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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      Appellee

                 v.

    JUSTIN BEAUMONT

                      Appellant                           No. 1649 MDA 2016

           Appeal from the Judgment of Sentence September 1, 2016
             In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0002435-2015


BEFORE:      GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                                   FILED MAY 05, 2017

        Appellant, Justin Beaumont, appeals from the judgment of sentence

entered in the Lackawanna County Court of Common Pleas, following his

open guilty plea to corruption of minors and disorderly conduct.' We affirm.

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

Appellant sexually abused his stepdaughter ("Victim") from approximately

October 2014 to October 2015.            After Victim told her mother about the

abuse on November 3, 2015, Appellant exhibited suicidal tendencies and

checked himself into the          hospital.   On   November 4, 2015, Appellant

confessed to the sexual abuse of Victim in         a   voluntary statement to police.

Police subsequently arrested Appellant, and the Commonwealth charged


'   18 Pa.C.S.A. §§   6301(a)(1)(ii) and 5503(a)(1), respectively.



*Former Justice specially assigned to the Superior Court.
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Appellant with two counts each of involuntary deviate sexual intercourse and

sexual assault, and one count each of unlawful contact with minor, indecent

assault, corruption of minors, and indecent exposure on December 23, 2015.

On June 6, 2016, Appellant entered an open            guilty plea to corruption of

minors and disorderly conduct, in exchange for the Commonwealth's request

that the court dismiss the remaining charges against Appellant.                   After

accepting Appellant's plea, the court deferred sentencing pending the

preparation of   a   pre -sentence investigation ("PSI") report.

        On September 1, 2016, the court sentenced Appellant to a               term of

eighteen (18) to thirty-six (36) months' imprisonment for the corruption of

minors conviction and      a   consecutive term of one (1) year probation for the

disorderly conduct conviction.        Both sentences are above the aggravated

range of the sentencing guidelines.        The court explained it imposed these

sentences for Appellant's convictions due to: (1) the gravity of the offense;

(2) Appellant's minimization of his involvement; (3) Appellant's failure to

accept responsibility for his action by placing blame on Victim; (4) the

impact on Victim, who feels responsible for ending the relationship between

Appellant and Victim's mother; and (5) Appellant's need for sex offender and

mental health treatment.

        On September 6, 2016, Appellant       timely filed   a   post -sentence motion,

which the court denied on September 19, 2016.                Appellant timely filed   a


notice of appeal on September 30, 2016.           On October 19, 2016, the court



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ordered Appellant to file        a    concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on

October 25, 2016.

        Appellant raises the following issue for our review:

           WHETHER     THE    SENTENCES     IMPOSED  WERE
           INAPPROPRIATELY HARSH AND EXCESSIVE AND AN
           ABUSE OF DISCRETION, SINCE IT APPEARS THAT THE
           SENTENCING COURT SENTENCED [APPELLANT] AS IF HE
           HAD A PRIOR [RECORD] SCORE OF REFEL?

(Appellant's Brief at 4).

        Appellant claims the court failed to consider Appellant's lack of criminal

background, steady employment, status as the provider for his family, and

expression of remorse at sentencing.                Appellant also avers the court

misinterpreted his statement given to police during his hospitalization for

suicidal tendencies.           Appellant asserts the court mistook Appellant's

statement as evidence of Appellant's failure to exhibit remorse or accept

responsibility for his actions.          Appellant concludes the court's failure to

consider certain factors and its misinterpretation of his statement to police

resulted in       a   harsh and excessive sentence, and we should vacate and

remand      for       resentencing.      As   presented,   Appellant   challenges   the

discretionary aspects of his sentence.2 See Commonwealth v. Lutes, 793



2   "[W]hile  guilty plea which includes sentence negotiation ordinarily
               a
precludes a defendant from contesting the validity of his...sentence other
than to argue that the sentence is illegal or that the sentencing court did not
(Footnote Continued Next Page)


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A.2d 949 (Pa.Super. 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, 912 (Pa.Super. 2000).         Prior to reaching the merits of   a   discretionary

aspects of 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).          Objections to the discretionary

aspects of sentence are generally waived if they are not raised at the

sentencing hearing or raised in     a   motion to modify the sentence imposed at

that hearing.    Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574    Pa.   759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of     a   sentence, an appellant
(Footnote Continued)

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
guilty plea included no negotiated sentence.


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must invoke the appellate court's jurisdiction by including in his 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

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), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009),

cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).

        The determination of what constitutes          a    substantial question must be

evaluated on      a   case -by -case basis.       Commonwealth v. Anderson, 830
A.2d 1013 (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 913.                  A claim of excessiveness can

raise   a   substantial question as to the appropriateness of             a   sentence under

the Sentencing Code, even if the sentence                  is   within the statutory limits.

Mouzon, supra at 430, 812 A.2d at 624. "A substantial question                       is   raised

where an appellant alleges the sentencing court erred by imposing an


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aggravated        range   sentence        without     consideration      of   mitigating

circumstances."       Commonwealth v. Hyland, 875 A.2d 1175, 1183
(Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).

        Here,    Appellant properly       preserved    his   discretionary aspects of

sentencing claim in his post -sentence motion and Rule 2119(f) statement;

and his claim that the court imposed an above -aggravated range sentence

without consideration of certain mitigating factors appears to raise                   a


substantial question as to the discretionary aspects of his sentence. See id.

        Our standard of review of     a   challenge to 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.


Id. at    1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214

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

        Pursuant to Section 9721(b), "the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant."             42 Pa.C.S.A.   §   9721(b).   "[T]he


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court shall make as part of the record, and disclose                   in open   court at the time

of sentencing,      a    statement of the reason or reasons for the sentence

imposed." Id.           Nevertheless, "[a] sentencing court need not undertake                   a


lengthy discourse for its reasons for imposing                     a   sentence or specifically

reference the statute in question...." Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010).    Rather, the record as          a   whole must reflect the sentencing court's

consideration of the facts of the case and the defendant's character.                     Id. "In
particular, the court should refer to the defendant's prior criminal record, his

age,     personal       characteristics       and      his     potential   for     rehabilitation."

Commonwealth v. Griffin, 804 A.2d                        1,    10 (Pa.Super.       2002), appeal

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,

125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).

        Instantly, the record belies Appellant's contentions. The court had the

benefit of   a   PSI     report at sentencing.                Therefore, we can presume it

considered the relevant factors when it sentenced Appellant.                         See Tirado,

supra at 368 (holding where sentencing court                           had benefit of PSI, law

presumes court was aware of and weighed relevant information regarding

defendant's character and mitigating factors).                          Additionally, the court

explained its reasons for Appellant's sentence as follows:

          This [c]ourt[']s imposition of sentence[s] above the
          aggravated range was appropriate given 1) the nature and
          gravity of the offense, 2) [Appellant's] failure to accept
          responsibility for his actions, 3) the impact on [V]ictim,

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          and 4) [Appellant's] serious rehabilitative needs.

          First, this court considered the nature and gravity of the
          offense in this matter.      Here, [Appellant] preyed on
          [Victim] over a year's time. [Appellant] reports that he
          himself was also a victim of molestation, and yet he
          continued to sexually abuse [Victim] even though he
          understood the serious consequences of his actions.
          Second, the court considered [Appellant's] failure to accept
          responsibility for his actions. Here, [Appellant] blamed
          [V]ictim as the initial instigator and minimized his actions
          during the year he preyed on [Victim]. Third, the court
          considered the impact on [V]ictim. Here, [V]ictim stated
          that this abuse "has always had an emotional effect on
          her." [V]ictim also stated that..."over the span of a year
          she would not be able to sleep in fear that [Appellant]
          would come into her room in the middle of the night."
          [V]ictim had also stated that "it is her fault that
          [Appellant] is no longer in the home" to be with [Victim's]
          mother and sister.           Lastly, the court considered
          [Appellant's] serious rehabilitative needs.            Here,
          [Appellant] is in serious need of sex offender and mental
          health treatment that can best be addressed in a State
          Correctional Institution.



          Therefore, the claim on appeal should be denied.

(See Trial Court Opinion, filed November 29, 2016, at 7-8) (internal

citations omitted).   We accept the court's analysis.     See Hyland, supra.

Therefore, Appellant    is   not entitled to relief on   his   challenge to the

discretionary aspects of his sentence. Accordingly, we affirm the judgment

of sentence.

        Judgment of sentence affirmed.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 5/5/2017




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