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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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