J-S69040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PATRICK EUGENE FATTA,

                            Appellant                No. 2026 MDA 2015


            Appeal from the Judgment of Sentence October 16, 2015
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0000169-2015


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 29, 2016

        Appellant, Patrick Eugene Fatta, appeals from the judgment of

sentence imposed following his open guilty plea to possession of child

pornography, 18 Pa.C.S.A. § 6312(d), criminal use of a communication

facility and several related offenses. Appellant claims the sentencing court

applied an incorrect offense gravity score (OGS) and sentence enhancement.

We vacate the judgment of sentence and remand for resentencing.

        On July 8, 2015, Appellant entered counseled, open guilty pleas to

three counts of sexual abuse of children─possession of child pornography─

and other offenses.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        Specifically, on docket number 169 of 2014, he pleaded guilty to two

counts of sexual abuse of a child─possession of child pornography

(possession of 186 videos depicting child pornography, children under the

age of eighteen, and 1532 still photographs (digital images) depicting child

pornography, children under the age of eighteen,─no indecent contact), 18

Pa.C.S.A. § 6312(d), felonies of the third degree.2       At count three, he

pleaded guilty to criminal use of a communication facility (his computer), a

felony of the third degree. At count four, he pleaded guilty to sexual abuse

of a child─possession of child pornography (three videos depicting indecent

contact),3 a felony of the second degree.4 (See N.T. Guilty Plea, 7/08/15, at

1, 7-8).

                       _______________________
(Footnote Continued)
1
 On the same day, Appellant also signed and submitted a written guilty plea
colloquy, co-signed by counsel.
2
    Section 6312(d) provides:

              (d) Child pornography.─Any person who intentionally
        views or knowingly possesses or controls any book, magazine,
        pamphlet, slide, photograph, film, videotape, computer depiction
        or other material depicting a child under the age of 18 years
        engaging in a prohibited sexual act or in the simulation of such
        act commits an offense.

18 Pa.C.S.A. § 6312(d).
3
 “Indecent contact” is defined by statute as follows: “Any touching of the
sexual or other intimate parts of the person for the purpose of arousing or
gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.
4

(Footnote Continued Next Page)


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         At the same time, on docket number 873 of 2015, Appellant pleaded

guilty to indecent assault of a person less than thirteen years of age, a

misdemeanor of the first degree.            (See id. at 3, 9).   From January 2009

until December 2013, Appellant had indecent contact with a minor victim

who was born in 2004; touching her vaginal area for sexual gratification.

(See id.). Appellant also pleaded guilty to corruption of minors for the same

acts.5

         Pertinent to issues presented for review, the Commonwealth chose to

charge Appellant collectively, i.e., rather than charge him with 1,532

separate charges of possession of digital image files of child pornography, it
                       _______________________
(Footnote Continued)

               (d.1) Grading.─The offenses shall be graded as follows:

              (1) Except as provided in paragraph (3), an offense under
         subsection (b) is a felony of the second degree.

              (2)(i) Except as provided in paragraph (3), a first offense
         under subsection (c) or (d) is a felony of the third degree.

                (ii) A second or subsequent offense under subsection (c) or
         (d) is a felony of the second degree.

               (3) When a person commits an offense graded under
         paragraph (1) or (2)(i) and indecent contact with the child as
         defined in section 3101 (relating to definitions) is depicted, the
         grading of the offense shall be one grade higher than the grade
         specified in paragraph (1) or (2)(i).

18 Pa.C.S.A. § 6312(d.1). Because there was no dispute that this was
treated as a first offense, subsection 2(ii) does not apply.
5
  The pleas at docket number 873, while indirectly relevant as part of the
overall plea and sentence scheme, are not at issue in this appeal.



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charged him on one count of possessing 1,532 digital images (still

photographs).      Similarly, instead of charging Appellant with 186 counts of

possessing digital video files, the Commonwealth filed one count of

possessing 186 video files of child pornography. Notably, Appellant pleaded

guilty on all counts.6

       The day after the guilty plea, as announced at the plea hearing,

counsel filed “Defense Objections to Sentencing Guideline Computation.”

(Defense Objections, 7/09/15).           The Commonwealth filed a response on

September 29, 2015. The trial court dismissed the objections by order filed

October 14, 2015.

       On October 16, 2015, the court imposed an aggregate sentence of not

less than two and one-half years’ nor more than five years’ incarceration,

followed by a consecutive five year term of probation.7       (See Trial Court




____________________________________________


6
  The record does not include any of the videos or still photos. We defer to
the factual findings of the trial court, particularly as to what percentage of
the images depicted children under thirteen, or thirteen to eighteen, how
many images depicted indecent contact, etc. Appellant does not dispute the
actual content of the images, or the related classification issues.
7
 On the indecent assault and corruption of minor charges at docket number
873, the court sentenced Appellant to two terms of imprisonment in a state
correctional institution for not less than three months and not more than two
years. The court made the sentences concurrent with each other and
consecutive to the sentences at No. 169.




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Opinion, 2/12/16, at 1; see also N.T. Sentence, 10/16/15, at 19-20).

Appellant timely appealed.8

       Appellant presents three questions for our review:

             I. Did the trial court err in assigning Counts 1 and 2,
       Sexual Abuse of Children─Possession of Child Pornography, an
       Offense Gravity Score of 7?

             II. Did the trial court err in applying an 18 month
       enhancement to the guidelines in Count 4, Sexual Abuse of
       Children─Possession of Child Pornography (F2), where the
       defendant only possessed three digital video files depicting
       children under the age of 18 engaged in prohibited sexual acts or
       in the simulation of such acts which involved indecent contact?

            III. Did the trial court err in failing to grant relief on Counts
       1 and 2 where the wrong offense gravity score was applied and
       Count 4 where the wrong guideline enhancement was applied?

(Appellant’s Brief, at 5).

       Our standard of review is well-settled.

       [S]entencing is vested in the discretion of the trial court, and will
       not be disturbed absent a manifest abuse of that discretion. An
       abuse of discretion involves a sentence which was manifestly
       unreasonable, or which resulted from partiality, prejudice, bias
       or ill will. It is more than just an error in judgment.

____________________________________________


8
   On November 16, 2015, the trial court granted plea counsel leave to
withdraw. The court appointed the Public Defender, who continues to
represent Appellant in this appeal. Appellant filed a concise statement of
errors on December 30, 2015. See Pa.R.A.P. 1925(b). The Commonwealth
filed an answer. At the end of 2015, the sentencing judge, the Honorable
Joseph C. Madenspacher, assumed senior status.           This appeal was
reassigned to the Honorable Merrill M. Spahn, Jr. Judge Spahn filed the trial
court opinion on February 12, 2016. (See Trial Ct. Op., 2/12/16, 1 n.2);
see also Pa.R.A.P. 1925(a).




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Commonwealth v. Downing, 990 A.2d 788, 792–93 (Pa. Super. 2010)

(citation omitted). Appellant’s claims challenge the discretionary aspects of

his sentence.   See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa.

Super. 2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013) (reviewing

challenge to application of offense gravity score in calculation of guideline

ranges for abuse of discretion).

      “It is well settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.”        Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d

825 (2011) (citation omitted).

               Before we reach the merits of this case, we must
        engage in a four part analysis to determine: (1) whether
        the appeal is timely; (2) whether Appellant preserved his
        issue; (3) whether Appellant’s brief includes a concise
        statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of
        sentence; and (4) whether the concise statement raises a
        substantial question that the sentence is appropriate under
        the sentencing code.       The third and fourth of these
        requirements arise because Appellant’s attack on his
        sentence is not an appeal as of right. Rather, he must
        petition this Court, in his concise statement of reasons, to
        grant consideration of his appeal on the grounds that there
        is a substantial question. Finally, if the appeal satisfies each
        of these four requirements, we will then proceed to decide
        the substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)

(citations omitted).

      In this case, as already noted, Appellant filed a timely notice of appeal,

preserved his claims in his timely motion, and included in his appellate brief

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a Rule 2119(f) statement.          Accordingly, we will review the Rule 2119(f)

statement to determine if Appellant has presented a substantial question.

This Court has held that “[a] claim that the sentencing court misapplied the

Guidelines presents a substantial question.”       Commonwealth v. Archer,

722 A.2d 203, 211 (Pa. Super. 1998). Therefore, we will review the merits

of Appellant’s claims.

       Appellant first claims that the sentencing court applied an “incorrect

offense gravity score.”        (Appellant’s Brief, at 12).   We find Appellant’s

argument as presented to be somewhat opaque.                 (See id. at 12-16).

However, the gist of his claim is that the sentencing court erred in applying

the higher offense gravity score then in effect for images involving children

under the age of thirteen, when the charge was collective and “only . . .

some” of the videos and images included children under the age of thirteen.

(Id. at 15).      Appellant maintains that the trial court compromised the

fundamental norms of the sentencing process.             (See id. at 12).    We

disagree.

       Preliminarily, it bears noting that in both of the instances at issue

when Appellant refers to “some” of the images, he actually means at least

eighty per cent of them.9 The trial court decided that “the overwhelming

____________________________________________


9
 149 videos out of 186 are 80.1% of the total. 1348 digital images out of
1532 are 87.98% of the total.




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J-S69040-16


majority of the videos and still photographs” depicted children under the age

of thirteen. (Trial Ct. Op., at 3). We defer to the factual findings of the trial

court.

         More substantively, Appellant offers no pertinent authority, case law or

statute, in support of his mere bald assertion that on the facts of this case,

an OGS of seven required that one hundred per cent of the images at issue

must meet identical criteria.        (See Appellant’s Brief, at 12-16).   Our law

assigns to the sentencing court the discretion to make this determination.

See Lamonda, supra at 371.              We discern no basis to conclude that the

sentencing court abused that discretion. Appellant’s first claim fails.

         In his second issue, Appellant asserts that the sentencing court used

the wrong sentence guideline enhancement for count four (possession of

three videos of child pornography depicting indecent contact).              (See

Appellant’s Brief, at 16-18). We agree.

         Notably, both the Commonwealth and the trial court now agree the

calculation was erroneous.             (See Trial Ct. Op., at 4-5; see also

Commonwealth’s Brief, at 13-18). They do not dispute that the appropriate

guideline enhancement for three videos depicting indecent contact should

have been six months, not eighteen months.10

____________________________________________


10
     (l)  Sexual    Abuse    of   Children    Enhancement       sentence
recommendations. If the court determines that aggravating circumstances
described in § 303.10(e) are present, the court shall instead consider the
(Footnote Continued Next Page)


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J-S69040-16


      Nevertheless, the trial court concludes that the higher sentence

enhancement was harmless error. (See Trial Ct. Op., at 7-8). Both the trial

court and the Commonwealth reason that the sentencing court did not rely

solely on the Guidelines.          It also considered Appellant’s show of remorse,

acceptance of responsibility, and initiation of corrective measures as well as

(on the negative side) his escalation by actual indecent assault.            (See id.

(citing N.T. Sentencing, 10/16/15, at 17-18); see also Commonwealth’s

Brief, at 16-17). The Commonwealth also notes that the sentencing court

had    the   benefit      of   a    pre-sentence   investigation   report.      (See

Commonwealth’s Brief, at 17).            Both cite case law that a sentence in the

standard range is presumptively appropriate.            (See Trial Ct. Op., at 7;

Commonwealth’s Brief, at 15); see also Lamonda, supra at 372 (quoting

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)) (“where

a sentence is within the standard range of the guidelines, Pennsylvania law


                       _______________________
(Footnote Continued)

applicable Sexual Abuse of Children Enhancement related to [the] number of
images possessed by the offender or the nature and character of the abuse
depicted:

            (1) When applying enhancement based on the
      number of images possessed by the offender. If the
      offender possessed more than 50 images to 200 images, 6
      months are added to the lower limit of the standard range and 6
      months are added to the upper limit of the standard range.

204 Pa. Code § 303.9(l)(1). Each video is considered to have 50 images.
See 204 Pa. Code § 303.10(e)(1)(ii).



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views the sentence as appropriate under the Sentencing Code.”) (citations

omitted).

     This reasoning is appropriate to the review of a claim that a sentence

was excessive. However, it does not address the separate problem at issue

here, namely, the extent to which the sentencing court considered a

sentencing enhancement, now conceded to be erroneous, in the formulation

of an overall sentencing scheme.

     On Information (docket) No. 169 of 2014, the court imposed

concurrent sentences. Therefore, the sentence on this count four, not less

than two-and-a-half years’ nor more than five years’ imprisonment, plus a

consecutive term of five years’ probation, became the de facto lead

sentence.   It is impossible to determine from the record whether the

sentence would have been different, and possibly shorter, if the court had

considered the enhancement now agreed to be correct, instead of an

enhancement which was three times longer. Appellant’s sentence must be

vacated.

     Accordingly, we will remand to the trial court for a reconsideration of

Appellant’s sentence.   See Commonwealth v. Hennigan, 753 A.2d 245,

262 (Pa. Super. 2000) (remanding for reconsideration of appellant’s

sentence because disposition may alter court’s sentencing scheme).      The

Commonwealth may present any appropriate argument for a sentence

guideline enhancement at the resentencing hearing.


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      Appellant’s   third   claim   basically    repeats   and   recapitulates    the

arguments already presented in the first and second questions.                   (See

Appellant’s Brief, at 18-22). Therefore, it is unnecessary for us to repeat our

analysis, and we decline to do so.

      Judgment of sentence vacated. Case remanded for resentencing after

reconsideration     of   sentence    guideline     enhancement.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




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