Com. v. Torre, M.

J-S37010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIA TORRE
Appellant No. 572 EDA 2014
Appeal from the Judgment of Sentence January 10, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002587-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 25, 2015
Appellant, Maria Torre, appeals from the judgment of sentence entered
in the Lehigh County Court of Common Pleas, following her open guilty plea
to aggravated assault.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
In March 2013, Appellant physically abused her paramour’s 7-year-old
daughter. Specifically, Appellant burned the victim with a cigarette lighter
and broke the victim’s arm. On December 4, 2013, Appellant executed a
written guilty plea colloquy. That same day, the court conducted Appellant’s
plea hearing. Appellant entered an open guilty plea to one count of
aggravated assault. The court accepted Appellant’s plea, ordered a pre-
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1
18 Pa.C.S.A. § 2702.
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sentence investigation (“PSI”) report, and scheduled the matter for
sentencing.
With the benefit of a PSI report, the court conducted Appellant’s
sentencing hearing on January 10, 2014. At the conclusion of the hearing,
the court sentenced Appellant to ten (10) to twenty (20) years’
imprisonment.2 On January 17, 2014, Appellant timely filed a post-sentence
motion, arguing the court “failed to recognize mitigating factors” and
“improperly cited” certain aggravating factors to support the imposition of a
statutory maximum sentence. (Motion for Reconsideration of Sentence, filed
1/17/14, at 2). Appellant concluded the sentence “is manifestly
unreasonable so as to shock the conscience.” (Id. at 3). The court denied
the post-sentence motion on January 23, 2014.
Appellant timely filed a notice of appeal on February 7, 2014. On
February 19, 2014, the court ordered Appellant to file a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant
timely filed a Rule 1925(b) statement on March 11, 2014.
Appellant raises one issue for our review:
WHETHER THE [SENTENCING] COURT ABUSED ITS
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2
With a prior record score of zero (0) and an offense gravity score of eleven
(11), the standard range for Appellant’s aggravated assault conviction was
thirty-six (36) to fifty-four (54) months. The aggravated range provides for
an additional twelve (12) months’ imprisonment. The statutory maximum
for aggravated assault, graded as a first degree felony, is twenty (20) years’
imprisonment. See 18 Pa.C.S.A. § 1103(1).
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DISCRETION IN IMPOSING A MANIFESTLY EXCESSIVE
AND UNREASONABLE SENTENCE WHICH IS AT THE
STATUTORY MAXIMUM LIMIT AND IMPOSED WHEN THE
COURT FAILED TO CONSIDER ANY SIGNIFICANT
MITIGATING FACTORS, FAILED TO APPLY AND REVIEW
ALL THE NECESSARY FACTORS AS SET FORTH IN 42
PA.C.S.A. § 9721(b) AND 42 PA.C.S.A. § 9781(c) AND (d)
OR OTHERWISE FAILED TO SET FORTH APPROPRIATE
REASONS FOR ITS RADICAL DEVIATION FROM THE
STANDARD SENTENCING RANGES?
(Appellant’s Brief at 7).
On appeal, Appellant asserts her minimum sentence exceeded the
aggravated range of the sentencing guidelines. Appellant contends the
sentence was unreasonable, because the court refused to consider
mitigating factors, such as Appellant’s lack of a prior criminal record.
Appellant further argues the court provided insufficient reasons for deviating
from the guidelines, and the court failed to conduct a fair and balanced
review of the evidence presented at the sentencing hearing. Appellant
concludes the sentence imposed is manifestly excessive and constitutes too
severe a punishment. Appellant’s challenge is to the discretionary aspects of
her sentence.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
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3
“[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of…her sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
(Footnote Continued Next Page)
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2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in her brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
_______________________
(Footnote Continued)
plea was “open” as to sentencing, so she can challenge the discretionary
aspects of her sentence.
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in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,
174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d
1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in original) (internal
quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the 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.” Sierra, supra at 912-13. “A claim that the
sentencing court imposed an unreasonable sentence by sentencing outside
the guideline ranges raises a ‘substantial question’ which is reviewable on
appeal.” Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999).
Moreover, an assertion that the sentencing court failed to state sufficient
reasons for imposing a sentence outside the sentencing guidelines raises a
substantial question. Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (en banc).
Here, Appellant’s post-sentence motion and Rule 2119(f) statement
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properly preserved her claims. Additionally, Appellant’s claims appear to
raise substantial questions as to the discretionary aspects of her sentence.
See Rodda, supra; Davis, supra.Our standard of review concerning the discretionary aspects of
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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Rodda, supra at 214).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.
2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, [her] age, personal characteristics and
[her] potential for rehabilitation.” Id.“When a sentencing court decides to deviate from the guidelines…it
must provide a contemporaneous written statement of the reason or reasons
for the deviation from the guidelines.” Commonwealth v. Robertson, 874
A.2d 1200, 1212 (Pa.Super. 2005). “This requirement is satisfied when the
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court states its reasons for the sentence on the record and in the
defendant’s presence.” Commonwealth v. Ritchey, 779 A.2d 1183, 1186
(Pa.Super. 2001). “Nevertheless, a lengthy discourse on the trial court’s
sentencing philosophy is not required.” Commonwealth v. McAfee, 849
A.2d 270, 275 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122(2004).
“[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to
assess whether the sentencing court imposed a sentence that is
‘unreasonable.’” Commonwealth v. Walls, 592 Pa. 557, 568, 926 A.2d
957, 963 (2007). In making this “unreasonableness” inquiry, this Court
must consider four factors:
§ 9781. Appellate review of sentence
* * *
(d) Review of record.—In reviewing the record the
appellate court shall 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.
(4) The guidelines promulgated by the
commission.
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42 Pa.C.S.A. § 9781(d)(1)-(4).
In Walls, supra, our Supreme Court explained that “the concept of
unreasonableness” is “inherently a circumstance-dependent concept that is
flexible in understanding and lacking precise definition.” Id. at 568, 926
A.2d at 963.
Thus, given its nature, we decline to fashion any concrete
rules as to the unreasonableness inquiry for a sentence
that falls outside of applicable guidelines under Section
9781…. We are of the view, however, that the Legislature
intended that considerations found in Section 9721 inform
appellate review for unreasonableness. That is, while a
sentence may be found to be unreasonable after review of
Section 9781(d)’s four statutory factors, in addition a
sentence may also be unreasonable if the appellate court
finds that the sentence was imposed without express or
implicit consideration by the sentencing court of the
general standards applicable to sentencing found in
Section 9721, i.e., the protection of the public; the gravity
of the offense in relation to the impact on the victim and
the community; and the rehabilitative needs of the
defendant. 42 Pa.C.S. § 9721(b). Moreover, even
though the unreasonableness inquiry lacks precise
boundaries, we are confident that rejection of a
sentencing court’s imposition of sentence on
unreasonableness grounds would occur infrequently,
whether the sentence is above or below the
guideline ranges, especially when the
unreasonableness inquiry is conducted using the
proper standard of review.
Id. at 568-69, 926 A.2d at 964 (emphasis added).
Instantly, the court had the benefit of a PSI report at sentencing.
Therefore, we can trust it considered the relevant factors when sentencing
Appellant. See Tirado, supra at 368 (stating where sentencing court had
benefit of PSI, law presumes court was aware of and weighed relevant
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information regarding defendant’s character and mitigating factors).
Additionally, the court provided its reasons for the sentence imposed:
Someone who commits such a heinous crime and then
comes and says, “The burns inflicted on the child were not
that severe,” shows an incredible lack of appreciation for
her criminality.[4]
I don’t even know where to start, except this was not a
once-and-done action. This was over a period of time.
These were repeated acts of cruelty to a seven-year-old
child to whom you owed a duty of care.
To hurt a child in such a way demonstrates a level of
cruelty that is haunting.
These are crimes that are committed in private, when no
one else is looking, when no one else is there to protect
the child. And crimes of silence, because you demanded
that [the victim] lie and not tell [others about the abuse].
And the best evidence of her absolute terror of the
monster who was supposed to care for her is the fact that
she did [not tell others about the abuse].
* * *
You’re 29 years old. You’re educated. You went to three
years of college. This is not something borne of ignorance.
In your remarks you said you were most sorry for what
you had done to your family and your two boys. You
didn’t include [the victim] in that. Unimaginable. And not
a tear.
* * *
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4
Earlier in the hearing, the parties discussed Appellant’s version of events,
as set forth in the PSI report, which included statements minimizing the
criminal conduct at issue. (See N.T. Sentencing Hearing, 1/10/14, at 15-
16.)
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This sentence is beyond the aggravated range as the
victim was a seven-year-old girl, and given the relationship
of the victim and [Appellant] in that [Appellant] was
[effectively] in the role of mother to the child and,
therefore, had a special duty of care which she violated.
(See N.T. Sentencing Hearing at 17-19.)
Here, the court stated with particularity its reasons for imposing
Appellant’s sentence. Regarding the “reasonableness” of that sentence, the
court considered the nature and circumstances of the offense, recognizing
Appellant repeatedly injured a seven-year-old girl. The court took into
account Appellant’s role as a caregiver to the child, noting Appellant
breached her special duty to the victim. The court also observed Appellant,
evaluated the PSI, and announced its findings at the time of sentencing.
Under these circumstances, the court’s upward departure from the
sentencing guidelines was not unreasonable pursuant to Section 9781(d).
See Walls, supra. Based upon the foregoing, we see no reason to disturb
the judgment of the sentence. See Hyland, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2015
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