J-A01039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ATHANASIOS THEODOROPOULOS

                            Appellant                No. 709 EDA 2015


            Appeal from the Judgment of Sentence January 6, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0002822-2013


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 02, 2016

        Athanasios Theodoropoulos appeals from the judgment of sentence

imposed by the Court of Common Pleas of Monroe County after he pled

guilty to unlawful contact with a minor.1 After careful review, we affirm.

        The underlying facts are as follows.   Theodoropoulos, who was 21

years old, met the 13-year- old victim on Facebook. At his request, she sent

photographs of her breasts and vagina to Theodoropoulos, and they

arranged to meet in the early morning hours of June 6, 2013, in a parking

lot near the victim’s house. Theodoropoulos arrived in a vehicle along with a

male juvenile. After the juvenile exited the vehicle, Theodoropoulos and the

victim engaged in intercourse in the back seat.      When they finished, the

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1
    18 Pa.C.S. § 6318(a)(1).


*Former Justice specially assigned to the Superior Court.
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juvenile and the victim also had sexual relations in the vehicle. The victim

then walked home.

      Theodoropoulos     and    the   victim    continued    to    communicate      on

Facebook. On June 20, 2013, Theodoropoulos again contacted the victim to

see if she was interested in engaging in sex with him and the juvenile. She

told him that her father caught her coming home after the first encounter.

Shortly thereafter, Theodoropoulos deleted his Facebook profile.

      After the victim told her sister and mother what happened, they

contacted police, who arrested Theodoropoulos on September 9, 2013.

      Theodoropoulos pled guilty to one count of unlawful contact with a

minor on March 27, 2014.       However, at his request, the court entered an

order on June 16, 2014, withdrawing Theodoropoulos’ guilty plea.

      Theodoropoulos again pled guilty on August 27, 2014.                 The court

scheduled sentencing for October 23, 2014, and directed the Sexual

Offenders Assessment Board to conduct an evaluation to determine if

Theodoropoulos was a sexually violent predator (SVP).

      At the request of the Commonwealth, the court continued sentencing

to December 15, 2014, because the Board had not completed its report by

the   original   sentencing   date.    On      December     9,    2014,   counsel   for

Theodoropoulos filed a motion for continuance noting that counsel was

attached for trial in Wyoming County that day, and that Theodoropoulos’

expert witness, Timothy P. Foley, Ph.D., was not available to testify on

December 15, 2014. The court continued sentencing until January 6, 2015.

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      On December 20, 2014, Theodoropoulos’ counsel filed a motion for

continuance because he was attached for trial in Luzerne County. The trial

court denied the motion on December 30, 2014.

      At the beginning of the sentencing hearing on January 6, 2015,

counsel for Theodoropoulos requested a continuance because Dr. Foley was

unable to be present to testify.        The court asked counsel if Dr. Foley was

going to testify to anything that was not in the report.            Counsel replied,

“[p]robably not.”     N.T. Sentencing, 1/6/15, at 4.             The Commonwealth

indicated that it did not object to admission of the report. The court called a

recess, read the report and denied the motion for continuance.

      At the hearing, the Commonwealth argued in favor of the Court

following the recommendation of the pre-sentence investigation report that

Theodoropoulos serve a sentence of 22 to 60 months’ incarceration.

Defense counsel argued that the recommendation was harsh, citing, among

other factors, that the Board had determined that Theodoropoulos is not a

sexually   violent   predator.        Nevertheless,   at   the   conclusion   of   the

proceedings, the court imposed a 22 to 60 month sentence.

      On January 6, 2015, Theodoropoulos signed a Notification of Megan’s

Law Sex Offender Registration Duties form acknowledging that he has been

classified as a Tier 2 offender with a 25-year registration period.

      Theodoropoulos      filed   a     timely   post-sentence     motion     seeking

reconsideration of sentence. At the conclusion of oral argument on February

17, 2015, the court denied the motion.

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      Theodoropoulos filed a notice of appeal on March 9, 2015, and on April

1, 2015, in response to an order from the trial court, he filed a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).       The court

filed its Rule 1925(a) opinion on June 2, 2015.     On appeal to this Court,

Theodoropoulos raises the following issues for our review:

      1. Whether the lower court’s denial of [Theodoropoulos’]
         continuance motion to allow for the in-court testimony of his
         expert witness at his sentencing hearing constituted a
         violation of [Theodoropoulos’] right to counsel under the Fifth,
         Sixth, and Fourteenth Amendments to the United States
         Constitution and Article I, Section 9 of the Pennsylvania
         Constitution.

      2. Whether the lower Court abused its discretion in denying
         [Theodoropoulos’] continuance motion to allow for the in-
         court testimony of his expert witness at his sentencing
         hearing.

      3. Whether the lower court erred in failing to consider the many
         factors which are required for the court to weigh before ruling
         on [Theodoropoulos’] motion for a continuance to allow for
         the in-court testimony of his expert witness at his sentencing
         hearing.

      4. Did the lower court err in assessing [Theodoropoulos] with a
         prior record score of one (1) as a result of a past, unrelated
         juvenile offense?

      5. Did the lower court err in increasing [Theodoropoulos’]
         sentence of incarceration by placing him in the aggravated
         range under the sentencing guidelines?

      6. Considering the Sentencing Code as a whole, was the lower
         court’s deviation from the sentencing guidelines unreasonable
         and excessive?

Appellant’s Brief, at 4-5.




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      Theodoropoulos first argues that the trial court’s denial of his motion

for a continuance violated his right to counsel under the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and Article I,

Section 9 of the Pennsylvania Constitution. “As this is an issue involving a

constitutional right, it is a question of law; thus our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Baldwin, 58

A.3d 754, 762 (Pa. 2012).

      In his Rule 1925(b) statement of errors complained of on appeal, the

sole issue regarding expert witness testimony raised by Theodoropoulos is:

“The court erred in refusing to permit the Defendant’s expert witness, Dr.

Timothy P. Foley, to testify at the time of sentencing, thereby violating the

Defendant’s due process rights.”     Statement of Errors Complained of on

Appeal, 4/1/15, at 2.    Because Theodoropoulos did not raise a challenge

implicating the right to counsel in his Rule 1925(b) statement, the issue is

deemed waived. Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005).

      However, because the main case that Theodoropoulos relies upon for

his right to counsel argument focuses on due process concerns, we will

consider the continuance issue on that basis, which Theodoropoulos properly

preserved in his Rule 1925(b) statement. See Ungar v. Sarafite, 376 U.S.




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575, 589 (1964) (“[]there are no mechanical tests for deciding when a

denial of a continuance is so arbitrary as to violate due process.”).2

        This Court has stated the following with respect to such claims:

        The matter of granting or denying a continuance is within the
        discretion of the trial court. See Ungar v. Sarafite, 376 U.S.
        575, 589 (1964). The Court in Morris [v. Slappy, 461 U.S. 1,
        11, (1983)] observed that

           [t]rial judges necessarily require a great deal of latitude in
           scheduling trials. Not the least of their problems is that of
           assembling the witnesses, lawyers, and jurors at the same
           place at the same time, and this burden counsels against
           continuances except for compelling reasons.

           Id.

        Accordingly, a trial court exceeds its constitutional authority only
        when it exercises its discretion to deny a continuance on the
        basis of “an unreasoning and arbitrary insistence upon
        expeditiousness in the face of a justifiable request for delay. . .
        .” Id., at 11–12, (internal citation and quotation marks omitted).
        To determine whether a constitutional violation occurred, we
        must examine the circumstances present in the case, especially
        the reasons presented to the trial court for requesting the
        continuance. See Ungar, 376 U.S. at 589.

Commonwealth v. Sandusky, 77 A.3d 663, 671-72 (Pa. Super. 2013).

        “Discretion is abused when the course pursued [by the trial court]

represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.”

Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1185 (Pa. 1993).
____________________________________________


2
    Theodoropoulos’ second and third issues are subsumed in this discussion.



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      With respect to the basis for a continuance sought in this case, our

Court has stated:

      We will not reverse a lower court’s denial of a continuance to
      procure a witness absent an abuse of discretion.         Factors
      underlying the exercise of that discretion include whether the
      witness is necessary or essential to the defense, the facts to
      which the witness could testify, whether the witness can be
      procured, and the accused’s diligence in attempting to secure
      the witness’ presence. When there is no assurance that a
      witness can be procured, or considerable uncertainty concerning
      the content of the witness’ testimony, then denial of a
      continuance is proper.    Moreover, if the potential witness’
      testimony is merely cumulative or available from another source,
      then denial is proper.

Commonwealth v. Plath, 405 A.2d 1273, 1275 (Pa. Super. 1979)

(citations omitted).

      Here, the trial court continued the sentencing hearing twice, once at

the   request   of     the   Commonwealth   and    once   at   the    request   of

Theodoropoulos.        At sentencing, after counsel requested an additional

continuance to allow Dr. Foley to participate, the court inquired whether the

witness would “offer anything that’s not in his report,” to which counsel

replied “probably not.” N.T. Sentencing Hearing, 1/6/15, at 3-4. After the

Commonwealth indicated that it did not object to counsel presenting the

report, the court took a recess so that it could review the report.

      At the completion of testimony, the trial court imposed sentence,

specifically noting that it had “read Dr. Foley’s report.”      Id. at 18.      As

counsel recognized at the sentencing hearing, Dr. Foley’s testimony would

have been cumulative of his expert report.        Because the court admitted,


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read and considered the report, Theodoropoulos has not met his burden of

establishing that the court denied him due process or abused its discretion in

denying the request for an additional continuance.

      Theodoropoulos’     remaining      issues    involve     challenges   to    the

discretionary aspect of his sentence, which are not appealable as of right.

Rather, an appellant challenging the sentencing court’s discretion must

invoke   this   Court’s   jurisdiction    by      satisfying   a   four-part     test.

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

      We 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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      Here, Theodoropoulos filed a timely notice of appeal, and has

preserved his claims by raising them in his post-sentence motion. However,

he has not included in his brief a concise statement pursuant to Pa.R.A.P.

2119(f), setting forth the reasons relied upon for allowance of appeal with

respect to the discretionary aspect of his sentence. Nevertheless, because

the Commonwealth has not objected to this violation of the Rules of

Appellate Procedure, we may review the claims.                 Commonwealth v.

Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).


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      Judicial review of the discretionary aspects of a sentence is granted

only upon a showing that there is a substantial question that the sentence

was inappropriate and contrary to the fundamental norms underlying the

Sentencing Code.     Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.

1987). 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 in the Sentencing Code; or (2) contrary

to   the   fundamental   norms   which   underlie   the   sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

      Theodoropoulos asserts that the trial court erred by assessing a prior

record score of 1. A contention that a trial court miscalculated a prior record

score raises a substantial question.     Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa. Super. 2003). Accordingly, we will review this issue.

      The PSI indicates that on June 22, 2011, Theodoropoulos admitted to

indecent assault (M1) based on an incident in 2011 when tried to force

himself on a twelve-year-old girl. Theodoropoulos was fifteen at the time.

The Sentencing Guidelines provide that prior juvenile adjudications are

counted in the prior record score where the offense occurred after the

offender’s fourteenth birthday and there was an express finding by the

juvenile court that the adjudication was for a felony or an M1 offense listed

in section 303.7(a)(4) of the Sentencing Guidelines.       See 204 Pa.Code §

303.6. One of the offenses listed in section 330.7(a)(4) as adding one point

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to a prior record score is indecent assault (complainant is less than 13

years).

      In arguing that the court improperly assessed a prior record score of

1, Theodoropoulos notes that the indecent assault on a twelve-year old girl

involved “consensual, non-intercourse sex with his then underage girlfriend.”

Appellant’s Brief, at 18. Even if this is true, it does not undermine the fact

that Theodoropoulos was adjudicated of committing indecent assault on a

complainant under thirteen years of age.

      Theodoropoulos next argues that at the sentencing hearing, “the trial

court generally discusses [his] juvenile history but does not cite with any

specificity that that there had been an express finding by the juvenile court

that the prior juvenile adjudication against him was for a felony or one of the

misdemeanor offenses listed in § 303.7(a)(4)”. Appellant’s Brief, at 19.

      Based    on   the   PSI,   which   indicates   that   on   June   5,   2011,

Theodoropoulos pled guilty to indecent assault (M1), the record sufficiently

establishes that he committed an offense that supports a prior record score

of 1. Accordingly, he is not entitled to relief on this claim.

      Distilled to its essence, Theodoropoulos’ next issue asserts that the

trial court erred by sentencing him in the aggravated range without

consideration of mitigating circumstances. Such a claim raises a substantial

question. Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super.

2003).

      As the trial court notes in its Rule 1925(a) opinion:

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      While the Sexual Offenders Assessment Board did not find
      [Theodoropoulos] to be a sexually violent predator, we found his
      actions with respect to the victim of this case involved predatory
      behavior. Specifically, we noted this was not [Theodoropoulos’]
      first incident involving sexual contact with a minor and that
      [Theodoropoulos] admitted he was not concerned with the
      victim’s age. We also noted that [Theodoropoulos] had been
      unsuccessfully discharged from treatment through Forensic
      Counseling Associates because he was unable to take
      responsibility for his actions.    Furthermore, we noted that
      [Theodoropoulos] committed the sexual assault within one year
      of being released on an adjudication of sexual assault, which
      occurred when he was a juvenile. We also noted a prior record
      score of one.      In total, we imposed the sentence in the
      aggravated range for all of the aforementioned reasons, which
      were detailed on the record at the sentencing hearing before the
      imposition of sentence.

Trial Court Opinion, 6/2/15, at 4-5 (citations omitted).

      Theodoropoulos appears to argue that when imposing sentence, the

trial court should have considered the fact that he was only fifteen years old

when he engaged in “consensual, non-intercourse sex with his then

underage girlfriend.”    Brief of Appellant, at 20.        Although under the

sentencing guidelines, Theodoropoulos’ prior record score was 1, he asserts

that “the positive testimony of his expert witness at sentencing, combined

with the lower court’s proper assessment of [Theodoropoulos’] prior record

score as zero, would have had an impact on the aggregate sentence

imposed by the lower court.”     Id. at 21.   In light of our discussion of the

prior record score and the court’s decision not to grant a continuance to

allow the expert witness to testify, Theodoropoulos is not entitled to relief on

this claim.




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     Theodoropoulos’ final claim is that the trial court’s deviation from the

sentencing guidelines was unreasonable and excessive, and thus contrary to

the Sentencing Code. This claim is based on a faulty premise because the

sentence of 22 to 60 months’ incarceration is within the sentencing

guidelines, although it is within the aggravated range.        Furthermore,

Theodoropoulos does not set forth the specific provision of the Sentencing

Code or the fundamental norm underlying the sentencing process that the

trial court violated.     Accordingly,   Theodoropoulos has not    raised a

substantial question. See Commonwealth v. Trippett, 932 A.2d 188, 202

(Pa. Super. 2007).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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