Com. v. Muir, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS MUIR
Appellant No. 3748 EDA 2015
Appeal from the Judgment of Sentence November 5, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000946-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 12, 2016
Appellant, Thomas Muir, appeals from the judgment of sentence
entered in the Chester County Court of Common Pleas, following his open
guilty plea to two counts each of homicide by vehicle while driving under the
influence, aggravated assault by vehicle while driving under the influence,
recklessly endangering another person (“REAP”), and one count of driving
under the influence (“DUI”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Between 6:00 p.m. and 7:00 p.m. on February 14, 2015, Appellant rear-
ended the Hannagan’s minivan while driving his truck approximately 98
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1
75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 18 Pa.C.S.A. § 2705, and 75
Pa.C.S.A. § 3802(c), respectively.
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*Retired Senior Judge assigned to the Superior Court.
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miles per hour in inclement weather. The accident severely injured Paul and
Maggie Hannagan, and killed their children, Miles and Charlotte Hannagan.
After Appellant performed poorly on field sobriety tests, police arrested
Appellant and transported him to the hospital where he consented to a blood
test. The blood test revealed that Appellant was under the influence of
alcohol and had a blood alcohol content of .164. The test also revealed that
Appellant was under the influence of Klonopin, an anti-anxiety drug that
enhances the effects of alcohol. During the investigation of the accident,
police discovered that numerous individuals had called 911 to report
Appellant’s erratic behavior and driving in the hour prior to the crash.
On March 27, 2015, the Commonwealth charged Appellant with two
counts each of homicide by vehicle while DUI, homicide by vehicle,
aggravated assault by vehicle while DUI, and aggravated assault by vehicle,
six counts of REAP, and one count each of DUI, reckless driving, and
prohibiting text-based communications. On September 18, 2015, Appellant
entered an open guilty plea to two counts each of homicide by vehicle while
DUI, aggravated assault while DUI, and REAP, and one count of DUI. The
court deferred sentencing pending the preparation of a pre-sentence
investigation (“PSI”) report.
On November 5, 2015, the court conducted a sentencing hearing,
where both the Commonwealth and Appellant presented extensive testimony
about the effects of the accident on the Hannagan family, Appellant,
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Appellant’s family, and the community. Paul and Maggie Hannagan,
Appellant’s parents and siblings, and numerous family members and friends
of the Hannagan family and Appellant were among the individuals who
testified at the hearing. Appellant also testified and apologized to the
Hannagan family and the court for his actions on the night of the accident.
Prior to imposing Appellant’s sentence, the court stated it had read the PSI
report, pre-sentence memoranda filed by both the Commonwealth and
Appellant, and numerous letters to the court written on behalf of Appellant
and the Hannagan family. The court then engaged in a lengthy discussion of
the following: (1) Appellant’s rehabilitative needs; (2) the gravity of the
offense; (3) the impact on the Hannagan family; and (4) Appellant’s
acceptance of responsibility for his actions and genuine remorse. The court
ultimately sentenced Appellant to five (5) to ten (10) years’ incarceration on
each conviction for homicide by vehicle while DUI, three (3) to six (6) years’
incarceration for each conviction for aggravated assault while DUI, and five
(5) to twelve (12) months’ incarceration for each REAP conviction. The court
also imposed a sentence of fourteen (14) to twenty-eight (28) months’
incarceration at a separate docket for Appellant’s possession of a controlled
substance with the intent to deliver (“PWID”) conviction, which stemmed
from an incident that occurred prior to the accident. The court ordered
Appellant to serve all of the sentences consecutively; thus, the court
imposed an aggregate term of eighteen (18) to thirty-six (36) years’
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imprisonment.
On November 13, 2015, Appellant timely filed a post-sentence motion,
which asked the court to reconsider and reduce his sentence. The court
denied the motion on November 17, 2015. Appellant timely filed a notice of
appeal on December 15, 2015. On December 17, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on December
29, 2015.
Appellant raises the following issue for our review:
WHETHER THE COURT ABUSED ITS DISCRETION IN
SENTENCING APPELLANT TO AN UNDULY HARSH AND
EXCESSIVE SENTENCE (AGGREGATE PRISON TERM OF 18-
36 YEARS OF INCARCERATION) BY IMPOSING A
SENTENCE THAT WILL, IN EFFECT, WAREHOUSE
[APPELLANT] FOR A SUBSTANTIAL PERIOD OF HIS LIFE?
(Appellant’s Brief at 4).
Appellant challenges the consecutive sentences he received for each of
his convictions, which were either in the aggravated range or outside the
aggravated range of the sentencing guidelines. Specifically, Appellant
complains the court based its lengthy sentence on its erroneous
determination that the Commonwealth could have charged Appellant with
third-degree murder. Appellant maintains the Commonwealth did not
charge him with third-degree murder, and it was improper for the court to
impose a sentence based on this uncharged offense. Appellant further
contends the court failed to consider certain mitigating factors such as
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Appellant’s genuine remorse for the Hannagan family, prompt admission of
guilt, strong employment and education background, supportive family, non-
violent past, addiction problems, and mental health issues. Appellant
concludes the court’s reliance on an uncharged offense and failure to
consider certain mitigating factors led to the imposition of a manifestly
excessive sentence, which will imprison Appellant for a significant portion of
his adult life. As presented, Appellant challenges the discretionary aspects
of his sentence.2 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive 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, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
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
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2
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…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, 365 n.5
(Pa.Super 2005). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.
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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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,
909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or
raised 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). Inclusion of objections to the
discretionary aspects of sentencing in a Rule 1925(b) statement will not cure
a waiver stemming from failure to raise objections at the sentencing hearing
or in a post-sentence motion. Commonwealth v. Oree, 911 A.2d 169, 174
n.4 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007).
Instantly, Appellant timely filed a post-sentence motion on November
13, 2015; however, Appellant’s motion merely asked the court to, “consider
reducing the amount of incarceration imposed.” (See Appellant’s Motion for
Reconsideration and Reduction in Sentence, filed 11/13/15, at 2).
Significantly, Appellant’s motion did not raise the claims he now presents on
appeal concerning the court’s alleged consideration on an uncharged offense
or the court’s failure to consider certain mitigating factors. Appellant also
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failed to raise these claims at the time of sentencing. Appellant’s failure to
raise these claims at sentencing or specify these claims in his post-sentence
motion constitutes waiver for purposes of our review. See Griffin, supra;Mann, supra. Further, Appellant’s inclusion of these claims in his Rule
1925(b) statement does not cure this waiver. See Oree, supra.Moreover, even if properly preserved, Appellant’s claims would merit
no relief. The court had the benefit of a PSI report at sentencing.
Therefore, we can presume the court considered the relevant factors when it
sentenced Appellant. See Tirado, supra at 368 (holding where sentencing
court had benefit of PSI, law presumes court was aware of and weighed
relevant information regarding defendant’s character and mitigating factors).
Additionally, the court engaged in an extensive discussion on the record of
its reasons for Appellant’s sentence. Specifically, the court stated it
considered the information in the PSI report, pre-sentence memoranda filed
by both the Commonwealth and Appellant, and numerous letters written on
behalf of Appellant and the Hannagan family. The court then discussed
Appellant’s: (1) numerous wake up calls and chances provided by the court;
(2) previous unsuccessful attempts at rehabilitation; (3) criminal conduct
while in treatment through Drug Court; (4) careless driving citation a month
before the accident; (5) strong education background; and (6) supportive
family. The court concluded that Appellant’s continued criminal behavior
despite all of his opportunities to turn his life around increases the likelihood
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that Appellant will reoffend. The court next detailed the gravity of the
offense and highlighted the following facts: (1) the inclement weather at the
time of the accident; (2) Appellant’s sustained period of drunk driving, as
demonstrated by the numerous 911 calls made during the hour prior to the
accident; (3) Appellant’s speed at the time of the accident; (4) the injuries
and deaths caused by Appellant’s drunk driving; (5) Appellant was texting at
the time of the accident; (6) the Klonopin in Appellant’s system, which
enhanced the effect of the alcohol in Appellant’s system; and (7) Appellant
was driving on a major thoroughfare during peak travel time on Valentine’s
Day. The court further discussed the impact of the accident on the
Hannagan family, Appellant’s family and the community. The court finally
explained that it would not impose the maximum sentence for each
conviction, given Appellant’s genuine remorse and prompt acceptance of
responsibility for his actions. Only after this lengthy discussion did the court
impose an aggregate term of eighteen (18) to thirty-six (36) years’
imprisonment. Importantly, the court did not rely on a belief that
Appellant’s case warranted a third-degree murder charge at any time during
sentencing. In fact, the court mentioned third-degree murder only to
explain that the facts of Appellant’s case did not support a third-degree
murder charge. Thus, even if Appellant had properly preserved his claim,
we would rely on the court’s analysis and deny relief on appeal. Based upon
the foregoing, we affirm.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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