Com. v. Flerx, R., Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT M. FLERX, JR., : No. 2009 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered November 13, 2019,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0000395-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT MICHAEL FLERX, : No. 2010 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered November 13, 2019,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0006289-2017
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2020
In these consolidated appeals, Robert M. Flerx, Jr., appeals from the
November 13, 2019 aggregate judgment of sentence of two to five years’
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imprisonment1 imposed after he was found to be in violation of his probation
and parole. After careful review, we affirm the judgment the sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On July 15, 2016, [appellant] pled guilty to one count
each of corruption of minors and indecent exposure at
docket number 395-2016. He was sentenced on
October 13, 2016 to concurrent five (5) year terms of
probation with sex offender conditions. On March 30,
2017, a motion to issue capias and bench warrant
was filed alleging that [appellant] was in violation of
the sex offender conditions of his probation for being
discharged from sex offender treatment. [Appellant]
was subsequently found to be in violation of his
probation on April 26, 2017 and was sentenced to new
five (5) year terms of probation, again with
sex offender conditions. On November 14, 2017, a
second motion to issue capias and bench warrant was
filed alleging that [appellant] was in violation of the
sex offender conditions of his probation for being
discharged from sex offender treatment, for viewing
pornography and for being in contact with minors.
[Appellant] was subsequently found to be in violation
of his probation following a hearing on December 15,
2017.
Meanwhile, on October 12, 2017, [appellant] was
charged with statutory sexual assault, corruption of
minors and unlawful contact with a minor. On
March 19, 2018, [appellant] pled guilty at docket
1 Specifically, at CP-36-CR-0000395-2016, appellant was sentenced to
concurrent terms of two to five years’ imprisonment for one count each of
corruption of minors, 18 Pa.C.S.A. § 6301, and indecent exposure,
18 Pa.C.S.A. § 3127. At CP-36-CR-0006289-2017, appellant was sentenced
to concurrent terms of two to five years’ imprisonment for one count each of
statutory sexual assault, 18 Pa.C.S.A. § 3122.1, and corruption of minors.
The sentences for both dockets were ordered to be served concurrently. (See
sentencing order 11/13/19 at ¶¶ 1-2, 4-5, 8; notes of testimony, 11/13/19 at
11-13.)
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number 6289-2017 to one count each of statutory
sexual assault and corruption of minors. He was
sentenced at docket number 6289-2017 to concurrent
split sentences of one (1) year less one (1) day to
five (5) years of incarceration and a consecutive
five (5) years of probation with sex offender
conditions pursuant to the terms of a negotiated plea
agreement. For his probation violation at docket
number 395-2016, his probation sentences were
ordered to be continued.
[Appellant] was granted parole on October 31, 2018.
On August 23, 2019, a motion to issue capias and
bench warrant was filed alleging that [appellant] was
in violation of the sex offender conditions of his parole
and probation for being discharged from sex offender
treatment. [Appellant] was found to be in violation of
his probation and parole at a hearing on September 9,
2019 where it was revealed that in addition to being
discharged from sex offender treatment, [appellant]
had also admitted to viewing pornography,
masturbating in public, engaging in sexual intercourse
in public, having continued contact with minors,
engaging in “sexual chat” with minors on dating
websites and having photographs of a minor.
Following the completion and filing of a presentence
investigation report (“PSI”), [appellant] was
sentenced on November 13, 2019. At docket number
395-2016, [appellant] was sentenced to concurrent
two (2) to five (5) year terms of incarceration. At
docket number 6289-2017, [appellant’s] parole was
terminated and he was sentenced [to] concurrent
two (2) to five (5) year terms of incarceration. The
sentences for both dockets were ordered to be served
concurrently.
[Appellant] filed a post-sentence motion on
November 25, 2019 and a notice of appeal on
December 12, 2019. [Appellant]’s post-sentence
motion was denied by order dated January 2, 2020.
[On December 17, 2019, the trial court directed
appellant to file a concise statement of errors
complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).] In a statement of errors
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complained of on appeal, filed on January 3, 2020,
[appellant] challenges the discretionary aspects of his
sentence, claiming that the sentence is manifestly
excessive and unreasonable and failed to adequately
take into consideration [appellant’s] history, character
and rehabilitative needs. [The trial court filed its
Rule 1925(a) opinion on February 5, 2020.]
Trial court opinion, 2/5/20 at 1-4 (footnotes and extraneous capitalization
omitted).
On appeal, appellant raises the following issue for our review:
Considering the Sentencing Code as a whole, was the
sentence imposed was [sic] unreasonable, excessive,
and an abuse of discretion where the [trial] court did
not adequately consider the individual history and
character of [a]ppellant nor the rehabilitative needs of
[a]ppellant?
Appellant’s brief at 6.
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,
[a]ppellant 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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015). “[I]t is within our scope
of review to consider challenges to the discretionary aspects of an appellant’s
sentence in an appeal following a revocation of probation.” Commonwealth
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v. Ferguson, 893 A.2d 735, 737 (Pa.Super. 2006), appeal denied, 906 A.2d
1196 (Pa. 2006).
Where an appellant challenges the discretionary aspects of his sentence,
as is the case here, the right to appellate review is not absolute.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). On the
contrary, an appellant challenging the discretionary aspects of his sentence
must invoke this court’s jurisdiction by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether
appellant preserved his issue; (3) whether appellant’s
brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that appellant has filed timely notices of
appeal and preserved his discretionary sentencing claim in his post-sentence
motion. Appellant also included a statement in his brief that comports with
the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 10-12.)
Accordingly, we must determine whether appellant has raised a substantial
question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538-5-
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(Pa. 2013). “A substantial question exists only when appellant advances a
colorable argument that the sentencing judge’s actions were either:
(1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)
(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
Here, appellant contends that the trial court imposed an excessive and
unreasonable sentence without giving adequate consideration to his individual
character and history, including his age, tumultuous childhood, and
mental health and intellectual disability issues, work history, and his
rehabilitative needs. (Appellant’s brief at 11, 16-18.) This court has
recognized that a claim that the sentencing court failed to consider
individualized circumstances in fashioning a sentence, including an appellant’s
rehabilitative needs, raises a substantial question. See Commonwealth v.
Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (stating, “appellant’s claim that
the sentencing court disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence presents a
substantial question for our review.”), appeal denied, 91 A.3d 161 (Pa.
2014). Accordingly, we proceed to consider the merits of appellant’s
discretionary sentencing claim.
Contrary to appellant’s contention, our review of the November 13, 2019
sentencing hearing transcript reveals that the trial court considered and
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weighed numerous factors in fashioning appellant’s sentence, including his
age (26), limited work history during his period of supervision, and
intelligence. (Notes of testimony, 11/13/19 at 7-8.) The trial court reasoned
that “[appellant is] intelligent enough to understand the significance of his
acts, having graduated from high school despite the fact he has some learning
disability claims.” (Id.) The trial court also explicitly indicated that it
considered appellant’s repeated failure to comply with the conditions of his
probation and parole, stating that his recent cases have involved serious
offenses with minors and “[h]is violations have consistently been refusing to
follow through with the appropriate instructions of the Court or sex offender
counseling people relative to those minors.” (Id. at 8.) The record further
reflects that the trial court considered appellant’s character and written
statement to the court, and indicated that it was aware of appellant’s ADHD
and other intellectual disabilities. (Id. at 8-9.) Although the record reflects
that the trial court did not specifically mention the term ‘rehabilitation’ during
the sentencing hearing, the trial court clearly considered this factor, stressing
appellant’s continued refusal to rehabilitate. The trial court reasoned:
Specifically, since July you have indicated
masturbation to fantasies of minors that he knows;
sending sexual images of himself to his girlfriend
within the past four weeks; public masturbation while
riding on a public bus; public masturbation while in a
grocery store bathroom; public sex in a grocery store
bathroom; purchase of panties to masturbate with;
speaking to his girlfriend about having children and
preventing children from going out to have sex by
buying sex toys for them; grooming individuals, two
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minor females, to meet up with you; engaging them
in communication so that you could get pictures, nude
pictures, of them; attempting to secrete and private
meetings with minors.
It just continues. It doesn’t matter what we tell you
you cannot do, you just continue to do whatever you
please. And your please (sic) is sex with minors,
pornography with minors.
Id. at 9-10.
Additionally, the record reflects that the trial court was in possession of
a PSI report and acknowledged that it considered it “in detail.” (Id. at 8.)
Where the trial court has the benefit of a PSI report, “we shall . . . presume
that the sentencing judge was aware of relevant information regarding the
[appellant]’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d 736,
761 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa.
2014).
Based on the foregoing, we find that appellant’s challenge to the
discretionary aspects of his sentence must fail. Accordingly, we affirm the
November 13, 2019 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/25/2020
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