J-S29024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

SARAH ANN TRUMPHOUR

                                                      No. 1441 WDA 2015


            Appeal from the Judgment of Sentence August 21, 2015
               In the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0000040-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 07, 2016

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence entered after Appellee, Sarah Ann Trumphour, pled guilty 1 to

solicitation of involuntary deviate sexual intercourse (IDSI).2 We affirm.

        The relevant factual and procedural history is as follows. Trumphour

engaged in a sexual affair with a fifteen-year-old boy, whom she was an aide

to at George Junior Republic, a treatment facility for at-risk boys. On at least

one occasion, Trumphour sent the victim a text message soliciting oral sex.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Trumphour entered an open guilty plea. An “open” plea agreement does
not include a negotiated sentence. See Commonwealth v. Vega, 850 A.2d
1277, 1280 (Pa. Super. 2004).
2
    18 Pa.C.S.A. § 902(a); 18 Pa.C.S.A. § 3123(a)(7).
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After Trumphour pled guilty to the above-mentioned charge, the sentencing

court imposed an aggregate sentence of 11½ to 23 months’ imprisonment,

followed by 5 years of state supervised probation. Trumphour was not

determined to be a sexually violent predator. The sentencing court denied

the Commonwealth’s post-sentence motion for reconsideration. This timely

appeal followed.

      On appeal, the Commonwealth raises three issues challenging the

discretionary   aspects   of   Trumphour’s   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.”

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation

omitted).

      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.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citation

omitted; brackets in original).

      Here, the Commonwealth preserved its claims by including them in its

post-sentence motion. Moreover, the Commonwealth’s brief contains the



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required Rule 2119(f) statement. We must now determine whether the

Commonwealth has presented a substantial question for our review.

      A “substantial question” as to the inappropriateness of a sentence

under the Sentencing Code 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.”

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal

quotations and citations omitted).

      In the Commonwealth’s first issue, it contends that the sentencing

court imposed an excessively lenient sentence when it sentenced Trumphour

below the mitigated range of the sentencing guidelines. According to the

Commonwealth, the sentencing court “failed to take into account the

fundamental norms underlying the sentencing code as articulated in 42

Pa.C.S.A. § 9721(b)” and based its deviation from the guidelines “upon

unreasonable    factors.” Appellant’s Brief, at 10, 11. Specifically, the

Commonwealth argues that the sentencing court focused solely on the

rehabilitative needs of Trumphour to the exclusion of other factors, such as

the gravity of the offense and the impact it had on the victim and

community. See id., at 11-12. This issue raises a substantial question for

our review. See Commonwealth v. Childs, 664 A.2d 994, 996 (Pa. Super.

1995) (stating that the Commonwealth’s claim that the sentence imposed




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was excessively lenient and unreasonably deviated from applicable guideline

range presented a substantial question).

      In the Commonwealth’s second issue, it contends that the sentencing

court failed to state adequate reasons for imposing a sentence below the

mitigated range of the sentencing guidelines. See Appellant’s Brief, at 12-

13. This claim also raises a substantial question. See Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (stating that a claim

that the sentencing court did not provide sufficient reasons for imposing a

sentence outside the sentencing guidelines presents a substantial question).

      In the Commonwealth’s third issue, it asserts that the sentencing court

impermissibly relied upon factors already taken into consideration under the

Sentencing Code to justify its deviation from the guideline range. See

Appellant’s Brief, at 12-13. Specifically, the Commonwealth argues that the

sentencing court “double-counted” Trumphour’s lack of a prior criminal

record. See id., at 32. This claim too raises a substantial question. See

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003)

(stating that a claim that the sentencing court “relied on impermissible

factors, by considering factors already included in the sentencing guidelines”

raises a substantial question).

      Accordingly, we will now address the merits of the Commonwealth’s

claims. Our standard of review in sentencing matters is well settled.

      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

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      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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted). The rationale behind this deferential standard of appellate

review is that “the sentencing court is in the best position to determine the

proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.” Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (internal quotations and citation omitted). “Even with

the advent of sentencing guidelines, the power of sentencing is a function to

be performed by the sentencing court … the guidelines merely inform the

sentencing decision.” Id., at 961-962.

      This Court’s review is confined by the dictate of § 9781(c)(3) of the

Sentencing Code, which authorizes the appellate court to vacate the

sentence and remand the case to the sentencing court if it finds that the

“sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” The term “unreasonable” generally means a

decision that is either irrational or not guided by sound judgment. Walls,

926 A.2d at 963 (citation omitted). To determine whether a sentence is

unreasonable, we must examine the record with regard for the following.

      (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.


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      (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

      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 consideration the factors outline in § 9721(b). See Walls, 926

A.2d at 964. Section 9721(b) states in pertinent part as follows.

      [T]he 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.

      While the sentencing court is required to consider and consult the

sentencing guidelines when fashioning its sentence, it retains the discretion

to impose a sentence below the mitigated range as long as it clearly explains

its reasons for doing so. See Hoch, 936 A.2d at 519; 42 Pa.C.S.A. §

9721(b). Here, the sentencing court gave the following explanation for the

sentence it imposed.

      THE COURT: The big thing missing here is what, if any, impact
      this had on the boy, and I’m surprised that we don’t have
      anything from the family of some sort, and we don’t even know
      really what his special needs were.

      So I think the issue for the Court -- excuse me -- is the length of
      the sentence and the location of service of the sentence,
      because on the one hand we have somebody who is crime free
      and has otherwise been law abiding and is continuing to work
      forward in her life to be law abiding, be productive. And we have
      no indication of any aberrations anywhere else with drug use,
      alcohol use, mental health disorders. So it is very puzzling why
      this occurred to begin with, and it is difficult to fashion an
      appropriate sentence.


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      I agree to some extent with Mr. Cline that it is one of those
      cases that the guidelines really do not seem to fit, particularly
      absent input from the victim or his family. And the other way it
      doesn’t fit is that we have a young defendant who has a lot of
      mitigation. I suppose, and positive things going for her. I think
      the wrong thing to do is to put her in a penitentiary setting,
      because I think what would come out of that penitentiary in [sic]
      this woman would be extremely undesirable and would be of no
      benefit to anyone that I can see. It would be just raw
      punishment, and not that I am not convinced that that
      punishment wouldn’t be overdoing it so to speak.

      So I’m going to give you a sentence, but it is going to be in the
      county facility, which means it will be outside and below the
      standard range -- or the mitigated range even, but I will put a
      long tail of probation after it so that if you are a sexual predator
      and we are just not catching it, it will happen, it will come to
      light, and you will be back in front of me, and I will revoke that
      probation and you will do a lengthy jail sentence in prison.

      So if you are more what everybody seems to say you are and
      what seems to be said on the surface, at least from all other
      information I have, then this was an aberration in your life.
      Certainly, the lifetime registration will be onerous in and of itself;
      that can land you in jail for failing to follow that.

N.T., Sentencing Hearing, 9/28/15, at 39-41.

      We find that the sentencing court adequately considered the factors

outlined in § 9721(b). Moreover, we find that the court placed sufficient

reasons on record for deviating from the sentencing guidelines. The court

explicitly recognized the seriousness of the offense at issue, yet highlighted

the fact that there was no evidence that Trumphour’s actions negatively

affected the victim. See id., at 39. The court also dismissed the

Commonwealth’s argument that Trumphour was in a position of authority

over the victim by noting that while Trumphour was an aide at George Junior

Republic, she was not the victim’s direct supervisor. See id., at 38. We find

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that the court acted within its discretion in recognizing the unique factual

scenario presented in this case and in fashioning a sentence with

Trumphour’s rehabilitative needs in mind. Apparently, the court gave

considerable weight to the testimony of Susan Hudak, a retired special

education teacher and Trumphour’s long-time tutor, who testified that

Trumphour was a naïve young woman with significant, albeit undiagnosed,

learning   disabilities.   See id., at   24, 26. Hudak also   testified that

Trumphour’s actions were surprising and out of character. See id., at 28.

We do not find the sentencing court’s stated reasons for imposing the

mitigated sentence to be irrational or guided by unsound judgment. The

factors of § 9781(d) warrant affirmance. Thus, the Commonwealth’s first

and second issues are meritless.

      We also find the Commonwealth’s third issue to be meritless, as we do

not find that the sentencing court impermissibly counted Trumphour’s lack of

a prior criminal record twice. Contrary to the Commonwealth’s assertions,

sentencing courts may use prior conviction history and other factors already

included in the guidelines, as long as those factors are used to supplement

other extraneous sentencing information. See Commonwealth v. Mills,

496 A.2d 752, 754 (Pa. Super. 1985). Here, the record makes clear that the

sentencing court considered all of the § 9721(b) factors in fashioning the

mitigated sentence, rather than focusing solely on Trumphour’s lack of a

prior criminal record.




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     Our review of the record supports the sentencing court’s findings and

we discern no abuse of discretion in the court’s exercise of discretion in

sentencing Trumphour. Accordingly, we affirm Trumphour’s judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




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