J-S08004-19
2019 PA Super 150
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ORLANDO FRANCISCO DURAZO,
Appellant No. 2658 EDA 2018
Appeal from the Judgment of Sentence Entered August 8, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005686-2017
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY BENDER, P.J.E.: FILED MAY 07, 2019
Appellant, Orlando Francisco Durazo, appeals from the judgment of
sentence of a term of 10 to 20 years’ imprisonment, imposed after he pled
guilty to one count of aggravated assault.1 Appellant solely challenges the
discretionary aspects of his sentence. We affirm.
The record establishes that at the time of the incident which led to
Appellant’s guilty plea, M.P. and her infant son, L.S. (the victim), were staying
with M.P.’s cousin and her boyfriend (Appellant) at their home located in
Allentown, Pennsylvania. On November 6, 2017, M.P. left the home to take
her dog for a walk. She was gone for approximately 45 minutes and left
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(9).
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Appellant to care for L.S., who was five weeks old at the time. When M.P.
returned, L.S. was sleeping and Appellant went to work. M.P. did not notice
anything wrong at that point.
[A]round 3:00 p.m.[,] [M.P.] went to wake the baby up and
the baby was noticeably irritable and so she let him sleep a little
bit longer.
Around 5:15[,] she woke the baby up and noticed that [his]
arms … [were] twitching and the baby was irritable.
Now, she had been primarily breast-feeding…. The baby
wasn’t latching.
She went to the hospital that night and, unfortunately, the
hospital chalked it up to breast feeding issues, [and told M.P. to]
take the baby home.
The baby [went] home. At approximately 6:00 a.m.[,]
[M.P.] [woke] up her child and he [was] … seizing all throughout
his body, his legs, his arms, every part of him is seizing. And he
[was] becoming more lethargic and … refusing to eat.
She immediately rushe[d] him to the emergency room
where … the doctors there [saw] the baby and immediately [flew]
him to St. Christopher’s and he [was] considered a level one
trauma patient.
And at St. Christopher’s[,] they did numerous scans and saw
that he had extensive head, neck and eye injuries. He had
subdural and subarachnoid hemorrhages. He had cerebral
contusions. He had an injury to the neck and retinal hemorrhages.
…
Detective Murray[,] on November 8th of 2017[,] interviewed
[Appellant] at which point he said he was babysitting [L.S.] and
he did admit to grabbing [L.S.] by the hands and feet and throwing
[L.S.] on the ottoman area, which was in front of him, twice
almost[,] he said[,] like a wrestling move.
When he threw [L.S.] the second time[,] [Appellant] said
that he looked at the victim and he was knocked out, at which
point he left him on the ottoman[,] and when [M.P.] came [home,]
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she thought he was sleeping. [Appellant] was subsequently
arrested.
N.T. Plea, 6/28/18, at 5-8. Appellant verbally admitted to the foregoing
events as presented by the Commonwealth at the guilty plea hearing. See
id. at 8.
Appellant pled guilty to aggravated assault on June 28, 2018. On
August 8, 2018, the court imposed Appellant’s sentence. Appellant filed a
timely motion to reconsider his sentence, which was denied. He then filed a
timely notice of appeal, as well as a timely, court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
presents one issue for our review: “Did the trial court abuse its discretion in
imposing an unreasonable sentence outside the sentencing guidelines when
the trial court’s reasons for its diversion from the guidelines do not support
such an aggravated sentence?” Appellant’s Brief at 4 (unnecessary
capitalization omitted).
Appellant’s single issue challenges the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
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appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotations omitted).
Here, the record clearly reflects that Appellant filed a timely notice of
appeal, properly preserved his claim in his post-sentence motion, and included
a separate, concise Rule 2119(f) statement in his appellate brief in compliance
with the Pennsylvania Rules of Appellate Procedure. Thus, we proceed to
determine whether Appellant has raised a substantial question to meet the
fourth requirement of the four-part test outlined above.
Appellant contends that his sentence is manifestly unreasonable and
that the trial court failed to state adequate reasons for imposing a sentence
that falls outside the standard range of the sentencing guidelines. Based on
the argument presented in Appellant’s Rule 2119(f) statement, and the case
law on which he relies, we conclude that Appellant has presented a substantial
question for our review. See Commonwealth v. Sheller, 961 A.2d 187, 190
(Pa. Super. 2008) (concluding that a substantial question may exist where the
appellant contends that the sentencing court exceeded the recommended
range in the sentencing guidelines without providing an adequate basis).
Accordingly, we will review the merits of his claim.
Our standard for reviewing a claim challenging the discretionary aspects
of a sentence is well-settled:
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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) (quoting
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).
When imposing a sentence, the sentencing court is required to
consider the sentence ranges set forth in the Sentencing
Guidelines, but it [is] not bound by the Sentencing Guidelines.
Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118
(2007) (“It is well established that the Sentencing Guidelines are
purely advisory in nature.”); Commonwealth v. Walls, 926 A.2d
957, 965 (referring to the Sentencing Guidelines as “advisory
guideposts” which “recommend … rather than require a particular
sentence”). The court may deviate from the recommended
guidelines; they are “merely one factor among many that the
court must consider in imposing a sentence.” Yuhasz, 923 A.2d
at 1118. A court may depart from the guidelines “if necessary, to
fashion a sentence which takes into 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.” Commonwealth v. Eby, 784
A.2d 204, 206 (Pa .Super. 2001). When a court chooses to depart
from the guidelines[,] however, it must “demonstrate on the
record, as a proper starting point, [its] awareness of the
sentencing guidelines.” [Id.] Further, the court must “provide a
contemporaneous written statement of the reason or reasons for
the deviation from the guidelines.” 42 Pa.C.S.[] § 9721(b).
Sheller, 961 A.2d at 190. The requirement that the court provide a
contemporaneous written statement is satisfied “when the judge states his
reasons for the sentence on the record and in the defendant’s presence.”
Antidormi, 84 A.3d at 760 (internal quotation marks and citation omitted).
See also Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994).
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When reviewing a sentence outside of the guidelines, the essential
question is whether the sentence imposed was reasonable. Sheller, 961 A.2d
at 190; Walls, 926 A.2d at 963. “The appellate court shall vacate the
sentence and remand the case to the sentencing court with instructions if it
finds … the sentencing court sentenced outside the sentencing guidelines and
the sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). In determining
whether the sentence is reasonable, an appellate court should consider the
following factors:
(1) The nature and circumstance 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.
Walls, 926 A.2d at 963 (quoting 42 Pa.C.S. § 9781(d)). “A sentence may be
found unreasonable if it fails to properly account for these four statutory
factors … [or] if the sentence was imposed without express or implicit
consideration by the sentencing court of the general standards applicable to
sentencing.” Sheller, 961 A.2d at 191 (internal quotation marks and citation
omitted).
In the instant matter, the trial court sentenced Appellant to 10 to 20
years’ imprisonment, which was beyond the aggravated range of the sentence
guidelines, but within the statutory limits. The trial court provided the
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following detailed explanation of its sentence in its order denying Appellant’s
motion for reconsideration:
This [c]ourt considered all the required statutory factors in
sentencing [Appellant]. Indeed, in imposing [Appellant’s]
sentence, this [c]ourt considered the “protection of the public, the
gravity of the offense as it relates to the impact on the victim and
the community, [Appellant’s] rehabilitative needs, and the
sentencing guidelines.” 42 Pa.C.S.[] § 9721(b); Commonwealth
v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).
Prior to sentencing, this [c]ourt reviewed the Pre-Sentence
Investigation Report [(“PSI”)] prepared on August 3, 2018. The
[c]ourt was aware of all of the information contained therein,
including [Appellant’s] lack of a prior record, [Appellant’s]
employment history, the recommendation of the [PSI] author, and
the assistance that [Appellant] had previously provided to the
victim’s mother, [M.P.]. Indeed, this [c]ourt did not fail to
consider mitigating factors. Commonwealth v. Rhoades, 8
A.3d 912, 919 (Pa. Super. 2010) (stating that where the
sentencing court had the benefit of a [PSI], it may be assumed
that the sentencing court was aware of all relevant information
regarding a defendant, including any mitigating factors);
Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988)
(holding that where a [PSI] exists, there is a presumption that the
sentencing judge was aware of and adequately considered
information relevant to the defendant’s character, as well as any
mitigating factors). In addition, this [c]ourt viewed the
videotaped reenactment of the crime, as well as heard testimony
from Dr. Deborah Esernio-Jenssen, an expert in child abuse
pediatrics, that the baby suffered and continues to suffer
immensely due to the extreme nature of the injuries, and that the
baby will have significant long term physical, social, emotional,
and behavioral disabilities.
This [c]ourt articulated the reasons for the imposition of a
maximum sentence: (1) the five week old victim sustained
extreme injuries as a result of [Appellant’s] actions; (2) the
criminal conduct of [Appellant] caused harm to the five (5) week
old baby while he was in a caregiving role; (3) a lesser sentence
would depreciate the gravity and seriousness of the offense; and
(4) confinement is more likely to contribute to [Appellant’s]
rehabilitation than any other form of supervision.
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Using its discretion, this [c]ourt imposed a sentence that
complied with the negotiated plea agreement, and was within the
guidelines and within the law. Accordingly, [Appellant’s]
argument is baseless and [Appellant’s] [p]ost[-s]entence
[m]otion is denied.
Trial Court Order, 8/27/18, at 3 n.1 (emphasis in original).
As noted by the trial court, prior to sentencing, it heard testimony from
Dr. Debra Esernio-Jenssen, regarding the severity of L.S.’s injuries, as well as
a statement from M.P. regarding the impact that Appellant’s actions have had
not only on her child, but on her as well. Dr. Esernio-Jenssen explained in
great detail the injuries to L.S. that were observed while he was being treated
at St. Christopher’s. She reported that an MRI revealed bleeding on top of his
brain, “a sign that the child’s brain went through rotational cranial
acceleration/deceleration,” and that “the bridging veins that connect from
inside the skull onto the brain itself were stretched and torn and they bled.”
N.T. Sentencing, 8/8/18, at 8. A neck MRI further indicated a significant
separation between the first and second cervical vertebrae, which is indicative
that the “head and neck were put through extreme forces of either – or a
combination of both – hyperflexion, meaning like the head going forward,
hypertension, meaning the head going back, or lateral flexion, meaning the
head going to either side.” Id. at 9. Dr. Esernio-Jenssen observed:
Those type[s] of injuries, other than abusive head trauma, are
seen when children are unrestrained in a car, in a motor vehicle
crash; or they’re a pedestrian in a motor vehicle crash; or they’re
being carried by a caregiver and are in a motor vehicle crash as a
pedestrian. They’re extreme forces to cause these injuries.
Id. at 9-10.
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As to L.S.’s progress since the incident, Dr. Esernio-Jenssen reported
that: L.S. is moving the right side of his body, but that his tone is still
decreased compared to the left; he has central vision but cannot see
peripherally on either side; he is able to sit but is not able to creep, crawl, or
pull himself up to stand; he has made little progress with verbal skills; and he
lacks object permanency—a skill typically developed between four to seven
months of age and L.S. is ten months of age. Id. at 12-13. “But what is most
devastating is that his head circumference growth is basically … ceasing.” Id.
at 14. L.S.’s head circumference was measuring below the 0.01 percentile,
which Dr. Esernio-Jenssen explained is the most significant factor in
determining long-term abilities. “Cessation of brain growth is the number one
determinant of what this child is going to be able to do as he gets older….”
Id. Dr. Esernio-Jenssen concluded that:
Because [L.S.] was so young when this happened[,] he is the most
vulnerable for having long-term sequelae….
It is very clear that because of his brain injury, the fact that he
presented with seizures, which is a bad prognostic sign, the fact
that he presented with … retinal hemorrhages, which is also a bad
prognostic sign, [L.S.] is going to have significant disabilities long
term – not only cognitive, behavioral, social, emotional – for his
future.
Id. at 15.
Moreover, M.P. read a prepared statement on the record at the
sentencing hearing, “to be the voice for [L.S.] who is still too young to speak
for himself and to speak for the family that has been dramatically changed in
a devastating way,” due to Appellant’s actions. Id. at 19. M.P. described L.S.
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prior to the incident as a “vibrant, happy, thriving little infant…,” “a very
healthy baby, with no medical issues.” Id. “Tragically, due to the injuries
that [L.S.] suffered at the hands of [Appellant,] he will never be the same
baby.” Id. M.P. explained that the left side of L.S.’s brain has been severely
damaged, that multiple therapists are working with L.S. several times a week,
and that doctors have indicated that the extent of his deficits will remain
unclear until he gets older. Id. at 20.
[L.S.] is the main victim who has been most impacted….
But, unfortunately, he’s not the only victim and not the only one
left with devastating consequences. Not knowing the level of
struggle [L.S.] will face in [the] future but knowing that there will
be struggles with his future … is like a form of torture for me to
live with.
The constant worry and reminder of what happened to
[L.S.], it is so scary and heartbreaking to live with these facts and
the thought of the possibility of … one day having this little angel
boy [] ask me why he is the way he is[,] or why certain tasks are
so hard for him. This crushes my heart all over again. It takes
my breath away.
…
As [L.S.’s] mom[,] I cannot even begin to explain and put
into words the heartache, the guilt, the anger, the sadness, the
pain, and the fear I feel on a regular basis.
Id. at 22-23. M.P. also expressed that their family has been “completely torn
apart” as a result of Appellant’s actions. She “lost an aunt who is more like a
mother” and “a cousin[] who is more like a sister and my best friend….” Id.
at 24.
Finally, after hearing all of the foregoing testimony, the court addressed
Appellant from the bench:
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It’s a very troubling case…. Motive is never a part of a criminal
charge because we’re not supposed to be able to jump into a mind
like yours and figure out why people like you do the things you
do.
You were so matter of fact in your recitation on the video of, “I
did this. I did that. I did this. I did that.”
And as [M.P.] expressed herself, not a tear, not watching the
video, not listening to Dr. [Esernio-]Jenssen describe the
significance of the injuries, not while [M.P.] described her pain and
that of her family, and the division within the family this has
caused.
And, most importantly, that 15 minutes before you were the
primary caregiver of that child, [L.S.’s] future was the same as
any other healthy-born one-month-old baby. And you took all
that away in an instant. All of it.
When you hear experts, doctors, talk about and use terms like
“severe[,”] “extreme[,”] “significant[,”] those mean something.
It’s not a “maybe this child will suffer in the future[.”] It is, “This
child will suffer forever[.”]
That baby was completely reliant, couldn’t do anything by himself.
You took it all away.
The sentence is that you pay the costs of prosecution….
Undergo imprisonment for not less than ten nor more than 20
years, State….
This sentence is a maximum sentence as a result of the extreme
severity of the injuries to the victim.
The criminal conduct of [Appellant] caused harm to a five-week
old baby while he was in a caregiving role. A lesser sentence
would depreciate the seriousness of this crime.
Confinement is absolutely more likely to contribute to the
rehabilitation of [Appellant] than any other form of supervision.
N.T. Sentencing at 39-41.
It is clear from the trial court’s statement that it considered all the
requisite factors, including the nature and circumstances of the offense, the
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recommended guideline range, the gravity of the offense, and the
rehabilitative needs of Appellant, when fashioning its sentence. See 42
Pa.C.S. § 9781(d). Moreover, the trial court had a PSI at the time of
sentencing and clearly had an opportunity to generally consider and observe
Appellant’s history and characteristics. See Sheller, 961 A.2d at 192. Thus,
we find no abuse of discretion.
Appellant contends that the reasons given by the trial court for the
imposition of a maximum sentence were inadequate, and Appellant argues
that factors such as the age of the victim have already been taken into account
by the legislature. Appellant’s Brief at 16-18 (citing 18 Pa.C.S. § 2702(a)(9)
(providing that a person 18 years of age or older is guilty of aggravated assault
if he “attempts to cause or intentionally, knowingly or recklessly causes
serious bodily injury to a child less than 13 years of age”)). However, to the
extent that the statute delineates a crime for assault on a child under the age
of 13, nothing prevents the court from considering the extreme age difference
of the victim, such as in the present case where the victim was a 5-week-old,
defenseless baby. Moreover, even if the trial court relied on factors that were
subsumed within the guideline recommendation, such as the age of the victim,
we discern no abuse of discretion. See Commonwealth v. Smith, 673 A.2d
893, 896-97 (Pa. 1997) (determining that even if a sentencing court relies on
a factor that should not have been considered, there is no abuse of discretion
where the court provides significant additional support for its departure from
the sentencing guidelines). See also Commonwealth v. P.L.S., 894 A.2d
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120, 133 (Pa. Super. 2006). Here, the trial court expressly cited proper
factors that it took into consideration when determining the appropriate
sentence for Appellant, including the impact the crime had on relatives of the
victim. See Sheller, 961 A.2d at 192.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/19
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