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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY RICHARD HORNING, JR. :
:
Appellant : No. 570 EDA 2021
Appeal from the Judgment of Sentence Entered February 8, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003319-2020
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 3, 2021
Appellant Gary Richard Horning, Jr. appeals from the judgment of
sentence entered on February 8, 2021, after the trial court accepted
Appellant’s guilty plea to one count of strangulation. Additionally, Appellant’s
counsel (Counsel) filed a petition to withdraw and an Anders/Santiago brief.1
We grant Counsel’s request to withdraw and affirm.
Briefly, we summarize the facts of this matter as follows. In a criminal
information filed on December 16, 2020, the Commonwealth charged
Appellant with strangulation of a household member graded as a felony of the
second degree,2 strangulation graded as a misdemeanor of the second
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
2 18 Pa.C.S. § 2718(a)(1), (d)(2)(i).
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degree,3 terroristic threats,4 simple assault,5 and unlawful restraint.6 These
charges stemmed from a violent domestic assault that occurred on October
18, 2020. The assault began when Appellant physically prevented Stephanie
Kemmerer7 (the victim) from leaving the house, and it escalated when
Appellant struck, grabbed, choked, and threatened to kill her. Compl. (Acts
of the Accused), 10/18/20. Appellant was arrested and charged as set forth
above.
On January 5, 2021, in exchange for the Commonwealth’s agreement
not to pursue the other charges in the Complaint, Appellant entered an open
guilty plea to one count of strangulation graded as a misdemeanor of the
second degree. On February 8, 2021, the trial court sentenced Appellant
outside of the sentencing guidelines to the statutory maximum sentence of
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3 18 Pa.C.S. § 2718(a)(1), (d)(1).
4 18 Pa.C.S. § 2706(a)(1).
5 18 Pa.C.S. § 2701(a)(1).
6 18 Pa.C.S. § 2902(a)(1).
7 Although the criminal complaint stated that the charges stemmed from a
domestic dispute, the precise nature of Appellant’s relationship with the victim
is not clear from the record. However, because the Commonwealth withdrew
the charge of strangulation involving a family or household member under 18
Pa.C.S. § 2718(a)(1), (d)(2)(i), the relationship between Appellant and the
victim is not at issue.
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one to two years of imprisonment8 to be served in a state correctional facility.
N.T., 2/8/21, at 14. Appellant filed a timely post-sentence motion on February
17, 2021, requesting reconsideration and modification of his sentence. The
trial court denied the post-sentence motion on March 5, 2021, and Appellant
filed a timely appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
In the Anders/Santiago brief, Counsel identifies the following issue:
Whether the lower court abused its sentencing discretion when,
after [Appellant] pled guilty to a [second-degree]
misdemeanor, the court sentenced [Appellant] to a term of
imprisonment in a state correctional institution?
Anders/Santiago Brief at 4 (some formatting altered).9
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
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8The statutory maximum sentence for a second-degree misdemeanor is two
years. 18 Pa.C.S. § 1104(2).
9 Counsel raised a second issue in which he requests to withdraw under the
holding in Anders. Anders/Santiago Brief at 4. As discussed below,
although this issue does not present a claim that could arguably support an
appeal, we necessarily address it in our determination of Counsel’s petition to
withdraw.
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copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
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Here, Counsel complied with the procedural requirements discussed
above. Counsel filed a petition to withdraw, indicating that he reviewed the
record and determined that an appeal is frivolous and without merit. Counsel
also attached to his brief a copy of the letter he sent to Appellant, which
advises that Appellant may proceed pro se or retain private counsel to raise
any additional issues he believes should be brought to this Court’s attention.
In addition, Counsel’s brief complies with the obligations under Anders and
Santiago.10 Therefore, we will now undertake our own review to determine
whether Appellant’s appeal is wholly frivolous.
In the issue Counsel identified in the Anders/Santiago brief, Counsel
asserts that Appellant claimed that the sentencing court abused its discretion
in directing Appellant to serve his term of incarceration in a state correctional
facility as opposed to a county facility. Anders/Santiago Brief at 8. This
issue presents a challenge to the discretionary aspects of Appellant’s
sentence. See Commonwealth v. Fullin, 892 A.2d 843, 847-52 (Pa. Super.
2006) (considering a challenge to a trial court’s decision to commit an offender
to a state correctional facility as opposed to a county facility as a challenge to
the discretionary aspects of the sentence).
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
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10 Appellant did not file a response to Counsel’s petition to withdraw.
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discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We 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. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “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.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing issue in a post-sentence
motion, a timely appeal, and a Pa.R.Crim.P. 2119(f) statement in the
Anders/Santiago brief. See Proctor, 156 A.3d at 273. The Rule 2119(f)
statement in the Anders/Santiago brief contends that the trial court abused
its discretion in ordering Appellant to serve his sentence in a state correctional
facility instead of a county prison. Anders/Santiago Brief at 7. Appellant
contends that under the circumstances of this case, there is no basis in law or
fact that supports a state sentence rather than a county sentence. Id. We
conclude that Appellant has presented a substantial question. See, e.g.,
Commonwealth v. Stalnaker, 545 A.2d 886, 889 (Pa. Super. 1988) (finding
a substantial question existed with respect to the appropriateness of the
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appellant’s sentence based on the circumstances of the case including the
appellant’s age, lack of criminal history, and “relative harshness of a state as
opposed to a county sentence”).
Our well-settled standard of review 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Fullin, 892 A.2d at 848 (citation
omitted and formatting altered). Additionally, the trial court “must consider
the sentencing guidelines.” Id. (citation omitted). When the trial court opts
to impose a sentence outside of the sentencing guidelines, it “must
demonstrate, on the record, its awareness of the . . . guidelines and offer a
contemporaneous written statement of the reasons for deviating from the
guidelines.” Commonwealth v. Wallace, 244 A.3d 1261, 1279 (Pa. Super.
2021) (citations omitted).
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When reviewing a sentence outside of the guidelines, the essential
question is whether the sentence imposed is reasonable,
considering the nature and circumstances of the offense, the
history and characteristics of the defendant, the opportunity of the
sentencing court to observe the defendant, including any
presentence investigation, the findings upon which the sentence
was based, and the sentencing guidelines.
Id. (citation omitted).
Our Supreme Court has determined that where the trial court is
informed by a [presentence investigation (PSI) report], it is
presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed. The sentencing
judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has
been informed by the PSI; thus properly considering and weighing
all relevant factors.
Commonwealth v. Edwards, 194 A.3d 625, 637-38 (Pa. Super. 2018)
(citations omitted and formatting altered).
Finally, the trial court’s power to choose between committing Appellant
to a state correctional facility or a county prison facility derived from 42
Pa.C.S. § 9762, which provides, in relevant part, as follows:
[A]ll persons sentenced to total or partial confinement for the
following terms shall be committed as follows:
(1) Maximum terms of five or more years shall be committed
to the Department of Corrections for confinement.
(2) Maximum terms of two years or more but less than
five years may be committed to the Department of
Corrections for confinement or may be committed to
a county prison within the jurisdiction of the court.
(3) Maximum terms of less than two years shall be
committed to a county prison within the jurisdiction of the
court.
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42 Pa.C.S. § 9762 (emphasis added).
The trial court addressed this issue as follows:
This court considered all the required statutory factors in
sentencing [Appellant]. Indeed, in imposing [Appellant’s]
sentence, this court considered the “protection of the public, the
gravity of the offense as it relates to the impact on the victim and
the community, [Appellant’s] rehabilitative needs, and the
sentencing guidelines.” 42 Pa.C.S. § 9721(b); Commonwealth
v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).
Prior to sentencing, this court carefully reviewed the [PSI] Report
prepared on February 1, 2021. The court was aware of all of the
information contained therein, including the horrendous facts that
gave rise to this offense, [Appellant’s] thirteen (13) prior arrests
and ten (10) prior convictions, and [Appellant’s] numerous
violations of supervision. Also, this court did not fail to consider
mitigating factors. Commonwealth v. Rhoades, 8 A.3d 912,
919 (Pa. Super. 2010) (stating that where the sentencing court
had the benefit of a pre-sentence investigation report, it may be
assumed that the sentencing court was aware of all relevant
information regarding a defendant, including any mitigating
factors); Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12
(1988) (holding that where a pre-sentence report exists, there is
a presumption that the sentencing judge was aware of and
adequately considered information relevant to the defendant’s
character, as well as any mitigating factors). This court was aware
of [Appellant’s] history of substance abuse, [Appellant’s] age of
33 years old, and [Appellant’s] family dynamics.
With all of this information in mind, using its discretion this court
imposed a sentence that was within the parameters of the
negotiated plea agreement and within the law. Accordingly,
[Appellant’s] argument is baseless and the [post-sentence]
Motion to Reconsider and Modify Sentence is denied.
Order, 3/5/21 at 3 n.1 (formatting altered).
Pursuant to subsection 9762(2), the trial court had the discretion to
commit Appellant to either the Department of Corrections, which is the agency
responsible for administering the state correctional system and its facilities,
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or a county prison. See Fullin, 892 A.2d at 851. Indeed, “there is no single
prescribed commitment for persons whose maximum sentences subject them
to subsection [9762](2), for a court of common pleas in those cases has the
choice of either committing the person to the [Department] of Corrections or
committing him instead to the county prison.” Id. (citation omitted and
formatting altered).
The record reflects that the trial court stated its awareness of the
sentencing guidelines and chose to instead impose the statutory maximum
sentence of one to two years of incarceration for a second-degree
misdemeanor. The court stated its consideration of the PSI and the sentencing
factors set forth in 42 Pa.C.S. § 9721(b). It explained its review of the facts
of the crime and the severity of the injuries to the victim. Additionally, the
Commonwealth informed the trial court that the only reason it did not pursue
felony charges was due to the victim’s compassion for Appellant, agreement
to the plea, and request that Appellant receive help for anger, psychological,
and substance abuse issues. The trial court also considered Appellant’s past
failures under supervision, multiple prison misconducts, pending parole
violation, and Appellant’s fifteen-year history of criminal activity. The trial
court noted that Appellant called the victim’s place of work more than 100
times threatening to kill her. Ultimately, the trial court explained that
although Appellant has avoided state prison for his past crimes, his violent
actions, criminal behavior, and criminal history supported the trial court’s
imposition of a state prison sentence in this case. After stating these factors
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and considerations, the trial court imposed a sentence of one to two years in
a state correctional facility rather than a county prison. See N.T. Sentencing,
2/8/21, at 6-15; see also Order, 3/5/21 at 3 n.1.
After review, we find no abuse of discretion. The trial court was aware
of the relevant sentencing factors, the sentencing guidelines, and explained it
was imposing a one- to two-year sentence and ordered Appellant to serve his
sentence in a state correctional facility. See 42 Pa.C.S. § 9762(a)(2)
(providing that defendants who are sentenced to a maximum term of two
years or more but less than five years may be committed to either a state
correctional facility or a county prison).
Based on our review of the record, we agree that the issue presented in
the Anders/Santiago brief is frivolous. Furthermore, our independent review
of the record does not reveal any additional, non-frivolous issues. See
Goodwin, 928 A.2d at 291; Flowers, 113 A.3d at 1250. Accordingly, we
grant Counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Bowes joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2021
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