J-S78012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACY KENNEDY,
Appellant No. 1918 WDA 2015
Appeal from the Judgment of Sentence Entered October 21, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000455-2013
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 7, 2016
Appellant, Tracy Kennedy, appeals from the judgment of sentence of 8
to 16 years’ incarceration, imposed after a jury convicted her of committing
sexual offenses against a minor, including indecent assault, statutory sexual
assault, and involuntary deviate sexual intercourse. Appellant raises one
issue challenging the discretionary aspects of her sentence. We affirm.
The facts underlying Appellant’s conviction are not necessary to our
disposition of her appeal. On October 21, 2015, the court imposed the
above-stated, aggregate sentence for her crimes. Notably, Appellant did not
file any post-sentence motions. Instead, she filed a timely notice of appeal,
and also timely complied with the trial court’s order to file a Pa.R.A.P.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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1925(b) concise statement of errors complained of on appeal. Herein,
Appellant raises one issue for our review:
I. Did the [c]ourt commit reversible error when it sentenced
[Appellant] to 8 to 16 years of incarceration, [where] although
she had a prior criminal record, there was no basis in fact that
merited such a sentence, [it] was considerably more harsh than
the plea offer from the District Attorney, and though within the
standard range of [the sentencing] guidelines, [it] is clearly
unreasonable[?]
Appellant’s Brief at 3.
Appellant is challenging the discretionary aspects of her sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
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Appellant has failed to satisfy two prongs of the test for invoking this
Court’s jurisdiction to review her sentencing claim. First, she did not raise
any challenge to her sentence at the October 21, 2015 sentencing
proceeding, and she also failed to file a post-sentence motion presenting
that claim to the trial court. Therefore, her challenge to the discretionary
aspects of her sentence is waived. See Griffin, supra.
Additionally, Appellant has not included a Rule 2119(f) statement in
her appellate brief, and the Commonwealth has objected to that omission.
See Commonwealth’s Brief at 5. Consequently, her discretionary-aspects-
of-sentencing claim is waived on this basis, as well. See Commonwealth
v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (“[I]f the appellant
fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the
issue is waived for purposes of review.”) (citations omitted).
In any event, even if Appellant had properly preserved her claim (and
we found that she had presented a substantial question for our review), we
would not conclude that the trial court abused its discretion in fashioning her
sentence. The court had the benefit of a pre-sentence report and ultimately
imposed a standard-range term of incarceration.
As we indicated in Commonwealth v. Moury, 992 A.2d 162,
171 (Pa. Super. 2010), where the sentencing court imposed a
standard-range sentence with the benefit of a pre-sentence
report, we will not consider the sentence excessive. In those
circumstances, we can assume the sentencing court “was aware
of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 519 Pa. 88,546 A.2d 12,
18 (1988); see also Commonwealth v. Tirado, 870 A.2d 362,
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368 (Pa.Super.2005) (if sentencing court has benefit of pre-
sentence investigation, law expects court was aware of relevant
information regarding defendant's character and weighed those
considerations along with any mitigating factors). Moreover, we
can reverse a standard-range sentence only if the sentence is
clearly unreasonable when viewed in light of the four statutory
factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v.
Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also
Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009).
Section 9781(d) provides that when we review this type of
question, we have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Walls, supra at 963. Furthermore, “rejection of a sentencing
court's imposition of sentence on unreasonableness grounds
[should] occur infrequently, whether the sentence is above or
below the guidelines ranges.” Macias, supra at 777 (quoting
Walls, supra at 964).
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citations
omitted).
The thrust of Appellant’s argument is that her sentence is ‘clearly
unreasonable’ because her conduct throughout trial, and her statements at
the sentencing hearing, demonstrate that she has mental health issues that
require treatment in “a therapeutic setting,” rather than in a state
correctional institution. Appellant’s Brief at 10. However, Appellant did not
present any evidence at the sentencing hearing to establish that she has
been diagnosed with mental health issues, aside from her own testimony
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that she is on various medications. As Appellant acknowledges, her “trial
counsel [did not] help to elucidate[,] to any great degree[,] what the
medications are for and their side effects.” Id. at 9. Because Appellant did
not fully explain, or present evidence to support, her claim that she has
mental health issues warranting ‘therapeutic treatment’ rather than a
sentence of incarceration, she cannot now challenge her sentence on this
basis. Accordingly, even had Appellant properly preserved her discretionary
aspects of sentencing issue, her argument would fail to convince us that the
trial court abused its discretion in imposing a standard-range sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2016
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Com. v. Kennedy, T.
Combined Opinion