J-S76044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HERBERT LEE SMITH
Appellant No. 753 EDA 2016
Appeal from the Judgment of Sentence February 16, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002193-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2016
Appellant Herbert Lee Smith appeals from the judgment of sentence
entered on February 16, 2016, in the Court of Common Pleas of Monroe
County following his nolo contendere plea to one count of corruption of
minors.1 We affirm.
Appellant’s conviction arose following his sexual molestation of his
paramour’s eleven-year-old daughter on numerous occasions. On
September 16, 2015, Appellant pled nolo contendere to count four of the
criminal information, corruption of minors, a felony of the third degree, and
signed a written guilty plea colloquy. The trial court accepted Appellant’s
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 6301(a)(1)(ii).
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plea, ordered a pre-sentence investigation (PSI) report and scheduled
sentencing.
A sentencing hearing was held on February 16, 2016, at which time
the sentencing court had the benefit of the PSI and the report of the Sexual
Offender Assessment Board (SOAB) as well as letters written by the victim’s
mother. The court also heard counsel’s argument and statements from
Appellant’s family. Upon consideration of both the aggravating and
mitigating factors, the sentencing court ultimately sentenced Appellant to an
aggravated range sentence of twenty-four (24) months to sixty (60) months’
incarceration.2 The court further advised Appellant of his sexual offender
registration obligations under the Sex Offender Registration and Notification
Act (SORNA), 42 Pa.C.S.A. §§ 9799.10–9799.41.3
Appellant filed his Motion to Reconsider Sentence on February 19,
2016, wherein he argued his sentence was excessive; the sentencing court
denied the motion on February 23, 2016. On March 10, 2016, Appellant
filed a timely notice of appeal and complied with the trial court's order to file
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2
Appellant’s prior record score was a three and the offense gravity score
was a six; therefore, the standard range sentence for the offense was twelve
months to eighteen months, with an aggravated/mitigated range of plus or
minus six months. N.T. Sentencing, 2/16/16, at 3.
3
The sentencing court referred to the statute as Megan’s Law. N.T.
Sentencing, 2/16/16, at 18-19; however, Megan's Law II was succeeded by
Megan's Law III (Act 152 of 2004), which in turn was superseded by SORNA.
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a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant filed the same on April 30, 2016, wherein he presented
the following issue: “The [s]entencing [c]ourt committed an abuse of
discretion in imposing its sentence in light of the mitigating factors
mentioned at the time of sentencing.” The sentencing court filed its Rule
1925(a) Opinion on May 5, 2015.
In his appellate brief, Appellant presents the following issue for our
review:
Whether the aggravated sentence of twenty-four (24)
months to sixty (60) months is manifestly unreasonable and
serves no purpose other than a purely retributive one.
Brief for Appellant at 6.
Appellant’s contention his sentence was unduly harsh and excessive
under the circumstances presents a challenge to the discretionary aspects of
his sentence. Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges the
discretionary aspects of sentencing). Challenges to the discretionary aspects
of sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Roberts, 133 A.3d 759, 774 (Pa.Super. 2016). For this
Court to reach the merits of a discretionary sentencing issue, Appellant must
invoke our jurisdiction by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]ppellant's brief includes a
concise statement of the reasons relied upon for allowance of
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appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, Appellant has satisfied the first three requirements.
Appellant filed a timely notice of appeal, sought reconsideration of his
sentence in a post-sentence motion, and included a separate statement of
reasons relied upon for allowance of appeal in his appellate brief, as required
by Pa.R.A.P. 2119(f). Nonetheless, while in his Rule 1925(b) statement
Appellant avers the sentencing court abused its discretion for failing to
consider mitigating factors when fashioning its sentence, in his brief he
asserts the aggravated range sentence is manifestly unreasonable and
retributive. We note that:
for any claim that was required to be preserved, [an appellate
court] cannot review a legal theory in support of that claim
unless that particular legal theory was presented to the trial
court. Thus, even if an appellant did seek to withdraw pleas or to
attack the discretionary aspects of sentencing in the trial court,
the appellant cannot support those claims in this Court by
advancing legal arguments different than the ones that were
made when the claims were preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008).
The arguments Appellant advances in his appellate brief are more
encompassing than that which he raised before the trial court; however,
Appellant’s contention on appeal that his aggravated-range sentence was
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retributive and manifestly unreasonable in light of the sentencing court’s
empathizing with the victim and resultant failure to consider mitigating
factors arises out of the claim he presented in his Rule 1925(b) statement.
Therefore, we decline to find his issue waived and turn our analysis to
whether there is a substantial question that Appellant’s sentence is
inappropriate under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b).
The determination of what constitutes a substantial question must be
evaluated 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.” Commonwealth v. Griffin, 65 A.3d 932, 935
(Pa.Super. 2013) (citation omitted).
Generally, “[a]n allegation that a sentencing court failed to consider or
did not adequately consider certain factors does not raise a substantial
question that the sentence was inappropriate.” Commonwealth v. Cruz-
Centeno, 668 A.2d 536, 545 (Pa.Super. 1995). However, the contention the
sentencing court imposed a sentence in the aggravated range without
considering mitigating circumstances constitutes a substantial question as to
the discretionary aspects of one’s sentence. Commonwealth v. Felmlee,
828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc). Notwithstanding, we find
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Appellant is not entitled to relief as to the discretionary aspects of
sentencing.
Appellant baldly maintains the aggravated-range sentence arose
primarily out of the victim impact statement the probation department
submitted for inclusion in the PSI and that it no way serves to protect the
public or to advance the purpose of the Sentencing Code which is to
rehabilitate, reintegrate and divert appropriate offenders from prison. Brief
for Appellant at 13-14. Appellant stresses that in the eighteen months
which followed the victim’s allegations Appellant sexually abused her,
Appellant had no contact with her and engaged in no additional criminal
conduct; therefore, the sentence exceeds that which would be necessary to
rehabilitate him. Id. at 15. Appellant further enumerates the mitigating
factors presented to the sentencing court at the sentencing hearing which he
avers it failed to consider. Id. at 16.
Contrary to Appellant’s claims, both at the time of sentencing and in
its Rule 1925(a) Opinion the sentencing court announced numerous reasons
for its sentence. N.T., 2/16/16, at 15-16; Trial Court Opinion, filed 5/5/15,
at 3-5. Specifically, the court noted it had read multiple times the PSI
report, letters written by various family members on Appellant’s behalf
pertaining to Appellant’s character along with those written by the victim’s
mother, and the report of the SOAB. N.T. Sentencing, 2/16/16, at 15. See
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating where
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sentencing court had benefit of PSI, law assumes court was aware of and
weighed relevant information regarding mitigating factors). The sentencing
court also acknowledged that the SOAB did not determine Appellant was a
sexually violent predator and indicated it would not hold a hearing on that
issue.
Nevertheless, the sentencing court explained its need to fashion a
sentence that focused upon the appropriate disposition for Appellant, given
his background and the factual basis of the case, which necessarily included
a consideration of the impact of his actions upon the victim. Id. at 15. The
sentencing court stressed Appellant held a position of trust and served as a
caregiver to the young girl who continues to struggle emotionally. Id. at 16.
It was also relevant to the court that Appellant was found to be in
possession of a firearm although he was prohibited to possess one, which
constituted an aggravating circumstance. Id. The sentencing court further
expressed concern that while he had not been found to be a sexually violent
predator, some of Appellant’s behavior was consistent with a paraphilic
interest; the court deemed this information to be relevant in determining
whether Appellant will reoffend. Id. See also, Trial Court Opinion, filed
5/5/15, at 3-4 (discussing the impact of Appellant’s actions on the victim
and her family and Appellant’s prior criminal history as revealed in the PSI);
In light of the foregoing, the sentencing court carefully considered all
of the information before imposing Appellant’s sentence; therefore, we find
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no abuse of discretion. As Appellant’s sentence is not excessive or
unreasonable, his sole issue fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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