J-S83035-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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JAY R. IRELAND,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 536 WDA 2016

Appeal from the Judgment of Sentence March 16, 2016

in the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0001402-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 03, 2017

Jay R. Ireland (Appellant) appeals from the judgment of sentence 

entered after he pled guilty to possession of instruments of crime, simple 

assault, terroristic threats, and criminal trespass. We affirm.

This case arises from Appellant’s assault of his girlfriend (Victim) in 

April of 2015. On April 26, 2015, Victim went to the police station and 

informed police that she and Appellant were arguing the prior evening and 

he “started hitting her and slamming her to the ground.” Affidavit of 

Probable Cause, 4/30/2015. After Appellant punched Victim in the face, he 

made Victim pack all of his belongings as well as anything Appellant had 

bought for Victim. In addition, Appellant forced Victim to remove her 

clothing because he had given those items to her. Victim told police that 

Appellant “pulled out a silver pocket knife” and “threatened to cut out her 
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tongue, slice her throat and kill her if she continued to cry.” Id. Victim also 

told police that Appellant forced her to have sex with him. In addition, she 

stated that Appellant continued abusing her throughout the night, and she 

left, taking their three-year-old child with her, the following morning. 

Appellant was charged with numerous crimes as a result of this 

incident. On January 11, 2016, Appellant entered into an open guilty plea to 

the aforementioned charges.1 Sentencing was scheduled for March 7, 2016, 

but was rescheduled to March 16, 2016. On that day, Appellant did not 

appear for sentencing, despite the fact that his family was present in the 

courtroom and counsel for Appellant acknowledged Appellant was aware of 

the date for sentencing. N.T., 3/16/2016, at 7. Thus, the trial court 

proceeded to sentence Appellant in absentia.

Counsel for Appellant presented the trial court with a letter Appellant 

had sent to the district justice in this case, as well as a letter from 

Appellant’s former employer. Appellant’s mother, father, and brother also 

testified on Appellant’s behalf. The Commonwealth presented the trial court 

with a letter from Victim. Counsel for Appellant objected to the letter stating 

that “this is the first time we are reading [Victim’s] letter....”. Id. at 24. In 

addition, counsel for Appellant objected to the contents of the letter to the 

 

1 The Commonwealth nolle prossed charges of sexual assault and 

involuntary deviate sexual intercourse in exchange for Appellant’s guilty 

pleas to the remaining charges.
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extent it “involves charges that were [nolle prossed].”2Id. The trial court 

overruled Appellant’s objections and proceeded to sentence Appellant to an 

aggregate term of three-and-one-half to 19 years of incarceration.3

Appellant timely filed a motion for reconsideration, which was denied 

by the trial court. Appellant timely filed a notice of appeal, and both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents this Court with one question: “Whether 

[Appellant’s] sentence is manifestly excessive, clearly unreasonable and 

inconsistent with the objectives of the Sentencing Code after the trial court 

considered and relied upon impermissible factors.” Appellant’s Brief at 3.

Appellant challenges the discretionary aspects of his sentence.4 We 

consider his question mindful of the following.

 

2 The letter detailed the long-term nature of the abuse she suffered from 

Appellant. She also presented a detailed account of the events that occurred 

on the night of April 25, 2016, including the fact that Appellant “made [her] 

have sex with him.” Letter from Victim, 3/3/2016. In addition, Appellant 

pointed out that she did not leave the house during the night because she 

did not want to leave her three-year-old child, who was sleeping, alone in 

the house with Appellant.

3 This sentence consisted of four separate standard-range sentences for each 

charge running consecutively to one another.

4

“[W]hile a guilty plea which includes sentence negotiation ordinarily 

precludes a defendant from contesting the validity of his or her 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, 368 n.5 (Pa. 

Super. 2005) (emphasis in original).
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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.

* * *

When imposing sentence, a court is required to consider 

the particular circumstances of the offense and the character of 

the defendant. In considering these factors, the court should 

refer to the defendant’s prior criminal record, age, personal 

characteristics and potential for rehabilitation. 

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014) 

(internal citations and quotation marks omitted). 

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the 

following four factors: 

(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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 
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Here, Appellant filed a notice of appeal after preserving the issue by 

filing a motion to reconsider his sentence. Appellant’s brief also contains a 

statement pursuant to Pa.R.A.P. 2119(f). We thus consider whether 

Appellant has presented a substantial question for our review.

Appellant claims that the trial court erred by relying “upon 

impermissible factors” including Victim’s letter to the trial court where she 

referenced the nolle prossed sexual assault charges. Appellant’s Brief at 6. 

This Court has held that “a manifest abuse of discretion exists when a 

sentence is enhanced due to charges that have been nolle prossed as part of 

a plea agreement, because notions of fundamental fairness are violated.” 

Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005). See 

also Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009) 

(holding that a claim the trial court considered charges that have been nolle 

prossed in sentencing an appellant presents a substantial question for 

review). Accordingly, we shall address the merits of Appellant’s claim.

On appeal, Appellant contends that the “admission of said letter was 

highly prejudicial in nature ... [because of its] numerous references to 

charges including rape and other sexual offenses that were either nolle 

prossed or withdrawn in exchange for [] Appellant’s guilty plea.” Appellant’s 

Brief at 8. Appellant suggests that despite what the trial court stated on the 

record at sentencing, the record shows the letter “obviously made an 
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impression prior to [imposing the] sentence.” Id. at 9. Thus, Appellant 

requests that he be resentenced without the use of Victim’s letter.

In considering this issue, we observe that “[u]nder our legislature’s 

‘Basic Bill of Rights for Victims,’ victims of all crimes have the [] right to 

breathe life with all its emotions into their victim impact statements included 

in the PSI Report.” Commonwealth v. Penrod, 578 A.2d 486, 491 (Pa. 

Super. 1990). While “[s]uch victim impact statements may understandably 

contain harsh statements regarding the defendant, some of which may be 

properly classified as irrelevant or inflammatory ... a trial court is ordinarily 

presumed to be capable of identifying and properly disregarding” such 

evidence. Id. 

After reading Victim’s letter, the trial court offered the following in 

fashioning Appellant’s sentence.

If you look at the mosaic of this case, it is not in any 

contemplation a 6 month sentence here. This is a state 

sentence. He has a Prior Record Score of 5. And what’s 

described in the letter I can’t summarize and do justice to. It’s 

just a night of terror which she thought she was going to die.

***

Sentencing is broad. I’m not going to sentence him for 

what he didn’t plead guilty to, but she is entitled to paint in 

minute detail the night of terror that occurred to the extent she 

claimed it was non-consensual sex. I’m a judicial officer. I can 

put that aside. But [what] she claimed about the terror inflicted 

on her and the mental torture he engaged in is fair game for 

these charges of terroristic threats, simple assault and criminal 

trespass.

***
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So this is a case which calls for sentencing and at the high 

end of the standard range.... [A]nything else would denigrate 

what’s occurred here.

Two other points. [Appellant] is quite old in the sense of 

his late twenties. He’s had plenty of time to seek treatment. He 

is secure in his position as a batterer, and I think the 

Commonwealth wins this hands down. He seeks mental health 

treatment only because he feels the [h]ot breath of the law on 

the back of his neck, not for any other purpose.

N.T., 3/16/2016, at 24-25, 32. 

Based on the foregoing, Appellant’s argument that the trial court 

considered improperly charges which were nolle prossed in fashioning 

Appellant’s sentence is belied by the record. While the trial court was 

certainly aware of the charges and the conduct that led to them, it is clear 

from the record that Appellant was sentenced only for the charges for which 

he pled guilty. Thus, we conclude that Appellant has failed to demonstrate 

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. Johnson, 125 A.3d 

822, 826 (Pa. Super. 2015) (quoting Commonwealth v. Disalvo, 70 A.3d 

900, 903 (Pa. Super. 2013)).

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/3/2017