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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
JAY R. IRELAND, :
:
Appellant : No. 536 WDA 2016
Appeal from the Judgment of Sentence March 16, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001402-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 03, 2017
Jay R. Ireland (Appellant) appeals from the judgment of sentence
entered after he pled guilty to possession of instruments of crime, simple
assault, terroristic threats, and criminal trespass. We affirm.
This case arises from Appellant’s assault of his girlfriend (Victim) in
April of 2015. On April 26, 2015, Victim went to the police station and
informed police that she and Appellant were arguing the prior evening and
he “started hitting her and slamming her to the ground.” Affidavit of
Probable Cause, 4/30/2015. After Appellant punched Victim in the face, he
made Victim pack all of his belongings as well as anything Appellant had
bought for Victim. In addition, Appellant forced Victim to remove her
clothing because he had given those items to her. Victim told police that
Appellant “pulled out a silver pocket knife” and “threatened to cut out her
*Retired Senior Judge assigned to the Superior Court.
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tongue, slice her throat and kill her if she continued to cry.” Id. Victim also
told police that Appellant forced her to have sex with him. In addition, she
stated that Appellant continued abusing her throughout the night, and she
left, taking their three-year-old child with her, the following morning.
Appellant was charged with numerous crimes as a result of this
incident. On January 11, 2016, Appellant entered into an open guilty plea to
the aforementioned charges.1 Sentencing was scheduled for March 7, 2016,
but was rescheduled to March 16, 2016. On that day, Appellant did not
appear for sentencing, despite the fact that his family was present in the
courtroom and counsel for Appellant acknowledged Appellant was aware of
the date for sentencing. N.T., 3/16/2016, at 7. Thus, the trial court
proceeded to sentence Appellant in absentia.
Counsel for Appellant presented the trial court with a letter Appellant
had sent to the district justice in this case, as well as a letter from
Appellant’s former employer. Appellant’s mother, father, and brother also
testified on Appellant’s behalf. The Commonwealth presented the trial court
with a letter from Victim. Counsel for Appellant objected to the letter stating
that “this is the first time we are reading [Victim’s] letter….”. Id. at 24. In
addition, counsel for Appellant objected to the contents of the letter to the
1
The Commonwealth nolle prossed charges of sexual assault and
involuntary deviate sexual intercourse in exchange for Appellant’s guilty
pleas to the remaining charges.
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extent it “involves charges that were [nolle prossed].”2 Id. The trial court
overruled Appellant’s objections and proceeded to sentence Appellant to an
aggregate term of three-and-one-half to 19 years of incarceration.3
Appellant timely filed a motion for reconsideration, which was denied
by the trial court. Appellant timely filed a notice of appeal, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents this Court with one question: “Whether
[Appellant’s] sentence is manifestly excessive, clearly unreasonable and
inconsistent with the objectives of the Sentencing Code after the trial court
considered and relied upon impermissible factors.” Appellant’s Brief at 3.
Appellant challenges the discretionary aspects of his sentence.4 We
consider his question mindful of the following.
2
The letter detailed the long-term nature of the abuse she suffered from
Appellant. She also presented a detailed account of the events that occurred
on the night of April 25, 2016, including the fact that Appellant “made [her]
have sex with him.” Letter from Victim, 3/3/2016. In addition, Appellant
pointed out that she did not leave the house during the night because she
did not want to leave her three-year-old child, who was sleeping, alone in
the house with Appellant.
3
This sentence consisted of four separate standard-range sentences for each
charge running consecutively to one another.
4
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his or her sentence
other than to argue that the sentence is illegal or that the sentencing court
did not have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 368 n.5 (Pa.
Super. 2005) (emphasis in original).
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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.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
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Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to reconsider his sentence. Appellant’s brief also contains a
statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether
Appellant has presented a substantial question for our review.
Appellant claims that the trial court erred by relying “upon
impermissible factors” including Victim’s letter to the trial court where she
referenced the nolle prossed sexual assault charges. Appellant’s Brief at 6.
This Court has held that “a manifest abuse of discretion exists when a
sentence is enhanced due to charges that have been nolle prossed as part of
a plea agreement, because notions of fundamental fairness are violated.”
Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005). See
also Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009)
(holding that a claim the trial court considered charges that have been nolle
prossed in sentencing an appellant presents a substantial question for
review). Accordingly, we shall address the merits of Appellant’s claim.
On appeal, Appellant contends that the “admission of said letter was
highly prejudicial in nature … [because of its] numerous references to
charges including rape and other sexual offenses that were either nolle
prossed or withdrawn in exchange for [] Appellant’s guilty plea.” Appellant’s
Brief at 8. Appellant suggests that despite what the trial court stated on the
record at sentencing, the record shows the letter “obviously made an
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impression prior to [imposing the] sentence.” Id. at 9. Thus, Appellant
requests that he be resentenced without the use of Victim’s letter.
In considering this issue, we observe that “[u]nder our legislature’s
‘Basic Bill of Rights for Victims,’ victims of all crimes have the [] right to
breathe life with all its emotions into their victim impact statements included
in the PSI Report.” Commonwealth v. Penrod, 578 A.2d 486, 491 (Pa.
Super. 1990). While “[s]uch victim impact statements may understandably
contain harsh statements regarding the defendant, some of which may be
properly classified as irrelevant or inflammatory … a trial court is ordinarily
presumed to be capable of identifying and properly disregarding” such
evidence. Id.
After reading Victim’s letter, the trial court offered the following in
fashioning Appellant’s sentence.
If you look at the mosaic of this case, it is not in any
contemplation a 6 month sentence here. This is a state
sentence. He has a Prior Record Score of 5. And what’s
described in the letter I can’t summarize and do justice to. It’s
just a night of terror which she thought she was going to die.
***
Sentencing is broad. I’m not going to sentence him for
what he didn’t plead guilty to, but she is entitled to paint in
minute detail the night of terror that occurred to the extent she
claimed it was non-consensual sex. I’m a judicial officer. I can
put that aside. But [what] she claimed about the terror inflicted
on her and the mental torture he engaged in is fair game for
these charges of terroristic threats, simple assault and criminal
trespass.
***
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So this is a case which calls for sentencing and at the high
end of the standard range…. [A]nything else would denigrate
what’s occurred here.
Two other points. [Appellant] is quite old in the sense of
his late twenties. He’s had plenty of time to seek treatment. He
is secure in his position as a batterer, and I think the
Commonwealth wins this hands down. He seeks mental health
treatment only because he feels the [h]ot breath of the law on
the back of his neck, not for any other purpose.
N.T., 3/16/2016, at 24-25, 32.
Based on the foregoing, Appellant’s argument that the trial court
considered improperly charges which were nolle prossed in fashioning
Appellant’s sentence is belied by the record. While the trial court was
certainly aware of the charges and the conduct that led to them, it is clear
from the record that Appellant was sentenced only for the charges for which
he pled guilty. Thus, we conclude that Appellant has failed to demonstrate
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. Johnson, 125 A.3d
822, 826 (Pa. Super. 2015) (quoting Commonwealth v. Disalvo, 70 A.3d
900, 903 (Pa. Super. 2013)).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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