J-S04020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VINSON SANTORO,

                            Appellant               No. 1066 MDA 2014


         Appeal from the Judgment of Sentence entered June 3, 2014,
            in the Court of Common Pleas of Lackawanna County,
             Criminal Division, at No(s): CP-35-CR-0002836-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 09, 2015

        Vinson Santoro, (“Appellant”), appeals from the judgment of sentence

imposed after he pled guilty to simple assault.1    After careful review, we

vacate the judgment of sentence and remand for re-sentencing.

        The pertinent facts and procedural history are as follows: On October

24, 2013, Patrolman James A. Smith of the Scranton Police Department was

dispatched to 1846 Stafford Avenue after receiving a report of a physical

domestic dispute. Affidavit of Probable Cause, 10/24/13. Upon Patrolman

Smith’s arrival, Carol Drozdick informed him that Appellant had assaulted

her, and showed him visible injuries to her forehead. Id. Ms. Drozdick, who
____________________________________________


1
    18 Pa.C.S.A. § 2701(a)(1).




*Retired Senior Judge assigned to the Superior Court.
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was six months pregnant, indicated that Appellant was angry because he

thought the baby might not be his, and because he feared that Ms. Drozdick

had infected him with a sexually transmitted disease.              Id.   Appellant

punched Ms. Drozdick in the forehead twice, slapped her in the face once,

threatened to kick her in the stomach, and threatened to “put her through a

wall.”    Id.   Appellant fled when Ms. Dozdick informed him that she was

calling the police. Id.

         Appellant was subsequently arrested and charged with simple assault.

On March 5, 2014, Appellant entered his guilty plea. On June 3, 2014, the

trial court sentenced him to 6 to 24 months of imprisonment.

         Appellant filed a post-sentence motion for reconsideration on June 5,

2014, which the trial court denied by order dated June 6, 2014. This appeal

followed.2

         Appellant presents the following issues for our review:

         A.   WHETHER THE SENTENCE IMPOSED WAS UNDULY HARSH
         AND EXCESSIVE AND AN ABUSE OF DISCRETION?

         B.   WHETHER THE [TRIAL] COURT IMPOSED A SENTENCE IN
         THE AGGRAVATED RANGE WHERE THE [TOTALITY] OF THE
         CIRCUMSTANCES SURROUNDING THE COMMISSION OF THIS
         CRIME WERE NEITHER SO UNIQUE NOR EGREGIOUS AS TO
         WARRANT A SENTENCE OF INCARCERATION IN THE
         AGGRAVATED GUIDELINE RANGE?

Appellant’s Brief at 4.

____________________________________________


2
    The trial court did not direct compliance with Pa.R.A.P. 1925.



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        Appellant’s issues are interrelated.   Therefore, we will address them

together. Appellant argues that the trial court abused its discretion when it

sentenced him to a term of imprisonment of 6 to 24 months. A challenge to

the discretionary aspects of a sentence is not appealable as of right. Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781.     Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

              Before we reach the merits of this [issue], 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; and (4) whether the concise
        statement raises a substantial question that the sentence is
        appropriate under the sentencing code. The third and fourth of
        these requirements arise because Appellant's attack on his
        sentence is not an appeal as of right. Rather, he must petition
        this Court, in his concise statement of reasons, to grant
        consideration of his appeal on the grounds that there is a
        substantial question. Finally, if the appeal satisfies each of these
        four requirements, we will then proceed to decide the
        substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

        Appellant has preserved his sentencing claims by filing a post-sentence

motion and timely notice of appeal.       Appellant has additionally included in

his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s

Brief at 9. Therefore, we proceed to determine whether Appellant has raised

a substantial question for our review.


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       Appellant argues that in imposing a sentence of 6 to 24 months of

imprisonment, the trial court failed to appropriately consider the requisite

sentencing factors, failing to take into account the nature and circumstances

of the offense and the history and characteristics of Appellant. Accordingly,

Appellant asserts that his sentence was unduly harsh.

       Although Appellant argues that he was sentenced “in the very high end

of the aggravated range”, see Appellant’s Brief at 13, our review of the

record includes a “Pennsylvania Commission on Sentencing Guideline

Sentencing Form”, which indicates that Appellant was sentenced beyond the

aggravated range of the sentencing guidelines.3 A claim that the sentencing

court imposed an unreasonable sentence by sentencing outside of the

guidelines presents a substantial question for our review. Commonwealth

v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). See also Commonwealth

v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (a

substantial question is raised where an appellant alleges that the sentencing

court erred by imposing an aggravated range sentence without consideration

of appropriate sentencing factors).              We therefore proceed to review

Appellant’s claim.



____________________________________________


3
  The Guideline Sentencing Form shows that Appellant had a prior record
score of zero, and a standard range sentence of “Restorative Sanctions to 1”
month, and an aggravated range sentence of 4 months.



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      “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. Garcia-Rivera, 983

A.2d 777, 780 (Pa. Super. 2009).

      Section 9781(c) specifically defines three instances in which the

appellate courts should vacate a sentence and remand: (1) the sentencing

court applied the guidelines erroneously; (2) the sentence falls within the

guidelines, but is “clearly unreasonable” based on the circumstances of the

case; and (3) the sentence falls outside of the guidelines and is

“unreasonable.”   42 Pa.C.S. § 9781(c).   Commonwealth v. Bricker, 41

A.3d 872, 876 (Pa. Super. 2012). In addition, the Sentencing Code specifies

that “in every case where the court imposes a sentence ... outside the

guidelines adopted by the Pennsylvania Commission on Sentencing ... the

court shall provide a contemporaneous written statement of the reason or

reasons for the deviation from the guidelines.    42 Pa.C.S.A. § 9721(b).

However, [t]his requirement is satisfied when the judge states his reasons

for the sentence on the record and in the defendant's presence ... in open

court.”   Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.

2014).


      [Section 9721(b)] requires a trial judge who intends to sentence
      a defendant outside the guidelines to demonstrate on the record,
      as a proper starting point, his awareness of the sentencing
      guidelines. Having done so, the sentencing court may deviate
      from the guidelines, if necessary, to fashion a sentence which

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      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 he also states of record the factual basis
      and specific reasons which compelled [him] to deviate from the
      guideline range.
                                     ***

      The court's statement of reasons for deviating from the
      guidelines serves not only as a record of the court's rationale for
      the deviation but also as evidence that the court considered the
      guidelines. We cannot analyze whether there are adequate
      reasons for the deviation unless it is first apparent that the court
      was aware of, and considered the guidelines.

Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)

(citations omitted).

      Here, the guidelines recommended a standard range of sentence of

Restorative Sanctions – 1 month and an aggravated range sentence of 4

months. Appellant’s sentence of 6 to 24 months fell outside the aggravated

range of the guidelines. At the sentencing hearing, the trial court stated:

      The Court finds that there’s clearly aggravated reasons for an
      aggravated range of sentencing based on your not taking
      responsibility; the victim suffered physical injury; [Appellant]
      violated the ARD in the past and has not complied with [drug
      and alcohol treatment] and Scranton Counseling and has not
      taken advantage of multiple treatment opportunities in the past.
      Therefore it will be the sentence of the Court that [Appellant] be
      sentenced to six to 24 months.

N.T., 6/3/14, at 6-7 (emphasis added).

      Our review further indicates that the trial court did not set forth the

relevant guideline ranges, nor indicated that it was aware of and considered

the sentencing guidelines before electing to depart from them and sentence



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Appellant beyond the guidelines.   Rather, it appears from the record, see

supra, that the trial court believed it was imposing an aggravated range

sentence.

     42 Pa.C.S.A. § 9781(c)(1) makes clear that “the appellate court shall

vacate the sentence and remand the case to the sentencing court with

instructions if it finds [that] the sentencing court purported to sentence

within the sentencing guidelines but applied the guidelines erroneously.”

Moreover, in reviewing a discretionary challenge to a sentence outside of the

guideline range, “we cannot analyze whether there are adequate reasons for

the deviation unless it is first apparent that the court was aware of, and

considered the guidelines.” Johnson, 666 A.2d at 693 (Pa. Super. 1995).

     Because the record does not indicate that the trial court properly

considered the sentencing guidelines, and it appears that the trial court

erroneously believed it was sentencing Appellant within the sentencing

guidelines when it in fact sentenced Appellant beyond the guidelines, we are

constrained to vacate the judgment of sentence and remand for re-

sentencing. See Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super. 1995)

(vacating the judgment of sentence where the sentencing court failed to set

forth the permissible range of sentences under the guidelines, and provided

reasons on the record to support what it believed was a sentence in the

aggravated range, while actually sentencing the appellant outside of the




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guidelines without providing a contemporaneous statement of its reasons for

such deviation).

      Judgment of sentence vacated.      Case remanded for re-sentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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