J-A23003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                v.                       :
                                         :
                                         :
 MARSHALL ISAAC GIBSON                   :
                                         :
                     Appellant           :   No. 651 EDA 2017

          Appeal from the Judgment of Sentence December 22, 2016
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0003112-2015


BEFORE:        PANELLA, J., DUBOW, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 08, 2017

      Appellant, Marshall Gibson, pled guilty but mentally ill to charges that

he raped a woman by holding a knife to her throat and forcing her to

perform oral sex on him. The court sentenced him to a term of imprisonment

of 10 to 20 years. This sentence exceeded the aggravated range of the

sentencing guidelines.

      On appeal, Gibson argues the court ignored significant mitigating

factors and imposed a manifestly excessive sentence. Gibson concedes this

claim challenges the discretionary aspects of his sentence. See Appellant’s

Brief, at 9.

      “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




____________________________________
* Former Justice specially assigned to the Superior Court.
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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:

      [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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

      Here, Gibson preserved his issue through a timely motion for

reconsideration of the sentence imposed, and filed a timely appeal. Counsel

has included the required Rule 2119(f) statement. We therefore turn to a

substantive review of Gibson’s Rule 2119(f) statement.

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “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. (citation

omitted); see also Pa.R.A.P. 2119(f).

      Gibson “must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

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849 A.2d at 274 (citation omitted). That is, “the 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.”

Tirado, 870 A.2d at 365 (citation omitted).

      Gibson’s claim that the trial court focused exclusively on the

seriousness of the crime while ignoring other, mitigating circumstances, such

as his mental health issues, age, and lack of prior record, raises a

substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 770

(Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015); see

also Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006)

(claim that trial court failed to adequately state on the record its reasons for

imposing a sentence exceeding the guideline range raises a substantial

question).

      In imposing a sentence, the court must consider relevant statutory

factors, including “the protection of the public, gravity of an offense in

relation to impact on victim and community, and rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b). A court has broad discretion in

fashioning its sentence. See Commonwealth v. Walls, 926 A.2d 957, 962-

63 (Pa. 2007). While the court is required to consider the sentence ranges

set forth in the sentencing guidelines, it is not bound by them. See

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). The court

may depart from the guidelines, “if necessary, to fashion a sentence which


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takes into account the protection of the public, the rehabilitative needs of

the defendant, and the gravity of the particular offense as it related to the

impact on the life of the victim and the community[.]” Commonwealth v.

Eby, 784 A.2d 204, 206 (Pa. Super. 2001). If the court imposes a sentence

outside the guideline ranges, it must place adequate reasons for the

deviation in the record.   See P.L.S., 894 A.2d at 129-130.

      Here, contrary to Gibson’s claims, the court referenced the guidelines.

See N.T., Sentencing, 12/22/16, at 50 (“I don’t believe … the sentencing will

fall within the standard sentencing range.”) Thus, there is no concern that

the court was unaware that it was sentencing outside the guideline ranges.

      Furthermore, the court acknowledged Gibson’s rehabilitative needs

and the impact his imprisonment would have on his family. See id., at 49.

Thus, the record belies Gibson’s claim that the court did not consider his

rehabilitative needs.

      While Gibson correctly asserts the court spent significantly more time

addressing the impact of the crime on the victim and protection of the

community, this does not render the court’s reasoning an abuse of

discretion. Gibson pled guilty to a serious crime, where he threatened the

victim with a knife. He then forced the victim to perform oral sex.

      The impact of a forcible rape on a victim should not be ignored. Nor

should the protection of the public be ignored, given the fact that, according

to the guilty plea, Gibson committed this crime due to his mental illness. The


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reasons given for the sentence imposed are rational, and do not constitute

an abuse of the court’s discretion. Gibson’s sole issue on appeal merits no

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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