Com. v. Gibson, M. ( 2017 )


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  • J-A23003-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                       :
    :
    :
    MARSHALL ISAAC GIBSON                   :
    :
    Appellant           :   No. 651 EDA 2017
    Appeal from the Judgment of Sentence December 22, 2016
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0003112-2015
    BEFORE:        PANELLA, J., DUBOW, J., and FITZGERALD*, J.
    MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 08, 2017
    Appellant, Marshall Gibson, pled guilty but mentally ill to charges that
    he raped a woman by holding a knife to her throat and forcing her to
    perform oral sex on him. The court sentenced him to a term of imprisonment
    of 10 to 20 years. This sentence exceeded the aggravated range of the
    sentencing guidelines.
    On appeal, Gibson argues the court ignored significant mitigating
    factors and imposed a manifestly excessive sentence. Gibson concedes this
    claim challenges the discretionary aspects of his sentence. See Appellant’s
    Brief, at 9.
    “A challenge to the discretionary aspects of a sentence must be
    considered a petition for permission to appeal, as the right to pursue such a
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-A23003-17
    claim is not absolute.” Commonwealth v. McAfee, 
    849 A.2d 270
    , 274 (Pa.
    Super. 2004) (citation omitted).
    An appellant challenging the discretionary aspects of his
    sentence must invoke this Court’s jurisdiction by satisfying a
    four-part test:
    [W]e conduct a four-part analysis to determine: (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. Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010) (citation
    omitted; brackets in original).
    Here, Gibson preserved his issue through a timely motion for
    reconsideration of the sentence imposed, and filed a timely appeal. Counsel
    has included the required Rule 2119(f) statement. We therefore turn to a
    substantive review of Gibson’s Rule 2119(f) statement.
    We examine an appellant’s Rule 2119(f) statement to determine
    whether a substantial question exists. See Commonwealth v. Tirado, 
    870 A.2d 362
    , 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
    which the appeal is sought, in contrast to the facts underlying the appeal,
    which are necessary only to decide the appeal on the merits.” 
    Id.
     (citation
    omitted); see also Pa.R.A.P. 2119(f).
    Gibson “must show that there is a substantial question that the
    sentence imposed is not appropriate under the Sentencing Code.” McAfee,
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    J-A23003-17
    
    849 A.2d at 274
     (citation omitted). That is, “the sentence violates either a
    specific provision of the sentencing scheme set forth in the Sentencing Code
    or a particular fundamental norm underlying the sentencing process.”
    Tirado, 
    870 A.2d at 365
     (citation omitted).
    Gibson’s claim that the trial court focused exclusively on the
    seriousness of the crime while ignoring other, mitigating circumstances, such
    as his mental health issues, age, and lack of prior record, raises a
    substantial question. See Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770
    (Pa. Super. 2015) (en banc), appeal denied, 
    126 A.3d 1282
     (Pa. 2015); see
    also Commonwealth v. P.L.S., 
    894 A.2d 120
    , 127 (Pa. Super. 2006)
    (claim that trial court failed to adequately state on the record its reasons for
    imposing a sentence exceeding the guideline range raises a substantial
    question).
    In imposing a sentence, the court must consider relevant statutory
    factors, including “the protection of the public, gravity of an offense in
    relation to impact on victim and community, and rehabilitative needs of the
    defendant.” 42 Pa.C.S.A. § 9721(b). A court has broad discretion in
    fashioning its sentence. See Commonwealth v. Walls, 
    926 A.2d 957
    , 962-
    63 (Pa. 2007). While the court is required to consider the sentence ranges
    set forth in the sentencing guidelines, it is not bound by them. See
    Commonwealth v. Yuhasz, 
    923 A.2d 1111
    , 1118 (Pa. 2007). The court
    may depart from the guidelines, “if necessary, to fashion a sentence which
    -3-
    J-A23003-17
    takes into account the protection of the public, the rehabilitative needs of
    the defendant, and the gravity of the particular offense as it related to the
    impact on the life of the victim and the community[.]” Commonwealth v.
    Eby, 
    784 A.2d 204
    , 206 (Pa. Super. 2001). If the court imposes a sentence
    outside the guideline ranges, it must place adequate reasons for the
    deviation in the record.   See P.L.S., 
    894 A.2d at 129-130
    .
    Here, contrary to Gibson’s claims, the court referenced the guidelines.
    See N.T., Sentencing, 12/22/16, at 50 (“I don’t believe … the sentencing will
    fall within the standard sentencing range.”) Thus, there is no concern that
    the court was unaware that it was sentencing outside the guideline ranges.
    Furthermore, the court acknowledged Gibson’s rehabilitative needs
    and the impact his imprisonment would have on his family. See id., at 49.
    Thus, the record belies Gibson’s claim that the court did not consider his
    rehabilitative needs.
    While Gibson correctly asserts the court spent significantly more time
    addressing the impact of the crime on the victim and protection of the
    community, this does not render the court’s reasoning an abuse of
    discretion. Gibson pled guilty to a serious crime, where he threatened the
    victim with a knife. He then forced the victim to perform oral sex.
    The impact of a forcible rape on a victim should not be ignored. Nor
    should the protection of the public be ignored, given the fact that, according
    to the guilty plea, Gibson committed this crime due to his mental illness. The
    -4-
    J-A23003-17
    reasons given for the sentence imposed are rational, and do not constitute
    an abuse of the court’s discretion. Gibson’s sole issue on appeal merits no
    relief.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/8/2017
    -5-
    

Document Info

Docket Number: 651 EDA 2017

Filed Date: 12/8/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024