J-S85036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLIE ALOG, :
:
Appellant : No. 2909 EDA 2015
Appeal from the Judgment of Sentence April 20, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0010608-2014;
CP-51-CR-0010613-2014
BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED January 20, 2017
Charlie Alog (“Alog”) appeals from the judgment of sentence imposed
after he pled guilty to rape, involuntary deviate sexual intercourse (“IDSI”),
aggravated indecent assault, and flight to avoid apprehension, trial or
punishment.1 We affirm.
The trial court concisely set forth in its Opinion the relevant factual and
procedural history underlying this appeal, which we adopt as though fully set
1
See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3125(a)(1), 5126(a).
J-S85036-16
forth herein. See Trial Court Opinion, 2/8/16, at 1-3.2, 3 Following the trial
court’s denial of Alog’s post-sentence Motion (wherein he asserted, inter
alia, that his sentence was excessive and the trial court failed to state
adequate reasons on the record for its sentence), Alog timely filed a Notice
of Appeal. In response, the trial court ordered Alog to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Alog timely
filed a Concise Statement.
Alog presents the following issues for our review:
1. Did not the sentencing court err and abuse its discretion
when it imposed a sentence above the aggravated
sentencing guidelines range without providing a
contemporaneous statement of reasons for the deviation
from the guidelines, in violation of sentencing laws?
2. Was not the imposition of a total sentence of 8.5 to 18
years, a consecutive sentence that was above the
aggravated guidelines range, unreasonable and manifestly
excessive and contrary to the norms underlying
sentencing[,] when [Alog] was a 62-year-old first[-]time
offender[,] who had waived the preliminary hearing and
pleaded guilty[,] and for whom such a sentence would likely
represent a life sentence?
2
The trial court incorrectly states in its factual recitation that the victim was
16 years old at the time of the sexual assault; rather, the record reveals that
she was 18 years old. Additionally, we observe that following the trial
court’s acceptance of Alog’s guilty plea, the court ordered the preparation of
a pre-sentence investigation report.
3
Notably to this appeal, the sentence that the trial court imposed on Alog’s
rape conviction was outside and above the aggravated range of the
applicable sentencing guidelines by 12 months. None of the sentences
imposed on the remaining convictions were above the sentencing guidelines
ranges.
-2-
J-S85036-16
Brief for Appellant at 4. We will address Alog’s issues together as they are
related.
Alog’s claims challenge the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v. Hill, 66
A.3d 359, 363 (Pa. Super. 2013). Where, as here, the appellant has
preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence,
pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Here, Alog included the requisite Rule 2119(f) Statement in his brief.
See Brief for Appellant at 13-15. Moreover, Alog’s above-mentioned claims
present a substantial question for our review. See Commonwealth v.
Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (noting that an “[a]ppellant’s
contention that the sentencing court exceeded the recommended range in
the Sentencing Guidelines without an adequate basis raises a substantial
question for this Court to review.”); see also Commonwealth v. Holiday,
954 A.2d 6, 10 (Pa. Super. 2008) (stating that “[a] claim that the sentencing
court imposed a sentence outside of the guidelines without specifying
-3-
J-S85036-16
sufficient reasons presents a substantial question for our review.”).
Accordingly, we will review Alog’s claims.
Our standard of review 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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted).
The Sentencing Code sets forth the considerations a sentencing court
must take into account when formulating a sentence, providing that “the
court shall follow the general principle that the sentence imposed should call
for confinement that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b). Additionally, in every case where a sentencing court
imposes a sentence outside of the sentencing guidelines, the court must
provide, in open court, a contemporaneous statement of reasons in support
of its sentence. Id. When doing so,
a [sentencing] judge … [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into
-4-
J-S85036-16
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 it also states of record the factual basis
and specific reasons which compelled it to deviate from the
guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted); see also Commonwealth v. Dutter, 617 A.2d 330,
333 (Pa. Super. 1992) (stating that “[i]f the court finds it appropriate to
sentence outside the guidelines, of course it may do so as long as it places
its reasons for the deviation on the record.”). An appellate court must
vacate and remand a case where it finds that “the sentencing court
sentenced outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). Finally, when evaluating a
challenge to the discretionary aspects of sentence, it is important to
remember that the sentencing guidelines are purely advisory in nature.
Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007); see also
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007) (stating that
“rather than cabin the exercise of a sentencing court’s discretion, the
[sentencing] guidelines merely inform the sentencing decision.”).
Here, Alog argues that the trial court abused its discretion in imposing
an unreasonable and manifestly excessive aggregate sentence, which was
outside and above the aggravated range of the sentencing guidelines on the
rape conviction, without providing a contemporaneous statement for its
reasons for deviating from the guidelines. See Brief for Appellant at 16-27.
-5-
J-S85036-16
Alog asserts that, at sentencing, and in violation of the Sentencing Code,
[t]he court simpl[y] announced the sentence without an explanation of why
it deviated from the guidelines. Indeed, the court did not even acknowledge
that it deviated from the guidelines.” Id. at 16 (citations to record omitted)
(citing, inter alia, Dutter, supra, and 42 Pa.C.S.A. § 9721(b) (providing
that a sentencing court’s failure to provide on the record a contemporaneous
statement of reasons in support of an above-guidelines sentence “shall be
grounds for vacating the sentence or resentence and resentencing the
defendant.”)). Alog further argues that
[t]he total sentence imposed was unreasonable, excessive and
contrary to the norms of sentencing in light of the fact that
[Alog] was a 62-year-old first[-]time offender[,] who had waived
the preliminary hearing and pleaded guilty[,] and for whom the
total sentence would likely represent a life sentence. In
particular, the above-guidelines sentence on the [rape] charge[]
was greater than necessary to comply with the goals of
sentencing and was unreasonable, especially in light of the
complete lack of explanation by the trial court as to the reasons
behind its sentence.
Brief for Appellant at 22; see also id. at 24 (asserting that Alog “presented
an extremely low risk of recidivism”); id. at 25 (asserting that Alog’s sexual
assault of the victim “was a single occurrence of impulse.”).
In its Opinion, the trial court addressed Alog’s claims, discussed the
relevant law, and opined that the court had properly exercised its discretion
in imposing a reasonable sentence under the circumstances, and in
compliance with the Sentencing Code. See Trial Court Opinion, 2/8/16, at
3-7; see also Walls, 926 A.2d at 967 (where the defendant had sexually
-6-
J-S85036-16
assaulted his minor granddaughter, and thereby “violated a position of trust
and responsibility” to the victim, holding that the sentencing court properly
exercised its discretion in imposing a sentence above the sentencing
guidelines range). The trial court’s analysis is supported by the law and the
record, and we discern no abuse of discretion by the court in sentencing
Alog.4 We, therefore, affirm on this basis in rejecting Alog’s issues. See
Trial Court Opinion, 2/8/16, at 3-7.
Judgment of sentence affirmed.
Judge Ransom joins the memorandum.
Judge Panella concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
4
We additionally emphasize that the trial court ordered the sentences
imposed on Alog’s convictions of IDSI and aggravated indecent assault to
run concurrent to the sentence imposed on the rape conviction. Had the
trial court exercised its discretion to run these sentences consecutively, Alog
would have received a substantially longer aggregate sentence than the
sentence imposed (which was well below the maximum permissible
aggregate sentence, and that sought by the Commonwealth).
-7-
Circulated 12/21/2016 12:36 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
CP-51-CR-0010608-2014
COMMONWEALTH OF
PENNSYLVANIA FILED CP-51-CR-0010613-2014
v. FEB 0 8 2016
2907 EDA 2015
Criminal Appeal: unii 2909 EDA 2015
CHARLIE ALOG
First Judicial District of PA
OPINION
February 8, 2016
BUTCHART, J.
I. PROCEDURAL BACKGROUND
guilty to one count of Rape by
On December 9, 2014, Defendant, Charlie Alog, pled
of the first degree, Involuntary
Forcible Compulsion (18 Pa.C.S. §3121(a)(1)) as a felony
as a felony of the first degree, and
Deviate Sexual Intercourse ( "IDSI ") (18 Pa.C.S. §3123(a)(1))
§3125(a)(1)) as a felony of the second
Aggravated Indecent Assault without Consent (18 Pa.C.S.
guilty to Flight to Avoid
degree for CP- 51 -CR- 0010608 -2014. Defendant also pled
a felony of the third degree for CP-51-
Apprehension, Trial or Punishment (18 Pa.C.S: §5126(a))
that a pre- sentence report, mentathealth
CR- 0010613 -2014. The Court deferred sentencing so
( "SOAB ") could be prepared.
evaluation, and Sexual Offenders Assessment Board evaluation
that Defendant did not meet the criteria of
The SOAB evaluation dated March 9, 2015, indicated
a sexually violent predator ( "SVP").
and imposed the following
On April 20, 2015, this Court conducted a sentencing
the charge of Rape, seven and a half to
concurrent sentences: seven and a half to fifteen years on
on the charge of Aggravated Indecent
fifteen years on the charge of IDSI, and five to ten years
to one to three years
Assault for CP- 51 -CR- 0010608-2014. Defendant was sentenced
for CP-51 -CR- 0010613 -2014 to be
incarceration on the charge of Flight to Avoid Apprehension
1
0010608 -2014. Defendant filed a post -
served consecutive to his sentence for CP-51 -CR-
5, 2015.
sentence motion, which the Court denied on August
sentence on the grounds that: a) the
Defendant now appeals from the Court's judgment of
in violation of 42 Pa.C.S.A. §9721(b);
Court failed to state its reasons for the sentence imposed,
b) in imposing a sentence above the sentencing
guidelines range, the Court failed to provide a
reasons for the deviation from the guidelines, in
contemporaneous written statement of reason or
to consider the rehabilitative needs of the
violation of 42 Pa.C.S.A. §9721(b); c) the Court failed
by his waiver of the preliminary
defendant; his acceptance of responsibility as demonstrated
contact, in violation of the general
hearings and his guilty plea; and his lack of any prior criminal
in 42 Pa.C.S.A. §9721(b); and d) the
standards and principles governing sentencing set forth
Statement of Matters
Court imposed a manifestly unreasonable and excessive sentence.
the reasons set forth below, Defendant's
Complained of on Appeal ( "Statement ") at ¶ 4a-d. For
claims are without merit and the judgments of sentence
should be affirmed.
H. FACTUAL BACKGROUND
was at the Philadelphia home of
On July 22, 2012, R.A. ( "Complainant ") R.A. age 16,
( "N.T. ") 12/9/14 p. 8, 4/20/15 p. 9.
Defendant, her uncle, for a barbeque. Notes of Testimony
on the level of an eight year-old
Complainant has severe developmental delays and functions
his niece to go to his bedroom to
child. N.T. 12/9/14 p. 9, 4/20/15 p. 9. Defendant instructed
inside the room, Defendant removed
watch a video. N.T. 12/9/14 p.8, 4/20/15 p. 9. Once
Defendant then performed oral sex
Complainant's clothes and put his mouth on her breast.
I_d.
N.T. 12/9/14 p. 9, 4/20/15 p. 9.
on her and penetrated her vagina with his fingers and penis.
mother ascend the stairs looking for
Defendant ceased his actions when he heard Complainant's
the bathroom and told her to put on her
her daughter. Id. Defendant ordered Complainant into
2
shorts. N.T. 12/9/14 p. 9. Complainant's mother
found her in the bathroom with her shorts
4/20/15 p. 9. Complainant's mother told
down and wearing her underwear incorrectly. N.T.
authorities. N.T. 12/9/14 p. 9, 4/20/15 p.
Defendant that she planned to report the incident to the
9.
Canada to the Philippines. N.T.
On July 25, 2012, Defendant fled the United States via
later, Defendant was located,
12/9/14 pp. 9 -10, 4/20/15 pp. 9 -10. Approximately two years
United States Marshals. Id.
apprehended, and returned to the United States by the
III. DISCUSSION
for the sentence imposed, in
Defendant claims that, "the Court failed to state its reasons
This claim is without merit.
violation of 42 Pa.C.S.A. §9721(b)." Statement at if 4(a).
at
Under 42 Pa.C.S.A. § 9721(b), the sentencing court is required to state, in open court
42 Pa.C.S.A. 9721(b). However,
the time of sentencing, the reasons for the sentence it imposed.
on the record, that it has been
"[t]his requirement can be satisfied by the trial court indicating,
835 A.2d 720, 734 (Pa. Super.
informed by a presentence report." Commonwealth. y. Reynolds,
12 (Pa. Super. 1988) (where pre-sentence
2003). See also Commonwealth v. Devers, 546 A.2d
aware of relevant information regarding
reports exist, it is presumed that the sentencing judge is
along with mitigating statutory
the defendant's character and has weighed those considerations
factors.)
In the present case, this Court satisfied the statement
of reasons requirement for
was fully informed by the pre- sentence
sentencing under 42 Pa.C.S.A. §9721(b). The Court
N.T. 4/20/15 p. 7. The Court
report, the mental health evaluation, and the SOAB evaluation.
information contained therein in
thoroughly xeviewed the documents and considered the
the Court met the requirement
fashioning an appropriate sentence for Defendant. Accordingly,
3
record that it had reviewed the pre- sentence
of 42 Pa.C.S.A. §9721(b) by indicating on the
evaluation.
report, the mental health evaluation, and the SOAB
above the sentencing guidelines range,
Defendant claims that, "in imposing a sentence
the Court failed to provide a contemporaneous
written statement of reason or reasons for the
42 Pa.C.S.A. §9721(b)." Statement at 114(b). This
deviation from the guidelines, in violation of
claim is without merit.
Commonwealth. v. Smith, 534
Courts are afforded considerable deference in sentencing.
guidelines are advisory and not binding on the
A.2d 836, 838 (Pa. Super. 1987). The sentencing
court. Commonwealth v. Walls, 926 A.2d 957, 962
-63 (Pa. 2007). Nevertheless, if the court
the court must provide a contemporaneous
sentences a defendant outside those guidelines,
Id..; 42 Pa.C.S.A. § 9721(b).
written statement setting forth its reasons for the deviation.
a proper `contemporaneous statement'
"[W]hen imposing sentence, a trial court has rendered
long as the record demonstrates with clarity
under section 9721(b) of the Sentencing Code, so
in a rational and systematic way and made a
that the court considered the sentencing guidelines
v. Rodda, 723 A.2d 212, 216 (Pa.
dispassionate decision to depart from them." Commonwealth
Super. 1999).
for sentencing under 42
In the present case, this Court satisfied the requirements
of the pre -sentence report, the mental health
Pa.C.S.A. §9721(b). The Court was fully informed
p. 7. The Court thoroughly reviewed the
evaluation, and the SOAB evaluation. N.T. 4/20/15
therein in fashioning an appropriate
documents and considered the information contained
the testimony presented at the sentencing
sentence for Defendant. The Court also considered
Defendant's adult children. N.T. 4/20/15
hearing from Complainant's mother, Defendant, and
4
range and
that the Court was aware of the sentencing
pp. 15 -21, 29 -32. The record is clear
the impact of
The record contained ample testimony regarding
guidelines. N.T. 4/20/15 pp. 6 -8.
his
the Defendant's attempt to avoid prosecution,
the crime on the victim and her family,
U.S. for purposes of prosecution, his subsequent decision to enter a non -
involuntary return to the
extensive
for recidivism. The Court considered this
negotiated guilty plea, and prospects
The Court
as well as the SOAB, etc. in its decision to impose consecutive sentences.
testimony
appropriate
the guidelines and rationally deviated from the guidelines to fashion an
considered
without
within the purview of 42 Pa.C.S.A. §9721(b). As such, Defendant's claim is
sentence
merit.
failed to consider the rehabilitative needs of
the
Defendant next claims that, "the Court
as demonstrated by his waiver of the
preliminary
defendant; his acceptance of responsibility
the general
hearings and his guilty plea; and his lack
of any prior criminal contact, in violation of
at
and principles governing sentencing set forth in 42 Pa.C.S.A. §9721(b) ;" Statement
standards
¶ 4(c). This claim is without merit.
must impose a term of confinement consistent
In fashioning a sentence, the trial court as it relates to the impact of
with the protection of the public, the
gravity of the offense
the victim and to the community, and
the rehabilitative needs of the defendant....
the Sentencing Guidelines, the court is not
Although the trial court must consider At
appropriate under the Sentencing Guidelines.
obligated to impose a sentence deemed
the same time, the trial court cannot
justly sentence a defendant unless it possesses
the circumstances of the offense and the
sufficient and accurate information about
its judgment.
character of the defendant to formulate
v.
1013, 1018. (Pa. Super. 2003) citing Commonwealth
Commonwealth v. Anderson, 830 A.2d
Begley, 780 A.2d 605, 642 -43 (Pa. 2001).
rehabilitative needs, lack of prior criminal
Here, the Court considered the Defendant's
and ultimate decision to plead guilty. However,
contact, his waiver of preliminary hearings,
5
against the
those factors were not considered in isolation. The Court weighed those items
circumstances of the heinous offenses, the gravity and impact of
the offenses on the victim,
of an eight
Defendant's own niece whose cognitive and developmental functioning was that
information
year -old, and the protection of the community. The Court possessed sufficient
informed of
regarding the nature of the offenses. N.T. 4/20/15 pp. 8 -15. The Court was fully
which indicated
the pre- sentence report, the mental health evaluation, and the SOAB evaluation
factors in
the character of Defendant. N.T. 4/20/15 p. 7. The Court considered all these
fashioning an appropriate sentence for Defendant.
Lastly, Defendant claims that, "the Court violated sentencing norms by imposing
a
without
manifestly unreasonable and excessive sentence." Statement at IT 4(d). This claim is
merit.
It is well -settled that "[ seentencing is a matter vested in the sound discretion of the
of that
sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse
a
discretion." Commonwealth v. Glass, 50 A.3d 720,727 (Pa. Super. 2012). When challenging
court ignored or
sentence, an appellant must reference the record to establish "that the sentencing
will, or
misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill
consider
arrived at a manifestly unreasonable decision." Id. Finally, the sentencing court must
upon the victim,
the need to protect the public, the gravity of the offense in relation to the impact
and the rehabilitative needs of the defendant. 42 Pa.C.S.A. §9721(b).
Here, in fashioning an appropriate sentence, the Court explicitly considered Defendant's
acceptance of responsibility, the information contained in the pre- sentence report, the
information contained in the mental health evaluation and SOAB report, the Sentencing
the victim and
Guidelines, the need to protect the public, the gravity of the offense, the impact on
6
4/20/15 pp. 7, 15 -21. The Court also
victim's family, and Defendant's rehabilitative needs. N.T.
son, and the statement from
considered testimony from Defendant, his daughter, his
Complainant's mother. N.T. 4/20/15 pp. 15 -21, 29 -32. The Court sentenced Defendant to
years on the charges of Rape and
incarceration on concurrent terms of seven and a half to fifteen
Assault, and a consecutive term
IDSI, and five to ten years on the charge of Aggravated Indecent
Avoid Apprehension. The
of incarceration of one to three years for the charge of Flight to
for each offense.' These
sentences imposed by the Court were within the statutory maximum
the term of
sentences should be upheld because they are within the statutory maximum,
gravity of the offense as it relates
confinement is consistent with the protection of the public, the
to the life of the victim and community, and Defendant's
rehabilitative needs.- Smith at 838. As
Pa.C.S. 9721(b) and sentenced
the Court clearly considered the appropriate factors under 42
§
not "manifestly unreasonable" and
Defendant within the statutory maximums, the sentences were
no relief is due.
IV. CONCLUSION
should be affirmed.
For all the foregoing reasons, the Court's judgment of sentence
BY THE COURT:
ANN M. BUTCHART, J.
sentencing provisions are as follows:
'According to the Pennsylvania Commission on Sentencing, the maximum
3 offenses -7 years. Rape by Forcible Compulsion
Felony I offenses -20 years, Felony 2 offenses -10 years, Felony
Indecent Assault without Consent is a Felony 2
and IDSI are classified as Felony 1 offenses while Aggravated
is Felony 3 offense.
offense and Flight to Avoid Apprehension, Trial or Punishment
7