J-S25021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL A. OFFEN                           :
                                               :
                       Appellant               :   No. 1364 WDA 2017

             Appeal from the Judgment of Sentence June 29, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012384-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 17, 2018

       Michael A. Offen appeals the judgment of sentence entered in the

Allegheny County Court of Common Pleas following a guilty plea. Offen

challenges the discretionary aspects of the trial court’s sentence. We affirm.

       The relevant facts and procedural history are as follows. On April 24,

2017, Offen entered a guilty plea to the charges of endangering welfare of

children, corruption of minors, and indecent assault.1 The charges arose from

Offen’s repeated fondling of his eight year-old daughter, with both his hand



____________________________________________


1 18 Pa.C.S.A. §§ 4304(a)(1), 6301(a)(1)(ii), and 3126(a)(7), respectively.
Additionally, pursuant to the terms of the plea, the welfare of children and
indecent assault convictions would be considered course of conduct offenses,
increasing the grading of these offenses from first-degree misdemeanors to
third-degree felonies. See 18 Pa.C.S.A. §§ 4304(b)(1)(ii) and 3126(b)(3)(ii),
respectively.
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and a vibrator. In exchange for his plea, the Commonwealth withdrew four

additional charges.

      Prior to imposing the sentence, the court considered a pre-sentence

investigation (“PSI”), the arguments of counsel, victim impact statements

from both the victim and her mother, a statement from Offen’s adult daughter,

and Offen’s allocution. Ultimately, the court sentenced Offen to 3 to 6 years’

imprisonment for endangering the welfare of children, 3 to 6 years’

imprisonment for corruption of minors, and 3 to 6 years imprisonment for

indecent assault. These sentences deviated from the sentencing guidelines.

The court ordered these sentences to be served consecutively, for an

aggregate sentence of 9 to 18 years’ imprisonment.

      Offen filed a timely post-sentence motion challenging the discretionary

aspects of his sentence, which the court denied. This timely appeal follows.

      On appeal, Offen contends that the court abused its discretion in

imposing sentence. Offen concedes that this challenge implicates the

discretionary aspects of the court’s sentence.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “An appellant challenging the discretionary

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (citation omitted). This test requires us to

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       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 is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. (citation omitted; brackets in original).

       Here, Offen has met the first three parts of the test by filing a timely

notice of appeal, preserving his challenge in a post-sentence motion, and

including the requisite Rule 2119(f) statement in his brief. Thus, we look to

his Rule 2119(f) statement to determine whether he has met the fourth part

of this test by raising a substantial question for our review.

       To raise a substantial question, Offen must show that his “sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(citation omitted). Offen’s claim is that the trial court imposed an

unreasonable sentence by sentencing him outside the guidelines2 without

offering   specific   reasons     for   the    sentence   “that   comport   with   the



____________________________________________


2At the time of Offen’s sentencing, the parties agreed that the standard range
sentence for all of his offenses was 3 to 12 months’ imprisonment, plus or
minus 6 months. Therefore, a minimum sentence of 36 months for each
conviction is above the aggravated range of the sentencing guidelines.



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considerations required in 42 Pa.C.S.[A]. § 9721(b).”3 Appellant’s Brief, at 11.

This claim raises a substantial question for our review. See generally

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004) (finding

a claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guidelines presents a substantial question).4

       Our standard of review is 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


____________________________________________


3 Offen’s lengthy and convoluted Rule 2119(f) statement contains citations to
numerous situations in which our court has found substantial questions for
review. See Appellant’s Brief, at 11-13. However, Offen does not appear to
claim that any of these substantial questions exist in his case. See id.
Therefore, we did not consider them in our analysis of whether Offen raised a
substantial question for our review.

4 Offen attempts to raise additional claims in the argument section of his brief,
i.e., that the trial court abused its discretion by imposing the sentences
consecutively, that the court failed to place its reason for the sentence on the
record, and that the court considered improper factors in imposing sentence.
See Appellant’s Brief, at 19-23. However, because Offen failed to include
these issues in his statement of questions involved and in his Rule 2119(f)
statement, we cannot consider them. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”); Pa.R.A.P. 2116(b) (“An appellant who
challenges the discretionary aspects of a sentence in a criminal matter shall
include any questions relating to the discretionary aspects of the sentence
imposed … in the statement required by paragraph (a).”) See also
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) “[W]e
cannot look beyond the statement of questions presented and the prefatory
2119(f) statement to determine whether a substantial question exists.”)


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     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. 2006) (citation

omitted).

     Where an excessive sentence claim is based on deviation from the
     sentencing guidelines, we look for an indication that the
     sentencing court understood the suggested sentencing range.
     When there is such an indication, the sentencing court may
     deviate from the sentencing guidelines

            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 offenses as it
            relates to the impact on the life of the victim and the
            community, so long as the court also states of record the
            factual basis and specific reasons which compelled him to
            deviate from the guideline range.
     Thus, simply stated, the sentencing guidelines are merely
     advisory and the sentencing court may sentence a defendant
     outside the guidelines as long as the sentencing court places its
     reasons for doing so on the record.

Tirado, 870 A.2d at 366 (citations omitted).

     To begin, the court had the benefit of a presentence investigation report.

See N.T., Sentencing, at 2. Thus, we must

     presume that the sentencing judge was aware of relevant
     information regarding the defendant’s character and weighed
     those considerations along with mitigating statutory factors. A
     pre-sentence report constitutes the record and speaks for itself ….
     Having been fully informed by the pre-sentence report, the
     sentencing court’s discretion should not be disturbed. This is
     particularly true, we repeat, in those circumstances where it can
     be demonstrated that the judge had any degree of awareness of
     the sentencing considerations, and there we will presume also that
     the weighing process took place in a meaningful fashion. It would
     be foolish, indeed, to take the position that if a court is in
     possession of the facts, it will fail to apply them to the case at
     hand.


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Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). See also Tirado, 870 A.2d at 368.

      Additionally, at sentencing, the court heard the arguments of counsel,

heard the victim impact statements from both the victim and her mother, read

a statement from Offen’s adult daughter, and heard Offen’s allocution. The

court referenced the guidelines and was well aware that the sentence imposed

departed from the sentencing guidelines. See N.T., Sentencing, 6/29/17, at

2, 18. The court made it clear it had considered the § 9721(b) sentencing

factors, including Offen’s lack of a prior record score, guilty plea, service to

the county, and disability. See id., at 16-17. However, the court found it

necessary to depart from the guidelines because Offen had repeatedly violated

his eight-year old biological daughter, with his hand and a vibrator. See id.,

at 16-17.

      Based upon our review of the sentencing transcript, we find no merit to

Offen’s contention that the trial court failed to consider the sentencing factors.

We cannot find, under these circumstances, that the trial court abused its

discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2018




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