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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDGARDO LUIS REYES :
:
Appellant : No. 212 MDA 2017
Appeal from the Judgment of Sentence August 12, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005791-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2017
Appellant, Edgardo Luis Reyes, appeals from the judgment of sentence
entered in the Lancaster County Court of Common Pleas, following his open
guilty plea to aggravated assault of a child less than six years of age,
endangering the welfare of children (“EWOC”), and simple assault. 1 We
affirm.
The relevant facts and procedural history of this case are as follows.
On May 13, 2016, the Commonwealth charged Appellant with aggravated
assault of a child less than six years of age, EWOC, and simple assault. The
charges stemmed from Appellant’s abuse of his infant daughter (“Victim”)
between July 21, 2015 and August 15, 2015. On May 16, 2016, Appellant
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1 18 Pa.C.S.A. §§ 2702(a)(8), 4304(a), and 2701(a)(1), respectively.
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entered an open guilty plea to all charged offenses. The court deferred
sentencing pending the preparation of a pre-sentence investigation (“PSI”)
report.
On August 12, 2016, the court sentenced Appellant to a term of
twenty (20) to sixty (60) months’ imprisonment for the aggravated assault
conviction, a consecutive term of eighteen (18) to sixty (60) months’
imprisonment for the EWOC conviction, and a consecutive term of six (6) to
sixty (60) months’ imprisonment for the simple assault conviction, for a total
sentence of forty-four (44) to one hundred and eighty (180) months’
imprisonment. All of Appellant’s minimum sentences were in the aggravated
range of the sentencing guidelines. The court explained it based Appellant’s
sentence on: (1) Appellant’s acceptance of responsibility; (2) Appellant’s
amenability to rehabilitation; (3) Appellant’s ongoing abuse of Victim, as
evidenced by Victim’s prior healing injuries; (4) the fact that Victim was one
month old at the time of the abuse; (5) the impact of the crime on Victim;
(6) the serious nature of the crime; (7) the court’s need to educate and
deter others from engaging in similar behavior; (8) Appellant’s treatment
needs, which could be met by the imposition of a state sentence; and (9)
the information contained in Appellant’s PSI report.
On August 22, 2016, Appellant timely filed a post-sentence motion for
modification of sentence, which was denied by operation of law on December
29, 2016. Appellant timely filed a notice of appeal on January 27, 2017. On
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January 31, 2017, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied on February 21, 2017. Appellant filed a request on March 3,
2017, to file an amended Rule 1925(b) statement, which the court granted
on March 9, 2017. Appellant subsequently filed an amended Rule 1925(b)
statement.
Appellant raises the following issue for our review:
ON INFORMATION NUMBER 5791-2015, DID THE TRIAL
COURT ABUSE ITS DISCRETION BY IMPOSING A
SENTENCE IN THE AGGRAVATED RANGE BASED, AT LEAST
IN PART, UPON IMPERMISSIBLE AGGRAVATING FACTORS?
(Appellant’s Brief at 5).
Appellant argues the court imposed aggravated range sentences based
on impermissible factors. Appellant first asserts the court’s consideration of
Victim’s age was improper because Victim’s age was an element of the
aggravated assault offense. Appellant next claims the court’s reliance on
evidence of prior abuse injuries contained in Victim’s medical reports was
inappropriate because Appellant’s charges did not stem from the prior
injuries. Appellant next avers the court’s consideration of the need to
educate and deter the community from engaging in child abuse conduct was
wrong because it prevented Appellant from receiving an individualized
sentence. Appellant finally complains the court’s reliance on the ability of a
state correctional institution to meet Appellant’s treatment needs was
improper. Appellant concludes the court’s reliance on these impermissible
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factors led to the imposition of a manifestly excessive aggravated range
sentence, and this Court should vacate and remand for resentencing. As
presented, Appellant challenges the discretionary aspects of his sentence.2
See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing).
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, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
We conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super 2005). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.
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denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,
909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or
raised in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal
denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also 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, 425-26, 812 A.2d 617,
621-22 (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 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,
1387 (Pa.Super. 1989) (en banc) (emphasis in original)). “The
determination of what constitutes a substantial question must be evaluated
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on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,
1018 (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 913 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). Significantly, “[t]his Court has held that a
claim that the sentence is excessive because the trial court relied on
impermissible factors raises a substantial question.” Commonwealth v.
Simpson, 829 A.2d 334, 338 (Pa.Super. 2003).
Here, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion, amended Rule 1925(b)
statement, and Rule 2119(f) statement. Additionally, his claim that the
court imposed aggravated range sentences based on impermissible factors
appears to raise a substantial question as to the discretionary aspects of his
sentence. See id.
Our standard of review of a challenge to 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
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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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), “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). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,
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125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). Notably, “[i]t is impermissible for
a court to consider factors already included within the sentencing guidelines
as the sole reason for increasing or decreasing a sentence to the aggravated
or mitigated range.” Simpson, supra at 339. Nevertheless, “[e]ven if a
sentencing court relies on a factor that should not have been considered,
there is no abuse of discretion when the sentencing court has significant
other support for its departure from the sentencing guidelines.”
Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008), appeal
denied, 602 Pa. 666, 980 A.2d 607 (2009). Further, the court may rely on
the victim’s precise age and vulnerability to justify an above-guideline
sentence. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007).
Additionally, case law authorizes a sentencing court to consider
unprosecuted criminal conduct. Commonwealth v. P.L.S., 894 A.2d 120,
131 (Pa.Super. 2006), appeal denied, 588 Pa. 780, 906 A.2d 542 (2006). In
fact, “the sentencing guidelines essentially mandate such consideration when
a prior record score inadequately reflects a defendant’s criminal
background.” Id.
Instantly, the court had the benefit of a PSI report at sentencing.
Therefore, we can presume the court considered the relevant factors when it
sentenced Appellant. See Tirado, supra at 368 (holding where sentencing
court had benefit of PSI, law presumes court was aware of and weighed
relevant information regarding defendant’s character and mitigating factors).
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The court also thoroughly explained its reasons for imposition of aggravated
range sentences at the sentencing hearing on August 12, 2016. Specifically,
the court explained it based Appellant’s sentences on: (1) Appellant’s
acceptance of responsibility; (2) Appellant’s amenability to rehabilitation; (3)
Appellant’s ongoing abuse of Victim as evidenced by Victim’s prior healing
injuries; (4) the fact that Victim was one month old and extremely
vulnerable at the time of the abuse; (5) the impact of the crime on Victim;
(6) the serious nature of the crime; (7) the court’s need to educate and
deter others from engaging in similar behavior; (8) Appellant’s treatment
needs, which could be met by the imposition of a state sentence; and (9)
the information contained in Appellant’s PSI report. Significantly, the court’s
consideration of Victim's precise age at the time of the offense was
acceptable in light of Victim’s extreme vulnerability. Additionally, the court
properly considered all of Victim’s injuries because Appellant’s convictions
stemmed from his repeated abuse of Victim between July 21, 2015 and
August 15, 2015. Further, even if Appellant’s convictions did not stem from
the entire period of abuse, the circumstances of the case warranted
consideration of Victim’s prior injuries. See P.L.S., supra. Finally, the
court appropriately weighed Appellant’s treatment needs and the impact of
the offense on the community. See 42 Pa.C.S.A. § 9721(b). Under these
circumstances, the court relied on a myriad of permissible sentencing factors
when it imposed Appellant’s aggravated range sentences. Thus, Appellant’s
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challenge to the discretionary aspects of his sentence fails. See Hyland,
supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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Com. v. Reyes, E.
Combined Opinion