Com. v. Farfan, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFREDO FARFAN :
:
Appellant : No. 1981 EDA 2022
Appeal from the Order Entered June 22, 2022
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002071-2021
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 13, 2023
Alfredo Farfan (“Farfan”) appeals from the judgement of sentence
imposed following his conviction for involuntary deviate sexual intercourse
(“IDSI”) with a child (less than 13 years of age) and corruption of minors.1
We affirm.
In March 2022, pursuant to a plea agreement, Farfan entered an open
guilty plea to the above offenses, which stemmed from his sexual assault of a
twelve-year-old girl on multiple occasions between 2017 and 2018. Pursuant
to the plea agreement, the Commonwealth dismissed five other criminal
charges arising from the sexual assaults. The trial court ordered that a
presentence investigation report (“PSI”) be prepared in advance of the
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1 See 18 Pa.C.S.A. §§ 3123(b), 6301(a)(1)(ii).
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sentencing hearing. On June 22, 2022, the trial court conducted a sentencing
hearing at which Farfan’s sister and daughter testified, and the impact
statement prepared by the child victim was read into the record. At the
conclusion of the hearing, the trial court imposed a standard range sentence
of twelve to twenty-four years in prison for IDSI,2 and a consecutive standard
range sentence of one to two years in prison for corruption of minors, for an
aggregate term of thirteen to twenty-six years in prison.3 Farfan filed a motion
to reconsider sentence which the trial court denied.4 Farfan then filed a timely
notice of appeal and a court-ordered concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b).5
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2 Farfan’s conviction for IDSI of a child less than thirteen years of age required
the imposition of a mandatory minimum sentence of ten to twenty years in
prison. See 42 Pa.C.S.A. § 9718(a).
3 The trial court also determined that Farfan was subject to lifetime
registration requirements pursuant to the Sex Offender Registration and
Notification Act (“SORNA II”), 42 Pa.C.S.A. § 9799.10 et seq. As Farfan has
not appealed his registration requirements, we need not address them.
4 In his post-sentence motion, Farfan argued that his sentence “is an
extremely severe punishment in regards to [his] background,” noting that his
prior record score was zero and that he has never had any infractions with the
law. Petition for Reconsideration of Sentence, 7/1/22, at unnumbered 1.
Farfan additionally argued that his convictions stemmed from the same
incident with the same victim, and that his sentences should therefore be
imposed to run concurrently, resulting in a reduced aggregate prison term of
ten to twenty years. See id.
5 In his Rule 1925(b) concise statement, Farfan argued that his sentence
“represented an unreasonable and excessive sentence which failed to consider
mitigating factors.” Concise Statement, 8/10/22, at unnumbered 1. In lieu
(Footnote Continued Next Page)
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Farfan raises the following issue for our review:
Did the trial court err when it imposed a sentence inconsistent
with the Sentencing Code and/or contrary to the fundamental
norms which underlie the sentencing process, in that said
sentence constituted an abuse of discretion because the sentence
imposed represented an unreasonable and excessive sentence
which failed to consider mitigating factors?
Farfan’s Brief at 7 (unnecessary capitalization omitted).
Farfan’s issue presents a challenge the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d
162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue, this Court conducts 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, [see] 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, [see] 42 Pa.C.S.A. §
9781(b).
Id. at 170 (citation omitted). When an appellant challenges the discretionary
aspects of his sentence, we must consider his brief on this issue as a petition
for permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260,
____________________________________________
of authoring a Rule 1925(a) opinion, the trial court directed this Court to the
place in the record where the reasons for its judgment of sentence may be
found. See Pa.R.A.P. 1925(a).
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267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d
17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).
In the instant case, Farfan filed a timely post-sentence motion and a
timely notice of appeal, and included in his appellate brief a separate Rule
2119(f) statement. As such, he is in technical compliance with the
requirements to challenge the discretionary aspects of his sentence. See
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we
will proceed to review the Rule 2119(f) statement to determine whether Farfan
has presented a substantial question for our review.
We determine the existence of a substantial question on a case-by-case
basis. 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.
Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.
Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal
citations and quotation marks omitted).
In his Rule 2119(f) statement, Farfan maintains that the sentencing
court abused its discretion by imposing consecutive sentences for an
aggregate prison sentence of thirteen to twenty-six years without adequately
considering certain mitigating factors, such as Farfan’s history of employment,
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lack of a prior criminal record, and his financial and emotional support for his
family. See Farfan’s Brief at 15-16.
Initially, we observe that Farfan has waived any challenge the
consecutive nature of his sentences. Although Farfan challenged the
consecutive nature of his sentences in his post-sentence motion, he failed to
preserve that challenge in his concise statement, wherein he claimed only that
the trial court imposed “an unreasonable and excessive sentence which failed
to consider mitigating factors.” Concise Statement, 8/10/22, at unnumbered
1; see also Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not included in
the concise statement are waived). Moreover, in the trial court, the only
mitigating factors that Farfan claimed the court failed to consider were his
prior record score of zero and lack of prior infractions with the law. See
Petition for Reconsideration of Sentence, 7/1/22, at unnumbered 1. As Farfan
did not raise any other challenge in the trial court regarding the court’s lack
of consideration of other mitigating factors, he failed to preserve any challenge
regarding other mitigating factors for our review. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal).
Nevertheless, to the extent that Farfan claims that his sentence is
excessive and that the trial court failed to consider that he had a prior record
score of zero and no prior infractions with the law, we conclude that he has
raised a substantial question for our review. See Commonwealth v. Hill,
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210 A.3d 1104, 1116 (Pa. Super. 2019) (finding a substantial question where
the appellant averred that the trial court failed to consider certain sentencing
factors in conjunction with an assertion that the sentence imposed was
excessive); see also Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa.
Super. 2016) (holding that a claim that a standard range consecutive sentence
was excessive and the trial court failed to consider rehabilitative needs raises
substantial question); Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2015) (holding that “[t]his Court has held that an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question”). Therefore, we will proceed
to address the merits of Farfan’s discretionary aspects of sentencing claim.
Our standard of review of a discretionary sentencing claim is well-
established:
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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation
omitted). “[W]hen imposing sentence, the trial court is granted broad
discretion, as it is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020).
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The Pennsylvania Supreme Court has explained the reason for our
deferential review as follows:
[T]he sentencing court is in the best position to measure
various factors and determine the proper penalty for a particular
offense based upon an evaluation of the individual circumstances
before it. Simply stated, the sentencing court sentences flesh-
and-blood defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon appellate
review. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an
expertise, experience, and judgment that should not be lightly
disturbed.
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations omitted);
see also Commonwealth v. Brown, 249 A.3d 1206, 1217 (Pa. Super. 2021)
(holding that “when reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime”).
When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant. See
Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa. Super. 2022). In
considering these factors the court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for rehabilitation.
Id. However, when a PSI exists, we “presume that the sentencing judge was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018)
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(emphasis added; citation omitted). Stated differently, where a sentencing
court is informed by a PSI, “it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and where the court has
been so informed, its discretion should not be disturbed.” Commonwealth
v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth
v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Here, Farfan concedes that the trial court correctly applied the
sentencing guidelines and that his sentences fall within the standard range of
the sentencing guidelines. Farfan further concedes that, where the trial court
had the benefit of a PSI, this Court will presume that the trial court was aware
of and weighed all relevant evidence, including any mitigating factors. Farfan
nevertheless contends that his sentence was clearly unreasonable given that
he has no prior criminal record.
At the sentencing hearing, the trial court expressed its reasoning for the
sentence imposed as follows:
[I]n terms of trying to fashion an appropriate sentence in
this matter, the court has taken into consideration all the
information that was supplied to the court at the time that [Farfan]
entered his guilty pleas. The court has also taken into
consideration all the information that has been presented to the
court today at the sentencing proceeding including but not limited
to the testimony of [Farfan’s] sister and [his] daughter as well as
the impact statement that was read into the record by the
assistant district attorney that was written by the victim in this
case.
The court has taken into consideration the arguments of
both the defense counsel and the assistant district attorney. . . .
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The court takes into consideration the mitigating standard
and aggravated ranges of both of. those offenses as set forth on
the Pennsylvania Commission on Sentencing Guideline Forms.
The Court takes into consideration the fact that [Farfan]
has a prior record score of 0. The court has reviewed the
information that was set forth in the [PSI] report dated
June 15, 2022. The court has also reviewed the report of the
Pennsylvania Board of Sexual Offenders Assessment Board, notes
that in that report that it was determined that . . . Farfan does not
meet the criteria to be classified as a sexually violent predator
under [SORNA II]. The court also has reviewed and takes into
consideration the psychosexual evaluation report.
[The court has] also taken into consideration the
information regarding this offense, and the court is very
concerned about what happened to this young girl. As noted by
the assistant district attorney, she was a 12-year-old girl at the
time of these sexual assaults, and . . . Farfan was 50 years of age.
The court takes into consideration that [Farfan] prior to these
offenses appears to have lived a law-abiding life, as far as we
know. There’s no information that was presented to the
court that he had any type of problems with criminal
matters either in his home country or here in the United
States, and he’s been here for a number of years. The court
notes that he has been employed and has supported his family for
a long period of time and has been described by his family,
daughter and sister, as a good person.
The court is a little bit perplexed because in some of the
information that has been presented in the reports it appears that
at times [Farfan] has expressed remorse, but then at times he
also has blamed the victim for what happened, and that is of
concern to us as well. The court also notes that, as the assistant
district attorney noted, this is not a situation where it was a lapse
of judgment on one occasion. This was an ongoing event that put
this young girl in a situation of being available for [Farfan] at any
time he thought it was an appropriate time that he could take
advantage of this child and engage in the sexual abuse of this
child.
I also am concerned and take into consideration the fact that
as noted again by the assistant district attorney that [Farfan] used
his character and his ability to gain trust to be involved in this
family and to ultimately to commit these very serious crimes
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against this young girl. And despite the fact that [Farfan] has a
record of no criminal matters in his past, these are very serious
crimes against this victim, and there’s trauma here to this young
girl which is lifelong. It’s a lifelong trauma to be the victim of
sexual assaults at this age, of any age[,] but particularly her
tender years at the age of 12. This crime that . . . Farfan
committed has had impact on his own family, and he has brought
pain to them as well.
It’s not clear really to the court as to what’s going on with
. . . Farfan because there’s no obvious information in these reports
in terms of any mental health issues. There really has been
nothing that’s been identified that would impact or lead to these
kinds of crimes. He seems to be a person who has been law-
abiding his whole life. . . . I think that there might have been
some alcohol issues at times here, but nothing that really strikes
me as other than an inability to control himself and to be attracted
in whatever way he was to a 12-year-old girl and take advantage
of her in a sexual manner. . . . He’s a danger to the community
because of his inability to conduct himself in an appropriate
fashion. I believe that[] it's a concern to the court for him to be
around minor children in the future moving forward.
[Farfan] gets some credit for the fact that he has pleaded
guilty to these crimes not requiring this child to undergo a trial
and testimony in open court. Because of the nature of these
crimes and the information that I’ve just made a part of the
record, I do find that incarceration is necessary in this case and
no other form of punishment would be sufficient.
N.T., 6/22/22, at 20-25 (unnecessary capitalization omitted, emphasis
added).
After careful review, we conclude Farfan’s standard range sentences
were neither excessive nor unreasonable and discern no abuse of discretion
by the trial court when imposing sentence. See, e.g., Moury, 992 A.2d at
171 (holding that “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
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Sentencing Code,” and the sentence is not unreasonable where the trial court
had the benefit of a PSI and imposed a standard range sentence); see also
Raven, 97 A.3d at 1254-55 (holding that defendant’s standard range
sentences were neither unreasonable nor excessive where the “record reflects
that the [sentencing] court carefully considered all of the evidence presented
at the sentencing hearing”).
Moreover, the record demonstrates that, when imposing Farfan’s
sentence, the trial court considered the PSI and
all mitigating factors, including Farfan’s prior record score of zero and
lack of a criminal record. See N.T., 6/22/22, at 20-25. As the trial court did
not abuse its discretion, we affirm Farfan’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2023
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