J-S28006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                        v.

KIMBERLY EIDEN,

                        Appellant                 No. 1241-1242 MDA 2014


           Appeal from the Judgment of Sentence June 13, 2014
           In the Court of Common Pleas of Lackawanna County
           Criminal Division at No(s): CP-35-CR-0001393-2013,
                         CP-35-CR-0001397-2013


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 04, 2015

      Kimberly Eiden appeals the discretionary aspects of the sentence that

was imposed by the trial court after Appellant entered a nolo contendere

plea at two criminal action numbers. We affirm.

      At 1393-2013, Appellant was charged with rape, statutory sexual

assault, involuntary deviate sexual intercourse of a person less than sixteen

years old, aggravated indecent assault of a victim less than sixteen years

old, indecent assault of a victim less than sixteen years old, unlawful contact

with a minor, sexual assault, indecent exposure, and corruption of a minor.

These charges arose from Appellant’s interactions with a then thirteen-year-

old male from May 23, 2012, to October 6, 2012, when the victim, C.S., who

lived in Tennessee, was visiting his grandmother in Pennsylvania.
J-S28006-15




     During two visits the young man made to Pennsylvania in 2012,

Appellant engaged in a course of conduct that culminated in oral sex and

sexual intercourse. Appellant gave alcohol and tobacco numerous times to

the minor.    After initiating sexual contact by kissing C.S., Appellant

progressed to performing oral sex on him.      The victim reported that this

activity occurred on two occasions.    Appellant then had sexual intercourse

with C.S. four times. After C.S. returned to Tennessee, Appellant sent him

graphic nude pictures and solicited nude pictures from him.    C.S.’s father

discovered the pictures, and reported the matter to police.   Appellant was

interviewed by police and admitted to having sexual intercourse twice with

C.S. Appellant was forty years old when she committed these offenses.

     At 1397-2013, Appellant was charged with indecent assault of a

person less than sixteen years old and unlawful contact with a minor for the

purpose of engaging in a prohibited activity.    Those charges arose from

Appellant’s conduct with J.H., who was also a minor.    J.H. told police that

Appellant hugged him and then grabbed his testicles.

     On January 30, 2014, Appellant entered an open plea of nolo

contendere at both action numbers to aggravated indecent assault, unlawful

contact with a minor, and corruption of a minor.        The court informed

Appellant that she faced an aggregate maximum prison term of thirty-two

years.   After entry of the plea, Appellant was assessed by the Sexual


                                      -2-
J-S28006-15




Offenders Assessment Board. The matter proceeded to sentencing on June

13, 2014, where the sentencing court heard testimony from the SOAB

assessor and adjudicated Appellant a sexually violent predator.

     The court then imposed its sentence.        The court outlined that it

reviewed and weighed the contents of an extensive psychiatric report

submitted by Appellant. That report outlined Appellant’s history of mental

problems and sexual abuse as a child. The sentencing court also articulated

that it carefully reviewed the presentence report, an evaluation that the

court ordered from the Department of Corrections, victim impact letters and

statements, letters submitted on behalf of Appellant, and the SOAB report.

N.T. Sentencing, 6/13/14, at 30-31.

     The court imposed consecutive sentences in the aggravated range of

the guidelines: 78-153 months imprisonment plus 84 months probation for

aggravated indecent assault; six to twelve months jail and 48 months

probation on the offense of unlawful contact with a minor; and 18 to 36

months incarceration on the corruption charge. The court explained that it

imposed an aggravated-range sentence on each crime since there were

multiple instances of abuse and a large age gap between Appellant and the

adolescent males.

     Appellant filed a motion for reconsideration of sentence, and the

present appeal after the motion was denied.     She complied with the trial


                                      -3-
J-S28006-15




court’s directive to file a Pa.R.A.P. 1925(b) statement and complained that

the court abused its discretion in imposing an aggregate sentence of 102 to

204 months confinement plus 132 months probation and that it failed to

consider her mitigating circumstances at the time of sentencing. On appeal,

Appellant presents the following contentions:

            1. Whether the lower court's imposition of an
               aggregate sentence of 102 to 204 months of
               incarceration followed by 132 months of
               probation after entering a nolo contendere plea
               was manifestly excessive and an abuse of
               discretion in that it far surpassed what was
               required    to  protect   the  public  or   the
               Complainants, and went well beyond what was
               necessary to foster Appellant's rehabilitative
               needs.

Appellant’s brief at 3.

      Appellant's questions, which were properly preserved by the filing of a

post-sentence motion and Pa.R.A.P. 1925(b) statement, relate to the

discretionary aspects of her sentence.

          A challenge to the discretionary aspects of a sentence must
      be considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. Two requirements must be
      met before we will review this challenge on its merits. First, an
      appellant must set forth in his brief a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence. Second, the appellant must
      show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. The
      determination of whether a particular issue raises a substantial
      question is to be evaluated on a case-by-case basis. In order to
      establish a substantial question, the appellant must show actions
      by the trial court inconsistent with the Sentencing Code or

                                    -4-
J-S28006-15




      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014)

(citations omitted).

      In this case, Appellant’s brief contains the concise statement. In her

statement, Appellant maintains that the sentence was manifestly excessive

due to the fact that all three sentences were imposed consecutively.

Appellant’s brief at 9. We observe that:

           Generally, Pennsylvania law affords the sentencing court
      discretion to impose its sentence concurrently or consecutively to
      other sentences being imposed at the same time or to sentences
      already imposed. Any challenge to the exercise of this discretion
      ordinarily does not raise a substantial question. The key to
      resolving the preliminary substantial question inquiry is whether
      the decision to sentence consecutively raises the aggregate
      sentence to, what appears upon its face to be, an excessive level
      in light of the criminal conduct at issue in the case.

Treadway, supra at 599 (citations and quotation marks omitted).

      We conclude that Appellant has failed to raise a substantial question in

this respect. Appellant, then forty years old, twice performed oral sex on a

thirteen year old adolescent and also had sexual intercourse with him four

times. She provided him with alcohol and tobacco in pursuit of her sexual

assaults. Then, when he left for home, she sent him graphic images of her

sexual organs and asked for a picture of his genitals. On another occasion,

Appellant fondled the genitals of another young man.         In light of this

criminal conduct, we do not view eight and one-half to seventeen years

                                    -5-
J-S28006-15




imprisonment to be manifestly excessive on its face. The sentences were all

within the guidelines, and the trial court was accorded full discretion to

impose its sentences consecutively. Accordingly, we reject this position as

presenting a substantial question.

      In her concise statement, Appellant also suggests that the court

imposed an excessive and unreasonable sentence since it “failed to carefully

consider all relevant factors as set for in Section 9721(b) of the Sentencing

Code,” and it “focused on the severity of the crimes and the retribution of

the complainants, and did not consider the rehabilitative needs of Appellant

at all.”   Appellant’s brief at 9. “This Court has held that an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question.” Commonwealth

v. Samuel, 102 A.3d 1001, 1007 (Pa.Super. 2014) (citation omitted).

Hence, we will review the merits of this averment.

      Our standard of review of the court’s sentencing decision is highly

deferential:

          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.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

                                     -6-
J-S28006-15




      As noted, Appellant suggests that her sentence is manifestly excessive

because the trial court did not consider any mitigating factors, disregarded

her rehabilitative needs, and focused only on the seriousness of the crimes.

The record belies this position. The court clearly stated that it reviewed and

relied upon the presentence report and the psychological evaluation

prepared and presented by Appellant.        “Where pre-sentence reports exist,

we shall presume that the sentencing judge was aware of relevant

information    regarding   the   defendant's   character   and   weighed   those

considerations along with mitigating statutory factors.          A pre-sentence

report constitutes the record and speaks for itself.” Id. at 761 (quoting

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

      Hence, we must assume that the trial court weighed all the pertinent

sentencing factors, including Appellant’s rehabilitative needs and the

mitigating factors consisting of her mental problems and past victimization.

Additionally, § 9781 of the Sentencing Court provides:

            The appellate court shall vacate the sentence and remand
      the case to the sentencing court with instructions if it finds:

              (1) the sentencing court purported to sentence
              within the sentencing guidelines but applied the
              guidelines erroneously;

              (2) the sentencing court sentenced within the
              sentencing guidelines but the case involves
              circumstances where the application of the
              guidelines would be clearly unreasonable; or


                                      -7-
J-S28006-15




              (3) the sentencing court sentenced outside the
              sentencing guidelines and the sentence is
              unreasonable.

            In all other cases the appellate court shall affirm the
       sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

       Herein, the sentencing court sentenced within the guidelines, outlining

why it concluded aggravated range sentences were warranted. 1 There were

multiple instances of sexual abuse and a significant age disparity between


____________________________________________


1
      We note that Appellant asserts that the guideline ranges were
improperly calculated as to one of the crimes involving C.S. Appellant’s brief
at 15. This position is not preserved as it was not raised in the motion for
reconsideration of sentence or in the Pa.R.A.P. 1925(b) statement.

      Furthermore, Appellant’s argument is confusing. She maintains that
the “sentencing court calculated the guidelines for the crime of Unlawful
Contact with a Minor, as it pertained to ‘C.S.’, to be 48 to 66 months, and
then imposed an aggravated sentence of 78 months.” Appellant’s brief at
15. She continues that the calculation was erroneous “as Appellant did not
plead nolo contendere to any charges under §31 of the Crimes Code.” Id.

      The record establishes unequivocally that Appellant pled guilty to
aggravated indecent assault, a violation of § 3125 of the Pennsylvania
Crimes Code. The trial court outlined that the sentence of 78 to 156 months
was imposed on count four of case number 1393. N.T. Sentencing, 6/13/14,
at 33. The record establishes that 13 CR 1393 involved the victim C.S. and
that count four was aggravated indecent assault of a person less than
sixteen years old. As to J.H., Appellant was charged only with indecent
assault and unlawful contact with a minor. To the extent that Appellant
raises a challenge to the sufficiency of the factual basis for her nolo
contendere plea to aggravated indecent assault, that challenge is not
preserved for appeal.



                                           -8-
J-S28006-15




Appellant and each victim. We disagree with Appellant’s assertion that the

court was not permitted to consider the age gap between herself and the

minor victims since the offense gravity score took into account this factor.

The victims were two or three years younger than the sixteen-year-old

threshold for a victim’s age in the pertinent crimes.   Appellant was forty

years old. In conclusion, this case does not involve circumstances where the

application of the guidelines would be clearly unreasonable.     Hence, as

required by § 9781, we must affirm.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




                                      -9-
