J-S28006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KIMBERLY EIDEN,
Appellant No. 1241-1242 MDA 2014
Appeal from the Judgment of Sentence June 13, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001393-2013,
CP-35-CR-0001397-2013
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 04, 2015
Kimberly Eiden appeals the discretionary aspects of the sentence that
was imposed by the trial court after Appellant entered a nolo contendere
plea at two criminal action numbers. We affirm.
At 1393-2013, Appellant was charged with rape, statutory sexual
assault, involuntary deviate sexual intercourse of a person less than sixteen
years old, aggravated indecent assault of a victim less than sixteen years
old, indecent assault of a victim less than sixteen years old, unlawful contact
with a minor, sexual assault, indecent exposure, and corruption of a minor.
These charges arose from Appellant’s interactions with a then thirteen-year-
old male from May 23, 2012, to October 6, 2012, when the victim, C.S., who
lived in Tennessee, was visiting his grandmother in Pennsylvania.
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During two visits the young man made to Pennsylvania in 2012,
Appellant engaged in a course of conduct that culminated in oral sex and
sexual intercourse. Appellant gave alcohol and tobacco numerous times to
the minor. After initiating sexual contact by kissing C.S., Appellant
progressed to performing oral sex on him. The victim reported that this
activity occurred on two occasions. Appellant then had sexual intercourse
with C.S. four times. After C.S. returned to Tennessee, Appellant sent him
graphic nude pictures and solicited nude pictures from him. C.S.’s father
discovered the pictures, and reported the matter to police. Appellant was
interviewed by police and admitted to having sexual intercourse twice with
C.S. Appellant was forty years old when she committed these offenses.
At 1397-2013, Appellant was charged with indecent assault of a
person less than sixteen years old and unlawful contact with a minor for the
purpose of engaging in a prohibited activity. Those charges arose from
Appellant’s conduct with J.H., who was also a minor. J.H. told police that
Appellant hugged him and then grabbed his testicles.
On January 30, 2014, Appellant entered an open plea of nolo
contendere at both action numbers to aggravated indecent assault, unlawful
contact with a minor, and corruption of a minor. The court informed
Appellant that she faced an aggregate maximum prison term of thirty-two
years. After entry of the plea, Appellant was assessed by the Sexual
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Offenders Assessment Board. The matter proceeded to sentencing on June
13, 2014, where the sentencing court heard testimony from the SOAB
assessor and adjudicated Appellant a sexually violent predator.
The court then imposed its sentence. The court outlined that it
reviewed and weighed the contents of an extensive psychiatric report
submitted by Appellant. That report outlined Appellant’s history of mental
problems and sexual abuse as a child. The sentencing court also articulated
that it carefully reviewed the presentence report, an evaluation that the
court ordered from the Department of Corrections, victim impact letters and
statements, letters submitted on behalf of Appellant, and the SOAB report.
N.T. Sentencing, 6/13/14, at 30-31.
The court imposed consecutive sentences in the aggravated range of
the guidelines: 78-153 months imprisonment plus 84 months probation for
aggravated indecent assault; six to twelve months jail and 48 months
probation on the offense of unlawful contact with a minor; and 18 to 36
months incarceration on the corruption charge. The court explained that it
imposed an aggravated-range sentence on each crime since there were
multiple instances of abuse and a large age gap between Appellant and the
adolescent males.
Appellant filed a motion for reconsideration of sentence, and the
present appeal after the motion was denied. She complied with the trial
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court’s directive to file a Pa.R.A.P. 1925(b) statement and complained that
the court abused its discretion in imposing an aggregate sentence of 102 to
204 months confinement plus 132 months probation and that it failed to
consider her mitigating circumstances at the time of sentencing. On appeal,
Appellant presents the following contentions:
1. Whether the lower court's imposition of an
aggregate sentence of 102 to 204 months of
incarceration followed by 132 months of
probation after entering a nolo contendere plea
was manifestly excessive and an abuse of
discretion in that it far surpassed what was
required to protect the public or the
Complainants, and went well beyond what was
necessary to foster Appellant's rehabilitative
needs.
Appellant’s brief at 3.
Appellant's questions, which were properly preserved by the filing of a
post-sentence motion and Pa.R.A.P. 1925(b) statement, relate to the
discretionary aspects of her sentence.
A challenge to the discretionary aspects of a sentence must
be considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. The
determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must show actions
by the trial court inconsistent with the Sentencing Code or
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contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014)
(citations omitted).
In this case, Appellant’s brief contains the concise statement. In her
statement, Appellant maintains that the sentence was manifestly excessive
due to the fact that all three sentences were imposed consecutively.
Appellant’s brief at 9. We observe that:
Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to
other sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this discretion
ordinarily does not raise a substantial question. The key to
resolving the preliminary substantial question inquiry is whether
the decision to sentence consecutively raises the aggregate
sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct at issue in the case.
Treadway, supra at 599 (citations and quotation marks omitted).
We conclude that Appellant has failed to raise a substantial question in
this respect. Appellant, then forty years old, twice performed oral sex on a
thirteen year old adolescent and also had sexual intercourse with him four
times. She provided him with alcohol and tobacco in pursuit of her sexual
assaults. Then, when he left for home, she sent him graphic images of her
sexual organs and asked for a picture of his genitals. On another occasion,
Appellant fondled the genitals of another young man. In light of this
criminal conduct, we do not view eight and one-half to seventeen years
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imprisonment to be manifestly excessive on its face. The sentences were all
within the guidelines, and the trial court was accorded full discretion to
impose its sentences consecutively. Accordingly, we reject this position as
presenting a substantial question.
In her concise statement, Appellant also suggests that the court
imposed an excessive and unreasonable sentence since it “failed to carefully
consider all relevant factors as set for in Section 9721(b) of the Sentencing
Code,” and it “focused on the severity of the crimes and the retribution of
the complainants, and did not consider the rehabilitative needs of Appellant
at all.” Appellant’s brief at 9. “This 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.” Commonwealth
v. Samuel, 102 A.3d 1001, 1007 (Pa.Super. 2014) (citation omitted).
Hence, we will review the merits of this averment.
Our standard of review of the court’s sentencing decision is highly
deferential:
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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
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As noted, Appellant suggests that her sentence is manifestly excessive
because the trial court did not consider any mitigating factors, disregarded
her rehabilitative needs, and focused only on the seriousness of the crimes.
The record belies this position. The court clearly stated that it reviewed and
relied upon the presentence report and the psychological evaluation
prepared and presented by Appellant. “Where pre-sentence reports exist,
we shall presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.” Id. at 761 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Hence, we must assume that the trial court weighed all the pertinent
sentencing factors, including Appellant’s rehabilitative needs and the
mitigating factors consisting of her mental problems and past victimization.
Additionally, § 9781 of the Sentencing Court provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied the
guidelines erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the
guidelines would be clearly unreasonable; or
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(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
Herein, the sentencing court sentenced within the guidelines, outlining
why it concluded aggravated range sentences were warranted. 1 There were
multiple instances of sexual abuse and a significant age disparity between
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1
We note that Appellant asserts that the guideline ranges were
improperly calculated as to one of the crimes involving C.S. Appellant’s brief
at 15. This position is not preserved as it was not raised in the motion for
reconsideration of sentence or in the Pa.R.A.P. 1925(b) statement.
Furthermore, Appellant’s argument is confusing. She maintains that
the “sentencing court calculated the guidelines for the crime of Unlawful
Contact with a Minor, as it pertained to ‘C.S.’, to be 48 to 66 months, and
then imposed an aggravated sentence of 78 months.” Appellant’s brief at
15. She continues that the calculation was erroneous “as Appellant did not
plead nolo contendere to any charges under §31 of the Crimes Code.” Id.
The record establishes unequivocally that Appellant pled guilty to
aggravated indecent assault, a violation of § 3125 of the Pennsylvania
Crimes Code. The trial court outlined that the sentence of 78 to 156 months
was imposed on count four of case number 1393. N.T. Sentencing, 6/13/14,
at 33. The record establishes that 13 CR 1393 involved the victim C.S. and
that count four was aggravated indecent assault of a person less than
sixteen years old. As to J.H., Appellant was charged only with indecent
assault and unlawful contact with a minor. To the extent that Appellant
raises a challenge to the sufficiency of the factual basis for her nolo
contendere plea to aggravated indecent assault, that challenge is not
preserved for appeal.
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Appellant and each victim. We disagree with Appellant’s assertion that the
court was not permitted to consider the age gap between herself and the
minor victims since the offense gravity score took into account this factor.
The victims were two or three years younger than the sixteen-year-old
threshold for a victim’s age in the pertinent crimes. Appellant was forty
years old. In conclusion, this case does not involve circumstances where the
application of the guidelines would be clearly unreasonable. Hence, as
required by § 9781, we must affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2015
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Com. v. Eiden, K.
Combined Opinion