J-A24030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JASON TORRES

                            Appellant                No. 387 EDA 2015


          Appeal from the Judgment of Sentence of February 7, 2014
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No.: CP-46-CR-0000790-2012


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

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 04, 2015

       Jason Torres appeals the February 7, 2014 judgment of sentence. We

affirm.

       The sentencing court summarized the factual and procedural history of

this case as follows:

       [Torres] entered open guilty pleas on May 23, 2013, to
       attempted involuntary deviate sexual intercourse (“IDSI”),
       attempted dissemination of obscene materials, corruption of
       minors, and attempted unlawful contact with a minor. The
       charges arose after the parents of a then-13-year-old girl
       reported to police that the then-36-year-old [Torres] had been
       communicating with their daughter on Facebook. [Torres] was
       an acquaintance of the minor’s family.

       A Montgomery County Detective began posing as the minor on
       Facebook and [Torres] eventually had sexually explicit
       conversations with her. He discussed having oral and vaginal
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*
       Retired Senior Judge assigned to the Superior Court.
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     sex with the “minor” and used a webcam on his computer to
     send her a live video of himself masturbating. He also requested
     several times that the “minor” delete their messages because he
     did not want to get in trouble. [Torres] eventually made plans to
     have a sexual encounter with the “minor.” He was arrested
     when he arrived at a local convenience store to pick her up and
     take her back to his house.

     On February 7, 2014, [Torres] was sentenced to seven-and-one-
     half to twenty years in prison for attempted IDSI and to a
     concurrent period of ten years probation for attempted unlawful
     contact with a minor.     [The sentencing] court imposed no
     penalty in connection with the convictions for attempted
     dissemination of obscene materials and corruption of minors.

     [Torres], through sentencing counsel, Evan T. Hughes, Esquire,
     filed a post-sentence motion on February 18, 2014, that
     challenged the length of the sentence.2 On April 15, 2014, with
     the post-sentence motion pending, [A]ttorney Hughes filed a
     notice of appeal to the Pennsylvania Superior Court.        [The
     sentencing] court denied the post-sentence motion in an Order
     dated May 28, 2014. The Superior Court quashed the pending
     appeal as interlocutory on June 2, 2014. Attorney Hughes did
     not take any subsequent action with regard to a direct appeal.
       2
         The motion was timely because the 10-day period in
       which to file a post-sentence motion expired on February
       17, 2014, which was President’s Day.

     On October 1, 2014, Thomas A. Blackburn, Esq., entered his
     appearance on behalf of [Torres] as private counsel.           He
     subsequently filed a motion under the Post Conviction Relief Act
     [(“PCRA”)]. After written response from the Commonwealth,
     and a conference with counsel, [the PCRA] court issued an Order
     on January 13, 2015, reinstating [Torres’] direct appeal rights
     and granting him 30 days in which to file a notice of appeal nunc
     pro tunc.

     [Torres], through [A]ttorney    Blackburn, filed a notice of appeal
     on February 4, 2015. He          subsequently complied with [the
     sentencing] court’s directive   to produce a concise statement of
     errors in accordance with        Pennsylvania Rule of Appellate
     Procedure 1925(b).




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Sentencing Court Opinion (“S.C.O.”), 3/30/2015, at 1-3 (citations to record

and some footnotes omitted).

      Torres presents three questions for our review:

      I.     Whether the Sentencing Court abused its discretion in
             imposing a sentence with regard to the charge of Criminal
             Attempt – Involuntary Deviate Sexual Intercourse, wherein
             the minimum period of incarceration exceeded the
             Aggravated Range of the Sentencing Guidelines by twenty-
             four (24) months?

      II.    Whether the Sentencing Court abused its discretion in
             imposing a sentence which was unduly harsh and overly
             burdensome?

      III.   Whether the Sentencing Court erred in denying [Torres’]
             Post-Sentence Motion filed on February 18, 2014?

Torres’ Brief at 5.

      All three of Torres’ issues challenge the discretionary aspects of his

sentence and we discuss them together.       Our standard for reviewing the

discretionary aspects of a sentence is as follows:

      [I]mposition of sentence is vested in the discretion of the
      sentencing court and will not be disturbed by an appellate court
      absent a manifest abuse of that discretion.         An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). When

reviewing such a challenge:

      “It is well-settled that, with regard to the discretionary aspects
      of sentencing, there is no automatic right to appeal.”


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      Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa. Super.
      2013).

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], 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 [see Pa.R.A.P. 2119(f)]; and (4) whether the
         concise statement raises a substantial question that the
         sentence is appropriate under the sentencing code. . . .
         [I]f the appeal satisfies each of these four requirements
         we will then proceed to decide the substantive merits of
         the case.

      Id. (brackets in original).

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).

      Here, Torres filed a notice of appeal within the thirty days provided

upon reinstatement of his direct appellate rights and preserved his

sentencing challenge in a timely filed post-sentence motion. Torres also has

included in his brief a statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).      Therefore, we next decide whether

Torres’ statement raises a substantial question.

      A substantial question will be found where an appellant advances
      a colorable argument that the sentence imposed is either
      inconsistent with a specific provision of the Sentencing Code or is
      contrary to the fundamental norms which underlie the
      sentencing process. At a minimum, the Rule 2119(f) statement
      must articulate what particular provision of the code is violated,
      what fundamental norms the sentence violates, and the manner
      in which it violates that norm.

Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010).



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      Torres asserts that his sentence exceeded the aggravated range of the

sentencing guidelines and that the court assigned undue weight to certain

factors while failing to give weight to mitigating factors.     Therefore, he

concludes that his sentence “was contrary to the fundamental norms

underlying the sentencing process.”        Torres’ Brief at 14.     Claims of

excessiveness in conjunction with a claim that a sentencing court failed to

consider mitigating factors is a substantial question. See Commonwealth

v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). Hence, Torres has raised

a substantial question.

      [W]hen      sentencing   a    defendant   beyond     the   ranges
      recommended by the sentencing guidelines, the trial court must
      state its reasons for departing from the guidelines on the record.
      Commonwealth v. Bowen, 55 A.3d 1254, 1263–64 (Pa. Super.
      2012). When doing so,

         a trial judge . . . [must] demonstrate on the record, as a
         proper starting point, [its] awareness of the sentencing
         guidelines. Having done so, the sentencing court may
         deviate from the guidelines, if necessary, to fashion a
         sentence which takes into account the protection of the
         public, the rehabilitative needs of the defendant, and the
         gravity of the particular offense as it relates to the impact
         on the life of the victim and the community, so long as [it]
         also states of record the factual basis and specific reasons
         which compelled [it] to deviate from the guideline range.

      Id. at 1264 (emphasis added).

Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. 2014)

(citation modified).

      Here, the court was clearly aware of the sentencing ranges.          The

sentencing court reviewed the charges and the pre-sentence investigation


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(“PSI”) report that included the guideline sentence ranges.          Notes of

Testimony, 2/7/2014, at 4. At that time, the Commonwealth identified that

one of the charges has been graded incorrectly and provided the court with

the correct ranges. Id. at 4-5.

      Further, the court stated on the record the reasons that it was

deviating from the guidelines.     The record demonstrates that the court

considered Torres’ sentencing quite carefully.   The sentencing court stated

that it believed that Torres acted in a predatory fashion, honing in on a child

who had difficulties and abusing the trust of the child’s family, and

considered the victim impact statements that the child was indelibly marked

by this experience and the family felt a deep sense of betrayal. The court

believed that Torres was likely to commit further criminal acts and that he

was a danger to society. The sentencing court was particularly troubled by

Torres’ statement at sentencing that Torres believed that he had been

punished enough already. It also noted Torres’ efforts to cover up the crime

by asking the child to delete the messages between them. Id. at 28-33.

      However, the sentencing court noted several mitigating factors,

including the statements of Torres’ family and friends, Torres’ expression of

remorse, and his military service. The court stated that Torres’ friends and

family convinced the court to lower Torres’ minimum sentence.              The

sentencing court had read the PSI more than once. Id. at 28-33.

      The sentencing court concluded that, because of all these factors, a

higher sentence was required to protect society, stating:

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       I find that there is an undue risk that during a period of
       probation or partial confinement you will commit another crime,
       that you are in need of correctional treatment that can be
       provided most effectively by your commitment to an institution.
       And I absolutely feel that a lesser sentence would depreciate the
       seriousness of your crime.

Id. at 33.

       As demonstrated by the sentencing court’s recitation of its sentencing

rationale, it considered the various mitigating factors. Additionally, when a

PSI is available, we may presume that the sentencing court knew the

relevant information about Torres and weighed those considerations in

rendering its sentence. See Commonwealth v. Rhoades, 8 A.3d 912, 919

(Pa. Super. 2010).1

       Based upon the foregoing, the sentencing court provided ample

reasons for its decision to deviate from the guidelines.     The record also

demonstrates that the sentencing court considered the mitigating factors in

determining its sentence. In light of the sentencing court’s statement and

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1
      The learned dissent, relying upon Commonwealth v. Byrd, 657 A.2d
961 (Pa. Super. 1995), suggests that this case should be remanded for re-
sentencing because the sentencing court stated it was sentencing “into the
aggravated range,” N.T. at 32, when, in fact, the sentence was above the
aggravated range.     However, Byrd is distinguishable.        In Byrd, “the
sentencing court failed to set forth . . . the permissible range of sentences
under the guidelines” and did not provide its reasons for sentencing outside
of the guidelines. 657 A.2d at 964. Here, as noted supra, the trial court
demonstrated its understanding of the guideline sentence for Torres and
provided its reasoning for deviating from that guideline.        Further, the
sentencing court acknowledged that it knew the appropriate guideline ranges
and misspoke at sentencing. S.C.O. at 6 n.6.



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findings, the length of the sentence was not excessive. The sentencing court

did not abuse its discretion.

      Judgment of sentence affirmed.

      Judge Panella joins the memorandum.

      Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2015




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