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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD GREGORY
Appellant No. 1571 EDA 2014
Appeal from the Judgment of Sentence May 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011340-2012
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 09, 2016
Appellant Ronald Gregory appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his nolo
contendere plea to rape, involuntary deviate sexual intercourse (“IDSI”),
robbery, and burglary.1 We affirm.
The trial court set forth the relevant facts of this appeal as follows:
[O]n July 26, 2012, at approximately 11:00 p.m.,
Appellant entered the home of [“Victim”], located at 5306
Wayne Avenue in Philadelphia. He did not know [Victim]
nor did he have her permission to be there. [Victim], who
was 78 years old at the time, was sleeping when Appellant
entered her bedroom. He penetrated the senior
complainant vaginally, anally and orally, before ejaculating
on her face. Appellant then took her fanny pack containing
U.S. currency and personal items, including photographs,
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1
18 Pa.C.S. §§ 3121(a)(1), 3123 (a)(1), 3701 (a)(1)(ii), and 3502(a)(1),
respectively.
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and also took her television. (See N.T., 12/02/13, pp. 9-
10).
In addition to forensic analysis which matched Appellant to
the semen from [Victim’s] face, as well as positive rape kit
analysis -- an eyewitness observed Appellant leaving
[Victim’s] residence carrying a television. (See N.T.,
12/02/13, pp. 10-11).
After comprehensively colloquying Appellant, this [c]ourt
accepted his nolo contendere plea as knowingly and
voluntarily entered.
Trial Court Opinion, filed May 13, 2015 at 2.
On May 2, 2014, the court sentenced Appellant to an aggregate term
of eighteen (18) to forty-seven (47) years’ incarceration.2 Appellant filed a
motion for reconsideration of sentence, which the court denied on May 13,
2014. On May 20, 2014, Appellant timely filed a notice of appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
DID THE COURT COMMIT AN ABUSE OF DISCRETION BY
SENTENCING APPELLANT TO A TERM OF INCARCERATION
OF 18 TO 47 YEARS IN PRISON WHEN THE SENTENCING
GUIDELINES CALLED FOR 60 TO 78 MONTHS[’]
INCARCERATION?
Appellant’s Brief at 9.
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2
The court imposed consecutive sentences of ten (10) to twenty (20) years’
incarceration for rape, five (5) to twenty (20) years’ incarceration for IDSI,
two (2) to five (5) years’ incarceration for robbery, and one (1) to two (2)
years’ incarceration for burglary.
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In his sole issue on appeal, Appellant challenges the discretionary
aspects of his sentence. Challenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can
address such a discretionary challenge, an appellant must invoke this Court’s
jurisdiction by satisfying the following four-part test:
(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, 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.
Id.
Instantly, Appellant preserved his issue in a post-sentence motion,3
filed a timely notice of appeal and included in his brief a concise statement
of reasons relied upon for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See
Appellant’s Brief at 12. Thus, we must determine whether Appellant has
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3
Appellant’s motion for reconsideration of sentence is not included in the
certified record, however, the trial court issued the following order: “AND
NOW, this 13th day of May, 2014, upon consideration of the within motion
for reconsideration of sentence, said motion is hereby DENIED.” Trial Court
Order, filed May 13, 2014. Although the “within” motion for reconsideration
is not attached to the trial court order, the court ruled on it. Under the
circumstances of this case, we find Appellant preserved his issue for our
review.
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raised a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa.Super.2011). Further:
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.
Id. (internal citations omitted).
Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013),
reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)
(internal citations omitted).
Here, Appellant argues the court abused its discretion by imposing his
sentences consecutively, resulting in a manifestly excessive aggregate
sentence of 18 to 47 years’ incarceration. He further claims the sentencing
court failed to consider his rehabilitative needs in fashioning the sentence.
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A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),
appeal denied, 14 A.3d 825 (Pa.2011). Rather, the imposition of
consecutive rather than concurrent sentences will present a substantial
question in only “the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).
To make it clear, a defendant may raise a substantial
question where he receives consecutive sentences within
the guideline ranges if the case involves circumstances
where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a
substantial question.
Dodge, 77 A.3d at 1270 (emphasis in original).
In Dodge, this Court determined an appellant’s claim that the
sentencing court “disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence” presented a
substantial question. Dodge, 77 A.3d at 1273.
This Court has also 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. Raven, 97 A.3d
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1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)
(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).
Based on our review of the foregoing precedents, we conclude that
Appellant’s challenge to the imposition of his consecutive sentences as
unduly excessive, together with his claim that the court failed to consider his
rehabilitative needs upon fashioning its sentence, presents a substantial
question. Thus, we grant his petition for allowance of appeal and address
the merits of his claim.
We review Appellant’s sentencing claim under the following standard:
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. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en
banc), appeal denied, 104 A.3d 1 (Pa.2014).
Upon sentencing Appellant, the court stated:
The offense here is one of the most egregious that I have
ever heard. For a 78 year-old woman to endure the type
of humiliation, the type of violent assault, the type of
disgraceful behavior, just takes your breath away.
I’m sure, [Appellant], your family is as shocked as all of us
about the nature of the assault on this victim. A few
things can be as horrifying as this. This woman, at the
latter stage of her life, has to endure the memory of this
assault every single day.
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There are a number of considerations that a judge weighs
in sentencing. Certainly rehabilitation is one of them, prior
record, the predicting future criminal activity, the positive
aspects of the defendant’s life, as well as the punishment
that is appropriate for the crime involved. As I said
earlier, starting out the day, I was more towards the
direction of the assistant district attorney’s
recommendation because of the nature of the criminal
behavior here.
Because I am taking into account what I’ve been told by
the family, as well as [Appellant’s] taking of responsibility
here, that is not the sentence that he is going to receive
today. I do not, however, believe, [Appellant], that a
guideline sentence is appropriate either, not in this case.
I do appreciate, again, that there has been the sparing of
the trial for the victim. She did not have to come in to
testify and go through that humiliation in front of a group
of strangers, and my sentence will reflect mitigation for
that as well.
N.T., May 2, 2014, at 32-33.
The court did not sentence Appellant to 40 to 80 years’ incarceration
as the Commonwealth suggested, but imposed an aggregate sentence of 18
to 47 years’ incarceration for his crimes, so that he could be released from
prison when his is 43 years old. The court’s imposition of consecutive
sentences did not result in an unduly harsh sentence, considering Appellant’s
crimes. Further, the court reviewed the presentence investigation report,
listened to testimony of several family members and counsel regarding his
rehabilitative needs, and ordered Appellant to complete his GED and
undergo anger management. We see no abuse of discretion in the sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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