J-S02044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN GEORGE SOSNA
Appellant No. 1920 EDA 2016
Appeal from the Judgment of Sentence April 8, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002342-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED MAY 25, 2017
Brian George Sosna appeals from the April 8, 2016 judgment of
sentence entered in the Northampton County Court of Common Pleas
following his nolo contendere plea to aggravated indecent assault –
complainant less than thirteen years old.1 We affirm.
The trial court set forth the following factual and procedural history:
From November 2012 until approximately September
2014, Sosna resided with family members, including his
five-year old niece, R.M [(“Victim”)]. . . . in [address] in
Walnutport, Northampton County, Pennsylvania (the
“Residence”). On April 24, 2015, Sosna was interviewed
by the Jefferson Police Department in Jefferson, Indiana,
where the Commonwealth alleges Sosna confessed to
sexually assaulting [Victim] in the upstairs bathroom of the
Residence, on multiple occasions, while she was in his
care. Through his alleged confession, Sosna asserted that
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1
18 Pa.C.S. § 3125(a)(7).
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he had sexual contract with the victim approximately ten
times at the Residence. On two occasions, Sosna forced
[Victim] to touch his bare penis, of which one of the times
he had her ejaculate him into the toilet of the Residence’s
upstairs bathroom. Additionally, Sosna admitted to placing
his tongue on [Victim]’s bare vagina to perform oral sex on
her, as well as touching her bare vagina with his fingers
while masturbating himself until he ejaculated. Further, on
at least two occasions, Sosna indicated that he rubbed his
bare penis against [Victim]’s bare vagina.
...
On December 10, 2015, Sosna pleaded nolo contendere
to one count of Aggravated Indecent Assault –
Complainant Less than Thirteen Years Old. As part of the
factual basis for the plea, the Commonwealth alleged that
Sosna sexually abused [Victim] while living at the
Residence by rubbing her vagina and placing his fingers
inside her vagina. As an aid to sentencing, we ordered a
Sexually Violent Predator evaluation from the Pennsylvania
Sexual Offenders Assessment Board, a Psychosexual
Evaluation, and a Presentence Investigation (“PSI”) from
the Northampton County Department of Adult Probation
and Parole.
...
On April 8, 2016, Sosna appeared for sentencing . . . .
Sosna, through his attorney, indicated that he had
reviewed the PSI and found it to be factually accurate.
Sosna also reviewed the guideline calculations on the
Sentencing Guideline Forms and acknowledged that the
calculations were correct. The calculations indicated that
Sosna had a prior record score of one.
For the charge [to which Sosna pled], the Sentencing
Guideline Form indicated an offense gravity score of ten, a
standard range of thirty months to forty-two months as a
minimum, a mitigated-range sentence of eighteen months
as a minimum, an aggravated-range sentence of fifty-four
months as a minimum, and a statutory maximum sentence
of ten years imprisonment and a $25,000 fine.
...
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[T]he court sentenced Sosna to the statutory
maximum, i.e., a minimum period of five years to a
maximum period of ten years. As a condition of Sosna’s
parole, he was prohibited from having any contact with the
victim or any other minor child, and was required to abide
by the recommendations in the Psychosexual Evaluation
and complete all sexual treatment[] programs required by
the Department of Corrections. The court ordered that the
sentence of imprisonment and parole run consecutive to all
other sentences Sosna was currently serving and gave
Sosna credit for all time served.
Pa.R.A.P. 1925(a) Stmt., 7/21/16, at 2-5, 13 (“1925(a) Op.”).
On April 15, 2015, Sosna filed a motion for reconsideration of
sentence, which the trial court denied on May 20, 2016. On June 15, 2016,
Sosna filed a timely notice of appeal.
Sosna raises one issue on appeal:
WAS THE COURT[’]S SENTENCE OF SIXTY TO ONE[-
]HUNDRED TWENTY (60-120) MONTHS[’] IMPRISONMENT
MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND
WITHOUT SUFFICIENT STATED REASONS IN THE RECORD,
AND CONSTITUTING AN ABUSE OF DISCRETION[?]
Sosna’s Br. at 7 (suggested answer omitted).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address such a challenge, we must first
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of 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.
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Sosna filed a timely notice of appeal and included a concise statement
of the reasons relied upon for allowance of appeal pursuant to Pennsylvania
Rule of Appellate Procedure 2119(f). We must now determine whether
Sosna preserved his discretionary aspects of sentencing claims in his motion
to reconsider sentence before considering whether he has raised a
substantial question.
We conclude that Sosna’s motion for reconsideration failed to
challenge the trial court’s alleged failure to state the reasons for the
sentence imposed. In his motion, Sosna averred that “the Commonwealth
requested a sentence in the top end of the standard range” and “the
sentence imposed by the [trial c]ourt was a deviation from the [S]entencing
[G]uidelines.” See Mot. for Recon., 4/15/16. Sosna asked the trial court to
“reconsider its sentence and modify the sentence so that [he] would be
sentenced within the standard range.” Id. However, Sosna’s motion did not
challenge the trial court’s alleged failure to state adequate reasons for
deviating upward from the guideline range, thereby denying “the sentencing
judge an opportunity to reconsider or modify [his] sentence on this basis.”
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003). Thus,
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Sosna has waived this claim.2 See Commonwealth v. Bullock, 948 A.2d
818, 826 (Pa.Super. 2008) (finding waiver where “[a]ppellant failed to raise
the specific claim regarding the sentencing court’s alleged failure to state the
reasons for his sentence on the record”).
However, we conclude that Sosna preserved his claim that the trial
court’s sentence was manifestly excessive and unreasonable. Sosna’s
motion stated that he was sentenced above the Sentencing Guideline range
sentence and the Commonwealth asked for a sentence at the “top end” of
that range, and requested that the trial court reconsider its deviation. See
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2
Even if Sosna had preserved this claim for review, he would not be
entitled to relief. While a claim that the trial court failed to place its reasons
on the record for deviating from the Sentencing Guidelines raises a
substantial question, see Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999), the record shows that the trial court placed its reasons for
an “outside above” range sentence on the record, including:
. . . . 1) the fact that Sosna lied about his education
history; 2) Sosna’s age coupled with his sporadic prior
work history; 3) Sosna’s outstanding case for sexual
assault; 4) the fact that the victim was an innocent five-
year old girl; 5) the fact that the victim was particularly
vulnerable due to her age; 6) the effect the crime has had
upon the victim; 7) the fact that Sosna was the victim’s
uncle and in a close relationship with the victim; 8) the
finding in the Psychosexual Evaluation that Sosna was in
the moderate range risk to reoffend; 9) that the offense
was more significant than a crime of similar circumstances;
and 10) the fact that Sosna did not express any concern
over the severe effect the crime had upon the victim.
1925(a) Op. at 26-27. The trial court also stated these reasons at the time
of sentencing. See N.T., 4/8/16, at 12-17.
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Mot. for Recon., 4/15/16. While we recognize that Sosna’s motion could
have better clarified the issues for review, the motion did allow the trial
court to review its sentence and determine whether it had imposed an
excessive or unreasonable sentence.
We must now determine whether Sosna’s issue raises a substantial
question for our review. We evaluate whether a particular sentencing issue
raises a substantial question on a case-by-case basis. Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011). A substantial question
exists where a defendant raises a “plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Dodge, 77 A.3d
1263, 1268 (Pa.Super. 2013) (quotation omitted). A claim that the
sentence imposed was excessive and unreasonable, when that sentence is
above the aggravated range under the Sentencing Guidelines, presents a
substantial question for our review. See Commonwealth v. Sheller, 961
A.2d 187, 190 (Pa.Super. 2008) (finding that appellant’s “contention that
the [trial] court exceeded the recommended range in the Sentencing
Guidelines without an adequate basis raises a substantial question for this
Court to review.”). Therefore, Sosna’s claim that the trial court’s imposition
of a sentence above the aggravated range of the Sentencing Guidelines is
not appropriate under the Sentencing Code raises a substantial question.
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“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). This
Court has stated:
When reviewing a sentence outside of the guideline
range, the essential question is whether the sentence
imposed was reasonable. 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. In making a reasonableness
determination, a court should consider four factors:
(1) The nature and circumstances 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.
A sentence may be found unreasonable if it fails to
properly account for these four statutory factors. A
sentence may also be found unreasonable if the sentence
was imposed without express or implicit consideration by
the sentencing court of the general standards applicable to
sentencing. These general standards mandate that a
sentencing court impose a sentence 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.
Sheller, 961 A.2d 190-91 (internal citations and quotation marks omitted).
We conclude that the trial court did not abuse its discretion in
sentencing Sosna to five to ten years’ incarceration. While the trial court
deviated from the Sentencing Guidelines, it placed the Sentencing Guidelines
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ranges on the record and provided comprehensive reasons for imposing the
sentence:
According to the [G]uideline form, Mr. Sosna has a prior
record score of 1. For the charge of aggravated indecent
assault, the . . . form provides for an offense gravity score
of 10, a standard range sentence of 30 months to 42
months as a minimum, a mitigated sentence of 18 months
as a minimum and an aggravated range sentence of 54
months as a minimum. The statutory maximum is 10
years in prison and a $25,000 fine.
...
I’ve reviewed the Pre-Sentence Investigation, the
Psychosexual Evaluation[,] and the Sexual Offenders
Assessment. I’ve considered the testimony presented
today, the statements made today by Mr. Sosna, his
counsel[,] and counsel for the Commonwealth. In
addition, I’ve also considered the guideline form submitted
to the Court.
Mr. Sosna, you stand before the Court after having pled
nolo contendere to the crime of aggravated indecent
assault involving a 5 year-old girl. At the time of your
plea[,] the Commonwealth indicated that it was prepared
to present the following facts to the jury, namely that
while [Sosna] resided in a home in Walnutport with several
of his family members, one of which was a 5-year-old girl,
[Sosna] rubbed the girl’s vagina and placed his fingers
inside of her vagina.
The Pre-Sentence Investigation indicates that on April
24, 2015 at 1130 hours, Sosna was interviewed at
Jefferson Police Department located at 2200 East 10th
Street in Jeffersonville, Indiana. Sosna was read his
Miranda warning and agreed to be interviewed. The
interview was recorded audibly and visibly. Sosna
provided a confession to sexually assaulting the victim in
the upstairs bathroom on multiple occasions.
Sosna related that the sexual contact with the victim
occurred approximately 10 times while he resided at the
residence. Sosa related that the victim touched his bare
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penis twice, of which one of the times he had her ejaculate
him into the toilet of the upstairs bathroom. Sosna related
that he placed his tongue on the victim’s bare vagina and
performed oral sex on her in addition to touching her bare
vagina with his fingers and masturbating himself until he
ejaculated. Sosna also indicated on at least two occasions
he rubbed his bare penis against the victim’s bare vagina.
The reports also indicated that the girl contracted herpes
from Mr. Sosna.
...
With respect to education, Mr. Sosna indicated that he
received a Special Education degree but that he never
obtained a GED. This information could not be verified.
With respect to employment, you are 39-years-old and
the jobs that you have held have been mostly sporadic
positions. The last job that you held was in Indiana where
you were employed at a stone company from 1996 to
1999. You reported that you were employed by [another
company] as a full-time worker from the age of 19. Until
March of 2015, you have been receiving Social Security
Disability. You stated that you received this disability
because your father had dropped you on your head when
you were an infant and your mother drank alcohol while
she was pregnant causing you to have Fetal Alcohol
Syndrome.
You reported that you have not had any alcohol or drug
dependency issues and have never received any form of
treatment for drug and alcohol use.
I have also considered your prior criminal record as an
adult. In 1994 you were convicted of malicious injury to
property in South Carolina. In 2012 you were convicted of
an assault in Kentucky and I believe there is a current
investigation pending regarding a sexual assault.
You stated that you were married on Valentine’s Day,
2015, to Dawn Gutierrez and that you have no children.
I have considered the fact that the victim in the case
was a completely innocent 5-year-old girl. Therefore, the
fact that the victim was particularly vulnerable due to her
age is also a fact that I’ve considered. I have considered
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the effect that the crime has had on the victim. Based
upon the victim impact statement made by the [mother of
the victim], she has set forth what effect the crime has
had on her daughter. I have considered the fact that you
were the victim’s uncle and in a close relationship to the
victim.
I’ve also considered all of the information and
conclusions set forth in the Psychosexual Evaluation . . . .
[which] concludes that based upon the information
provided, you are in the moderate range risk to re-offend.
I’ve also considered the Sexual Offenders Assessment . . .
as well as the testimony presented today at this hearing.
Mr. Sosna, you are 39-years-old. I have considered
your age, the information you have given to me, the
information in the Pre-Sentence Investigation, the
Psychosexual Evaluation, the Sexual Offenders Assessment
. . ., the testimony presented today, the guideline form,
the statement made today made by you, your counsel,
counsel for the Commonwealth as well as the victim – the
victim’s mother, the fact that the victim was particularly
vulnerable due to her age, your family relationships and
background, your education, work history, whether you
are good candidate for rehabilitation, your potential
rehabilitative needs, the protection of the public, the need
to deter future similar conduct, the fact a lesser sentence
would depreciate the seriousness of the crime, the
protection of the public, the effect your crime has had on
the community.
In addition, I’ve considered the offense was more
significant than a usual offense of similar circumstances.
I’ve considered all of those factors.
Now, Mr. Sosna, based upon what you did to this little
5-year-old girl, I’m sure that now she believes in monsters
and things that go bump in the night. She just never
thought that it was her uncle that would be the monster.
You listened to what your sister said was the effect that
your crime has had on this little girl and it is a horrific
effect that will stay with her her entire life.
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N.T., 4/8/16, at 4-5, 12-18. The trial court’s extensive statement
demonstrates that it considered the requisite statutory factors, the nature
and circumstances of Sosna’s offense, the impact of Sosna’s offense on the
victim and the community, and the Sentencing Guidelines. The trial court
also reviewed multiple pre-sentence reports,3 and considered the testimony
at the sentencing hearing.4 Therefore, we discern no abuse of discretion by
the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2017
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3
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
4
At the hearing, Victim’s mother testified that as a result of the crime,
Victim now struggles to concentrate on any task, Victim is separated from
her brother and mother, and Victim’s relatives can no longer celebrate
holidays or important family moments together. N.T., 4/8/16, at 7-9.
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