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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MILTON R. FLORES
Appellant No. 517 MDA 2016
Appeal from the Judgment of Sentence February 1, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003923-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 12, 2016
Appellant, Milton R. Flores, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his no-
contest pleas to indecent assault, unlawful contact with minors, and
corruption of minors.1 We affirm.
The relevant facts and procedural history of this case are as follows.
In June 2014, Appellant touched Victim’s buttocks, pulled down Victim’s
pants, and kissed her buttocks. Victim was 13 years old. At the time of the
incident, Appellant was in a romantic relationship with Victim’s mother.
Victim told her mother about Appellant’s conduct, and Victim’s mother
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1
18 Pa.C.S.A. §§ 3126(a)(8); 6301(a)(1); 6318(a)(1).
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*Retired Senior Judge assigned to the Superior Court.
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reported Appellant’s behavior to the police.
The Commonwealth charged Appellant with the various offenses on
June 12, 2014. On February 12, 2015, Appellant filed a pretrial motion to
preclude the imposition of a 25-year mandatory minimum sentence based on
his prior conviction for statutory rape. The court denied Appellant’s motion
on April 24, 2015. In a negotiated plea entered on November 2, 2015,
Appellant agreed to plead no-contest to all charges, in exchange for the
Commonwealth’s decision not to seek the 25-year mandatory minimum
sentence. With the benefit of a pre-sentence investigation (“PSI”) report,
the court conducted Appellant’s sentencing hearing on February 1, 2016. At
the conclusion of the hearing, the court sentenced Appellant to consecutive
terms of one (1) to two (2) years’ incarceration on the indecent assault
charge, two (2) to four (4) years’ imprisonment on the unlawful contact with
minors charge, and two (2) to four (4) years’ incarceration on the corruption
of minors charge. Thus, Appellant received an aggregate sentence of five
(5) to ten (10) years’ incarceration.
Appellant timely filed a motion to modify the sentence on February 8,
2016, claiming the court imposed an illegal sentence by sentencing Appellant
above the aggravated range for each charge. After the Commonwealth filed
a response on February 25, 2016, the court denied Appellant’s motion on
March 2, 2016. On March 31, 2016, Appellant timely filed a notice of
appeal. The court ordered Appellant on April 4, 2016, to file a concise
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statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied on April 14, 2016.
Appellant raises a single issue for our review:
WAS IT SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE
AN ABUSE OF DISCRETION FOR THE COURT TO ORDER AN
AGGREGATE SENTENCE OF 5 TO 10 YEARS BY IMPOSING
THREE CONSECUTIVE SENTENCE[S] AND TO IMPOSE
SENTENCES OUTSIDE ALL RANGES OF THE SENTENCING
GUIDELINES WHEN SUCH SENTENCE WAS
“UNREASONABLE” WITHIN THE MEANING OF 42 PA.C.S. §
9781(C)(3)?
(Appellant’s Brief at 6).
Appellant argues his sentence is manifestly excessive because his
sentence for indecent assault constituted the statutory maximum, and his
sentences on the unlawful contact with minors and corruption of minors
charges exceeded all ranges of the sentencing guidelines. Appellant
contends the court focused solely on the similarity between his current
offense and his prior conviction for statutory rape, instead of his
rehabilitative needs or any mitigating factors. Appellant asserts the court
improperly considered the terms of his plea agreement, under which the
Commonwealth agreed not to invoke the applicable 25-year mandatory
minimum sentence. Appellant maintains the court’s imposition of
consecutive sentences was “clearly unreasonable.” Appellant’s claims
challenge the discretionary aspects of sentencing. See Commonwealth v.
Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is
manifestly excessive challenges discretionary aspects of sentencing).
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Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue, we must determine whether: (1) appellant has filed a
timely notice of appeal; (2) the issue was properly preserved at sentencing
or in a motion to reconsider and modify sentence; (3) appellant’s brief has a
fatal defect; and (4) there is a substantial question that the sentence is not
appropriate under the Sentencing Code. Commonwealth v. Evans, 901
A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303
(2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895
(2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240
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(2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks
omitted).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13. “[C]laims that a penalty is
excessive and/or disproportionate to the offense can raise substantial
questions.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super.
2006). A substantial question exists where a defendant alleges the
sentencing court considered improper factors when imposing an aggravated
range sentence. Commonwealth v. Stewart, 867 A.2d 589, 592
(Pa.Super. 2005).
Instantly, Appellant filed his notice of appeal within thirty days of the
court’s denial of his post-sentence motions. See Pa.R.A.P. 903. Appellant’s
post-sentence motions properly preserved his sentencing challenge for
appellate review, as does his brief, which includes a concise statement
pursuant to Rule 2119(f) of reasons for allowance of appeal. See
Pa.R.Crim.P. 720; Pa.R.A.P. 2119(f). For the crimes of unlawful contact with
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minors and corruption of minors, the court’s sentence exceeded the
aggravated range. Appellant’s complaint that the court relied on improper
factors presents a substantial question. See Stewart, supra. Therefore,
we review the merits of the sentencing issue.2
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011)
(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999)
(en banc)).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.
2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
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2
To the extent Appellant is displeased with the court’s decision to impose
consecutive sentences, that claim does not raise a substantial question; and
we will not review it. See Commonwealth v. Gonzalez-Dejusus, 994
A.2d 595 (Pa.Super. 2010) (reiterating general rule that challenge to court’s
decision to order consecutive sentences fails to raise substantial question).
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defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id.
“[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to
assess whether the sentencing court imposed a sentence that is
‘unreasonable.’” Commonwealth v. Walls, 592 Pa. 557, 568, 926 A.2d
957, 963 (2007). In making this “unreasonableness” inquiry, this Court
must consider four factors:
§ 9781. Appellate review of sentence
* * *
(d) Review of record.—In reviewing the record the
appellate court shall have regard for:
(1) The nature and circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was
based.
(4) The guidelines promulgated by the
commission.
42 Pa.C.S.A. § 9781(d)(1)-(4).
In Walls, supra, our Supreme Court explained that “the concept of
unreasonableness” is “inherently a circumstance-dependent concept that is
flexible in understanding and lacking precise definition.” Id. at 568, 926
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A.2d at 963.
Thus, given its nature, we decline to fashion any concrete
rules as to the unreasonableness inquiry for a sentence
that falls outside of applicable guidelines under Section
9781…. We are of the view, however, that the Legislature
intended that considerations found in Section 9721 inform
appellate review for unreasonableness. That is, while a
sentence may be found to be unreasonable after review of
Section 9781(d)’s four statutory factors, in addition a
sentence may also be unreasonable if the appellate court
finds that the sentence was imposed without express or
implicit consideration by the sentencing court of the
general standards applicable to sentencing found in
Section 9721, i.e., the protection of the public; the gravity
of the offense in relation to the impact on the victim and
the community; and the rehabilitative needs of the
defendant. 42 Pa.C.S. § 9721(b).
Id. at 568-69, 926 A.2d at 964.
Instantly, the court described its considerations when fashioning
Appellant’s sentence:
At the time of sentencing, we noted our review of the
applicable guidelines and acknowledged the intention to
sentence outside the guidelines. The sentences imposed
at Counts 2 and 3 fell outside the aggravated range but
well below the maximum potential sentence.
At the outset, we noted our review of the pre-sentence
report. … We further set forth at length our reasons in
support of the sentences imposed. As to the sentencing
outside the aggravated range, we cited the fact of the
repeat victimization of a child as relevant to several
sentencing factors, namely, [Appellant’s] rehabilitative
needs, the need for protection of the public and
appropriate consideration of the seriousness of the crime.
We noted that in 1994 at age 29, [Appellant] was
convicted of statutory rape and corruption of minors
involving an 11-year old child. Many years later, at age
50, [Appellant] conducted himself in a similar manner
involving another innocent child. We noted our belief that
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[Appellant] requires long-term rehabilitation to prevent
danger to other children at the time of release from
incarceration. We concluded that to impose a lesser
sentence would violate the rights of the child-victim.
(Trial Court Opinion, filed July 18, 2016, at 4-5). The record supports the
court’s determination. Accordingly, we conclude Appellant is not entitled to
relief on his issue; and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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