J-S37010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

MARIA TORRE

                             Appellant                  No. 572 EDA 2014


           Appeal from the Judgment of Sentence January 10, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002587-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JUNE 25, 2015

        Appellant, Maria Torre, appeals from the judgment of sentence entered

in the Lehigh County Court of Common Pleas, following her open guilty plea

to aggravated assault.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

In March 2013, Appellant physically abused her paramour’s 7-year-old

daughter. Specifically, Appellant burned the victim with a cigarette lighter

and broke the victim’s arm.         On December 4, 2013, Appellant executed a

written guilty plea colloquy. That same day, the court conducted Appellant’s

plea hearing.       Appellant entered an open guilty plea to one count of

aggravated assault.         The court accepted Appellant’s plea, ordered a pre-
____________________________________________


1
    18 Pa.C.S.A. § 2702.
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sentence investigation (“PSI”) report, and scheduled the matter for

sentencing.

       With the benefit of a PSI report, the court conducted Appellant’s

sentencing hearing on January 10, 2014. At the conclusion of the hearing,

the   court    sentenced     Appellant     to   ten   (10)   to    twenty     (20)   years’

imprisonment.2 On January 17, 2014, Appellant timely filed a post-sentence

motion, arguing the court “failed to recognize mitigating factors” and

“improperly cited” certain aggravating factors to support the imposition of a

statutory maximum sentence. (Motion for Reconsideration of Sentence, filed

1/17/14,      at   2).    Appellant     concluded     the    sentence   “is    manifestly

unreasonable so as to shock the conscience.” (Id. at 3). The court denied

the post-sentence motion on January 23, 2014.

       Appellant timely filed a notice of appeal on February 7, 2014.                   On

February 19, 2014, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).                  Appellant

timely filed a Rule 1925(b) statement on March 11, 2014.

       Appellant raises one issue for our review:

           WHETHER       THE    [SENTENCING]          COURT       ABUSED      ITS
____________________________________________


2
  With a prior record score of zero (0) and an offense gravity score of eleven
(11), the standard range for Appellant’s aggravated assault conviction was
thirty-six (36) to fifty-four (54) months. The aggravated range provides for
an additional twelve (12) months’ imprisonment. The statutory maximum
for aggravated assault, graded as a first degree felony, is twenty (20) years’
imprisonment. See 18 Pa.C.S.A. § 1103(1).



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           DISCRETION IN IMPOSING A MANIFESTLY EXCESSIVE
           AND UNREASONABLE SENTENCE WHICH IS AT THE
           STATUTORY MAXIMUM LIMIT AND IMPOSED WHEN THE
           COURT FAILED TO CONSIDER ANY SIGNIFICANT
           MITIGATING FACTORS, FAILED TO APPLY AND REVIEW
           ALL THE NECESSARY FACTORS AS SET FORTH IN 42
           PA.C.S.A. § 9721(b) AND 42 PA.C.S.A. § 9781(c) AND (d)
           OR OTHERWISE FAILED TO SET FORTH APPROPRIATE
           REASONS FOR ITS RADICAL DEVIATION FROM THE
           STANDARD SENTENCING RANGES?

(Appellant’s Brief at 7).

       On appeal, Appellant asserts her minimum sentence exceeded the

aggravated range of the sentencing guidelines.             Appellant contends the

sentence     was    unreasonable,      because   the   court   refused   to   consider

mitigating factors, such as Appellant’s lack of a prior criminal record.

Appellant further argues the court provided insufficient reasons for deviating

from the guidelines, and the court failed to conduct a fair and balanced

review of the evidence presented at the sentencing hearing.                   Appellant

concludes the sentence imposed is manifestly excessive and constitutes too

severe a punishment. Appellant’s challenge is to the discretionary aspects of

her sentence.3      See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.

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3
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of…her sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
(Footnote Continued Next Page)


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2002) (stating claim that sentence is manifestly excessive challenges

discretionary aspects of sentencing).

        Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.              Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).           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 is not appropriate under the
          Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in her brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident
                       _______________________
(Footnote Continued)

plea was “open” as to sentencing, so she can challenge the discretionary
aspects of her sentence.



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in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.”     Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,

174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in original) (internal

quotation marks omitted).

     “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.”      Sierra, supra at 912-13.   “A claim that the

sentencing court imposed an unreasonable sentence by sentencing outside

the guideline ranges raises a ‘substantial question’ which is reviewable on

appeal.” Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999).

Moreover, an assertion that the sentencing court failed to state sufficient

reasons for imposing a sentence outside the sentencing guidelines raises a

substantial question.   Commonwealth v. Rodda, 723 A.2d 212, 214

(Pa.Super. 1999) (en banc).

     Here, Appellant’s post-sentence motion and Rule 2119(f) statement


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properly preserved her claims.      Additionally, Appellant’s claims appear to

raise substantial questions as to the discretionary aspects of her sentence.

See Rodda, supra; Davis, supra.

      Our standard of review concerning the discretionary aspects of

sentencing 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 judgment for
         reasons of partiality, prejudice, bias or ill will, or arrived at
         a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Rodda, supra at 214).

      “[A] court is required to consider the particular circumstances of the

offense and the character of the defendant.”       Commonwealth v. Griffin,

804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.

2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the

defendant’s prior criminal record, [her] age, personal characteristics and

[her] potential for rehabilitation.” Id.

      “When a sentencing court decides to deviate from the guidelines…it

must provide a contemporaneous written statement of the reason or reasons

for the deviation from the guidelines.” Commonwealth v. Robertson, 874

A.2d 1200, 1212 (Pa.Super. 2005). “This requirement is satisfied when the


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court states its reasons for the sentence on the record and in the

defendant’s presence.” Commonwealth v. Ritchey, 779 A.2d 1183, 1186

(Pa.Super. 2001).    “Nevertheless, a lengthy discourse on the trial court’s

sentencing philosophy is not required.”        Commonwealth v. McAfee, 849

A.2d 270, 275 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122

(2004).

     “[U]nder the Sentencing Code an appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to

assess    whether   the   sentencing   court       imposed   a   sentence    that   is

‘unreasonable.’”    Commonwealth v. Walls, 592 Pa. 557, 568, 926 A.2d

957, 963 (2007).      In making this “unreasonableness” inquiry, this Court

must consider four factors:

          § 9781. Appellate review of sentence

                                  *     *      *

            (d) Review of record.—In reviewing the record the
          appellate court shall have regard for:

                  (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.


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42 Pa.C.S.A. § 9781(d)(1)-(4).

     In Walls, supra, our Supreme Court explained that “the concept of

unreasonableness” is “inherently a circumstance-dependent concept that is

flexible in understanding and lacking precise definition.”   Id. at 568, 926

A.2d at 963.

        Thus, given its nature, we decline to fashion any concrete
        rules as to the unreasonableness inquiry for a sentence
        that falls outside of applicable guidelines under Section
        9781…. We are of the view, however, that the Legislature
        intended that considerations found in Section 9721 inform
        appellate review for unreasonableness. That is, while a
        sentence may be found to be unreasonable after review of
        Section 9781(d)’s four statutory factors, in addition a
        sentence may also be unreasonable if the appellate court
        finds that the sentence was imposed without express or
        implicit consideration by the sentencing court of the
        general standards applicable to sentencing found in
        Section 9721, i.e., the protection of the public; the gravity
        of the offense in relation to the impact on the victim and
        the community; and the rehabilitative needs of the
        defendant.    42 Pa.C.S. § 9721(b).       Moreover, even
        though the unreasonableness inquiry lacks precise
        boundaries, we are confident that rejection of a
        sentencing court’s imposition of sentence on
        unreasonableness grounds would occur infrequently,
        whether the sentence is above or below the
        guideline       ranges,      especially      when        the
        unreasonableness inquiry is conducted using the
        proper standard of review.

Id. at 568-69, 926 A.2d at 964 (emphasis added).

     Instantly, the court had the benefit of a PSI report at sentencing.

Therefore, we can trust it considered the relevant factors when sentencing

Appellant. See Tirado, supra at 368 (stating where sentencing court had

benefit of PSI, law presumes court was aware of and weighed relevant

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information     regarding     defendant’s      character   and   mitigating   factors).

Additionally, the court provided its reasons for the sentence imposed:

          Someone who commits such a heinous crime and then
          comes and says, “The burns inflicted on the child were not
          that severe,” shows an incredible lack of appreciation for
          her criminality.[4]

          I don’t even know where to start, except this was not a
          once-and-done action. This was over a period of time.
          These were repeated acts of cruelty to a seven-year-old
          child to whom you owed a duty of care.

          To hurt a child in such a way demonstrates a level of
          cruelty that is haunting.

          These are crimes that are committed in private, when no
          one else is looking, when no one else is there to protect
          the child. And crimes of silence, because you demanded
          that [the victim] lie and not tell [others about the abuse].
          And the best evidence of her absolute terror of the
          monster who was supposed to care for her is the fact that
          she did [not tell others about the abuse].

                                       *       *   *

          You’re 29 years old. You’re educated. You went to three
          years of college. This is not something borne of ignorance.

          In your remarks you said you were most sorry for what
          you had done to your family and your two boys. You
          didn’t include [the victim] in that. Unimaginable. And not
          a tear.

                                       *       *   *

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4
  Earlier in the hearing, the parties discussed Appellant’s version of events,
as set forth in the PSI report, which included statements minimizing the
criminal conduct at issue. (See N.T. Sentencing Hearing, 1/10/14, at 15-
16.)



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        This sentence is beyond the aggravated range as the
        victim was a seven-year-old girl, and given the relationship
        of the victim and [Appellant] in that [Appellant] was
        [effectively] in the role of mother to the child and,
        therefore, had a special duty of care which she violated.

(See N.T. Sentencing Hearing at 17-19.)

     Here, the court stated with particularity its reasons for imposing

Appellant’s sentence. Regarding the “reasonableness” of that sentence, the

court considered the nature and circumstances of the offense, recognizing

Appellant repeatedly injured a seven-year-old girl.        The court took into

account Appellant’s role as a caregiver to the child, noting Appellant

breached her special duty to the victim. The court also observed Appellant,

evaluated the PSI, and announced its findings at the time of sentencing.

Under   these   circumstances,   the    court’s   upward   departure   from   the

sentencing guidelines was not unreasonable pursuant to Section 9781(d).

See Walls, supra. Based upon the foregoing, we see no reason to disturb

the judgment of the sentence. See Hyland, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2015




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