Com. v. Gannt, J. ( 2022 )

J-A05020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREL GANNT :
:
Appellant : No. 875 MDA 2021
Appeal from the Judgment of Sentence Entered June 1, 2021,
in the Court of Common Pleas of Huntingdon County,
Criminal Division at No(s): CP-31-CR-0000618-2018.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 23, 2022
Jerel Gannt appeals from the judgment of sentence imposed after he
entered a plea of nolo contendere to aggravated harassment by prisoner.1
Upon review, we affirm.
Briefly, this matter arises from the following facts. On July 24, 2018,
Gannt was serving a sentence at SCI Smithfield for an unrelated crime. While
a correctional officer (“CO”) was taking Gannt to shower, he told him to
remove the hair pick in his beard as he was not allowed to take it to the
shower. When he refused, the CO reached for it and Gannt started to pull
away from him. The CO put him on the floor to maintain control of Gannt.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2703.1.
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When Gannt calmed down and got to his feet, he spit directly in the CO’s face.
Gannt was charged with aggravated harassment by a prisoner.
While his harassment charges were pending, Gannt completed the
maximum term of the sentence he was serving and was released from custody
on May 6, 2020. Months later, the trial court scheduled a pre-trial conference
for Gannt’s harassment case on December 3, 2020, but he failed to appear.
The trial court issued a warrant for his arrest. After a hearing, the court
vacated the warrant and released Gannt from custody.
On April 8, 2021, Gannt pled nolo contendere to the harassment charge.
On June 1, 2021, the court sentenced Gannt to 24 to 48 months of
incarceration but deferred his start date for 30 days so he could receive
medical treatment.
On June 25, 2021, Gannt filed a post-sentence motion,2 which the trial
court scheduled for argument on August 3, 2021. Before the argument could
take place and the court could rule on it, Gannt filed this timely appeal on
June 30, 2021.
On appeal, Gannt raises a single issue for our review challenging the
discretionary aspects of his sentence. Specifically, Gannt claims that his
sentence was excessive since he successfully reintegrated into society for
more than a year following his release, unsupervised, and had no incident for
roughly three years after he spit in the CO’s face. Rather than a lengthy prison
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2This motion was untimely as it was filed more than 10 days after imposition
of Gannt’s sentence. Pa.R.Crim.P. 720(A)(1).
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sentence, the court should have sentenced him to probation. Gannt’s Brief at
8.
Before reaching the merits, we observe, as the trial court did, that Gannt
filed his Rule 1925(b) statement beyond the 21 days set forth in the court’s
order. As a result, Gannt’s appellate issue is waived. See Commonwealth
v. Castillo, 888 A.2d 775, 776, 779-80 (Pa. 2005) (holding that claims raised
in an untimely Rule 1925(b) statement are waived on appeal). However,
pursuant to Rule 1925(c)(3),
[i]f an appellant represented by counsel in a criminal case was
ordered to file a Statement and failed to do so or filed an untimely
Statement, such that the appellate court is convinced that counsel
has been per se ineffective, and the trial court did not file an
opinion, the appellate court may remand for appointment of new
counsel, the filing of a Statement nunc pro tunc, and the
preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3); Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.
2009) (en banc). However, this Court may decide the appeal on the merits if
the trial court had adequate opportunity to prepare an opinion addressing the
issues being raised on appeal. If the trial court did not have an adequate
opportunity to do so, remand is proper. Id. at 433.
While the late filing in this case constitutes per se ineffectiveness, the
trial court was able to address Gannt’s sentencing claim in its Rule 1925(a)
opinion, albeit briefly. Trial Court Opinion, 8/19/21, at 1. Consequently,
remand is not warranted here. Burton, 973 A.2d at 433. Accordingly, we
will consider the merits of the issue presented on appeal.
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Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). To invoke this Court's jurisdiction to review an appellant's challenge
to the sentencing court's discretion, the appellant must, inter alia, properly
preserve the issue at sentencing or in a motion to reconsider and modify the
sentence. Id.Here, Gannt did not challenge the sentencing court's exercise of
discretion at the hearing. And, although Gannt filed a post-sentence motion,
it was untimely. “An untimely post-sentence motion does not preserve issues
for appeal.” Commonwealth v. Wrecks, 931 A.2d 717, 719-20 (Pa. Super.
2007). As a result, we do not reach the merits of Gannt’s challenge to the
discretionary aspects of his sentence. But, even if we were to consider Gannt’s
sentencing claim, we would conclude that the trial court did not abuse its
discretion in sentencing Gannt.3
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3 Our standard of review of a sentencing claim 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
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As the trial court noted, in sentencing Gannt, the trial court had a pre-
sentence investigation report and considered it. Trial Court Opinion, 8/19/21,
at 1. “[W]here the trial court is informed by a pre-sentence 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.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (citation omitted).
Furthermore, the trial court observed that, based upon a prior record
score of 5 and an offense gravity score of 6 for aggravated harassment by
prisoner, the sentencing guidelines recommended a standard minimum range
sentence of 21-27 months. Trial Court Opinion, 8/19/21, at 1. The trial court
sentenced Gannt in the middle of that range. Id. Where a sentence is within
the standard range of the guidelines and the court had the benefit of PSI, the
sentence is appropriate and reasonable. Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010).
Lastly, our review of the sentencing transcript reveals that counsel
highlighted Gannt’s progress for the trial court. Gannt himself explained to
the court that he has worked to become a productive member of society since
he was released from jail. N.T., 6/1/21, at 2-6. However, these factors
evidently were insufficient to convince the court to give Gannt a lesser
sentence, particularly considering his criminal record and that he served the
maximum time under his previous sentence, i.e., he was not paroled. Id. at
6. On appeal, “[w]e cannot re-weigh the sentencing factors and impose our
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judgment in place of the sentencing court.” Commonwealth v. Macias, 968
A.2d 773, 778 (Pa. Super. 2009).
Therefore, if Gannt preserved the issue, we would conclude that the trial
court did not abuse its discretion in sentencing Gannt.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/23/2022
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