J-S36026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH LEE RICHIE

                            Appellant                No. 1785 WDA 2014


            Appeal from the Judgment of Sentence March 13, 2014
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0002114-2011


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JULY 10, 2015

        Appellant Kenneth Lee Richie appeals from the judgment of sentence1

entered in the Westmoreland County Court of Common Pleas following his

guilty plea to numerous sexual offenses against a child. We affirm.

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

April 3, 2011, Appellant picked up a fifteen-year-old boy (“Victim”) and


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*
    Retired Senior Judge assigned to the Superior Court.
1
  In his brief, Appellant claims to appeal from the September 26, 2014 order
denying his post-sentence motions, however, he is actually appealing his
judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d
395, 397 (Pa.Super.1995) (“the order denying post-sentence motions acts
to finalize the judgment of sentence for purposes of appeal. Thus, the appeal
is taken from the judgment of sentence, not the order denying post-
sentence motions”).
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brought him to Appellant’s home, supposedly so that Victim could help

Appellant clean his basement.          Appellant attacked Victim, performed anal

sex on Victim and forced Victim to perform oral sex on Appellant. Appellant

then returned Victim to his home and threatened him that if he told anyone

what happened, he would get his army buddies to kill Victim’s family. Victim

went to the emergency room to be treated for sexual assault and reported

what had happened to detectives.

       The district attorney charged Appellant with twenty-one violations of

the Pennsylvania Crimes Code. On September 16, 2011, the Commonwealth

filed written notice of its intent to seek the applicable mandatory sentence

against Appellant.         On May 14, 2013, Appellant pled guilty to rape, two

counts of involuntary deviate sexual intercourse (“IDSI”), sexual assault,

indecent assault, unlawful contact with a minor, corruption of minors, and
                       2
terroristic threats.       The Commonwealth dismissed the remaining counts in

exchange for Appellant’s plea.

       On December 19, 2013, after a sexually violent predator (“SVP”)

hearing, the court determined Appellant was a Tier III SVP. On March 13,




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2
  18 Pa.C.S. §§ 3121(a)(1), 3123 (a)(1), § 3124.1, § 3126(a)(2),
6318(a)(1), 6301(a)(1), and 2706(a)(1), respectively.




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2014, the court sentenced Appellant to an aggregate sentence of 50-100

years’ incarceration.3

        On March 24, 2014, Appellant timely filed a post-sentence motion for

modification of sentence. The court conducted a hearing on July 17, 2014,

and denied Appellant’s motion on September 26, 2014.                      On October 27,

2014, Appellant timely filed a notice of appeal.4              On November 11, 2014,

pursuant     to   the   court’s   order,       Appellant   filed   a   Pa.R.A.P.   1925(b)

statement.5

        Appellant raises the following issue for our review:

           WHETHER THE TRIAL COURT ERRED BY DENYING
           [APPELLANT’S]   POST-SENTENCE   MOTION    FOR
           MODIFICATION OF SENTENCE FOR THE REASONS THAT
           THE AGGREGATE SENTENCE OF FIFTY (50) TO ONE
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3
  Specifically, the court imposed consecutive sentences, pursuant to the
mandatory sentencing provisions of 42 Pa.C.S. § 9718.2 of 25-50 years’
incarceration for rape and 25-50 years’ incarceration for IDSI. We note that
the mandatory sentencing provision applied to individuals with prior
convictions as set forth in 42 Pa.C.S. § 9799.14 is not unconstitutional under
Alleyne v. United States, ___ U.S. ___, 133 S.Ct 2151, 186 L.Ed 2d 341
(2013). The court also imposed incarceration sentences of 25-50 years for
IDSI, 25-50 years for sexual assault, 25-50 years for aggravated indecent
assault, 25-50 years for indecent assault, 25-50 years for unlawful contact
with minor, 3-7 years for corruption of minors, and 1½-5 years for terroristic
threats, to be served concurrently with his first IDSI sentence.
4
    We note that October 26, 2014 fell on a Sunday.
5
  The trial court adopted its September 26, 2014 order and opinion for the
denial of Appellant’s motion for modification of sentence and attached it to
its Pa.R.A.P. 1925 statement, filed November 25, 2014.




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          HUNDRED (100) YEARS OF INCARCERATION AT THE
          DEPARTMENT OF CORRECTIONS, WHICH THE TRIAL
          COURT IMPOSED UPON THE APPELLANT WAS MANIFESTLY
          EXCESSIVE AND CONSTITUTED TOO SEVERE OF A
          PUNISHMENT?

Appellant’s Brief at 6.

      Appellant challenges the discretionary aspects of his sentence.      He

argues that his aggregate sentence of 50-100 years’ incarceration is

manifestly excessive for a single crime considering Appellant’s age, his low

intelligence level, his unfortunate childhood, and the fact that he has not

been convicted of raping other children for more than twenty years.        We

disagree.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Id.

      Presently, Appellant filed a timely post-sentence motion and notice of

appeal.     Further, Appellant’s brief includes a concise statement of reasons



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relied upon for allowance of appeal with respect to the discretionary aspects

of his sentence pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 12. We

now must determine whether Appellant presents a substantial question that

the sentence appealed from is not appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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.

Id. (internal citations omitted).

      “An appellant making an excessiveness claim raises a substantial

question when he sufficiently articulates the manner in which 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.”      Commonwealth         v.   Raven,    97   A.3d    1244,   1253

(Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014) (internal citations

omitted).

      “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”    Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super.2013) (internal citation omitted).   Further, a court’s exercise of



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discretion in imposing a sentence concurrently or consecutively does not

ordinarily raise a substantial question. Commonwealth v. Mastromarino,

2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011).

Rather, the imposition of consecutive rather than concurrent sentences will

present a substantial question in only “the most extreme circumstances,

such as where the aggregate sentence is unduly harsh, considering the

nature of the crimes and the length of imprisonment.” Commonwealth v.

Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281

(Pa.2013). This Court has held that:

        a defendant may raise a substantial question where he
        receives consecutive sentences within the guideline ranges
        if the case involves circumstances where the application of
        the guidelines would be clearly unreasonable, resulting in
        an excessive sentence; however, a bald claim of
        excessiveness due to the consecutive nature of a sentence
        will not raise a substantial question.

Commonwealth       v.   Dodge,    77    A.3d      1263,    1270   (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original). This Court has also held that “an excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.”           Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736

(Pa.2014)   (quoting    Commonwealth         v.   Perry,    883   A.2d   599,   602

(Pa.Super.2005)). Additionally:

        In determining whether a substantial question exists, this
        Court does not examine the merits of whether the

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          sentence is actually excessive. Rather, we look to whether
          the appellant has forwarded a plausible argument that the
          sentence, when it is within the guideline ranges, is clearly
          unreasonable.    Concomitantly, the substantial question
          determination does not require the court to decide the
          merits of whether the sentence is clearly unreasonable.

Dodge, supra at 1270 (internal citations omitted).

       Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider

mitigating factors, presents a substantial question.            Thus, we grant his

petition for allowance of appeal and address the merits of his claim.

       “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) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse

of   discretion   requires   the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”            Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)).

       “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d

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1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).

     Here, the sentencing court had the benefit of a presentence report,

and Appellant exercised his right to allocution at his sentencing hearing. At

sentencing, the court stated:

        I have reviewed everything thoroughly. I have reviewed
        the presentence report that Mrs. DeFloria did such an
        excellent job preparing. In that presentence report is
        contained the evaluation from Mayview State Hospital after
        the first conviction, and then there is another evaluation
        by Torrance State Hospital in August of 2012.

        [Defense counsel], you just brought up the fact asking me
        to show some sort of understanding or compassion
        because your client was molested as a child by his brother
        allegedly. The first time that ever appears is with Mrs.
        Defloria’s interview he tells her that.    When he was
        evaluated by Mayview State Hospital in 1983 he makes no
        mention of ever being molested. He gives the reason for
        raping that 11 year old child as being alcohol, having
        drinking too much alcohol and doing that, then he gives
        the same reason when after he got out of prison for raping
        a 10 year old girl. These were children of a friend of his.
        That he raped these children and he gave the reason again
        as being alcohol abuse… and even if he had been [abused],
        that doesn’t excuse what happened here, what he did to
        these three victims…

N.T., 3/13/14, at 16-19.

     The court considered mitigating factors before imposing Appellant’s

sentences consecutively. We see no abuse of discretion.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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