J-S84037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY SCOTT NIEVES
Appellant No. 1371 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016
in the Court of Common Pleas of Monroe County Criminal Division
at No(s): CP-45-CR-0000031-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY SCOTT NIEVES
Appellant No. 1373 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016
in the Court of Common Pleas of Monroe County Criminal Division
at No(s): CP-45-CR-0000032-2013
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY SCOTT NIEVES
Appellant No. 1374 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016
in the Court of Common Pleas of Monroe County Criminal Division
at No(s): CP-45-CR-0000033-2013
J-S84037-16
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY SCOTT NIEVES
Appellant No. 1375 EDA 2016
Appeal from the Judgment of Sentence March 22, 2016
in the Court of Common Pleas of Monroe County Criminal Division
at No(s): CP-45-CR-0000669-2013
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 22, 2017
Appellant, Anthony Scott Nieves, appeals from the judgment of
sentence of eighteen to thirty-six years’ imprisonment imposed in the
Monroe County Court of Common Pleas after a jury found him guilty of, inter
alia, one count of involuntary deviate sexual intercourse (“IDSI”) 1 and two
counts of rape.2 Appellant contends that the trial court abused its discretion
when sentencing in the aggravated range. We affirm.
Collectively, the four bills of information charged Appellant with
committing sexual and drug-related offenses at his residence against four
victims. One victim was his thirteen-year-old daughter; the other victims
were thirteen- or fourteen-year-old friends of Appellant’s daughter. One
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3123(a)(7).
2
18 Pa.C.S. § 3121(a)(4).
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information alleged that during June 2011, one victim, L.B., stayed overnight
at Appellant’s residence with his daughter. The following morning, Appellant
drove his daughter to another friend’s house and left L.B. behind at his
house. When Appellant returned, he had vaginal and oral intercourse with
L.B. and recorded the assault on his video camera. Appellant also gave L.B.
rum or prescription pills on two dates in June 2011. The three other
informations accused Appellant of committing crimes in November 2012.
Specifically, on November 23, 2012, Appellant crushed up an oxycodone pill,
a prescribed narcotic, put it on a spoon with whipped cream, and gave it to a
second victim, M.M. He also furnished rum to M.M., who vomited several
times and had to visit a local hospital for examination. Further, on
November 23, 2012, Appellant furnished rum and oxycodone to a third
victim, K.L. Later that night, Appellant had vaginal intercourse with K.L. in
his bed. Finally, at some point between November 23, 2012 and November
27, 2012, Appellant gave rum and oxycodone to his daughter, K.N., and
then penetrated her vagina with his penis and finger.
The trial court consolidated the four informations, and Appellant
pleaded guilty to IDSI, production of child pornography,3 possession with
intent to deliver a controlled substance (“PWID”)4 and two counts of rape.
3
18 Pa.C.S. § 6312(b).
4
35 P.S. § 780-113(a)(30).
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On March 22, 2016, the trial court held a hearing pursuant to 42
Pa.C.S. § 9799.24 to determine whether Appellant is a sexually violent
predator (“SVP”). The Commonwealth’s expert on SVP assessments testified
that Appellant has an “unspecified paraphilic disorder,” which the expert
characterized as an abnormal attraction to post-pubertal teenagers. N.T.,
3/22/16, at 16-17. The expert noted that Appellant manifested this disorder
because “[w]e have three victims of the same age, three victims who were
non-consenting, three victims who were groomed,[5] and three in a time
period beyond . . . six months that also caused distress to the victims.” Id.
at 18. In addition, Appellant had a history of psychotic disorder, although “it
does not appear that the psychotic disorder was the impetus for the sexual
offending. The paraphilic disorder was.” Id. at 19. The paraphilic disorder
was an incurable lifelong condition that must be managed with appropriate
treatment. Id. at 19-20. Based on this evidence, the trial court determined
that Appellant is an SVP.
The trial court then reviewed a presentence investigation report
(“PSI”) and heard statements from or on behalf of the victims, a statement
from Appellant, and argument from counsel for both parties. Id. at 31-40.
The trial court sentenced Appellant to three consecutive terms of 72-144
5
The expert observed that the grooming mechanisms were furnishing
alcohol and drugs to the victims and “telling one victim that he loved her and
she was beautiful, also that she owed him . . . for loaning her money.” Id.
at 13.
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months’ imprisonment on the two counts of rape and the single count of
IDSI.6
Appellant filed a timely motion for reconsideration of sentence, which
the trial court denied, and a timely notice of appeal. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
Appellant raises one issue in this appeal:
Whether the trial court erred in sentencing [Appellant] to
an aggravated range sentence of eighteen (18) to thirty
six (36) years on two counts of [r]ape and one count of
[IDSI], where said sentence was outside of the
recommended sentence in the PSI, was grossly
disproportionate to the sentence of others convicted of the
same types of offenses, neither reflects his rehabilitative
needs nor was . . . necessary to protect the community,
and therefore violates the fundamental norms of the
sentencing process?
Appellant’s Brief at 13 (with minor grammatical revisions). No relief is due.
This Court has stated that:
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
Prior to reaching the merits of a discretionary sentencing
issue:
[W]e 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
6
The court also imposed concurrent terms of imprisonment for one count of
production of child pornography and one count of PWID.
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is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally 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. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)
(quotation marks and some citations omitted).
The Rule 2119(f) statement
must specify where the sentence falls in relation to the
sentencing guidelines and what particular provision of the
Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on
the record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must
specify what fundamental norm the sentence violates and
the manner in which it violates that norm . . . .
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. (emphasis in original).
Here, Appellant timely appealed, preserved his discretionary aspects of
sentencing issue in his motion for reconsideration of sentence, and included
a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533.
Appellant notes that his PSI recommended an aggregate standard range
sentence of fifteen to thirty years’ imprisonment, and that the trial court
imposed an aggregate sentence of eighteen to thirty-six years’
imprisonment, which fell in the aggravated range. Appellant’s Brief at 15.
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Appellant asserts that the trial court abused its discretion because it
sentenced in the aggravated range without adequately considering
mitigating factors, in particular, the fact that his psychosis could be
controlled with medication. Id. This presents a substantial question. See
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted). Accordingly, we proceed to the merits of Appellant’s argument.
This Court has stated:
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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
When reviewing the reasonableness of a sentence, an appellate 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 pre-sentence
investigation; (3) the findings upon which the sentence was based; and (4)
the guidelines promulgated by the commission. 42 Pa.C.S. § 9781(d)(1)-
(4). A sentence may be found unreasonable if it fails to properly account for
these four statutory factors, or if it “was imposed without express or implicit
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consideration by the sentencing court of the general standards applicable to
sentencing[.]” Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
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.” 42 Pa.C.S. § 9721(b).
Here, the trial court reviewed Appellant’s PSI. His prior record score
was zero. The offense gravity score for rape and IDSI is twelve, and the
standard range minimum sentence is forty-eight to sixty-six months with an
aggravated/mitigated range of plus or minus twelve months. N.T., 3/22/16,
at 42. The court balanced the aggravating and mitigating factors as follows:
Here we have four different victims, although one
was not pled of a sexual nature, but the MO, if you will, of
this has been fairly consistent on each of these.
The lasting impact in this kind of a case to the
victims is beyond measure. This is not the kind of thing—
honestly, as much as a paraphilic disorder is something
that’s never cured but managed, the trauma associated
with these kinds of events on the victims is, likewise,
something that doesn’t get cured but rather they have to
manage day to day every day for the rest of their lives as
well . . . .
I also . . . agree with [the prosecutor] that there is
an additional aggravating circumstance here which is the
relationship . . . the position of trust and caregiver [to
Appellant’s daughter]. There’s also a biological connection
[with his daughter].
There was also the videotaping which . . . aside or in
addition to the physical, there’s the demeaning videotaping
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of these events, the fact that [Appellant’s] son was in the
residence and he was a minor . . . .
I agree with [defense counsel that] there is a
mitigating circumstance here in that [Appellant] suffers
from a serious mental illness. That’s uncontroverted, and I
don’t take any issue with that whatsoever . . . . My
balancing of that, however, takes me to a place where in
its totality I believe an aggravated sentence is warranted .
...
Id. at 40-41.
Based on this reasoning, we conclude that the trial court carefully
studied all relevant factors and imposed a sentence that was tailored to
Appellant’s individual needs and circumstances and was “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. § 9721(b). The court acted within its
discretion by imposing consecutive aggravated range sentences on Appellant
for two counts of rape and one count of IDSI. See Walls, 926 A.2d at 966-
67 (affirming statutory maximum sentence sentences in excess of
sentencing guidelines for rape of and IDSI with victim less than thirteen
years old, where sentencing decision was individualized with respect to
defendant, and properly took into account protection of public, gravity of
offenses as they related to impact on life of victim and community, and
rehabilitative needs or prospects of rehabilitation for defendant).
Judgment of sentence affirmed.
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Judge Solano joins the Memorandum. Judge Olson Concurs in the
Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2017
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