J-S54038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JORDAN M. PARKS                          :
                                          :
                      Appellant           :   No. 459 WDA 2018

           Appeal from the Judgment of Sentence March 1, 2018
    In the Court of Common Pleas of Mercer County Criminal Division at
                      No(s): CP-43-CR-0000552-2017


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                      FILED SEPTEMBER 20, 2018

      Jordan M. Parks (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to a single count of involuntary deviate sexual

intercourse (IDSI).     Appellant claims that his standard-range sentence is

excessive. Upon review, we affirm.

      The trial court summarized the factual and procedural background of

this case as follows:

             [Appellant] was charged with multiple counts of involuntary
      deviate sexual intercourse, rape, aggravated indecent assault,
      and indecent assault. On January 10, 2018, [Appellant] entered
      a plea of guilty to one count of Involuntary Deviate Sexual
      Intercourse, in violation of 18 Pa.C.S.A. § 3123(b), a felony of the
      first degree. Pursuant to the plea agreement and on motion of
      the Commonwealth, the balance of the charges were nol prossed.

            On March 1, 2018, [Appellant] was sentenced to six (6) to
      twelve (12) years of imprisonment in a state correctional facility
      with credit for 333 days’ time served. On March 9, 2018,
      [Appellant] filed a Motion to Modify Sentence, claiming the
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      sentence of the Court was manifestly excessive in length. This
      Court denied [Appellant’s] motion that same day. On March 29,
      2018, [Appellant] filed a timely Notice of Appeal and this Court
      entered an order that [Appellant] file a concise Statement of
      Errors Complained of on appeal. On April 10, 2018, [Appellant]
      timely filed his Statement of Errors Complained of on appeal.

Trial Court Opinion, 5/29/18, at 1-2.

      On appeal, Appellant presents a single issue for our review:

              That the sentenc[ing] court erred when it sentenced
      [Appellant] to a term of imprisonment in a state correctional
      facility of not less than six (6) years nor more than twelve (12)
      years after he entered a plea of guilt[y] to one count involuntary
      deviate sexual intercourse (18 Pa.C.S.A. § 3123(b)).

Appellant’s Brief at 7.

      Appellant challenges the discretionary aspects of his sentence.           Our

standard of review when considering a discretionary aspects of sentencing

claim is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).



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      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Appellant has complied with the first three prongs of the discretionary

aspect test to invoke our jurisdiction. See Appellant’s Brief at 3, 12-13. We

thus proceed to determine whether he has raised a substantial question.

Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-case

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basis. Commonwealth v. Johnson, 961 A.2d 877, 879 (Pa. Super. 2008),

appeal denied, 968 A.3d 1280 (Pa. 2009).

       Appellant argues that his 6 to 12 year sentence was manifestly

excessive because he was “a minor himself” when he committed IDSI, and

“the relationship [with the victim] continued after he became an adult. Years

later the victim made a statement which led to charges in this case.”

Appellant’s Brief at 11, 15. Appellant maintains that the trial court imposed

an unreasonable sentence because:

               Here, [Appellant] was a minor at the commencement of his
       relationship with the victim. And though it continued after
       [Appellant] turned of legal age, his age and lack of sophistication
       called for a sentence that would not expose him to those who will
       pr[e]y on him in a state facility. Rather, a sentence in a county
       facility with a substantial period of parole and probation would
       protect the victim and the public as well as protect [Appellant]
       while meeting [Appellant’s] rehabilitative needs.

Id. at 15-16.

       Significantly, Appellant concedes that the trial court sentenced him

within the standard range of the sentencing guidelines.              Id. at 15.   The

essence of his claim is that the trial court abused its discretion by failing to

consider mitigating factors, i.e., his youth and alleged vulnerability to

incarceration in a state facility.      Appellant has failed to raise a substantial

question.1




____________________________________________


1 The Commonwealth has               arrived     at   the   same   conclusion.    See
Commonwealth Brief at 4, 6.

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      When an appellant has been sentenced in the standard range, “a claim

that the court failed to consider certain mitigating factors does not present a

substantial question.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010); see also Commonwealth v Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (a sentence within the guidelines is presumed to be

reasonable).

      In addition, the court in this case had the benefit of a pre-sentence

investigation report.    N.T., 3/1/18, at 13.       It is well-settled that where a

sentencing court imposes a standard-range sentence with the benefit of a pre-

sentence      report,   we    will    not    consider   the    sentence   excessive.

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those

circumstances, we can assume the sentencing court ‘was aware of relevant

information    regarding     the     defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors.’” Id. (citations

omitted).

      Finally, this Court has repeatedly held that “an allegation that the trial

court failed to consider particular circumstances or factors in an appellant’s

case go to the weight accorded to various sentencing factors and do not raise

a substantial question.” Commonwealth v. Christine, 78 A.3d 1, 10–11

(Pa. Super. 2013) (en banc) (per curiam), aff’d, 125 A.3d 394 (Pa. 2013);

see also Commonwealth v. Cannon, 954 A.2d 1222, 1228–1230 (Pa.

Super. 2008) (claim that trial court failed to consider appellant’s rehabilitative



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needs, age, and educational background did not present substantial question),

appeal denied, 964 A.2d 893 (Pa. 2009).

        Even if Appellant had presented a substantial question, it is well-settled

that:

        [W]e can reverse a standard-range sentence only if the sentence
        is clearly unreasonable when viewed in light of the four statutory
        factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v.
        Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also
        Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009).
        Section 9781(d) provides that when we review this type of
        question, we 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.

        Walls, supra at 963. Furthermore, “rejection of a sentencing
        court’s imposition of sentence on unreasonableness grounds
        [should] occur infrequently, whether the sentence is above or
        below the guidelines ranges.” Macias, supra at 777 (quoting
        Walls, supra at 964).

Commonwealth v. Corley, 31 A.3d at 298.

        It is evident from the record that – contrary to Appellant’s argument –

the trial court at sentencing considered “the nature and circumstances of the

offense and the history and characteristics” of Appellant, including his youth

and rehabilitative needs. The Commonwealth requested a sentence of 7 to

14 years. N.T., 3/1/18, at 6. The trial court noted that it had read “numerous



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letters from [Appellant].” Id. at 9. Appellant’s counsel2 referenced the pre-

sentence investigation report and stated:

       [Appellant] acknowledges that there was to be a sentence
       recommendation at the time he entered the plea, but he’s
       informing me that he was under the impression that Attorney
       Goodwin would present some issues before the Court and ask the
       Court to consider a lesser sentence, perhaps even a county
       sentence. . . . [H]e indicated that one of the issues is that he was
       a juvenile at the time of this incident; that he now has an
       eighteen-month old son and is anticipating marriage.

Id. at 12-13.

       The trial court responded that Appellant, “in his letters, is very detailed

about his situation. And so everything that you just mentioned I was aware

of and did take into consideration when thinking about the sentence.” Id. at

13. The trial court also addressed the impact of the offense on the victim and

the community, as well as Appellant’s criminal history and his rehabilitative

needs.     For example, the trial court recognized “a need to protect the

community” because Appellant “certainly has been involved in a large amount

of criminality for his young age.” Id. at 14-15.

       In addition, the trial court explained:

             At sentencing, after discussion with the parties, this Court
       stated that it would sentence [Appellant] with an Offense Gravity
       Score of fourteen (14) and a Prior Record Score of one (1), making
       the standard range seventy-two (72) to two hundred forty (240)
       months. In imposing the sentence, the Court considered all the
____________________________________________


2 Appellant has been represented by the Mercer County Public Defender’s
Office throughout this case. Attorney Goodwin represented Appellant at the
plea hearing and on appeal; Attorney Williams represented Appellant at
sentencing.

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      relevant factors, including [Appellant’s] entire file, pre-sentence
      investigation, any letters sent on [Appellant’s] behalf, any
      information presented by the Commonwealth or victims, and any
      other pertinent documentation, as well as all applicable law,
      including the sentencing guidelines. The Court considered the
      impact on the victim and the community, noting that the victim
      was under thirteen (13) years old at the time and emphasizing the
      importance of protecting children and families in the community.
      While there was no victim impact statement, the Court considered
      that the victim had difficulty writing one and was uncomfortable
      making one at the hearing due to the nature of the incident. The
      Court also understood that the victim felt that she and [Appellant]
      were a couple at the time of the incident. The Court also
      considered the need to protect the community and the
      rehabilitative needs of [Appellant], stating that his rehabilitative
      needs would be best served at a state correctional facility. The
      Court additionally asked [Appellant] about his current age,
      education and family, taking into consideration that he has an
      eighteen (18) month old child and is engaged.

      . . . The Court’s sentence was both less than the Commonwealth’s
      recommendation, and within [the] standard range. The Court
      made [the] appropriate consideration of all relevant factors.

Trial Court Opinion, 5/29/18, at 2-3.

      For all of these reasons, we find no merit to Appellant’s claim that his

sentence was excessive.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2018



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