J-S04020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINSON SANTORO,
Appellant No. 1066 MDA 2014
Appeal from the Judgment of Sentence entered June 3, 2014,
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0002836-2013
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 09, 2015
Vinson Santoro, (“Appellant”), appeals from the judgment of sentence
imposed after he pled guilty to simple assault.1 After careful review, we
vacate the judgment of sentence and remand for re-sentencing.
The pertinent facts and procedural history are as follows: On October
24, 2013, Patrolman James A. Smith of the Scranton Police Department was
dispatched to 1846 Stafford Avenue after receiving a report of a physical
domestic dispute. Affidavit of Probable Cause, 10/24/13. Upon Patrolman
Smith’s arrival, Carol Drozdick informed him that Appellant had assaulted
her, and showed him visible injuries to her forehead. Id. Ms. Drozdick, who
____________________________________________
1
18 Pa.C.S.A. § 2701(a)(1).
*Retired Senior Judge assigned to the Superior Court.
J-S04020-15
was six months pregnant, indicated that Appellant was angry because he
thought the baby might not be his, and because he feared that Ms. Drozdick
had infected him with a sexually transmitted disease. Id. Appellant
punched Ms. Drozdick in the forehead twice, slapped her in the face once,
threatened to kick her in the stomach, and threatened to “put her through a
wall.” Id. Appellant fled when Ms. Dozdick informed him that she was
calling the police. Id.
Appellant was subsequently arrested and charged with simple assault.
On March 5, 2014, Appellant entered his guilty plea. On June 3, 2014, the
trial court sentenced him to 6 to 24 months of imprisonment.
Appellant filed a post-sentence motion for reconsideration on June 5,
2014, which the trial court denied by order dated June 6, 2014. This appeal
followed.2
Appellant presents the following issues for our review:
A. WHETHER THE SENTENCE IMPOSED WAS UNDULY HARSH
AND EXCESSIVE AND AN ABUSE OF DISCRETION?
B. WHETHER THE [TRIAL] COURT IMPOSED A SENTENCE IN
THE AGGRAVATED RANGE WHERE THE [TOTALITY] OF THE
CIRCUMSTANCES SURROUNDING THE COMMISSION OF THIS
CRIME WERE NEITHER SO UNIQUE NOR EGREGIOUS AS TO
WARRANT A SENTENCE OF INCARCERATION IN THE
AGGRAVATED GUIDELINE RANGE?
Appellant’s Brief at 4.
____________________________________________
2
The trial court did not direct compliance with Pa.R.A.P. 1925.
-2-
J-S04020-15
Appellant’s issues are interrelated. Therefore, we will address them
together. Appellant argues that the trial court abused its discretion when it
sentenced him to a term of imprisonment of 6 to 24 months. A challenge to
the discretionary aspects of a sentence is not appealable as of right. Rather,
Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §
9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], 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; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted).
Appellant has preserved his sentencing claims by filing a post-sentence
motion and timely notice of appeal. Appellant has additionally included in
his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s
Brief at 9. Therefore, we proceed to determine whether Appellant has raised
a substantial question for our review.
-3-
J-S04020-15
Appellant argues that in imposing a sentence of 6 to 24 months of
imprisonment, the trial court failed to appropriately consider the requisite
sentencing factors, failing to take into account the nature and circumstances
of the offense and the history and characteristics of Appellant. Accordingly,
Appellant asserts that his sentence was unduly harsh.
Although Appellant argues that he was sentenced “in the very high end
of the aggravated range”, see Appellant’s Brief at 13, our review of the
record includes a “Pennsylvania Commission on Sentencing Guideline
Sentencing Form”, which indicates that Appellant was sentenced beyond the
aggravated range of the sentencing guidelines.3 A claim that the sentencing
court imposed an unreasonable sentence by sentencing outside of the
guidelines presents a substantial question for our review. Commonwealth
v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). See also Commonwealth
v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (a
substantial question is raised where an appellant alleges that the sentencing
court erred by imposing an aggravated range sentence without consideration
of appropriate sentencing factors). We therefore proceed to review
Appellant’s claim.
____________________________________________
3
The Guideline Sentencing Form shows that Appellant had a prior record
score of zero, and a standard range sentence of “Restorative Sanctions to 1”
month, and an aggravated range sentence of 4 months.
-4-
J-S04020-15
“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.” Commonwealth v. Garcia-Rivera, 983
A.2d 777, 780 (Pa. Super. 2009).
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the sentencing
court applied the guidelines erroneously; (2) the sentence falls within the
guidelines, but is “clearly unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Commonwealth v. Bricker, 41
A.3d 872, 876 (Pa. Super. 2012). In addition, the Sentencing Code specifies
that “in every case where the court imposes a sentence ... outside the
guidelines adopted by the Pennsylvania Commission on Sentencing ... the
court shall provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines. 42 Pa.C.S.A. § 9721(b).
However, [t]his requirement is satisfied when the judge states his reasons
for the sentence on the record and in the defendant's presence ... in open
court.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.
2014).
[Section 9721(b)] requires a trial judge who intends to sentence
a defendant outside the guidelines to demonstrate on the record,
as a proper starting point, his awareness of the sentencing
guidelines. Having done so, the sentencing court may deviate
from the guidelines, if necessary, to fashion a sentence which
-5-
J-S04020-15
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 he also states of record the factual basis
and specific reasons which compelled [him] to deviate from the
guideline range.
***
The court's statement of reasons for deviating from the
guidelines serves not only as a record of the court's rationale for
the deviation but also as evidence that the court considered the
guidelines. We cannot analyze whether there are adequate
reasons for the deviation unless it is first apparent that the court
was aware of, and considered the guidelines.
Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)
(citations omitted).
Here, the guidelines recommended a standard range of sentence of
Restorative Sanctions – 1 month and an aggravated range sentence of 4
months. Appellant’s sentence of 6 to 24 months fell outside the aggravated
range of the guidelines. At the sentencing hearing, the trial court stated:
The Court finds that there’s clearly aggravated reasons for an
aggravated range of sentencing based on your not taking
responsibility; the victim suffered physical injury; [Appellant]
violated the ARD in the past and has not complied with [drug
and alcohol treatment] and Scranton Counseling and has not
taken advantage of multiple treatment opportunities in the past.
Therefore it will be the sentence of the Court that [Appellant] be
sentenced to six to 24 months.
N.T., 6/3/14, at 6-7 (emphasis added).
Our review further indicates that the trial court did not set forth the
relevant guideline ranges, nor indicated that it was aware of and considered
the sentencing guidelines before electing to depart from them and sentence
-6-
J-S04020-15
Appellant beyond the guidelines. Rather, it appears from the record, see
supra, that the trial court believed it was imposing an aggravated range
sentence.
42 Pa.C.S.A. § 9781(c)(1) makes clear that “the appellate court shall
vacate the sentence and remand the case to the sentencing court with
instructions if it finds [that] the sentencing court purported to sentence
within the sentencing guidelines but applied the guidelines erroneously.”
Moreover, in reviewing a discretionary challenge to a sentence outside of the
guideline range, “we cannot analyze whether there are adequate reasons for
the deviation unless it is first apparent that the court was aware of, and
considered the guidelines.” Johnson, 666 A.2d at 693 (Pa. Super. 1995).
Because the record does not indicate that the trial court properly
considered the sentencing guidelines, and it appears that the trial court
erroneously believed it was sentencing Appellant within the sentencing
guidelines when it in fact sentenced Appellant beyond the guidelines, we are
constrained to vacate the judgment of sentence and remand for re-
sentencing. See Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super. 1995)
(vacating the judgment of sentence where the sentencing court failed to set
forth the permissible range of sentences under the guidelines, and provided
reasons on the record to support what it believed was a sentence in the
aggravated range, while actually sentencing the appellant outside of the
-7-
J-S04020-15
guidelines without providing a contemporaneous statement of its reasons for
such deviation).
Judgment of sentence vacated. Case remanded for re-sentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
-8-