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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
CARLOS R. GARCIA, :
:
Appellant : No. 2119 MDA 2014
Appeal from the Judgment of Sentence September 22, 2014,
Court of Common Pleas, Lancaster County,
Criminal Division at No. CP-36-CR-0001382-2014
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 28, 2015
Appellant, Carlos R. Garcia (“Garcia”), appeals from the judgment of
sentence entered on September 22, 2014 by the Court of Common Pleas of
Lancaster County, Criminal Division, following his guilty plea to multiple
violations of the Motor Vehicle and Crimes Codes. For the reasons that
follow, we affirm Garcia’s judgment of sentence.
We summarize the facts and procedural history of this case as follows.
On February 22, 2014, Garcia was driving at high rate of speed (over sixty-
five miles per hour in a thirty-five mile per hour zone) near the 1300 block
of East King Street in Lancaster Township. N.T., 7/15/14, at 3, 5. Garcia
was driving erratically, weaving in and out of traffic without signaling and
cutting off vehicles as he passed them. Id. at 3-4. When the gray Honda in
front of Garcia slowed for a vehicle that was turning left from the left lane of
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traffic, Garcia suddenly swerved into the oncoming lane of traffic to avoid
the Honda and hit a Subaru driven by Lisa Stamper (“Stamper”). Id. The
crash resulted in the death of Stamper’s daughter, Kaitlyn Berry, serious
bodily injury to Stamper, and serious bodily injury to Garcia’s seven-year-old
son, who was the front seat passenger of Garcia’s vehicle. Id. at 4. Blood
testing revealed that Garcia’s blood alcohol content was .144 at the time of
the crash. Id.
Consequently, Garcia was charged with several violations of the Motor
Vehicle and Crimes Codes, including one count each (unless otherwise
specified) of the following: homicide by vehicle while driving under the
influence (“homicide by vehicle – DUI”),1 aggravated assault by vehicle while
driving under the influence (“aggravated assault by vehicle – DUI”),2 three
counts of accidents involving death or personal injury while not properly
licensed,3 endangering the welfare of a child,4 three counts of recklessly
endangering another person (“REAP”),5 DUI – general impairment,6 DUI –
1
75 Pa.C.S.A. § 3735(a).
2
75 Pa.C.S.A. § 3735.1(a).
3
75 Pa.C.S.A. § 3742.1(a).
4
18 Pa.C.S.A. § 4304(a)(1).
5
18 Pa.C.S.A. § 2705.
6
75 Pa.C.S.A. § 3820(a)(1).
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high rate of alcohol,7 reckless driving,8 driving while operating privilege
suspended or revoked – DUI related,9 driving at an unsafe speed,10 failing to
drive within a single lane,11 and failure to yield the right of way.12
On July 15, 2014, Garcia entered an open guilty plea to all of the
above-referenced crimes. On September 22, 2014, the trial court sentenced
as follows:
Homicide by vehicle – DUI – five to ten years;
Aggravated assault by vehicle – DUI – five to ten years;
Accidents involving death or personal injury while not properly
licensed – three and half to seven years;
Accidents involving death or personal injury while not properly
licensed – three and half to seven years;
REAP – one to two years;
REAP – one to two years;
Driving while operating privilege suspended or revoked – DUI
related – ninety days.
7
75 Pa.C.S.A. § 3802(b).
8
75 Pa.C.S.A. § 3736(a).
9
75 Pa.C.S.A. § 1543(b)(1.1)(i).
10
75 Pa.C.S.A. § 3361.
11
75 Pa.C.S.A. § 3309(1).
12
75 Pa.C.S.A. § 3302.
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For all remaining counts, Garcia received no sentence or the crimes merged
for purposes of sentencing. The trial court ordered Garcia to serve each
sentence consecutively for an aggregate sentence of nineteen years and
ninety days to thirty-eight years of incarceration.
On October 1, 2014, Garcia filed a timely post-sentence motion to
modify sentence seeking a reduction in his sentence to an aggregate
sentence of ten to twenty years of incarceration, which the trial court denied
on November 17, 2014. On December 11, 2014, Garcia filed a timely notice
of appeal. On December 29, 2014, the trial court ordered Garcia to file a
concise statement of the errors complained of pursuant to Rule 1925(b) of
the Pennsylvania Rules of Appellate Procedure. On January 20, 2015, Garcia
timely filed his Rule 1925(b) statement.
On appeal, Garcia raises the following issues for our review and
determination:
I. Were statutory maximum sentences above the
aggravated range of the sentencing guidelines for
[accidents involving death or personal injury while
not properly licensed] unreasonable?
II. Was an aggregate sentence of nineteen years
ninety days to thirty-eight years so manifestly
excessive as to constitute an abuse of discretion?
Garcia’s Brief at 7.13
13
We have reordered the issues Garcia raises on appeal for ease of review.
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Both issues that Garcia raises on appeal challenge the discretionary
aspects of his sentence. “The right to appellate review of the discretionary
aspects of a sentence is not absolute, and must be considered a petition for
permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An
appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether,
(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Garcia preserved his discretionary aspects of sentencing claims
by raising them in a post-sentence motion. See Post-Sentence Motion to
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Modify Sentence, 10/1/14, at 1-8. Garcia also filed a timely notice of appeal
and included in his appellate brief a concise statement of the reasons relied
upon for the allowance of his appeal pursuant to Rule 2119(f) of the
Pennsylvania Rules of Appellate Procedure. See Garcia’s Brief at 13-16.
Thus, we must determine whether Garcia’s discretionary aspects of
sentencing claims raise substantial questions for our review.
For each issue Garcia raises on appeal, he actually raises two
discretionary aspects of sentencing claims. In his first issue, Garcia argues
that the trial court imposed sentences outside the aggravated range for his
accidents involving death or personal injury while not properly licensed
convictions without stating sufficient reasons for doing so. Garcia’s Brief at
15. Additionally, Garcia claims that the trial court imposed these sentences
without considering mitigating factors, such as Garcia’s remorse, his decision
to plead guilty, and his history of never committing a violent crime. Garcia’s
Brief at 15-16. “A claim that the sentencing court imposed a sentence
outside of the guidelines without specifying sufficient reasons presents a
substantial question for our review.” Commonwealth v. Holiday, 954 A.2d
6, 10 (Pa. Super. 2008). Furthermore, a claim that the trial court imposed a
sentenced above the aggravated range without considering mitigating
factors also raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (holding that a
“claim that the court erred by imposing an aggravated range sentence
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without consideration of mitigating circumstances raises a substantial
question”).
In his second issue, Garcia argues that the consecutive nature of his
sentences resulted in an aggregate sentence that was clearly unreasonable
and manifestly excessive. Garcia’s Brief at 14. Consequently, Garcia asserts
that his sentence is not consistent with the protection of the public, the
gravity of the offenses, and his rehabilitative needs. Id. at 14-15. This
Court has held that a claim that the imposition of consecutive sentences
resulted in an aggregate sentence disproportionate to the crimes committed,
“in combination with allegations that a sentencing court did not consider the
nature of the offenses …, presents a plausible argument that the length of
the sentence violates fundamental sentencing norms[,]” and therefore raises
a substantial question. Dodge, 77 A.3d at 1271-72. Because Garcia has
complied with each of the technical requirements for consideration of a
challenge to the discretionary aspects of a sentence, and because all of his
claims raise a substantial question, we will consider each of his claims on
their merits.
Our standard of review when considering discretionary aspects of
sentencing claims is as follows:
Sentencing is a matter vested in the sound discretion
of the sentencing judge. Commonwealth v. Paul,
925 A.2d 825 (Pa. Super. 2007). The standard
employed when reviewing the discretionary aspects
of sentencing is very narrow. [Commonwealth v.
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Marts, 889 A.2d 608, 613 (Pa. Super. 2005)]. We
may reverse only if the sentencing court abused its
discretion or committed an error of law. Id. “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. Littlehales, 915
A.2d 662, 665 (Pa. Super. 2007). We must accord
the sentencing court’s decision great weight because
it was in the best position to review the defendant’s
character, defiance or indifference, and the overall
effect and nature of the crime. Marts, 889 A.2d at
613.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007).
For his first issue on appeal, Garcia argues that the trial court imposed
sentences outside the aggravated range for his accidents involving death or
personal injury while not properly licensed convictions, without stating
sufficient reasons for doing so.14 Garcia’s Brief at 22-25. Additionally,
Garcia claims that the trial court imposed these sentences without
14
To the extent Garcia argues that the trial court considered improper
factors in sentencing him, see Garcia’s Brief at 24-25, this claim is waived.
As discussed above, it is well settled that “‘issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.’” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa. Super. 2013) (en banc) (quoting Commonwealth v. Kittrell, 19 A.3d
532, 538 (Pa. Super. 2011)). Garcia did not raise this claim in his post-
sentence motion to modify his sentence and cannot raise it for the first time
on appeal. See Pa.R.A.P. 302(a).
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considering mitigating factors, such as Garcia’s remorse, his decision to
plead guilty, and his history of never committing a violent crime. Id. at 25-
29.
Section 9721(b) of the Sentencing Code provides, in pertinent part, as
follows:
(b) General standards.-- … the 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. … In every case in which the
court imposes a sentence for a felony or
misdemeanor, modifies a sentence, resentences an
offender following revocation of probation, county
intermediate punishment or State intermediate
punishment or resentences following remand, 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.
42 Pa.C.S.A. § 9721(b).
The trial court explained its reasoning for Garcia’s sentence as follows:
All right. I have considered the arguments of
counsel, the statements of everybody here, as well
as the [p]resentence [i]nvestigation.
Although you have some good things in your
Presentence Investigation, Mr. Garcia, there are
some things that certainly go against you, and that
is your basically terrible criminal prior record [sic].
When you put that into account with the facts of this
case, which, to be quite frank, are horrendous, this
case, in my mind, could have been a situation where
the Commonwealth could have charged you with
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third degree murder because of the nature of your
actions here. They did not do that; however, you
still face a number of very serious charges.
What I think is particularly shocking about this, this
could have been avoided in any of three ways, Mr.
Garcia:
Number one, the easiest way, you shouldn’t have
been out on the road. You had a license suspension,
and I believe your license has been suspended for
years. Suspended license means you don’t drive.
So if you didn’t drive, this obviously never could
have happened.
Secondly, you were under the influence of alcohol,
roughly a .14 on this. If you hadn’t consumed any
alcohol, this probably never would have happened.
Third, to be quite frank, you drove like a maniac on
that particular day. This is extremely aggressive
driving.
I think you have to consider the fact of where this
was, what time this was and what you were doing.
It was aggressive driving, and there were a number
of serious violations. You were driving a relatively
large SUV on a crowded city street at 1:20 p.m. in
the afternoon.
That’s what makes the facts of this case so horribly
horrendous. Your prior convictions include a prior
DUI back in 2003, which is why the driving under
suspension is a DUI-related suspension.
You don’t do very well under supervision. You
actually have been in court -- today makes the 20th
time you have been in court in front of a judge, and
nine of those times were for violation of your
probation and parole. I note that you still owe
outstanding to the County of Lancaster over
$16,000.
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We’ve heard a lot of things about how this has
affected the family, and I’m sure it’s affected your
family, too, because I’m working under the
assumption you love them and they love you. I’m
assuming you love your son, and what I was really
impressed about here is even the victims in this case
were concerned -- they were concerned about your
son. They wanted to know what happened to the
little boy in this case.
So I agree that your family loves you and you love
them. However, I just can’t possibly forget what you
did to this family here. One person is dead. One
person is very seriously injured. Their life is shot,
basically, from here on in.
And regarding what happened to them, for the
reasons I stated before, I think all of the incidents
that occurred regarding that family, in fact, deserve
the maximum sentence allowable by law.
N.T., 9/22/14, at 15-17.
Therefore, the trial court provided ample reasoning for why it
sentenced Garcia as it did. Additionally, the trial court’s explanation of
Garcia’s sentence further reflects that the court took into consideration
mitigating factors such as Garcia’s son and family and the positive aspects of
Garcia’s presentence investigation report. This Court has held that “where
the sentencing judge had the benefit of a presentence investigation report, it
will be presumed that he or she was aware of the relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Clarke, 70 A.3d
1281, 1287 (Pa. Super. 2013) (quotations, brackets, and citation omitted),
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appeal denied, 85 A.3d 481 (Pa. 2014). Thus, we conclude that the trial
court stated sufficient reasons for Garcia’s sentence and took into
consideration all necessary factors in determining his sentence. See
42 Pa.C.S.A. § 9721(b). Accordingly, we conclude that Garcia’s first issue
does not entitle him to any relief.
For his second issue on appeal, Garcia argues that the consecutive
nature of his sentences resulted in an aggregate sentence of nineteen years
and ninety days to thirty-eight years of incarceration, which was manifestly
excessive and an abuse of discretion. Garcia’s Brief at 19. Garcia further
asserts that his sentence was not consistent with the protection of the
public, the gravity of the offenses, and his rehabilitative needs. Id. at 20-
21.
As stated above, a sentence must be “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.A. § 9721(b). “Generally, Pennsylvania law affords
the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.” Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (quotations and citation omitted), appeal denied, 77 A.3d
1258 (Pa. 2013).
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Here, the certified record on appeal reflects the following. On the day
of the crash, Garcia was driving erratically, weaving in and out of traffic, at a
high rate of speed, while under the influence of a high-rate of alcohol, with
his seven-year-old son in the passenger’s seat of his vehicle. N.T., 7/15/14,
at 3-5. Because of Garcia’s extraordinarily reckless actions, Garcia caused a
motor vehicle crash in which his vehicle slammed head-on into the vehicle of
Stamper. Id. at 3-4. The crash resulted in the death of Stamper’s daughter
and caused serious bodily injury to Stamper. Id. at 4. Moreover, the
certified record further reflects that at the time of the accident, Garcia was
driving with a suspended license and that this was not his first DUI. N.T.,
9/22/14, at 15-16. Finally, the record reveals that Garcia has performed
poorly under supervision, as the trial court noted that Garcia had been
before a judge twenty times, and nine of those appearances were for
violating his probation or parole. Id. at 16. Therefore, based on our review
of the circumstances of the offense, the trial court’s findings as fully set forth
above, and Garcia’s history, we conclude that the trial court’s aggregate
sentence for Garcia was not manifestly excessive and was consistent with
the protection of the public, the gravity of the offenses, and his rehabilitative
needs. Accordingly, the trial court did not abuse its discretion in sentencing
Garcia.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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Com. v. Garcia, C.
Combined Opinion