Com. v. Rolon, L. ( 2022 )

J-S37030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEXIS M. ROLON :
:
Appellant : No. 1241 EDA 2021
Appeal from the Judgment of Sentence Entered April 21, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at CP-48-CR-0000245-2019, CP-48-CR-0000246-2019
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 4, 2022
In this appeal, Lexis M. Rolon (Appellant) challenges the discretionary
aspects of his sentence. We affirm.
The trial court detailed the procedural history as follows:
Following a jury trial … [Appellant] was convicted of a myriad of
sexual offenses stemming from years of sexual abuse inflicted
upon his sister, as well as separate instances of sexual assaults
against his sister’s friend. Both victims were approximately age
twelve when the sexual assaults began. [Appellant] was
approximately eighteen years old.
The jury found Appellant guilty as charged in both case numbers
245 and 246 of 2019. Specifically, in case number 245-2019,
Appellant was found guilty of the following offenses for sexual
assaults perpetrated upon victim, K.D.: Statutory Sexual
Assault, victim under 16 years, a felony of the second degree;
Sexual Assault, victim under 16 years, a felony of the second
degree; Corruption of Minors, corruption by sexual offense, a
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* Former Justice specially assigned to the Superior Court.
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felony of the third degree; and Corruption of Minors, defendant
age 18 or above, a misdemeanor of the first degree. In case
number 246-2019, Appellant was found guilty of the following
offenses for sexual assaults perpetrated upon [] J.R.: Statutory
Sexual Assault, victim under 16 years, a felony of the second
degree; Sexual Assault, victim under 16 years, a felony of the
second degree; Corruption of Minors, corruption by sexual
offense, a felony of the third degree; Corruption of Minors, a
defendant age 18 or above, a misdemeanor of the first degree;
and Incest of Minor, a felony of the second degree.
On April 21, 2021, this [c]ourt sentenced Appellant as follows:
In case number 245-2019 with respect to victim K.D.: 1) for the
charge of Statutory Sexual Assault, victim under 16 years of
age, to serve a term of imprisonment in a state correctional
institution for a minimum period of 14 months, up to a maximum
period of 36 months, and a consecutive period of probation of 60
months; 2) for the charge of Sexual Assault, victim under 16
years of age, to serve a consecutive term of incarceration in a
state correctional institution for a minimum period of 54 months
up to a maximum period of 108 months; 3) for the charge of
Corruption of Minors, corruption by sexual offense, to serve a
consecutive term of imprisonment in a state correctional
institution for a minimum period of 12 months up to a maximum
period of 24 months; and 4) for the charge of Corruption of
Minors, defendant 18 years of age or above, to serve a
consecutive term of imprisonment in a state correctional
institution for a minimum period of 3 months up to a maximum
period of 12 months.
In case number 246-2019 with respect to victim J.R.: 1) for the
charge of Statutory Sexual Assault, victim under 16 years of
age, to serve a term of imprisonment in a state correctional
institution for a minimum period of 14 months, up to a maximum
period of 36 months, and a consecutive period of probation of 60
months; 2) for the charge of Sexual Assault, victim under 16
years of age, to serve a consecutive term of incarceration in a
state correctional institution for a minimum period of 54 months
up to a maximum period of 108 months; 3) for the charge of
Corruption of Minors, corruption by sexual offense, to serve a
consecutive term of imprisonment in a state correctional
institution for a minimum period of 12 months up to a maximum
period of 24 months; 4) for the charge of Corruption of Minors,
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defendant 18 years of age or above, to serve a consecutive term
of imprisonment in a state correctional institution for a minimum
period of 3 months up to a maximum period of 12 months; and
5) for the charge of Incest of a Minor, to serve a consecutive
term of imprisonment in a state correctional institution for a
minimum period of 24 months up to a maximum period of 48
months.
On April 29, 2021, Appellant filed a post-sentence motion,
entitled “Petition for Reconsideration”, wherein Appellant
asserted his belief that his sentence was unduly harsh and
excessive and should be modified so that a portion of the
offenses for which he was sentenced could be served
concurrently. We denied this Petition on May 18, 2021.
Trial Court Opinion, 7/14/21, at 1-3.
Appellant’s consecutive sentences resulted in an aggregate 15.8 to 34
years of incarceration. Appellant timely appealed.1 Both Appellant and the
trial court have complied with Pa.R.A.P. 1925. Appellant presents the
following question for review:
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1 Appellant filed one notice of appeal, contrary to Commonwealth v.
Walker, 185 A.3d 969, 971 (Pa. 2018) (when “a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case.”). Notably, though, the trial court advised Appellant that he had
“the right to file an appeal from th[e] judgment of sentence[.]” Order,
5/18/21, at 1 (emphasis added). Under Commonwealth v. Stansbury,
219 A.3d 157, 160 (Pa. Super. 2019), we found a breakdown in court
operations had occurred when the trial court advised the defendant that he
had the right to file a singular notice of appeal; on this basis, we declined to
quash under Walker. Here, as with Stansbury, the misstatement by the
trial court constituted a breakdown in court operations. We likewise decline
to quash the appeal. Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa.
Super. 2020) (en banc) (we may decline to quash “when the defect resulted
from an appellant acting in accordance with misinformation relayed to him
by the trial court.”).
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Whether the Sentencing Court erred and exercised a lapse in
its discretion in failing to adequately consider several
mitigating factors when arriving at Appellant’s sentence?
Appellant’s Brief at 3.
It is well-settled that the “right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107
A.3d 127, 132 (Pa. Super. 2014). When an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a
petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d
155, 163 (Pa. Super. 2007).
We have explained:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test[.] We 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) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
In this case, Appellant filed a timely notice of appeal and post-
sentence motion. Also, he included in his brief the requisite concise
statement of reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f).
See Appellant’s Brief at 6. We therefore examine whether Appellant has
raised a substantial question.
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“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-87 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines there is a substantial question that
the sentence is not appropriate under the Sentencing Code.
Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A
substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process. Id.[A] defendant may raise a substantial question where he
receives consecutive sentences within the guidelines if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive
sentence; however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial
question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citation
omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant asserts the trial court
abused its discretion by failing to adequately consider mitigating factors.
Appellant’s Brief at 6. He concedes the trial court,
sentenced him to a minimum within the upper range of the
standard range of the Sentencing Guidelines on all nine (9)
offenses. Appellant also concedes the Sentencing Court had the
discretion to impose consecutive rather than concurrent
sentences with regard to all of the offenses.
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Id. at 11. Nonetheless, Appellant asserts his sentence is unreasonable
because the trial court failed to consider the following mitigating factors:
a. that Appellant was barely 18 years of age when the acts
allegedly occurred as charged and convicted;
b. had no prior criminal record;
c. was a high school graduate who was gainfully employed prior
to his arrest;
d. had no prison misconducts while incarcerated;
e. was deemed not to be a sexual[ly] violent predator (SVP);
f. had no father figure while growing up since his father was
absent from his life;
g. was raised by a mother who was a drug addict who passed
away at an early age; and,
h. had a lack of proper guidance from adult peers.
Id. at 6, 12.
Appellant has raised a substantial question. See Commonwealth v.
Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (a substantial question existed
where appellant claimed the trial court failed to consider certain sentencing
factors in conjunction with appellant’s assertion of an excessive sentence);
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“This
Court has held that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.”). We therefore review the merits of Appellant’s
argument.
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Preliminarily, we recognize:
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion .... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive terms,
our Court recently offered: An abuse of discretion may not be
found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.
Moury, 992 A.2d at 169–70 (citation omitted).
The Pennsylvania Supreme Court, in Commonwealth v. Walls, 926
A.2d 957, 964 (Pa. 2007), determined that a sentence may be deemed
unreasonable upon review of the trial court’s application of the factors set
forth in 42 Pa.C.S.A. §§ 9721(b) and 9781(d). Section 9721(b) states:
[T]he court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with
section 9725 (relating to total confinement) and the protection of
the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing and taking effect
under section 2155 (relating to publication of guidelines for
sentencing, resentencing and parole, risk assessment instrument
and recommitment ranges following revocation).
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42 Pa.C.S.A. § 9721(b).
Section 9781(d) provides that this Court must have regard for:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the opportunity of the
sentencing court to observe the defendant, including any
presentence investigation; (3) the findings upon which the
sentence was based; [and] (4) the guidelines promulgated by
the sentencing commission.
42 Pa.C.S.A. § 9781(d); see also Commonwealth v. Ventura, 975 A.2d
1128, 1134-35 (Pa. Super. 2009).
In addition, “long standing precedent ... recognizes that [the
Sentencing Code] affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” Commonwealth v.
Brown, 249 A.3d 1206, 1212 (Pa. Super. 2021) (quoting Commonwealth
v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005)). We will not disturb
consecutive sentences unless the aggregate sentence is “grossly disparate”
to the defendant’s conduct, or “viscerally appear[s] as patently
unreasonable.” Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595,
599 (Pa. Super. 2010). Moreover, when the trial court has the benefit of a
presentence investigation (PSI) report, it is presumed that the court was
both aware of and appropriately weighed all relevant information contained
the report. See, e.g., Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.
Super. 2002).
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While Appellant acknowledges the trial court’s consideration of some
mitigating factors, he claims the court failed to “seriously consider these
factors before rendering such an unreasonable and unduly harsh [s]entence
under the circumstances.” Appellant’s Brief at 12.
The Commonwealth counters that the trial court properly and
thoroughly addressed the Section 9721(b) factors at sentencing. See
Commonwealth Brief at 16-20. The Commonwealth cites the court’s
determination that Appellant was “dangerous to any female, specifically
minors, that he may come into contact with,” and its finding that Appellant
was not amenable to a shorter or probationary sentence; the
Commonwealth also references the court’s consideration of Appellant’s
youth, lack of prior criminal history, family background, and the fact he was
not deemed to be a sexually violent predator. Id. at 17-18 (quoting N.T.,
4/21/21, at 34).
We agree with the Commonwealth. The record reveals the trial court
ordered a PSI and a sexually violent predator assessment, and had the
benefit of both reports at sentencing.2 See N.T., 4/21/21, at 4; see also
Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (because
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2 At Appellant’s request, the court also ordered a psychological evaluation
and psychosexual evaluation. However, Appellant subsequently refused to
participate in these evaluations, and the court sentenced Appellant without
them. Id. at 5.
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the trial court considered the PSI report, “we are required to presume [it]
properly weighed the mitigating factors present in the case.”).
In addition, Appellant’s sentence is within the standard range of the
sentencing guidelines, and as such, is presumptively reasonable. See 42
Pa.C.S.A. § 9781(c)(3) (appellate court must vacate sentence imposed
within the sentencing guidelines only if it “involves circumstances where the
application of the guidelines would be clearly unreasonable”).
At the hearing, defense counsel noted that Appellant was barely 18
years old when he committed the crimes. N.T., 4/21/21, at 9. Counsel
explained that Appellant is a high school graduate, was employed before he
was arrested, and had taken courses at Northampton County Community
College. Id. Counsel argued that Appellant’s lack of a father figure and
mother’s drug abuse and death caused Appellant to receive “improper
guidance from adult peers.” Id. at 10.
Conversely, the Commonwealth noted the victims were only 12 years
old when Appellant assaulted them, “[n]ot once, not twice, not a few times
but over a hundred times,” and Appellant has “shown absolutely no
remorse.” Id. at 11-12.
Thereafter, in arriving at Appellant’s sentence, the court stated:
I want everyone to know how much I struggled with this
because [Appellant] is young. [Appellant] has no prior record.
What he did is about as serious as things can possibly get. And
[Appellant] will do a number of years in a state correctional
facility.
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But what [Appellant] chose to do to [the victims] will far exceed
that number of years and I know that. And so to some extent,
what’s going to stay with them is going to far exceed whatever
happens to him today. I can’t fix that. But I have had to
consider his age, his education, all the information that
was provided to me, the information in the PSI, however
limited, the sexually violent predator assessment, the
sentencing guideline forms, all the information presented
at trial, the victim impact statements, the family
relationships, [Appellant’s] rehabilitative needs. Certainly
it has weighed heavily on me the need to protect the public, the
need to deter future similar conduct, and certainly the fact that a
lesser sentence would depreciate the seriousness of these
crimes.
N.T., 4/21/21, at 27-28.
In sum, the record belies Appellant’s claim that the trial court failed to
adequately consider mitigating factors. To the contrary, the court acted
within its discretion in considering all appropriate factors and imposing
Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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