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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH HARTNETT
Appellant No. 2440 EDA 2015
Appeal from the Judgment of Sentence November 22, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012575-2010
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2016
Appellant, Kenneth Hartnett, appeals nunc pro tunc from the judgment
of sentence imposed in the Philadelphia County Court of Common Pleas,
following his guilty plea to aggravated assault, rape, and involuntary deviate
sexual intercourse (“IDSI”).1 We affirm.
The trial court set forth the relevant facts and procedural history as
follows:
On July 17, 2010, at about 6:00 A.M., 28-year-old [Victim]
was walking alone in the Kensington neighborhood of
Philadelphia. She was approached by [Appellant], whom
she had never met before, and after a conversation,
[Appellant] led her through a hole in a fence to a secluded
area.
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1
18 Pa.C.S.A. §§ 2702, 3121, and 3123, respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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As soon as [Victim] emerged from the hole in the fence,
[Appellant] struck her on the head, rendering [Victim]
unconscious with one blow. While [Victim] was
unconscious, [Appellant] raped her. At some point,
[Victim] began to regain consciousness; she had time to
notice that her pants were off and there was blood all over
her face, but as soon a[s] [Appellant] noticed her waking
up, he smashed her head onto the pavement. [Victim]
begged for mercy and told [Appellant] that she had a
child; [Appellant] responded that nobody would miss her if
she died.
At some point during this [incident], a passerby, who for
some reason had also crawled through the hole in the
fence, saw [Appellant] attacking [Victim] and began to
scream at him. Covered in [Victim’s] blood, [Appellant]
fled. [Victim], also covered in blood, managed to find a
bicyclist, who chased [Appellant] down and contain[ed]
him until police arrived.
[Appellant] was arrested that day, and forensic analysis
confirmed that the semen found in [Victim’s] vagina
belonged to [Appellant]. [Victim] was also able to identify
[Appellant] during a line-up on September 13, 2010.
As a result of [Appellant] smashing her head into the
concrete ground, [Victim’s] skull was compressed into her
brain. [Victim’s] head is permanently misshapen. She is
unable to turn her head in a normal fashion and [s]he
suffers from severe memory loss, and as a result cannot
be left alone or allowed to take care of her young
daughter; if she even tries to prepare her own food, she
will forget there is food on the stove or in the microwave
and leave it there to burn. [Victim] also suffers from
nightmares relating to the attack.
[Victim’s] mother and other family members must now
care both for [Victim’s] six-year-old daughter and [Victim]
herself. [Victim] cannot drive, have a job, or even help
her daughter with first-grade-level homework.
(Trial Court Opinion, filed December 18, 2012, at 1-2).
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On August 22, 2011, Appellant entered an open guilty plea to
aggravated assault, rape, and IDSI. On November 22, 2011, the court
sentenced Appellant to concurrent terms of 6½─13 years’ incarceration for
rape and IDSI. Additionally, the court imposed a consecutive term of 10─20
years’ incarceration for aggravated assault. Appellant’s aggregate sentence
was 16½─33 years’ incarceration. On December 2, 2011, Appellant timely
filed a post-sentence motion, which the trial court denied on December 6,
2011. On December 22, 2011, Appellant timely filed a notice of appeal.
This Court dismissed the appeal, for failure to file a brief, on March 6, 2013.
On June 6, 2013, Appellant timely filed a PCRA petition. The PCRA
court granted relief on August 7, 2015, by reinstating Appellant’s appeal
rights nunc pro tunc. On August 13, 2015, Appellant timely filed a notice of
appeal nunc pro tunc. The court ordered Appellant on December 23, 2015,
to file a Rule 1925(b) statement, and Appellant timely complied.
Appellant raises one issue on appeal:
WHETHER APPELLANT’S SENTENCE WAS UNDULY HARSH
AND UNREASONABLE.
(Appellant’s Brief at 8).
Appellant argues the court imposed an unduly harsh and unreasonable
sentence because the court gave short shrift to mitigating factors presented
in his case. Specifically, Appellant contends the court failed to consider
Appellant’s childhood circumstances, criminal background, character,
remorse, and general rehabilitative needs. Appellant asserts he should have
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received some mitigation of his sentence, instead of an aggravation of his
sentence, because his prior offense score was zero. Additionally, Appellant
argues a post-sentence hearing was necessary to present additional facts
pertaining to Appellant’s harsh childhood circumstances by way of character
testimony. Appellant concludes the sentence was manifestly excessive. As
presented, Appellant challenges the discretionary aspects of his sentence.
See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536
(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating claim that sentencing court failed to consider or did not adequately
consider certain factors challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). 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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
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Objections to the discretionary aspects of sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to modify the
sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599
(2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Sierra, supra at 912-13 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
“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. Any challenge
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to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). “An allegation that a sentencing court failed to consider or did not
adequately consider certain factors does not raise a substantial question that
the sentence was inappropriate.” Cruz-Centeno, supra at 545. Cf.
Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super. 2003) (en banc)
(stating claim that court imposed sentence in aggravated range without
considering mitigating circumstances constitutes substantial question as to
discretionary aspects of sentencing).
Our standard of review of a challenge to the discretionary aspects of
sentencing 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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). The trial court has
discretion in determining whether a hearing is required on the post-sentence
motions. Pa.R.Crim.P. 720(B)(2)(b).
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In the instant case, Appellant properly preserved a challenge to the
discretionary aspects of sentencing in his post-sentence motion, his Rule
1925(b) statement, and his Rule 2119(f) statement. To the extent Appellant
poses a generic claim that the court failed to consider mitigating
circumstances, the claim does not raise a substantial question as to the
discretionary aspects of sentencing. See Cruz-Centeno, supra.
Nevertheless, where Appellant claims the court sentenced him in the
aggravated range without considering mitigating circumstances, Appellant
appears to raise a substantial question as to the discretionary aspects of his
sentence. See Felmlee, supra.
As an initial matter, the minimum sentences imposed for IDSI and
rape fell in the aggravated range of the sentencing guidelines; the minimum
sentence for aggravated assault actually exceeded the aggravated range of
the sentencing guidelines. Nevertheless, none of the sentences breached
the respective statutory maximums for the offenses at issue.2
In Appellant’s post sentence motion he requested modification of his
overall sentence, based on his remorse and his harsh childhood
circumstances. On appeal, Appellant adds he should have received some
mitigation of his sentences, instead of an aggravation of his sentences,
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2
Each of the three offenses was graded as a first degree felony, with a
statutory maximum sentence of 20 years. See generally 18 Pa.C.S.A. §
1103(1).
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because his prior offense score was zero. Appellant’s post-sentence motion,
however, failed to raise any issue implicating his prior record score, so that
aspect of his claim is waived.
Moreover, at sentencing, the court announced numerous factors to
support a departure from the guidelines, including the exceptionally cruel
nature of the crimes and the extensive and permanent brain damage to
Victim, which has caused her severe memory loss and left her unable to care
for her daughter or maintain employment. The court also considered the
harsh circumstances of Appellant’s childhood and his expression of remorse.
The court stated the imposition of the statutory maximum sentence for
aggravated assault was reasonable and necessary, given the nature and
circumstances of the crime. Appellant’s post-sentence motion failed to raise
any issues, which went unaddressed at the sentencing hearing. Further, the
court had the benefit of a PSI report and mental health evaluation, which
contained Appellant’s childhood circumstances. Thus, we can presume the
court considered these as relevant mitigating sentencing factors. See
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating where
sentencing court had benefit of PSI, law assumes court was aware of and
weighed relevant information regarding mitigating factors). Also, the PSI
report included information Appellant sought to introduce through additional
character testimony at a subsequent hearing; therefore, a hearing on
Appellant’s post-sentence motion was unnecessary. Thus, Appellant is not
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entitled to relief as to the discretionary aspects of sentencing. Accordingly,
we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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