Any lesser sentence would
           depreciate the serious nature of the offense. 4. The
           attempted theft was firearms.

N.T. Sentencing Hr’g, 6/2/16, at 6. In further support of its sentence, the

court observed:

           [D]uring the pre-sentence interview with [Appellant],
           [Appellant] denied ever having possession of the firearms
           at issue and denied that said firearms were ever thrown
           from her van. [Appellant] is not a resident of Sullivan
           County[,] and she further reported during her pre-
           sentence interview that she repeatedly drove by the

3
    18 Pa.C.S. § 3502(a)(2).
4
    18 Pa.C.S. § 3921(a).
5
    18 Pa.C.S. § 3925(a).
6
    See 204 Pa. Code § 303.16(a).



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         victim’s residence numerous times[,] and that the home
         appeared abandoned.        Lastly, this [c]ourt sentenced
         [Appellant] in the aggravated range based upon the plea,
         the offense gravity score of three (3) and the [c]ourt’s
         belief that [Appellant] would be unable to be supervised at
         the county level.

Trial Ct. Op., 8/25/16, at 3.

      On June 10, 2016, the trial court docketed the judgment of sentence.

On June 16, 2016, Appellant filed post-sentence motions asserting that her

sentence was excessive.     On June 20, 2016, the court denied Appellant’s

post-sentence motions. On July 18, 2016, Appellant timely appealed. Both

Appellant and the court complied with Pa.R.A.P. 1925.

      Appellant raises one argument in this appeal:

         Did the trial court commit error in sentencing Appellant in
         the aggravated range despite the fact that the court’s
         sentencing order contained no rationalization for the same
         and any reasons contained in the record were either not
         supported by the facts and/or were impermissible factors
         to justify an aggravated range sentence?

Appellant’s Brief at 4.

      Appellant contends that her sentence is excessive for the following

reasons: (1) she suffers from multiple sclerosis; (2) she is fifty-three years

old and has no prior criminal record; (3) the Commonwealth did not request

an aggravated range sentence and made no comment during sentencing;

(4) the court’s rationale that “any lesser statement would depreciate the

serious nature of the offense” was an impermissible reason; and (5) the

charge of attempted theft of firearms was dismissed at Appellant’s guilty



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plea hearing.    Appellant’s Brief at 8-9.   We conclude that Appellant is not

due relief.

      This Court has held:

         Challenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

              [w]e 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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted). The Rule 2119(f) statement

         must specify where the sentence falls in relation to the
         sentencing guidelines and what particular provision of the
         Code is violated (e.g., the sentence is outside the
         guidelines and the court did not offer any reasons either on
         the record or in writing, or double-counted factors already
         considered). Similarly, the Rule 2119(f) statement must
         specify what fundamental norm the sentence violates and
         the manner in which it violates that norm . . . .

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “Our inquiry must focus on the reasons for which the appeal is



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sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id.

      Here, Appellant timely appealed, preserved the issue in her post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief.

See Evans, 901 A.2d at 533.            Further, Appellant’s claim that her

aggravated-range sentence was excessive, in conjunction with her claim that

the trial court relied on impermissible factors, raises a substantial question.

See Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011)

(finding a substantial question was raised by claim that a sentence in the

aggravated range for DUI and involuntary manslaughter was excessive, in

conjunction with a claim that the trial court relied on impermissible factors).

Accordingly, we examine the merits.

      This Court has stated:

         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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted). A sentence may be found unreasonable if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d



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957, 964 (Pa. 2007) (citation omitted). These general standards mandate

that a sentencing court impose a sentence “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). When reviewing the reasonableness of a

sentence, an appellate court should consider four factors: (1) the nature and

circumstances of the offense and the history and characteristics of the

defendant; (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation; (3) the findings upon

which the sentence was based; and (4) the guidelines promulgated by the

commission. 42 Pa.C.S. § 9781(d)(1)-(4).

      “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.”     Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988).

      In this case, the trial court reviewed Appellant’s pre-sentence

investigative report and stated reasons for sentencing her in the aggravated

range—specifically, the gravity of her crime, her lack of remorse that she

exhibited in her pre-sentence interviews, the need for a state sentence due

to the inability to supervise her at the county level, and the vulnerability of



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the victim.     See Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.

Super. 2014) (holding that the trial court acted within its discretion in

sentencing defendant above standard sentencing guidelines for recklessly

endangering another person, where court ordered pre-sentence report and

based the aggravated sentence on defendant’s prior criminal record, age,

personal      characteristics    and   lack    of   potential   for   rehabilitation);

Commonwealth v. Berry, 785 A.2d 994, 998 (Pa. Super. 2001) (noting

the age and frail condition of victim can be aggravating circumstances when

sentencing).      Thus, the trial court set forth several proper reasons for

sentencing Appellant in the aggravated range.

      As to Appellant’s complaints that the trial court failed to consider, or

inadequately weighed, mitigating circumstances such as Appellant’s age,

medical condition, and lack of a significant prior record, these matters were

included in her pre-sentence report. Therefore, we presume the trial court

considered these factors at sentencing. See Devers, 546 A.2d at 18.

      With regard to Appellant’s assertion that the Commonwealth stood

silent at sentencing, the Commonwealth’s recommendations, or lack thereof,

are not binding on the trial court’s exercise of discretion at sentencing.

Thus, this claim is frivolous.

      Appellant contends that the court’s comment that any lesser sentence

would depreciate the serious nature of the offense was not a valid reason for

imposing an aggravated sentence but was merely “a statement by the



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court.” Appellant’s Brief at 9. Appellant’s one-sentence argument is waived

because it is not sufficiently developed for our review. See id.; In re R.D.,

44 A.3d 657, 674 (Pa. Super. 2012) (reiterating that arguments not

sufficiently developed for appellate review are waived). In any event, this

argument is baseless in light of the proper reasons given by the trial court.

      Lastly, appellant argues that the trial court abused its discretion by

enhancing her sentence based on a charge that was withdrawn by the

Commonwealth. Appellant observes that the court alluded to an “attempted

theft” of firearms. Because Appellant was not charged with attempted theft,

we presume the court intended to refer to the charge of theft by unlawful

taking, which was dismissed as part of Appellant’s plea to criminal trespass.

Appellant contends that the court’s references to the firearms and the theft

count was an abuse of discretion because the court relied on an improper

factor.

      In Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super. 2005), this

Court held that the sentencing court abuses its discretion when it enhances a

sentence based on charges that have been nolle prossed as part of a plea

agreement. Id. at 593. This Court has also held, however, that when the

sentencing court relies on an improper factor, the sentence should stand

when the court has independently valid reasons for sentencing outside the

standard range.    See Commonwealth v. Smith, 673 A.2d 893, 896-97

(Pa. 1996) (concluding that even though court referred to an impermissible



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sentencing factor, the sentence must be affirmed where court had

independently valid reasons for departing from standard range sentence);

Commonwealth v. Shelter, 961 A.2d 187, 192 (Pa. Super. 2008) (“even if

a sentencing court relies on a factor that should have not been considered,

there is no abuse of discretion when the sentencing court has significant

other support for its departure from the sentencing guidelines”).

     In this case, we conclude that the trial court provided sufficient,

independently valid reasons for sentencing Appellant in the aggravated

range of the sentencing guidelines.    Therefore, Appellant’s claim that the

trial court improperly relied on an impermissible factor fails.     See Smith,

673 A.2d at 896-97; Shelter, 961 A.2d at 192.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017




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