J-S22014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

HORACE DUNCAN, JR.,

                            Appellee                No. 1645 MDA 2016


            Appeal from the Judgment of Sentence August 19, 2016
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0000665-2016


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 05, 2017

       Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence entered on August 19, 2016, against Appellee, Horace

Duncan, Jr. After careful review, we vacate Appellee’s judgment of sentence

and remand for resentencing.

       Appellee is a convicted Tier Three sex offender. 42 Pa.C.S. §

9799.14(d). As a result of prior convictions for committing numerous sexual

offenses,1 Appellee is required to comply with sex offender registration. 42

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In connection with an attack on his minor daughter in 2001, Appellee was
found guilty at York County criminal docket number CP-67-CR-0003626-
2000 of sexual assault, statutory sexual assault, incest, aggravated indecent
assault, indecent assault, and corruption of a minor. 18 Pa.C.S. §§ 3122.1;
(Footnote Continued Next Page)
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Pa.C.S. §§ 9799.10-9799.41 On December 17, 2015, Appellee was charged

with failing to register his vehicle with the Pennsylvania State Police as

required by 42 Pa.C.S. § 9799.15(g)(6). Because Appellee is a sex offender,

his failure to register the vehicle is a criminal offense under 18 Pa.C.S. §

4915.1.

      Following a bench trial on August 19, 2016, the trial court found

Appellee guilty of 18 Pa.C.S. § 4915.1. N.T., 8/19/16, at 63. The trial court

then sentenced Appellee to a term of six to twenty-three months of

incarceration.2    The Commonwealth filed a post-sentence motion alleging

that the sentence was too lenient and that the trial court failed to provide its

reasoning for its departure from the Sentencing Guidelines. Post-Sentence

Motion, 8/26/16, at unnumbered 1-3.               Following a hearing, the trial court

denied the Commonwealth’s motion on September 27, 2016.                   This timely

appeal followed. Both the Commonwealth and the trial court have complied

with Pa.R.A.P. 1925.

      On appeal, the Commonwealth presents one issue for this Court’s

consideration:

                       _______________________
(Footnote Continued)

3124.1; 4302; 3125; and 6301(a)(1) respectively. Commonwealth v.
Duncan, 359 MDA 2004, 869 A.2d 6 (Pa. Super. filed December 30, 2004)
(unpublished memorandum), appeal denied, 81 MAL 2005, 880 A.2d 1236
(Pa. 2005).
2
  When Appellee was arrested, he was on probation from an earlier
conviction for failing to register. N.T., 9/27/16, at 2.



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      1. Whether the trial court abused its discretion in sentencing
      [Appellee] to a below-mitigated range sentence where the trial
      court did not fully state its reasoning for its departure from the
      standard and mitigated guideline ranges at the time of
      sentencing as to be compliant with 42 Pa. C.S. §9721(b), where
      the trial court’s rationale did not justify and support the imposed
      sentence, and where departure from the standard guideline
      range was not supported by the facts of record.

Commonwealth’s Brief at 4.

      The Commonwealth has challenged the discretionary aspects of

Appellee’s sentence; a challenge to the discretionary aspects of sentencing is

not automatically reviewable as a matter of right.       Commonwealth v.

Popielarcheck,     151   A.3d   1088,   1093    (Pa.   Super.   2016)   (citing

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008)). Before

we may address the merits of the Commonwealth’s challenge, we conduct a

four-part analysis to determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

      When appealing the discretionary aspects of a sentence, an
      appellant 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 ....

Popielarcheck, 151 A.3d at 1093 (citations omitted).

      Here, the Commonwealth filed a timely notice of appeal, preserved its

sentencing issue in its post-sentence motion, and included a Pa.R.A.P.


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2119(f) statement in its brief on appeal. Commonwealth’s Brief at 8-9. We

must    now   determine   whether   the    Commonwealth    has     presented   a

substantial question for review.

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis. 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.

Popielarcheck, 151 A.3d at 1093 (citation omitted).

       The Commonwealth argues that the trial court imposed an excessively

lenient sentence and failed to provide its rationale for departing from the

Sentencing Guidelines.    Commonwealth’s Brief at 8-9, 11.       This Court has

held that such a claim presents a substantial question. Commonwealth v.

Wilson, 946 A.2d 767, 770 n.6 (Pa. Super. 2008); Commonwealth v.

Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

       It is undisputed that 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.    Commonwealth v. Fullin,

892 A.2d 843, 847 (Pa. Super. 2006).          In this context, an abuse of

discretion is not shown merely by an error in judgment.      Id.    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




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partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable

decision. Id.

      As this was Appellee’s second violation of 18 Pa.C.S. § 4915.1, the

crime is graded as a felony of the first degree, the offense gravity score is

ten, and the prior record score is in the repeat violent offender category

(“REVOC”).      204 Pa.Code § 303.15.    The Sentencing Guidelines provide a

standard-range minimum sentence of 120 months, plus or minus twelve

months.   Id.; 204 Pa.Code § 303.16.        Thus, pursuant to the Sentencing

Guidelines, a standard-range sentence would have been ten to twenty years

of incarceration. 204 Pa.Code § 303.16. As noted, the trial court imposed a

sentence of six to twenty-three months of incarceration.

      A sentencing court is permitted to deviate from the Sentencing

Guidelines because, as guidelines, they are advisory.      Commonwealth v.

Walls, 926 A.2d 957 (Pa. 2007).         When a sentencing court imposes a

sentence outside of the Guidelines, it “must place on the record its reasons

for the deviation.” Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780

(Pa. Super. 2009).

      Moreover:

      [i]n Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957
      (2007), our Supreme Court observed that the parameters of this
      Court’s review of the discretionary aspects of a sentence is
      confined by the dictates of 42 Pa.C.S. § 9781(c) and (d). Section
      9781(c) states in relevant part that we may “vacate the
      sentence and remand the case to the sentencing court with
      instructions” if we find that “the sentencing court sentenced
      outside the sentencing guidelines and the sentence is

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     unreasonable.” 42 Pa.C.S. § 9781(c)(3). Section 9781(d)
     provides that when reviewing a sentence, we must consider:

           (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.

     42 Pa.C.S. § 9781(d).

           The Walls Court noted that the term “unreasonable”
     generally means a decision that is either irrational or not guided
     by sound judgment. It held that a sentence can be defined as
     unreasonable either upon review of the four elements contained
     in § 9781(d) or if the sentencing court failed to take into account
     the factors outlined in 42 Pa.C.S. § 9721(b).1
           1
               Section 9721(b) states in pertinent part:

                   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.
                   The court shall also consider any
                   guidelines for sentencing adopted by the
                   Pennsylvania Commission on Sentencing.

Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa. Super. 2011).

     At Appellee’s sentencing hearing the trial court stated as follows:

     THE COURT: All right. In this case, the Court having found
     [Appellee] guilty of Count 1, we note, as counsel for the
     Commonwealth has pointed out, this is not [Appellee’s] first

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     transgression with regard to registration requirements. In fact,
     he was on supervision at the time that this offense occurred for
     failing to verify his address in other registration violations.

           That having been said, [Appellee] has been reporting on a
     regular basis, even quarterly when he has been required to do
     so.

           Even though the listing of the 2007 Chevy Impala has
     basically worked against him in this case, it does show that he is
     at least cognizant of an obligation to register vehicles that he
     does not own but does have access to.

            [Appellee] has, other than this, remained free of any other
     violations. However, as we said, it is not his first run-in with
     regard to violations of registration requirements. Accordingly,
     we believe that a sentence below the guidelines is
     appropriate considering the circumstances of this
     particular case and given the fact that [Appellee] has not
     committed any new criminal violations other than failure
     to register.

           Accordingly, on Count 1, failure to register, we hereby
     sentence [Appellee] to a term of imprisonment in the York
     County Prison of not less than 6 months nor more than 23
     months. The sentence will be consecutive with any sentence that
     he is serving as a result of his violation -- actually, the sentence
     will be partially concurrent with any sentence that he is serving
     with his violation.

N.T., 8/19/16, at 67-68 (emphasis added). Thus, the only rationale the trial

court provided for imposing a sentence outside of the Guidelines is the

language emphasized above.

     After review, we conclude that the trial imposed an unreasonable

sentence due to its failure to duly consider 42 Pa.C.S. § 9781(d), 42 Pa.C.S.

§ 9721(b), and provide its rationale for the sentence imposed.       Rather, it

appears that the trial court ordered a minimum sentence that was twenty


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times less than that recommended by the Guidelines simply because the

court concluded Appellee had not committed any new crimes other than the

crime of failing to register.   As stated above, Appellee is a repeat violent

felony offender, and the absence of an explanation as to what led the trial

court to deviate so greatly from the Guidelines constitutes an unreasonable

sentence and an abuse of discretion. Walls, 926 A.2d at 964. Accordingly,

we vacate the judgment of sentence and remand for resentencing consistent

with this Memorandum. At resentencing, the trial court is directed to place

on the record its recognition of the Sentencing Guidelines, its consideration

of the factors enumerated in 42 Pa.C.S. § 9781(d) and 42 Pa.C.S. §

9721(b), and provide an adequate rationale for any departure from the

Sentencing Guidelines.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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