J-S57039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DEONTE SATCHELL

                            Appellee                  No. 610 EDA 2014


         Appeal from the Judgment of Sentence entered July 12, 2013
             In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0004850-2011


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                FILED MARCH 09, 2015

        Deonte Satchell received a sentence of time served (167 days) to 23

months in jail plus probation for brutally raping and assaulting his girlfriend.

In my view, the Majority does not apply the applicable legal standards

correctly in evaluating whether the trial court’s sentence is unreasonable.

By applying applicable legal standards correctly, I would hold the sentence is

unreasonably lenient. The law does not support the trial court’s reasons for

deviating well below the applicable range of the Sentencing Guidelines.1

Further, the trial court did not properly account for the serious nature of

Appellee’s crimes and the protection of the public. I respectfully dissent.



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1
    204 Pa. Code §§ 303.1-.18(c).
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        The Sentencing Code2 sets forth our procedure for reviewing the

discretionary aspects of sentences when a substantial question exists 3 that

the sentence is inappropriate:

        (c) Determination on appeal.--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

          (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) (emphases added); see also Commonwealth v.

Walls, 926 A.2d 957, 963-67 (Pa. 2007) (setting forth the legal standard

under which this Court reviews the discretionary aspects of a sentence

imposed outside of the Sentencing Guidelines’ range).            The Majority

accurately and thoroughly recounts our standard of review.         However, it
____________________________________________


2
    42 Pa.C.S.A. §§ 9701-81.
3
   I agree with the Majority that the Commonwealth’s claim that “that the
trial court imposed an unreasonable sentence outside of the guidelines and
did not justify its sentence with sufficient reasons raises a substantial
question in this case.” Commonwealth v. Wilson, 946 A.2d at 767, 770
n.6 (Pa. Super. 2008), aff’d per curiam, 971 A.2d 1121 (Pa. 2009).



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does not mention the Sentencing Guidelines that apply to Appellee’s

offenses.

       Reference to the Guidelines highlights the leniency of Appellee’s

sentence.     Under the applicable Guidelines, rape and involuntary deviate

sexual intercourse (IDSI) are Level 5 offenses:

       Level 5 provides sentence recommendations for the most violent
       offenders and those with major drug convictions . . . . The
       primary purposes of the sentencing options at this level are
       punishment commensurate with the seriousness of the criminal
       behavior and incapacitation to protect the public.

204 Pa. Code § 303.11(b)(5).           Appellee’s rape and IDSI convictions have

offense gravity scores (OGSs) of 12. Appellee, who had no prior convictions,

has a prior record score (PRS) of 0. The Guidelines range for an OGS of 12

and a PRS of 0 is 48 – 66 months, and the aggravated/mitigated ranges are

+/- 12 months.        See 204 Pa. Code §§ 303.15-.16.        Thus, the minimum

suggested mitigated-range sentence called for Appellee to serve three years

in prison.    Instead, the trial court imposed a sentence with a maximum

incarceration (two years less one day), i.e., one year less than the

minimum suggested mitigated-range sentence.4
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4
  The Pennsylvania Commission on Sentencing’s 2013 Annual Report further
highlights the unusually lenient nature of Appellee’s sentence.        See
Pennsylvania Commission on Sentencing, Annual Report, at 59, Table 7
(2013),      available      at,     http://pcs.la.psu.edu/publications-and-
research/annual-reports/2013/view (last accessed Feb. 18, 2015). In 2013,
the year Appellee was sentenced, only 5 out of 133 convicted rapists
received a county jail sentence (as Appellee did). One offender received
probation. Similarly, in 2013, 6 out of 218 offenders convicted of IDSI
(Footnote Continued Next Page)


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       The fact that the sentence here is outside of the Guidelines is central

to the Commonwealth’s argument. In fact, at the sentencing hearing, the

Commonwealth       conceded        that   a      mitigated-range   sentence   would   be

acceptable, but strenuously argued for the trial court to sentence within the

Guidelines. I am aware that the Sentencing Guidelines are advisory. See,

e.g., Walls, 926 A.2d at 961-62 & n.3. The Sentencing Code nonetheless

requires a trial court to consider the Guidelines and explain on the record the

reasons for imposing a sentence outside of the Guidelines.                42 Pa.C.S.A.

§ 9721(b).     The Sentencing Code further requires this Court to examine

outside-the-Guidelines sentences for unreasonableness instead of clear

unreasonableness for inside-the-Guidelines sentences. Id. § 9781(c)(2) and

(3).      Here, like in Walls, the “the sentencing court considered the

guidelines.”   Walls, 926 A.2d at 967. However, unlike in Walls, the trial

court failed to provide proper justification for departing from the Guidelines.

Cf. id.

       This Court determines whether a sentencing court abused its discretion

as follows:

        (d) Review of record.--In reviewing the record the appellate
       court shall have regard for:
                       _______________________
(Footnote Continued)

received a county jail sentence.       Two offenders (presumably one was
Appellee) received probation.      I am aware that trial courts sentence
individual defendants, and cannot and should not tailor sentences to fit
statewide data. I provide these statistics only to highlight the unusually
lenient nature of Appellee’s sentence.



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         (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.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).      In Walls, our Supreme Court described this

standard as a “component of the jurisprudential standard of review

for an abuse of discretion.” Walls, 926 A.2d at 962 (emphasis added).

Thus, the § 9781(d) factors are how this Court determines whether a

sentencing court abused its discretion.

      The Majority mentions § 9781, but fails to apply it. While a trial court

has wide latitude in imposing sentence, its discretion is not unfettered or

absolute. Commonwealth v. Melvin, 103 A.3d 1, 53-54 (Pa. Super. 2014)

(“In fashioning a sentence, we have acknowledged that trial courts are

vested with great, but not unfettered discretion.”) (internal quotation

omitted); Commonwealth v. Whitman, 880 A.2d 1250, 1252 (Pa. Super.

2005) (“While sentencing courts do possess broad discretion, that discretion

is not unfettered and remains subject to appellate review.”), rev’d in part on

other grounds per curiam, 918 A.2d 115 (Pa. 2007); Commonwealth v.

Cornish, 589 A.2d 718, 720 (Pa. Super. 1991); see also Walls, 926 A.2d

at 968 (Baer, J., concurring) (“An appellate court should vacate a sentence

where the trial court provides no basis, or an unreasonable basis, for the

deviation [from the Guidelines].”).


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      Our standard of review is not some talismanic key that closes the door

to   appellate   review.   Walls   counsels   that   we   must   evaluate   the

reasonableness of the sentence using the § 9781(d) factors:

      [U]nder the Sentencing Code an appellate court is to exercise its
      judgment in reviewing a sentence outside the sentencing
      guidelines to assess whether the sentencing court imposed a
      sentence that is “unreasonable.” 42 Pa.C.S. § 9781(c), (d).

      Yet, what makes a sentence “unreasonable” is not defined in the
      statute. Generally speaking, “unreasonable” commonly connotes
      a decision that is “irrational” or “not guided by sound judgment.”
      THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, 2084 (2d
      ed. 1987); see 1 Pa.C.S. § 1903 (words to be construed
      according to their common and approved usage).             While a
      general understanding of unreasonableness is helpful, in this
      context, it is apparent that the General Assembly has intended
      the concept of unreasonableness to be a fluid one, as
      exemplified by the four factors set forth in Section 9781(d) to be
      considered in making this determination. Indeed, based upon
      the very factors set out in Section 9781(d), it is clear that the
      General Assembly intended the concept of unreasonableness to
      be inherently a circumstance-dependent concept that is flexible
      in understanding and lacking precise definition. Cf. United
      States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (explaining
      concept or reasonableness in context of sentencing matters).

Walls, 926 A.2d at 963.

      The Walls court declined to fashion any “concrete rules,” except that

we must look to §§ 9781(d) and 9721(b) to analyze the reasonableness of a

sentence. Moreover, although our Supreme Court has stated that this Court

should “infrequently” find a sentence unreasonable, Walls, 926 A.2d 964, it

did not hold this Court may never reverse a sentence as unreasonably

excessive or lenient.      Even after Walls, we have found sentences

unreasonable.     See, e.g., Commonwealth v. Daniel, 30 A.3d 494, 499


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(Pa. Super. 2011) (holding trial court’s reasons did not justify 11½ – 23

month sentence for aggravated assault); Wilson, 946 A.2d at 769 (holding

trial court’s reasons did not justify 11½ – 23 month sentence for robbery

and burglary).

      Because the Majority has mentioned the § 9781(d) factors only in

passing, I will apply the factors myself.      I look first to “the nature and

circumstances of the offense and the history and characteristics of the

defendant.” 42 Pa.C.S.A. § 9781(d)(1). Appellee raped and assaulted his

girlfriend by using physical force to subdue her despite her repeated, explicit

pleas to stop.     At sentencing, the trial court first acknowledged the

seriousness of Appellee’s crimes, stating that “[t]his type of rape is so

destructive   because   it   betrays   the   fundamental   basis   of   a   loving

relationship.”   N.T. Sentencing, 7/12/13, at 4.     Yet, the trial court later

minimized the depravity of Appellee’s conduct, stating that the rape “lacked

the attendant circumstances associated with most rapes. This crime did not

involve a fiend lurking in a park, nor a burglar attacking [a] homeowner, nor

a lothario on a first date with his prey.” Trial Court Opinion 3/10/14, at 13.

      The trial court provided no support for its bald assertion that “most

rapes” involve sensational attacks on unsuspecting strangers or date rapes,

and there is none in the record. In fact, the opposite is true: most sexual




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assault victims know the perpetrators.5          It is true in this case, too.   The

victim and Appellee were in a relationship, lived together, and attended the

same church.        I agree with the Commonwealth that this case fits the

unfortunate, common profile of domestic assault.          Appellee and the victim

once had a loving relationship, and there was a possibility for reconciliation,

which led to the victim’s unwillingness to prosecute Appellee.

       The trial court also noted that it had never seen a rape victim testify

on the rapist’s behalf at sentencing. Trial Court Opinion, 3/10/14, at 13-14.

This misses the point.         As the Commonwealth notes, domestic violence

victims commonly do not want the Commonwealth to prosecute.                  If the

victim does not testify, the Commonwealth cannot even bring charges. For

example, here the victim’s testimony was the sine qua non of the proof of

forcible compulsion. Thus, where a victim wants to testify on behalf of the

defendant, the case cannot proceed to a preliminary hearing or trial.

       The trial court also offered the speculative conclusion that the victim

does not suffer from Battered Woman Syndrome. I realize that a sentencing

judge must evaluate a wide range of material at sentencing, but Appellee

here presented no evidence that supports the trial court’s nonprofessional

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5
  Intimate partners account for almost 30% of rapes or sexual assaults of
females, and over 70% of female rape victims know their assailants.
Shannan M. Catalano, National Crime Victimization Survey: Criminal
Victimization, 2005, at 9 Table 9 (Bureau of Justice Statistics, Sept. 2006),
available at http://www.bjs.gov/content/pub/pdf/cv05.pdf.



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diagnosis. Appellee could have presented evidence in this regard, but he did

not.   Medical, psychological, and psychiatric diagnoses are properly left to

qualified experts.     Moreover, the trial court did not acknowledge that the

victim was threatened by one of Appellee’s friends after she reported the

rape to police.    See N.T. Trial, 2/20/13, at 286. Also unmentioned is the

fight that occurred between the victim and Appellee—while he was on bail

and    subject    to   a   protection   from    abuse   order—necessitating   police

involvement. See N.T. Sentencing, 5/24/13, at 70-71.

       The Commonwealth also argues that the trial court failed to consider

Appellee’s prior contact with law enforcement. The trial court should have

given some weight, rather than none, to Appellee’s violation of the

protection from abuse order while on bail. It also understated his arrest

record.    The trial court had little information regarding the facts or

disposition of Appellee’s prior charges, except that they were withdrawn in

Philadelphia Municipal Court.           See N.T. Sentencing, 7/12/13, at 8-10.

However, it repeatedly understated what little information it had. Appellee

did not have “one prior arrest for simple assault.” Id.; Trial Court Opinion,

3/10/14, at 4, 11. Appellee had been arrested at least twice, for robbery (a

first-degree felony), simple assault, terroristic threats, and harassment.

See N.T. Sentencing, 5/23/14 at 48. Though the charges were withdrawn,

the trial court failed to give proper weight to Appellee’s arrest history

because it was mistaken regarding that history.




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      Next, I consider the trial court’s opportunity to observe Appellee, and

the results of the presentence investigation.          42 Pa.C.S.A. § 9781(d)(2).

Though    I   am   skeptical   that    the   record   supports Appellee’s   sincere

remorsefulness, I agree with the Majority that we cannot reassess the trial

court’s factual finding in this regard.

      Turning to the third factor, 42 Pa.C.S.A. § 9781(d)(3), the trial court’s

findings are either unsupported by the record, or do not support imposition

of a lenient sentence.

      The trial court opined that the victim’s statements at sentencing

constituted “90%” of its motivation for imposing a lenient sentence.           See

N.T. Sentencing, 7/12/13, at 5.         While the victim’s wishes are certainly a

valid consideration, they cannot be used to the exclusion of almost every

other consideration.     A sentencing court must consider, inter alia, the

protection of the public and the impact of the offense on the community.

See 42 Pa.C.S.A. § 9721(b).           Thus, in addition to the victim’s wishes, a

sentencing court must take into account the general deterrent effect of the

sentence. Here, by relying almost entirely on the victim’s wishes, the trial

court failed to take into account protection of the public and the impact of

the offense on the community.

      Furthermore, a trial court may not “double count” factors already

taken into account by the Guidelines.         Commonwealth v. Goggins, 748

A.2d 721, 732 (Pa. Super. 2000) (en banc). For that reason, I would find

error in using Appellee’s PRS of 0 to deviate below the mitigated range. The

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Guidelines already account for Appellee’s lack of prior convictions.                  See

Commonwealth v. Celestin, 825 A.2d 670, 679 (Pa. Super. 2003) (“The

court’s reliance upon [the defendant’s lack of a prior record] was clearly

misplaced      since    the    guideline       sentence    recommendations         already

contemplate a defendant’s [PRS].”).

        Likewise, the trial court erred in relying on the fact that Appellee did

not make use of a weapon during the rape. Had Appellee used or possessed

a deadly weapon, the deadly weapon enhancement (DWE) sentencing

matrixes—and not the basic matrix would have applied. The DWE matrixes

include higher recommended Guidelines ranges.                        See 204 Pa. Code

§ 303.17.

        The   trial   court   further   erred    in   relying   on    Appellee’s   lifetime

registration requirement under Pennsylvania’s Sex Offender Registration and

Notification Act (SORNA).6 Although it recognized SORNA registration is not

a punishment, the trial court opined that the burden of SORNA registration is

“arguably more severe than incarceration.” Trial Court Opinion 3/10/14, at

15-17. SORNA registration is a collateral consequence of a conviction. It is

not punishment.        Commonwealth v. McDonough, 96 A.3d 1067, 1071




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6
    42 Pa.C.S.A. §§ 9799.10-.41.



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(Pa. Super. 2014).         I also do not believe that SORNA registration is

“arguably worse” than actual incarceration.7

       The Majority characterizes the trial court’s comments on Appellee’s

prior record, the lack of a weapon, and SORNA consequences as a mere

description of the circumstances of the case. The Majority charges the

Commonwealth with taking the trial court’s statements out of context.

Rather, it is the Majority that takes the trial court’s statements out of

context. The record clearly shows that the trial court relied on these factors

to justify imposing a sentence outside of the Guidelines.

       During its statutorily required on-the-record colloquy of the reasons

for deviating from the Sentencing Guidelines, the trial court stated that

Appellee had a zero prior record score, N.T. Sentencing, 7/12/13, at 8, did

not use a weapon, id. at 9, and will be subject to lifetime SORNA

registration, id. at 6. See also id. at 12 (“Now in light of everything I’ve

said, I’m deviating from [the Sentencing Guidelines].”). If the trial court’s

oral colloquy is ambiguous, its written opinion makes clear that it relied on

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7
   The Majority erroneously categorizes the trial court’s use of SORNA
registration as a description of the “particular circumstances of the case.”
Majority Memorandum at 17. Nothing about SORNA, however, is particular
to this case. All offenders convicted of rape must register for life as sex
offenders. See 42 Pa.C.S.A. §§ 9799.14(d)(2), 9799.15(a)(3) (designating
rape as a Tier III offense requiring lifetime registration). Indeed, if, as the
trial court posited, SORNA registration is “arguably worse than incarceration”
and a reason to mitigate here, then it is a reason to mitigate in every rape
case.



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these factors (incorrectly so, see supra) to deviate below the Sentencing

Guidelines.   Part B of the trial court’s opinion is entitled “Criteria for

Deviation from Sentencing Guidelines.” Trial Court Opinion, 3/10/14, at 10.

In Part B(1), the trial court stated “The [Appellee] had no prior history of

violent behavior. In fact, the [Appellee] has no prior criminal history (i.e., a

zero [prior] record score).”     Id. at 11 (citation of notes of testimony

omitted); see also id. at 18 (suggesting that the sentence is not manifestly

unreasonable because Appellee “had no prior criminal history”).        Again, in

Part D of its opinion, the trial court stated its believe that SORNA registration

is “arguable more severe than incarceration.” Id. at 15-17.

      By sentencing Appellee to less than two years in jail, the trial court

ensured that it—and not the Pennsylvania Board of Probation and Parole—

was the parole authority. See 42 Pa.C.S.A. § 9775. At sentencing, the trial

court noted that the Board of Probation and Parole often does not grant

parole to sex offenders upon the expiration of their minimum sentences.

N.T. Sentencing, 5/24/13, at 51-53. It accordingly expressed concern that,

if it imposed a sentence at the bottom of the mitigated range (3 – 6 years),

Appellee would remain in prison long after he served the minimum sentence.

Id. at 56; see also Trial Court Opinion, 3/10/14, at 15 & n. 10. The trial

court opined “that a prolonged incarceration of [Appellee] just might in the

long run negatively impact the safety of [the] public and ‘make [Appellee] a

bitter parolee, and a greater danger to the community.’”             Trial Court

Opinion, 3/10/14, at 11 (quoting N.T. Sentencing, 7/12/13, at 8-9)). I fail

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to see how prolonged incarceration or parole would make Appellee a

greater danger to the community than would a short stint in jail followed by

release into the community at large. I do not believe it is appropriate for a

trial court to speculate regarding a defendant’s expected release date on

state parole.   Here, the trial court allowed its distaste for the Board of

Probation and Parole’s parole decisions for sex offenders to color its

sentencing decision.

      Finally, I review the applicable Sentencing Guidelines.   42 Pa.C.S.A.

§ 9781(d)(4).   As in Daniel, this sentence is not a “slight departure from

those recommendations.” Daniel, 30 A.3d at 499. Appellee used force to

overpower, assault, and rape his paramour.     Despite the violent nature of

Appellee’s crimes, the trial court’s maximum aggregate sentence of

incarceration (two years less one day) is one year less than the minimum

suggested mitigated Guidelines ranges (three years).        The trial court’s

findings do not support its departure from the Sentencing Guidelines.

Although the trial court heavily emphasized the victim’s forgiveness of

Appellee and the potential for rehabilitation, the sentence must still be

consistent with the gravity of the offense.   See Wilson, 946 A.2d at 775

(“Here, the [trial] court did not but should have recognized the brutal nature

of the acts Wilson committed.”); Celestin, 825 A.2d at 681-82 (“On

remand, we remind the trial court that its sentence must reflect not just the

rehabilitative needs of Mr. Celestin, but also the gravity of the offense and

protection of the public.”).

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        The facts of this case are a depressingly common feature of American

life.   Appellee committed a depraved act of violence against his domestic

partner. When charges were filed, the victim had second thoughts and did

not want to testify or see her boyfriend go to prison. These facts are not

unusual or unique and do not, therefore, justify a sentence well below the

mitigated range of the Sentencing Guidelines.             The unreasonably lenient

sentence imposed fails to account for the serious, violent nature of

Appellee’s crimes, and it fails to accord the citizens of this Commonwealth

the protection they deserve.

        Under the Majority’s analysis, it is hard to envision how we could

vacate any sentence on appeal.                 A trial court has wide discretion in

sentencing, but that does not mean we must act as a rubber stamp for trial

courts on appeal.8

        Certainly, the victim’s forgiveness of Appellee and his need for

rehabilitation are relevant factors at sentencing. Indeed, these factors may

suggest the appropriateness of a mitigated sentence, something the


____________________________________________


8
  In fact, Article V, § 9 of the Pennsylvania Constitution guarantees the right
of appeal. I realize that we have rejected a constitutional challenge to
§ 9781, which limits the right to challenge the discretionary aspects of
sentencing on appeal. See Commonwealth v. Chilcote, 578 A.2d 429,
435-37 (Pa. Super. 1990), appeal dismissed as improvidently granted, 625
A.2d 614 (Pa. 1993). However, I am sympathetic to the argument that
erecting higher and higher arcane procedural barriers runs afoul of Article V,
§ 9 when those limitations become unreasonable.



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Commonwealth conceded here. These factors, however, do not obviate the

social and legal imperative that an offender’s punishment must reflect the

seriousness of his crimes and ensure the protection of the public.              42

Pa.C.S.A. §§ 9721(b), 9781(d).           The sentence here belies adequate

consideration of these two items. Rather, this case is like Daniel, where we

concluded   that   the   defendant’s     drug   addiction   and    acceptance    of

responsibility by pleading no contest were insufficient reasons to impose a

11½ – 23 month sentence for an aggravated assault resulting in serious

bodily injury to the victim.   Daniel, 30 A.3d at 498-99.         This case is like

Wilson, where we held the defendant’s drug dependence and stated

penitence, did not justify a 11½ – 23 month sentence for his guilty pleas to

robbery and burglary. Wilson, 946 A.2d at 774-75.

      In imposing sentence, the trial court unreasonably placed too much

weight on the wishes of the victim, and failed to account for the serious

nature of Appellee’s offenses and the protection of the public. It also relied

on factors that were either irrelevant or already accounted for by the

Guidelines. The trial court appears to have used the victim’s wishes and its

disagreement with the Board of Probation and Parole’s practices regarding

parole of sex offenders to keep Appellee in county jail, which resulted in the

trial court imposing an overly lenient sentence. I would vacate and remand

for resentencing. Hence, I respectfully dissent.




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