Com. v. Torres, J.

J-A24030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON TORRES
Appellant No. 387 EDA 2015
Appeal from the Judgment of Sentence of February 7, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0000790-2012
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 04, 2015
Jason Torres appeals the February 7, 2014 judgment of sentence. We
affirm.
The sentencing court summarized the factual and procedural history of
this case as follows:
[Torres] entered open guilty pleas on May 23, 2013, to
attempted involuntary deviate sexual intercourse (“IDSI”),
attempted dissemination of obscene materials, corruption of
minors, and attempted unlawful contact with a minor. The
charges arose after the parents of a then-13-year-old girl
reported to police that the then-36-year-old [Torres] had been
communicating with their daughter on Facebook. [Torres] was
an acquaintance of the minor’s family.
A Montgomery County Detective began posing as the minor on
Facebook and [Torres] eventually had sexually explicit
conversations with her. He discussed having oral and vaginal
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*
Retired Senior Judge assigned to the Superior Court.
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sex with the “minor” and used a webcam on his computer to
send her a live video of himself masturbating. He also requested
several times that the “minor” delete their messages because he
did not want to get in trouble. [Torres] eventually made plans to
have a sexual encounter with the “minor.” He was arrested
when he arrived at a local convenience store to pick her up and
take her back to his house.
On February 7, 2014, [Torres] was sentenced to seven-and-one-
half to twenty years in prison for attempted IDSI and to a
concurrent period of ten years probation for attempted unlawful
contact with a minor. [The sentencing] court imposed no
penalty in connection with the convictions for attempted
dissemination of obscene materials and corruption of minors.
[Torres], through sentencing counsel, Evan T. Hughes, Esquire,
filed a post-sentence motion on February 18, 2014, that
challenged the length of the sentence.2 On April 15, 2014, with
the post-sentence motion pending, [A]ttorney Hughes filed a
notice of appeal to the Pennsylvania Superior Court. [The
sentencing] court denied the post-sentence motion in an Order
dated May 28, 2014. The Superior Court quashed the pending
appeal as interlocutory on June 2, 2014. Attorney Hughes did
not take any subsequent action with regard to a direct appeal.
2
The motion was timely because the 10-day period in
which to file a post-sentence motion expired on February
17, 2014, which was President’s Day.
On October 1, 2014, Thomas A. Blackburn, Esq., entered his
appearance on behalf of [Torres] as private counsel. He
subsequently filed a motion under the Post Conviction Relief Act
[(“PCRA”)]. After written response from the Commonwealth,
and a conference with counsel, [the PCRA] court issued an Order
on January 13, 2015, reinstating [Torres’] direct appeal rights
and granting him 30 days in which to file a notice of appeal nunc
pro tunc.
[Torres], through [A]ttorney Blackburn, filed a notice of appeal
on February 4, 2015. He subsequently complied with [the
sentencing] court’s directive to produce a concise statement of
errors in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b).
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Sentencing Court Opinion (“S.C.O.”), 3/30/2015, at 1-3 (citations to record
and some footnotes omitted).
Torres presents three questions for our review:
I. Whether the Sentencing Court abused its discretion in
imposing a sentence with regard to the charge of Criminal
Attempt – Involuntary Deviate Sexual Intercourse, wherein
the minimum period of incarceration exceeded the
Aggravated Range of the Sentencing Guidelines by twenty-
four (24) months?
II. Whether the Sentencing Court abused its discretion in
imposing a sentence which was unduly harsh and overly
burdensome?
III. Whether the Sentencing Court erred in denying [Torres’]
Post-Sentence Motion filed on February 18, 2014?
Torres’ Brief at 5.
All three of Torres’ issues challenge the discretionary aspects of his
sentence and we discuss them together. Our standard for reviewing the
discretionary aspects of a sentence is as follows:
[I]mposition of sentence is vested in the discretion of the
sentencing court and will not be disturbed by an appellate court
absent a manifest abuse of that discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to 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.
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). When
reviewing such a challenge:
“It is well-settled that, with regard to the discretionary aspects
of sentencing, there is no automatic right to appeal.”
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Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa. Super.
2013).
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (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 [see Pa.R.A.P. 2119(f)]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements
we will then proceed to decide the substantive merits of
the case.
Id. (brackets in original).
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).
Here, Torres filed a notice of appeal within the thirty days provided
upon reinstatement of his direct appellate rights and preserved his
sentencing challenge in a timely filed post-sentence motion. Torres also has
included in his brief a statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next decide whether
Torres’ statement raises a substantial question.
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the
sentencing process. At a minimum, the Rule 2119(f) statement
must articulate what particular provision of the code is violated,
what fundamental norms the sentence violates, and the manner
in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010).
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Torres asserts that his sentence exceeded the aggravated range of the
sentencing guidelines and that the court assigned undue weight to certain
factors while failing to give weight to mitigating factors. Therefore, he
concludes that his sentence “was contrary to the fundamental norms
underlying the sentencing process.” Torres’ Brief at 14. Claims of
excessiveness in conjunction with a claim that a sentencing court failed to
consider mitigating factors is a substantial question. See Commonwealth
v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Hence, Torres has raised
a substantial question.
[W]hen sentencing a defendant beyond the ranges
recommended by the sentencing guidelines, the trial court must
state its reasons for departing from the guidelines on the record.
Commonwealth v. Bowen, 55 A.3d 1254, 1263–64 (Pa. Super.
2012). When doing so,
a trial judge . . . [must] demonstrate on the record, as a
proper starting point, [its] awareness of the sentencing
guidelines. Having done so, the sentencing court may
deviate from the guidelines, if necessary, 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 offense as it relates to the impact
on the life of the victim and the community, so long as [it]
also states of record the factual basis and specific reasons
which compelled [it] to deviate from the guideline range.
Id. at 1264 (emphasis added).
Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. 2014)
(citation modified).
Here, the court was clearly aware of the sentencing ranges. The
sentencing court reviewed the charges and the pre-sentence investigation
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(“PSI”) report that included the guideline sentence ranges. Notes of
Testimony, 2/7/2014, at 4. At that time, the Commonwealth identified that
one of the charges has been graded incorrectly and provided the court with
the correct ranges. Id. at 4-5.
Further, the court stated on the record the reasons that it was
deviating from the guidelines. The record demonstrates that the court
considered Torres’ sentencing quite carefully. The sentencing court stated
that it believed that Torres acted in a predatory fashion, honing in on a child
who had difficulties and abusing the trust of the child’s family, and
considered the victim impact statements that the child was indelibly marked
by this experience and the family felt a deep sense of betrayal. The court
believed that Torres was likely to commit further criminal acts and that he
was a danger to society. The sentencing court was particularly troubled by
Torres’ statement at sentencing that Torres believed that he had been
punished enough already. It also noted Torres’ efforts to cover up the crime
by asking the child to delete the messages between them. Id. at 28-33.
However, the sentencing court noted several mitigating factors,
including the statements of Torres’ family and friends, Torres’ expression of
remorse, and his military service. The court stated that Torres’ friends and
family convinced the court to lower Torres’ minimum sentence. The
sentencing court had read the PSI more than once. Id. at 28-33.
The sentencing court concluded that, because of all these factors, a
higher sentence was required to protect society, stating:
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I find that there is an undue risk that during a period of
probation or partial confinement you will commit another crime,
that you are in need of correctional treatment that can be
provided most effectively by your commitment to an institution.
And I absolutely feel that a lesser sentence would depreciate the
seriousness of your crime.
Id. at 33.
As demonstrated by the sentencing court’s recitation of its sentencing
rationale, it considered the various mitigating factors. Additionally, when a
PSI is available, we may presume that the sentencing court knew the
relevant information about Torres and weighed those considerations in
rendering its sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 919
(Pa. Super. 2010).1
Based upon the foregoing, the sentencing court provided ample
reasons for its decision to deviate from the guidelines. The record also
demonstrates that the sentencing court considered the mitigating factors in
determining its sentence. In light of the sentencing court’s statement and
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1
The learned dissent, relying upon Commonwealth v. Byrd, 657 A.2d
961 (Pa. Super. 1995), suggests that this case should be remanded for re-
sentencing because the sentencing court stated it was sentencing “into the
aggravated range,” N.T. at 32, when, in fact, the sentence was above the
aggravated range. However, Byrd is distinguishable. In Byrd, “the
sentencing court failed to set forth . . . the permissible range of sentences
under the guidelines” and did not provide its reasons for sentencing outside
of the guidelines. 657 A.2d at 964. Here, as noted supra, the trial court
demonstrated its understanding of the guideline sentence for Torres and
provided its reasoning for deviating from that guideline. Further, the
sentencing court acknowledged that it knew the appropriate guideline ranges
and misspoke at sentencing. S.C.O. at 6 n.6.
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findings, the length of the sentence was not excessive. The sentencing court
did not abuse its discretion.
Judgment of sentence affirmed.
Judge Panella joins the memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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