J-A05020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEREL GANNT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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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2 This 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 presentence 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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