Opinion
J-A06028-16 No. 1465 MDA 2015
04-26-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSEPH T. GARLOCK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 30, 2015
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000501-2014 BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J. MEMORANDUM BY LAZARUS, J.:
Joseph T. Garlock appeals from the judgment of sentence entered in the Court of Common Pleas of Huntingdon County following his conviction by a jury of retail theft. The trial judge also found Garlock guilty of the summary offense of driving with a suspended license. After review, we affirm on the basis of the opinion of the Honorable George N. Zanic, dated September 23, 2015.
A jury found Garlock guilty of retail theft after he stole merchandise from Walmart. Based upon a lengthy criminal history involving various felonies, misdemeanors and revocations of probation, the trial court sentenced Garlock on July 30, 2015, to a sentence beyond the sentencing guidelines range. The court sentenced Garlock to 30 to 60 months' incarceration, to be served consecutively to a sentence of three months' incarceration for driving with a suspended license.
The sentencing guidelines called for a sentence of 12 to 18 months' incarceration.
Garlock filed a timely post-sentence motion and notice of appeal, asserting that the trial court erred by imposing a sentence beyond the standard range recommended in the sentencing guidelines. Specifically, Garlock raises the following issues for our review:
1. Did the court below err by failing to consider that the Sentencing Guidelines adequately account for [Garlock's] prior criminal history?Brief for Appellant, at 5-6.
2. Did the court below err by failing to consider that the Sentencing Guidelines adequately account for the seriousness of the crime for which [Garlock] was convicted?
3. Did the court below err by failing to consider that [Garlock] had remained relatively crime-free for six years prior to the incident for which he was convicted, and that his addiction contributed to the incident?
4. Did the court err below by failing to consider [Garlock's] acceptance of responsibility for his actions and efforts to rehabilitate himself?
5. Did the court below err in failing to sentence [Garlock] within the Sentencing Guidelines, given the issues raised above?
Each of Garlock's issues raised is a contention that his sentence is excessive, which presents a challenge to the discretionary aspects of sentencing. See Commonwealth v. Mouzon , 812 A.2d 617, 625 (Pa. 2002). An appellant is not entitled to review of the discretionary aspects of sentencing unless he or she satisfies a four-part test:
(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.Commonwealth v. Caldwell , 117 A.3d 763, 768 (Pa. Super. 2015) (en banc) (quoting Commonwealth v. Allen , 24 A.3d 1058, 1064 (Pa. Super. 2011)).
Here, Garlock has filed a timely notice of appeal, preserved his claims in a post-sentence motion, and his brief is without a fatal defect. Thus, we must consider whether Garlock raises a substantial question.
Garlock argues that the trial court failed to state adequate reasons for imposing a sentence outside the sentencing guidelines. Indeed, when a trial court imposes a sentence outside the guidelines, the court must state on the record the reasons for deviating from the guidelines. Commonwealth v. Johnson , 666 A.2d 690, 693 (Pa. Super. 1995); 42 Pa.C.S. § 9721(b). We have found that a failure to do so creates a substantial question. See Commonwealth v. Ventura , 975 A.2d 1128, 1133 (Pa. Super. 2009) (holding a claim that the trial court did not state on the record adequate reasons for sentencing outside the guidelines creates a substantial question).
Though Garlock argues that the trial court's stated explanation for deviating from the sentencing guidelines was inadequate, we note that the court specifically mentioned several compelling reasons for imposing the particular sentence in this case. These included Garlock's inability to achieve rehabilitation, the repetitive nature of his criminal activity, and his dangerous getaway from the crime scene as reasons for deviating from the sentencing guidelines.
We find that Judge Zanic's opinion, dated September 23, 2015, effectively addresses each of Garlock's arguments regarding the length of his sentence, and we affirm on that basis. We direct the parties to attach a copy of the trial court's opinion in the event of further proceedings.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/26/2016
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