Com. v. Franklin, V.

J-A24039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT FRANKLIN,
Appellant No. 209 EDA 2015
Appeal from the Judgment of Sentence May 23, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000743-2004
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J. FILED December 18, 2015
Vincent Franklin (Appellant) appeals from the judgment of sentence
entered on May 23, 2014, by the Honorable Stephen G. Baratta, Court of
Common Pleas of Northampton County. The instant sentence was imposed
after Appellant filed a habeas corpus petition in federal court, wherein the
court left-standing his underlying convictions for rape, involuntary deviate
sexual intercourse (IDSI), aggravated indecent assault, and indecent
assault, but vacated an illegal sentence imposed for rape and remanded for
resentencing. We affirm.
Appellant was arrested and charged with several offenses stemming
from his sexual abuse of his girlfriend’s minor daughter over a three-year
period from January 1, 2001 to January 30, 2004. Appellant was charged
originally with 61 counts of rape, eleven counts of IDSI, 25 counts of
* Retired Senior Judge assigned to the Superior Court.
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aggravated indecent assault, 86 counts of indecent assault, and one count of
intimidation of witness or victim. However, prior to trial, the Commonwealth
amended the criminal information to consist of just a single count for each
sex offense.1
Following a jury trial, Appellant was convicted of one count each of
rape, IDSI, aggravated indecent assault, and indecent assault. Thereafter,
the trial court, the Honorable William F. Moran, on July 8, 2005, imposed an
aggregate term of 25 to 50 years’ imprisonment, consisting of 20 to 40
years for rape, five to ten years of consecutive imprisonment for aggravated
indecent assault, and one to two years of concurrent imprisonment for
indecent assault. At the sentencing hearing, the trial court merged the IDSI
count with the rape count and did not impose a sentence for IDSI. In
fashioning the judgment of sentence, the trial court applied the mandatory
minimum term of 20 years’ imprisonment for rape of a child under the
version of 18 Pa.C.S. § 3121(e)(1) that became effective on February 7,
2003.2
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1
The Commonwealth withdrew the intimidation of witness or victim charge.
2
Prior to the effective date of the 2003 revisions, the mandatory minimum
sentence for rape of a child was 10 years’ imprisonment. See 18 Pa.C.S.
§ 3121(a)(6)(2002).
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The trial court denied Appellant’s post-sentence motions. This Court
affirmed the judgment of sentence, and our Supreme Court denied his
petition for allowance of appeal. Commonwealth v. Franklin, 911 A.2d
179 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 917
A.2d 313 (Pa. 2007).
Appellant’s first PCRA petition was denied after an evidentiary hearing.
This Court affirmed the PCRA court’s denial, and our Supreme Court denied
his petition for allowance of appeal. Appellant filed two subsequent PCRA
petitions, which were denied by the PCRA court and affirmed by this Court.
On August 6, 2009, Appellant filed a habeas corpus petition in federal
court. United States Magistrate Judge Timothy R. Rice twice recommended
that Appellant’s petition be denied with prejudice. Appellant subsequently
filed an objection on the basis that his sentence for the rape conviction was
illegal because he was sentenced under the incorrect statute.
Following an evidentiary hearing, Magistrate Judge Rice filed a Third
Supplemental Report and Recommendation wherein he opined that
Appellant’s sentence for rape was illegal because Appellant was sentenced
under the current version of the rape statute, under which 20 years’
imprisonment was the mandatory minimum, rather than the pre-February 7,
2003 version, under which 10 years’ imprisonment was the mandatory
minimum. Magistrate Judge Rice came to this conclusion on the basis that it
was impossible to determine whether the jury found that the rape for which
Appellant was convicted occurred before or after February 7, 2003, the
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effective date of the statutory change. See United States Magistrate Judge
Timothy R. Rice’s Third Supplemental Report and Recommendation,
8/7/2013, at 8-9.
Judge Norma L. Shapiro of the Eastern District of Pennsylvania
subsequently approved and adopted Magistrate Judge Rice’s
recommendation to grant Appellant’s habeas corpus petition. Judge Shapiro
vacated Appellant’s 20-to-40 year-sentence for rape and remanded the
matter to the state court for resentencing under the pre-February 7, 2003
sentencing guidelines. Judge Shapiro set forth the legal and factual support
for her decision as follows.
On August 7, 2013, Magistrate Judge Rice issued a Third
Supplemental Report and Recommendation. Magistrate Judge
Rice found that petitioner’s claim that the sentence imposed for
rape of a child exceeded the statutory maximum was not barred
by procedural default and he examined the merits of that claim.
At trial, Appellant was convicted of one count of rape of a child
on an unspecified date between January 1, 2001 and January
30, 2004. The trial court imposed a sentence of twenty-to-forty
years imprisonment, the maximum possible sentence under the
current Pennsylvania rape statute. See 18 Pa.C.S. § 3121
(e)(1). In December 2002, the Pennsylvania legislature modified
the sentencing provisions of Section 3121. The modified
provisions became effective on February 7, 2003. The statutory
change doubled the maximum sentence for rape of a child from
twenty years to forty years imprisonment. It is impossible to
determine whether the jury found that the rape for which
Appellant was convicted occurred before or after the February 7,
2003 statutory change, thus the rule of lenity requires that the
trial court should have sentenced Appellant for the lesser
offense. Appellant should have been sentenced under the pre-
February 7, 2003 Pennsylvania rape statute, 18 Pa.C.S.
§ 3121(a)(6) (2002), which carried a maximum penalty of
twenty years imprisonment.
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Judge Norma L. Shapiro’s Order, 5/30/2014, at 2 ¶ l (emphasis added).
On May 23, 2014, pursuant to Judge Shapiro’s Order, a second trial
court judge, the Honorable Stephen G. Baratta, resentenced Appellant to 10
to 20 years’ imprisonment for the rape count. However, Judge Baratta
imposed the same aggregate sentence as originally imposed by the first trial
judge of 25 to 50 years’ imprisonment. The breakdown of the new sentence
is as follows: 10 to 20 years for rape, 10 to 20 years of consecutive
imprisonment for IDSI, five to ten years of consecutive imprisonment for
aggravated indecent assault, and one to two years of concurrent
imprisonment for indecent assault. Appellant filed a post-sentence motion
for reconsideration, which the trial court denied. This timely appeal
followed.
In his first issue, Appellant contends that the sentence imposed on
remand was illegal because Judge Shapiro’s order only granted the trial
court authority to resentence on the count of rape. Appellant’s Brief at 20-
22. Appellant claims that other than the sentence imposed for the rape
count, which was the subject of the federal court’s order, all other aspects of
the original sentence imposed constituted a final judgment of sentence that
was not subject to resentencing. Id. Thus, Appellant maintains that Judge
Baratta’s resentencing on the IDSI, aggravated assault, and indecent assault
counts was illegal. Id.
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Appellant’s claim challenges the legality of his sentence. It is well-
settled that “[i]ssues relating to the legality of a sentence are questions of
law.... Our standard of review over such questions is de novo and our scope
of review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377
(Pa. Super. 2009) (citation omitted).
Under Pennsylvania law, if a reviewing court determines that a
sentence must be corrected, it has the option of amending the sentence
directly or remanding the case to the trial court. See Commonwealth v.
Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996). However, if a correction by a
reviewing court may disrupt the sentencing scheme envisioned by the trial
court, the proper practice is to remand so that that trial court can correct the
sentence within the framework provided by the reviewing court. See id.“When a defendant challenges one of several interdependent
sentences, he, in effect, challenges the entire sentencing plan.” United
States v. Busic, 639 F.2d 940, 947 n.10 (3d Cir. 1981). Thus, “[a]ny
expectation of finality in Appellant’s original sentencing scheme [is]
subverted by [filing an appeal].” Commonwealth v. Sutton, 583 A.2d
500, 502 (Pa. Super. 1990) (citation omitted). See also Commonwealth
v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986). “[I]f a trial court errs in
its sentence on one count in a multi-count case, then all sentences for all
counts will be vacated so that the court can restructure its entire sentencing
scheme.” Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super.
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1999). “This has been held true even where [an appellant] specifically limits
his appeal to one particular illegal sentence ... [and] does not appeal [other]
sentences ... where those sentences are part of a common sentencing
scheme.” Id. (citation omitted).
In his opinion, Judge Baratta maintained that he complied with Judge
Shapiro’s order by imposing 10 to 20 year sentence on the rape count
pursuant to the pre-February 7, 2003 sentencing guidelines. Sentencing
Court Opinion, 12/23/2014, at 16-18. Moreover, citing precedent from both
the state and federal courts, the sentencing court reasoned that it had
authority under Pennsylvania and federal law to resentence Appellant on all
other counts on the basis that resentencing on only the rape charge would
have disrupted the original sentencing scheme fashioned by Judge Moran.
Id.We agree with Judge Baratta’s reasoning and conclude that Appellant’s
sentence is legal. Significantly, the sentencing court followed Judge
Shapiro’s order and the aggregate sentence imposed remained the same.
Moreover, by challenging the legality of his term of imprisonment for the
rape count, Appellant intentionally upset the finality of the original
sentencing scheme. See, Sutton. In filing his habeas corpus petition,
Appellant assumed the risk that his sentencing on the remaining counts
would be adjusted as necessary to preserve the integrity of the original
sentencing scheme. Additionally, as the sentencing court aptly notes, even
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though Appellant only appealed the sentence imposed for the rape count,
both Pennsylvania and federal precedent grant the sentencing court the
authority to vacate the sentences imposed at the other, inter-related counts
in order to maintain the original sentence scheme. Accordingly, Appellant is
not entitled to relief.
In his second issue, Appellant argues that Judge Baratta erred in
determining that the crimes of rape and IDSI do not merge for the purposes
of sentencing. Appellant’s Brief at 29. Accordingly, Appellant contends that
the trial court’s determination that the rape and IDSI counts merged for
sentencing purposes is final and not susceptible to modification on appeal.
Id. Thus, Appellant maintains that by imposing a separate sentence for the
IDSI count on remand, the sentencing court erred by illegally sentencing
him twice for the same criminal act. Id. “A claim that the trial court
imposed an illegal sentence by failing to merge sentences is a question of
law.” Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa. Super. 2005)
(citation omitted). Accordingly, as with Appellant’s first issue, our scope of
review is plenary and our standard of review de novo. Brougher, 978 A.2d
at 377.
As a preliminary matter, we note that the current merger statute,
adopted in 2003, provides that “[n]o crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
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the other offense.” 42 Pa.C.S. § 9765. Appellant contends that his case
should be analyzed under the pre-2003 standard:
Whether the elements of the lesser crime are included within the
elements of the greater crime, and the greater offense includes
at least one additional element which is different, in which case
the sentences merge, or whether both crimes require proof of at
least one element which the other does not, in which case the
sentences do not merge. We note, however, that the specific
facts underlying each conviction must also be considered.
Commonwealth v. Fisher, 787 A.2d 992, 994 (Pa. Super. 2001) (citations
omitted). Because the victim testified that Appellant’s sexual abuse was
ongoing for a number of years, from 2001 to 2004, we will analyze the issue
under the pre-2003 standard; however, we note that the result is the same
under both the pre-2003 case law and the statute.
Here, Appellant was convicted of one count of rape of a child and one
count of IDSI. A person commits rape of a child if “he or she engages in
sexual intercourse with a complainant ... [w]ho is less than 13 years of age.”
18 Pa.C.S. § 3121(a)(6).3 “Sexual intercourse,” in addition to its ordinary
meaning, includes “intercourse per os or per anus, with some penetration
however slight; emission is not required.” 18 Pa.C.S. § 3101. The “ordinary
meaning” of sexual intercourse is not defined in the statute; however, it
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3
This is the applicable statute governing conduct committed prior to the
February 3, 2003 statutory change.
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refers to penetration of the vagina by the penis. See Commonwealth v.
Lee, 638 A.2d 1006, 1010 (Pa. Super. 1994).
Involuntary deviate sexual intercourse occurs where an individual
“engages in deviate sexual intercourse with a complainant ... who is less
than 13 years of age.” 18 Pa.C.S. § 3123(a)(6). 4 Deviate sexual
intercourse is defined as “[s]exual intercourse per os or per anus between
human beings and any form of sexual intercourse with an animal. The term
also includes penetration, however slight, of the genitals or anus of another
person with a foreign object for any purpose other than good faith medical,
hygienic or law enforcement procedures.” 18 Pa.C.S. § 3101.
We recognize that both rape and IDSI share common elements.
However, in Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989), the
Pennsylvania Supreme Court distinguished rape from IDSI and highlighted
the importance of sanctioning separate punishments for each.
The purpose of the statutes [applicable to rape and IDSI] is to
protect against forcible sexual penetration of the three orifices of
the body by making it a crime to do any or all to a victim. The
forcible sexual penetration of another person is not a free choice
of the type or method of penetration desired by the perpetrator.
If the perpetrator does more than one on the same occasion,
then the perpetrator violates different protections and different
interests of the victim for which separate penalties follow.
Where the victim is a woman she may be injured by three
different penetrations on the same occasion. Where each is
separately charged ... each may be separately punished.
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4
This is the applicable statute governing conduct committed prior to the
February 3, 2003 statutory change.
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Id., at 1161.
Instantly, the victim testified at trial that Appellant “put his private in
[the victim’s] private” on certain occasions, N.T., 3/15/2005, 90, 99, where
on other occasions they engaged in anal sex, id. at 91-94, and additionally,
on other, separate occasions, oral sex, id. at 96. Pursuant to 18 Pa.C.S.
§ 3121(a)(6), by forcibly placing his penis in the victim’s vagina, Appellant
committed the crime of rape. Pursuant to 18 Pa.C.S. § 3123(a)(6), by
forcibly engaging in oral and anal sex with the victim, he committed IDSI.
Moreover, based on the victim’s testimony, it was permissible for the jury to
find that Appellant’s acts constituted two separate and distinct crimes
occurring at different times; therefore, it is clear that the trial court erred
when it merged the offenses for sentencing purposes. Accordingly, we
conclude that the sentencing court, on remand, had the authority to
resentence separately for the rape and IDSI counts.5
In his third issue, Appellant asserts that the sentencing court erred
and violated his double jeopardy rights by resentencing him on the IDSI,
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5
We also note that an exception to the coordinate jurisdiction rule applies
because, as noted above, the trial court’s determination that the counts
merged was clearly erroneous under both 42 Pa.C.S. § 9765 and Fisher,
and a manifest injustice would certainly result if that determination was
followed. See Commonwealth v. Starr, 644 A.2d 1326, 1332 (Pa. 1995).
See also Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003).
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aggravated indecent assault, and indecent assault counts. Appellant’s Brief
at 25-29. Appellant again asserts that he had a legitimate expectation of
finality in those sentences. Id.We disagree. As noted above, Appellant intentionally disrupted the
sentencing scheme imposed by the first trial court when he filed this appeal.
When Appellant’s sentence for rape was vacated by the federal court, the
entire sentence was considered a legal nullity, and, on remand, Judge
Baratta had the authority to resentence Appellant on all counts. See
Bartrug, 732 A.2d at 1289; Goldhammer, 517 A.2d at 1283. See also
Pennsylvania v. Goldhammer, 474 U.S. 28 (1985) (per curiam) (holding
Double Jeopardy Clause does not bar resentencing on counts affirmed on
appeal when a sentence of imprisonment on another count is vacated).
“[D]ouble jeopardy principles do not prevent a sentencing court from
correcting, modifying, or increasing a sentence which the same court
previously imposed.” Commonwealth v. Rainey, 488 A.2d 34, 35 (Pa.
Super. 1985) (citation omitted). “[N]o double jeopardy violation is
implicated where the aggregate sentencing does not exceed the original
aggregate sentencing.” Commonwealth v. Sutton, 583 A.2d 500, 502-
503 (Pa. Super. 1990) (citation omitted).6 Thus, Appellant’s contention that
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6
This Court has also ruled that in certain situations, a sentencing court has
the authority to correct an illegal sentence even if that means increasing the
(Footnote Continued Next Page)
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the trial court’s determination that the rape and IDSI counts merge
constitutes a final judgment, and his new sentence violates the principles of
double jeopardy, is meritless. See id.In his fourth issue, Appellant raises a constitutional due process
challenge to his sentence by invoking North Carolina v. Pearce, 395 U.S.
711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794(1989). In Pearce, the United States Supreme Court held that when a new
trial is granted to a defendant and the defendant is re-convicted, a due
process concern is presented if the defendant is sentenced to a harsher
sentence than that originally imposed. See 395 U.S. at 725-726. The Court
explained that under the Constitution, a sentence may not be increased
solely to punish a defendant for successfully asserting his rights. See id.To guard against this possibility, the Court established a “presumption of
vindictiveness” where a court increases a defendant’s sentence upon
resentencing. Id. In order to rebut the presumption, the sentencing court
must show that the increase in the new sentence is premised upon
identifiable conduct committed by the defendant after the first sentencing
proceeding. See id._______________________
(Footnote Continued)
aggregate sentence. See Commonwealth v. Jones, 554 A.2d 50, 52 (Pa.
1989); Commonwealth v. Greer, 554 A.2d 980, 987 (Pa. Super. 1989).
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The holding of Pearce was subsequently modified by Smith, in which
the Court held that the Pearce presumption should be applied only if there
is a “reasonable likelihood ... that the increase in sentence is the product of
actual vindictiveness on the part of the sentencing authority.” Smith, 490
U.S. at 799. “Where there is no such reasonable likelihood, the burden
remains upon the defendant to prove actual vindictiveness.” Id.In Texas v. McCullough, 475 U.S. 134 (1986), the Court expanded
the exceptions to the judicial vindictiveness presumption announced in
Pearce and held that a sentencing court may enhance a sentence on the
basis of other objective information that was not previously available to the
court or for other legitimate sentencing concerns, rather than solely for
subsequent conduct by the defendant. See 475 U.S. at 141-144.
The Pearce presumption applies not only where a defendant is
resentenced following a new trial, but also where a defendant is resentenced
to correct an illegal sentence. See Commonwealth v. Hermankevich,
286 A.2d 644, 646 (Pa. Super. 1971).
Preserving the integrity of a prior sentencing scheme is a legitimate
sentencing concern. See Commonwealth v. Walker, 568 A.2d 201, 205
(Pa. Super. 1989). When resentencing, a sentencing court is permitted to
keep its overall sentencing scheme identical without violating Pearce. See
Commonwealth v. McHale, 924 A.2d 664, 673 (Pa. Super. 2007). “[I]n
most circumstances, a judge can duplicate the effect of the original
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sentencing plan by adjusting the sentences on various counts so that the
aggregate punishment remains the same.” Walker, 568 A.2d at 206.
However, “[i]f a judge could have imposed the same aggregate sentence ...
handed down at the original sentencing hearing, and ... instead imposes a
harsher aggregate sentence, the presumption of vindictiveness could not be
rebutted by invoking the need to preserve the original sentencing plan.” Id.
In this case, Appellant asserts that his due process rights were
violated because the sentence imposed by the sentencing court on remand
“constituted an increase in punishment representing actual judicial
vindictiveness, or giving rise to a presumption of vindictiveness.”
Appellant’s Brief at 30. Specifically, Appellant argues that his new sentence
constitutes a harsher punishment than originally imposed because the trial
court declined to merge his convictions and imposed a consecutive sentence
on the IDSI count.
The sentencing court explained that the sentence it imposed was not
the result of judicial vindictiveness because it preserved the integrity of the
original sentencing scheme. Moreover, the court stated that the sentence
did not violate Appellant’s due process rights because it was the same
aggregate sentence as the one originally imposed.
We agree with the sentencing court’s reasoning and conclude that
Appellant’s due process rights were not violated. Here, the sentence
imposed on remand was not harsher than the original sentence because it
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was the same aggregate sentence of 25 to 50 years’ imprisonment.
Although the trial court erroneously merged the IDSI and rape counts, the
sentencing court had the discretion to correct that error and impose a
sentence for the IDSI count to preserve the original sentencing scheme.
Because preserving the original sentencing scheme is a legitimate
sentencing concern, the Pearce presumption is inapplicable.
Moreover, the sentencing court provided legitimate and proper reasons
for resentencing Appellant to a total aggregate term of imprisonment
identical to that originally imposed. The court made expressly clear that a
lesser sentence would not be sufficient punishment due to the horrific nature
of Appellant’s crimes. See N.T., Resentencing Hearing, 5/23/2014, at 13-
15, 17. The court cited physical evidence of the horrible pattern of abuse
that the victim suffered through the repeated vaginal and anal rapes, forced
oral sex, and digital penetration. See id. In addition, the court noted that
the victim was only ten years old when she was diagnosed with a serious
case of vaginal herpes due to Appellant’s sexual abuse. See id. Finally, the
court recognized that Appellant was cited for four misconducts while in
prison and was unsuitable for community service supervision. See id., at
12.
In his final issue, Appellant asserts that the individual statutory
maximum sentences and the aggregate sentence imposed by the sentencing
court constituted an abuse of discretion because they represented
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“unreasonable and excessive statutory maximum sentences outside of the
sentencing guidelines without adequate consideration of the sentencing
guidelines, without adequate basis and without contemporaneous statement
of reasons for deviation.” Appellant’s Brief at 35.
We start by noting that “issues challenging the discretionary aspects of
a sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings.”
Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).
Without such efforts, an objection to a discretionary aspect of a sentence is
waived. See id.Here, Appellant timely filed a motion for reconsideration in which he
argued that the sentence he received was unreasonable, excessive, and
outside the sentencing guidelines. See Appellant’s Post-Sentence Motion,
filed 5/30/14, at ¶¶ 41-46. Thus, Appellant’s post-sentence motion
preserved the claims now raised on appeal.
“When challenging the discretionary aspects of the sentence imposed,
an appellant must present a substantial question as to the inappropriateness
of the sentence.” Shugars, 895 A.2d at 1274. A “substantial question” as
to the inappropriateness of the sentence under the Sentencing Code 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
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the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.
Super. 2012) (citation omitted). “An appellant must, pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f), articulate ‘the manner in
which the sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular fundamental norm
underlying the sentencing process.” Shugars, 895 A.2d at 1274.
In his brief, Appellant asserts that his sentence is excessive and
exceeds the recommended range in the sentencing guidelines without an
adequate basis. See Appellant’s Brief, at 36. This claim raises a substantial
question. See Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.
Super. 1995).
Our standard of review for a challenge to the discretionary aspect 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.
Id., at 1274-1275 (citation omitted).
In imposing a sentence, the sentencing court must consider relevant
statutory factors, including “the protection of the public, gravity of offense in
relation to impact on victim and community, and rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b). A sentencing court has broad discretion
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in fashioning its sentence. See Commonwealth v. Walls, 926 A.2d 957,
962-963 (Pa. 2007). A sentencing court is required to consider the sentence
ranges set forth in the sentencing guidelines, but it is not bound by them.
See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
Sentencing guidelines are “merely one factor among many that the court
must consider in imposing a sentence.” Id. (citation omitted). However, if
a sentencing court deviates from the sentencing guidelines, it must “provide
a contemporaneous written statement of the reason or reasons for the
deviation from the guidelines.” 42 Pa.C.S. § 9721(b).
After reviewing the certified record, we conclude that the sentencing
court did not abuse its discretion. By sentencing Appellant to consecutive
sentences of 10 to 20 years’ imprisonment for both the rape and IDSI
counts, the court imposed a sentence outside of the sentencing guidelines.
Nevertheless, at the resentencing hearing and again in its opinion pursuant
to Pa.R.A.P. 1925(a), the court provided valid reasons for Appellant’s
sentence, including Appellant’s personal history, prison misconducts,
unsuitability for supervision, and most importantly, the “horrific pattern of
abuse” that he inflicted upon the victim, which resulted in her contracting
vaginal herpes at the age of ten. See N.T., 5/23/14, at 13-15, 17. The
court also stated its desire to maintain the first trial court’s sentencing
scheme due to the seriousness of the crimes committed. Id. at 14-15.
Accordingly, Appellant is not entitled to relief.
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Judgment of sentence affirmed.
Judge Wecht joins.
Judge Panella did not participate in this decision.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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