J-A18045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES ANTHONY BAKER, SR.
Appellant No. 2059 MDA 2013
Appeal from the Judgment of Sentence November 4, 2013
In the Court of Common Pleas of Tioga County
Criminal Division at No(s): CP-59-CR-0000127-2012
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 29, 2014
James Anthony Baker, Sr., appeals from the judgment of sentence
imposed by the Court of Common Pleas of Tioga County after he pled nolo
contendere to two counts of corruption of minors1 and two counts of
indecent assault of a person less than 16 years of age.2 Prior to imposing
sentence, the court determined that Baker is a sexually violent predator
(SVP). Following careful review, we affirm.
Baker and his wife were foster parents to two teenage girls, A.D. and
J.B. While A.D., a special education student, was between the ages of 13
and 15, Baker engaged in sexual activity with her. He also sent her text
____________________________________________
1
18 Pa.C.S. § 6301(a)(1).
2
18 Pa.C.S. § 3126(a)(8).
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direction, J.B., who was between the ages of 17 and 18, sent him
photographs of her breasts.
Baker was charged with six counts of involuntary deviate sexual
intercourse, four counts of statutory sexual assault, four counts of
aggravated indecent assault, five counts of corruption of minors and seven
counts of indecent assault. On March 18, 2013, Baker pled nolo contendere
to two counts of corruption of minors and two counts of indecent assault.
On April 22, 2013, the court ordered that Baker be evaluated by the Sexual
Offenders Assessment Board (the Board).
The court held a hearing on November 4, 2013, at which Board
member William G. Allenbaugh, II, testified that Baker suffers from
paraphilia, and has an increased risk of re-offending. N.T. SVP and
Sentencing Hearing, 11/4/13, at 9. After concluding that Baker was an SVP,
incarceration for corruption of minors, plus two consecutive sentences of 6
eriod of
confinement of 3 to 8 years.
On November 14, 2013, Baker filed a timely post-sentence motion
asserting that the trial court erred by designating him an SVP, and
requesting modification of sentence. The court denied the motion the
following day.
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This appeal followed, in which Baker raises the following issues for our
review:
1. Whether the trial court erred in finding that the
Commonwealth proved by clear and convincing evidence that
Baker would qualify as a sexually violent predator.
2. Whether the trial court erred in determining that Baker
suffered from a mental abnormality and/or personality
disorder that is linked to sexually violent offenses and that he
in any way would be predisposed to commit acts of sexual
violence.
3. Whether the trial court imposed an unreasonable sentence by
sentencing in the aggravated range and failing to state upon
the record appropriate reasons for the sentence.
Brief of Appellant, at 6.
Our standard of review is well settled:
ay only be
made following an assessment by the Board and hearing before
the trial court. In order to affirm an SVP designation, we, as a
reviewing court, must be able to conclude that the fact-finder
found clear and convincing evidence that the individual is a
sexually violent predator. As with any sufficiency of the
evidence claim, we view all the evidence and reasonable
inferences therefrom in the light most favorable to the
SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.
The standard of proof governing the determination of SVP
preponderance of the evidence test, but less exacting than proof
beyond a reasonable doubt.
***
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clear, direct, weighty, and convincing as to enable the [trier of
fact] to come to a clear conviction, without hesitancy, of the
Commonwealth v. Fuentes, 991 A.2d 935, 941-42 (Pa. Super. 2010) (en
banc) (citations omitted).
on the analysis of the Honorable Robert E. Dalton, Jr., which includes a
discussion of the testimony of Board member William G. Allenbaugh, II, and
xpert witness, Dr. Timothy P. Foley, a licensed
psychologist. Accordingly, we direct the parties to attach a copy of Judge
Baker next asserts that the trial court abused its discretion by
imposing a sentence in the aggravated range.
We apply the following standard of review to sentencing matters:
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. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007)
(citation omitted).
The right to review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for allowance of appeal. Id. at
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518. An appellant must satisfy a four-
jurisdiction when challenging the discretionary aspects of a sentence:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issue was properly preserved at sentencing or in a motion to
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted).
Baker fulfilled the first two elements by filing a timely notice of appeal
and preserving his claim in a timely post-sentence motion. He has met the
third element because his brief contains the required concise statement of
the reasons relied upon for appeal as required by Pa.R.A.P. 2119(f).
Accordingly, we must determine if his challenge to the discretionary aspect
of his sentence raises a substantial question.
Whether a particular challenge to a sentence amounts to a
substantial question is determined on a case-by-case basis. A
substantial question exists only when the appellant advances a
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(citations and internal quotation marks omitted). This Court has held that
an allegation that the trial court failed to state adequate reasons for
imposing a sentence in the aggravated range raises a substantial question.
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Commonwealth v. Booze, 953 A.2d 1253, 1278 (Pa. Super. 2008).
Baker had a prior record score of zero. The offense gravity score on
the corruption of minors counts was 5. The standard range sentence was
restorati
sentences of 12 to 36 months. The offense gravity score on the indecent
assault counts was 4. The standard range was restorative sanctions through
incarceration.
Section 9721(b) of the Sentencing Code provides, in relevant part,
9721(b).
Here, the trial court noted the following factors that it considered when
imposing
imposing. Id.
treated more seriously than normal. We have an offender here who was in a
position of authority, actually as a foster parent, who was willing to take
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Id.
sentence than the one I am going to impose would deprecate the serious
nature of these charges. Id.
risk [were] he not incarcerated and also required to participate in mandatory
Id. at 49-50.
The factors set forth by the trial court, which include the seriousness
individual
sentence in the aggravated range.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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