Com. v. Garcia, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MILTON M. GARCIA :
:
Appellant : No. 1189 EDA 2016
Appeal from the Judgment of Sentence March 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010316-2014
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 22, 2018
Milton M. Garcia appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas. Garcia challenges the
discretionary aspects of his sentence. We affirm.
The court summarized the relevant facts of this matter as follows:
On June 21, 2014[,] around 1:00 a.m., Complainant Dr. [K.G. 1]
was walking home to her apartment on the 1900 block of Spruce
Street in Philadelphia. [Garcia] approached her from behind,
grabbed her arm and waist and held her as he walked along side
of her. [Garcia] told [K.G.] to walk to her apartment. When [K.G.]
reached the steps of her apartment, she tried to break free of
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* Former Justice specially assigned to the Superior Court.
1 Throughout the record, K.G. is alternatively referred to as C.G. and K.B. See
Trial Court Opinion, 3/24/17, at 5 (referring to K.G. as C.G.); Commonwealth’s
Brief, 2-4, 14 (referring to K.G. as K.B.). As the original criminal complaint
refers to K.G. as K.G., we will continue to refer to her as such. See Criminal
Complaint, 6/24/14.
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[Garcia’s] grip. [Garcia] then grabbed [K.G.] by the back of the
neck and told her to go into her apartment.
Once [K.G.] unlocked the exterior door to her apartment,
[Garcia] forced her up the stairs. When they reached [K.G.’s]
apartment she tried to push [Garcia] out but he pushed her onto
her apartment floor. Once inside, [Garcia] pulled [K.G.] onto the
couch, told her to shut up and ordered her to take off her shorts.
After [K.G.] removed her shorts, [Garcia] inserted his penis inside
her vagina without her consent. A few minutes later, [Garcia]
stopped and walked to another area of [K.G.’s] apartment and out
of her view.
After about 15 minutes, [Garcia] came back toward [K.G.]
who was sitting on the couch. [Garcia] stood in front of [K.G.] and
put his penis inside her mouth. [K.G.] tried to bite [Garcia’s]
genitals and begged for him to stop. [Garcia] then forced his penis
inside [K.G.’s] vagina while he covered her mouth with his hand.
After he finished, [Garcia] took [K.G.] iPhone and keys to her
apartment before he left.
Trial Court Opinion, 3/24/17, at 2-3 (citations to the record omitted).
On June 24, 2014, police arrested and charged Garcia with K.G.’s rape
and related offenses. On November 10, 2015, Garcia entered a nolo
contendere plea to rape by forcible compulsion, involuntary deviate sexual
intercourse (“IDSI”), burglary, and kidnapping.
Garcia’s sentencing was scheduled for March 7, 2016. Prior to
sentencing, the court considered a pre-sentence investigation (“PSI”), the
Commonwealth’s sentencing memorandum, Garcia’s sentencing
memorandum, K.G.’s victim impact statement, K.G.’s mother’s victim impact
statement, and Garcia’s allocution. Ultimately, the court sentenced Garcia to
7.5 to 15 years imprisonment for rape, 7.5 to 15 years’ imprisonment for IDSI,
4-8 years’ imprisonment for kidnapping, and 3-6 years imprisonment for
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burglary. The court ordered these sentences to be served consecutively, for
an aggregate sentence of 22-44 years’ imprisonment.
Garcia filed a timely post-sentence motion challenging the discretionary
aspects of his sentence. The court denied Garcia’s motion. This timely appeal
follows.
On appeal, Garcia contends that the court abused its discretion in
imposing sentence. Garcia relies upon three arguments to support this
contention.2 First, Garcia asserts that the imposition of four consecutive
sentences resulted in an unduly harsh sentence. Next, Garcia contends the
court erred by failing to properly consider his rehabilitative needs, and balance
these needs with the protection of the public and the gravity of the offense.
Finally, Garcia alleges the court abused its discretion by sentencing him
outside the aggravated range for rape and ISDI3 without contemporaneously
stating a sufficient reason for doing so on the record. Garcia concedes that all
three of these challenges implicate the discretionary aspects of the court’s
sentence.
“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
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2 We have reordered Garcia’s arguments for ease of disposition.
3 At the time of Garcia’s sentencing, the standard range sentence for both
rape and IDSI was 48-66 months’ imprisonment, plus or minus 12 months.
Therefore, a sentence of 7.5 years (90 months), is above the aggravate range
of the sentencing guidelines.
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claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). “Two requirements must be met before we
will review this challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. (citation omitted). “Second, the appellant must
show that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code.” Id. (citation omitted). That is, “the
sentence violated either a specific provision of the sentencing scheme set forth
in the Sentencing Code or a particular fundamental norm underlying the
sentencing process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.
Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. (citation omitted). “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). Here, Garcia
has preserved his arguments through a post-sentence motion and his
appellate brief contains the requisite Rule 2119(f) concise statement.
Therefore, we must determine if any of Garcia’s three issues raised in his Rule
2119(f) statement raise a substantial question.
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Moving to Garcia’s first issue, he claims the court imposed an unduly
harsh sentence by running his four sentences consecutively. Garcia, a
Honduran national, contends this sentence is unreasonable because he will
not be able to see his family in Honduras for the length of his imprisonment.4
We cannot review this claim because it does not raise a substantial question
for our review.
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the “minimum possible’ confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). The sentencing court “has the discretion to impose sentences
consecutively or concurrently and, ordinarily, a challenge to this exercise of
discretion does not raise a substantial question.” Id. (citation omitted). See
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4 Garcia could apply for transfer to a Honduran prison. See 42 Pa.C.S.A. §
9171. Exchange of Offenders Under Treaty. “Prisoners may be transferred
to and from those countries with which the United States has a treaty. … A
state prisoner interested in transfer must find out from the appropriate state
authorities what the procedures are in that state for applying for a prisoner
transfer. In order for a state prisoner to obtain a transfer to his home country,
his application must be approved at both the state and federal levels.” The
United States Department of Justice, International Prisoner Transfer, How the
Program Works, available at https://www.justice.gov/criminal-oeo/how-
program-works (last visited August 7, 2018). The United States has a prisoner
transfer treaty with Honduras through the Council of Europe Convention on
the Transfer of Sentenced Persons. See The United States Department of
Justice, International Prisoner Transfer, List of Participating Countries,
available at https://www.justice.gov/criminal-oeo/list-participating-countries
(last visited August 7, 2018). Information specific for Pennsylvania is available
from the Department of Justice at https://www.justice.gov/criminal-
oeo/pennsylvania-state-contact-international-prisoner-transfer.
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also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Moury, 992 A.2d at 171-172 (citation omitted).
An “extreme circumstance” is not present here. The court acted well
within its discretion in imposing four consecutive, and legal, sentences. Given
the egregious nature of the sexual assault in this matter—and the profound
effect the assault had on K.G.—we agree with the court’s conclusion that a
sentence of 22-44 years’ imprisonment is reasonable under the circumstances
and not excessive. Thus, Garcia’s first challenge to the discretionary aspects
of his sentence is without merit; it does not even raise a substantial question
for our review.
Next, Garcia argues that the court failed to “carefully consider[ ] the
relevant factor of appellant’s rehabilitative needs and balanc[e] those with the
protection of the public and the gravity of the offense.” Appellant’s brief, at
10. Once again, this contention does not raise a substantial question for our
review. See Commonwealth v. Kane, 10 A.3d 327, 335-336 (Pa. Super.
2010) (finding claim that sentencing court failed to “carefully consider all
relevant factors set forth in 42 Pa.C.S.A. 9721(b)” does not raise a substantial
question). See also See Commonwealth v. Buterbaugh, 91 A.3d 1247,
1266 (Pa. Super. 2014) (en banc).
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Even if this issue did raise a substantial question for our review, in
situations where the sentencing court had the benefit of a PSI, the law
presumes the court was aware of and weighed relevant information regarding
a defendant’s character along with mitigating statutory factors. See
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (“It would
be foolish, indeed, to take the position that if a court is in possession of the
facts, it will fail to apply them to the case at hand.”) See also Tirado, 870
A.2d at 368 (finding that where the sentencing court has a PSI “it is presumed
that the sentencing court was aware of the relevant information regarding
defendant’s character and weighed those considerations along with mitigating
statutory factors”) (internal quotation marks omitted).
Finally, Garcia argues in his Rule 2119(f) statement that the court
abused its discretion by “sentencing appellant outside the aggravated ranges
as prescribed by the Sentencing Guidelines for rape and IDSI and not stating
adequate contemporaneous reasons on the record for such deviations….”
Appellant’s Brief, at 11. This claim raises a substantial question for our review.
See, e.g., Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).
The standard of review with respect to sentencing 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.
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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
Where an excessive sentence claim is based on deviation from the
sentencing guidelines, we look for an indication that the
sentencing court understood the suggested sentencing range.
When there is such an indication, the sentencing court may
deviate from the sentencing guidelines
to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offenses as it
relates to the impact on the life of the victim and the
community, so long as the court also states of record the
factual basis and specific reasons which compelled him to
deviate from the guideline range.
Thus, simply stated, the sentencing guidelines are merely
advisory and the sentencing court may sentence a defendant
outside the guidelines as long as the sentencing court places its
reasons for doing so on the record.
Tirado, 870 A.2d at 366 (citations omitted).
Here, the court demonstrated its awareness of the sentencing guidelines
on the record. See N.T., Sentencing, 3/7/16, at 4-14. Further, the court
described its awareness of Garcia’s history as a student in his home country,
his lack of a prior record, and his statement of remorse. See id., at 30-31.
While the court noted that Garcia’s mitigating factors kept it from adopting
the maximum sentence of 40-80 years’ imprisonment, it ultimately
determined that the egregiousness of the crime and the severe impact on
K.G., justified an above guidelines sentence. See id., at 31-33 (emphasizing
its intent for the sentence to be “a fair sentence that recognizes the good
things about [Garcia]” as well as “the horror” of his crime).
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Based our review of the sentencing transcript, we find no merit to
Garcia’s contention that the court failed to adequately state on the record its
reasoning for deviating from the guidelines. And we find no abuse of discretion
in the court’s imposition of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/18
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