Com. v. Figueroa-Fagot, C. ( 2019 )

J-S70024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS J.F. FIGUEROA-FAGOT :
:
Appellant : No. 3065 EDA 2017
Appeal from the Judgment of Sentence Entered July 6, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009312-2012
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 12, 2019
Carlos J.F. Figueroa-Fagot appeals from the judgment of sentence
entered on July 6, 2017, following a resentencing hearing. He challenges the
discretionary aspects of his sentence. We affirm.
The facts of this case are not dispositive of this appeal, as such we do
not restate them. The procedural history of this case is as follows:
On September 12, 2013, [Figueroa-Fagot] was convicted of
Attempted Kidnapping, Unlawful Contact with a Minor,
Interference with Custody of Children, Corrupting the Morals of a
Minor (CMOM), Indecent Assault, and Simple Assault following a
jury trial before the Honorable Alice Beck Dubow. Sentencing was
deferred for pre-sentence investigation, mental health evaluation,
and sex offender assessment. On April 4, 2014, [Figueroa-Fagot]
was sentenced to an aggregate term of incarceration of seventeen
(17) to thirty four (34) years. A direct appeal followed. The
Superior Court overturned the convictions for Unlawful Contact
with a Minor, Corrupting the Morals of a Minor, and Indecent
Assault. The judgment of sentence was also vacated and
remanded to the trial court for re-sentencing.
J-S70024-18
On July 6, 2017, [Figueroa-Fagot] was resentenced before
this [c]ourt to an aggregate sentence of fifteen (15) to thirty (30)
years followed by 5 years of probation. [Figueroa-Fagot] filed a
Motion for Reconsideration of Sentence, which was denied on
August 28, 2017. This direct appeal followed.
Trial Court Opinion (“TCO”), filed February 13, 2018, at 1.
On appeal, Figueroa-Fagot raises one issue:
Did not the lower court err and abuse its discretion by
sentencing Mr. Figueroa-Fagot to an unreasonable sentence that
was higher than the standard range of the Sentencing Guidelines,
without adequate reasons, on the basis of considerations,
including the nature of the offense, his prior criminal history and
the use of a deadly weapon, that were already factored into the
Sentencing Guidelines and did not the lower court further err by
failing to give proper consideration to Mr. Figueroa-Fagot’s
personal circumstances and mitigating factors?
Figueroa-Fagot’s Br. at 3 (answer of trial court omitted).
Figueroa-Fagot challenges the discretionary aspects of his sentence,
therefore before addressing the merits of his claim, we must determine
whether: (1) the appeal is timely; (2) the issue was preserved; (3) the brief
includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial question is
raised. See Commonwealth v. Edwards, 194 A.3d 625, 636 (Pa.Super.
2018).
Here, the appeal is timely; the issue was preserved in a post-sentence
motion; and his brief includes a Pa.R.A.P. 2119(f) statement. Therefore, we
now address whether he has presented a substantial question. First, Figueroa-
Fagot claims that the trial court counted factors that were already considered
in the Sentencing Guidelines, which raises a substantial question. See
Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa.Super. 2000) (en banc).
-2-
J-S70024-18
Second, he claims his sentence is unreasonable and excessive, without further
explanation. This bald assertion of an excessive sentence does not raise a
substantial question. See Commonwealth v. Lutes, 793 A.2d 949, 964
(Pa.Super. 2002) (stating “a bald allegation that a sentence is excessive does
not raise a substantial question”).
He also claims “that the lower court erred in sentencing him in violation
of 42 Pa.C.S.[A.] § 9721(b),” but fails to state how the trial court violated this
section. “[T]he Rule 2119(f) statement must specify . . . what particular
provision of the Code is violated (e.g., the sentence is outside the guidelines
and the court did not offer any reasons either on the record or in writing).”
Goggins, 748 A.2d at 727. Additionally, he claims that his sentence was “not
individualized,” which raises a substantial question. See Commonwealth v.
Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (finding a claim that the trial
court failed to consider individualized needs raised a substantial question). We
now address the merits of the two claims raising a substantial question.
First, Figueroa-Fagot claims that the trial court “relied upon factors
which were already accounted for by [his] prior criminal history, and the
nature of the offense.” Figueroa-Fagot’s Br. at 10.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge,” and therefore, we review a trial court’s imposed sentence for an abuse
of discretion. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super.
2008). An abuse of discretion is present “where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
-3-
J-S70024-18
the action is a result of partiality, prejudice, bias or ill will.” Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation omitted). “[A] sentencing
court may not ‘double count’ factors already taken into account in the
[S]entencing [G]uidelines.” Goggins, 748 A.2d at 732.
Here, the record belies Figueroa-Fagot’s argument that the trial court
double counted factors, specifically his prior criminal history. Before imposing
its sentence, the trial court stated, “I certainly have a sense of the gravity of
the situation, the gravity of the crime, the need of the mental health issues
with regard to [Figueroa-Fagot], the impact on the complainant, her family,
and society.” N.T., Sentencing Hearing, 07/06/17, at 50. It then placed its
reasoning for sentencing in the aggravated range for each charge:
I am going outside of the sentencing guidelines in the aggravated
range based on the totality of the circumstance[s], the guidance
that I received from Judge Dubow in terms of her sentencing, and
all that I have heard and taken into consideration today. . . This
is a situation that is clear – every child, every parent, one of the
most fearful situations to have your young child snatched or
attempted to be snatched off the streets of Philadelphia. In this
instance, fortunately, it was not a completed act, but it certainly
left its impact and its trauma. And it[’]s the type of crime that
impacts not only the victims themselves, but the community,
when you can’t send your child to do something as innocent as
getting some water ice, and then forever having fear their safety
on the streets.
Id. at 52-53. Based on the above, we conclude the court did not double count
Figueroa-Fagot’s criminal history. It imposed his sentence based on “the
protection of the public, the gravity of the offense as it relate[d] to the impact
-4-
J-S70024-18
on the life of the victim and on the community, and the rehabilitative needs
of [Figueroa-Fagot].” 42 Pa.C.S.A. § 9721(b).
Next, Figueroa-Fagot claims that the trial court failed to impose an
individualized sentence. Again the record negates this argument. As set forth
above, the trial court stated on the record at sentencing that it was aware of
the “gravity of the situation, the need of the mental health issues with regard
to [Figueroa-Fagot], the impact on the complainant, her family, and society.”
Defense counsel presented the trial court with significant details regarding
Figueroa-Fagot’s mental health during the sentencing hearing. See N.T. at
35-38. Cognizant of this information, the trial court ordered that he serve his
time of imprisonment at a correctional facility that specializes in mental health
treatment and that the Mental Health Unit of the Probation/Parole Unit
supervise him once he is released from prison. Id. at 46, 53. The court’s
sentence was thus tailored to Figueroa-Fagot’s particular circumstances.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/19
-5-