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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 RAY FRISBIE
Appellant No. 1389 MDA 2015
Appeal from the Judgment of Sentence entered July 2, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No: CP-08-CR-000864-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 25, 2016
Appellant, Milton Ray Frisbie, appeals from the July 2, 2015 judgment
of sentence imposing six months to twenty-three months and twenty-nine
days of incarceration followed by twenty-four months of probation after
Appellant pled nolo contendere to felony and misdemeanor indecent
assault.1 We affirm.
The two minor victims were Appellant’s step-grandchildren. The
Commonwealth accused Appellant of groping both victims in the vaginal
area. Appellant assaulted one of the two victims when she appeared to be
asleep. Both offenses occurred in the home Appellant shared with his wife,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3126(a)(7) and (b)(3).
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the victims’ grandmother. Appellant entered his nolo contendere plea on
March 27, 2015, and the trial court sentenced Appellant on July 2, 2015.
Appellant’s sole argument is that the trial court abused its sentencing
discretion in forbidding Appellant to have any contact with any person under
the age of eighteen during the term of Appellant’s probation. Appellant
argues the probation condition is draconian, not necessary for the protection
of the public, “possibly” in conflict with Appellant’s program of sex offender
treatment. Appellant’s Brief at 3.
To preserve a challenge to the trial court’s sentencing discretion, an
appellant must raise the issue in a timely post-sentence motion, file a timely
notice of appeal, include in his brief a Pa.R.A.P. 2119(f) statement, and
explain in the 2119(f) statement why the challenge presents a substantial
question in accord with 42 Pa.C.S.A. § 9781(b). Commonwealth v. Allen,
24 A.3d 1058, 1064 (Pa. Super. 2011). Appellant has complied with the
procedural requirements. We must therefore assess whether Appellant’s
Pa.R.A.P. 2119(f) statement presents a substantial question. “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.” Commonwealth v. Griffin, 65
A.3d 932, 935 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013).
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Appellant argues that forbidding any contact—supervised or
otherwise—with minors violates 42 Pa.C.S.A. § 9754(c)(13), which states
that probation conditions must not be unduly restrictive of the defendant’s
liberty. Appellant’s Brief at 4. Appellant asserts this condition will separate
him from his family—which includes children under age 18—and community
support. Id. at 4-5. Also, as noted above, Appellant believes his inability to
have contact with minors could hinder his rehabilitation. The
Commonwealth argues that a bald assertion that the restriction is unduly
restrictive of Appellant’s liberty fails to raise a substantial question.
Commonwealth’s Brief at 2.
We have held that a sentencing court’s alleged failure to consider an
offender’s rehabilitative needs does not raise a substantial question.
Commonwealth v. Haynes, 125 A.2d 800, 807 (Pa. Super. 2015). To
raise a substantial question, the offender must assert that the sentence is
inconsistent with a specific provision of the Sentencing Code. Here,
Appellant does not baldly assert that the sentencing court failed to consider
his rehabilitative needs. He argues that the trial court’s sentence violates
§ 9754(c)(13), as the prohibition on contact with minors will deprive him of
family and community support. We conclude this is sufficient to raise a
substantial question. See Commonwealth v. Fullin, 892 A.2d 843, 853
(Pa. Super. 2006) (noting that an alleged inconsistency with § 9754 raises a
substantial question).
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We review the merits of Appellant’s argument 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). “A
probation order is unique and individualized. It is constructed as an
alternative to imprisonment and is designed to rehabilitate a criminal
defendant while still preserving the rights of law-abiding citizens to be
secure in their persons and property.” Commonwealth v. Koren, 646 A.2d
1205, 1208 (Pa. Super. 1994). The trial court has discretion to order any
reasonable conditions. Id. at 1209.
Appellant relies on Commonwealth v. Houtz, 982 A.2d 537 (Pa.
Super. 2009). There, the court forbade the defendant to access the internet
or have access to a computer. Id. at 540. The sentence resulted from the
defendant’s guilty plea to corruption of a minor and indecent assault. Id. at
537. The defendant argued that the restriction was unreasonable because
there was no evidence she used a computer or the internet to further her
crimes. Id. at 540. Furthermore, the defendant noted her receipt of food
stamps and medical benefits was conditional on her continued search for
employment through an online career search service. Id. This Court agreed
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and concluded the condition was punitive and not related to the defendant’s
rehabilitative needs or her underlying offense. Id. at 541.
In Commonwealth v. Dewey, 57 A.3d 1267 (Pa. Super. 2012), the
sentencing court forbade the defendant to have unsupervised contact with
minors after the defendant pled guilty to corruption of minors and furnishing
alcohol to minors. Id. at 1268. The defendant sought to remove that
condition, arguing it was not related to his rehabilitative needs or the safety
of the public. Id. at 1269. This Court held that the defendant failed to file a
timely post-sentence motion, thus rendering the remainder of its opinion
dicta. Id. at 1269-70. The Dewey Court went on to opine that the
condition was reasonable. Id. at 1270. Appellant relies on Dewey because
the defendant was permitted supervised contact with minors. Appellant
argues that supervised contact with minors would be more reasonable in this
case.
Appellant’s reliance on Houtz and Dewey is misplaced. In Houtz,
this Court found the defendant’s lack of access to the internet and a
computer unreasonable because the defendant did not use a computer to
commit her offenses, and because the lack of internet access would
jeopardize her ability to obtain food stamps and medical insurance for her
family. Instantly, the probation condition is directly related to Appellant’s
offense. He victimized two girls under age 18, and now he is prohibited
from any contact with persons under age 18. Appellant’s argument that the
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condition restricts his contact with his family is unpersuasive, as both victims
were Appellant’s step-granddaughters. This Court’s alternative holding in
Dewey—that supervised contact with minors was a reasonable probation
condition—does not imply that total elimination of contact with minors is
unreasonable. Sentencing courts have discretion to tailor a sentence to the
unique circumstances of each case. Here, unlike Dewey, the sentencing
court was faced with multiple instances of sexual assault. The sentencing
court reasoned:
[Appellant] complains that he is unable to have contact
with his grandchildren and step-grandchildren as a result of this
prohibition [on contact with minors]. The condition is meant for
rehabilitative purposes. In light of the fact the criminal charges
of indecent assault and corruption of minors arose from
[Appellant’s] taking advantage of and molesting his step-
grandchildren staying in his home, prohibiting [Appellant] from
having contact with any child is rationally related to the
rehabilitative goals. […] [Appellant] has a large family with
numerous grandchildren and stepchildren. The prohibition
preserving [sic] the rights of those children to be secure in their
persons so as not to become a victim of [Appellant]. Until
[Appellant] is hopefully rehabilitated after completing the other
conditions of his probation, which include a sex offender
evaluation and counseling and treatment as may be
recommended, [Appellant] should not have any contact with
children.
Trial Court Opinion, 12/29/15, at 3 (pagination ours).
In light of all of the foregoing, we conclude the trial court acted within
its permissible discretion in imposing the conditions of probation. We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judge Platt joins this memorandum.
Judge Strassburger files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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