J-S59002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

CARL DARNELL JONES,

                          Appellant                  No. 1072 WDA 2014


             Appeal from the Judgment of Sentence June 2, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0014831-2010


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 16, 2015

       Carl Darnell Jones appeals from the judgment of sentence of eighteen

to thirty-six months incarceration followed by three years probation that the

trial court imposed after it found Appellant to be in violation of the terms of

his probation. We affirm.

       Appellant was charged in this action with indecent assault of a person

who was less than thirteen years old and corruption of a minor. On March 7,

2012, he pled guilty to the corruption count and, in exchange, the other

charge was withdrawn. The factual basis for the guilty plea was summarized

by the Commonwealth:

             [O]n September 3rd 2010, Darlene Wall went out with
       some friends to celebrate her fiftieth birthday party. She went
       to a bar in Homewood.       Following her birthday party, she
       returned home at 1 o’clock in the morning. That night she had

*
    Former Justice specially assigned to the Superior Court.
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      several of her friends come back to the house with her. One of
      her friends was the defendant. The party continued. At some
      point, various adults in the house fell asleep. Her four-year-old
      granddaughter was there sleeping in the family room on the
      couch. Ms. Wall [is] the primary caretaker of her four-year-old
      grandchild.

            At some point early in the morning hours, maybe around 7
      a.m., another fourteen-year-old child came downstairs and saw
      the four-year-old victim on the defendant’s lap. Around 10
      o’clock that next day, September the 4th, the child reported to
      her grandmother that the defendant had dug in her underwear.
      At that time Ms. Wall became very upset with the victim
      basically for not reporting his conduct earlier in the day.

            Thereafter, the calls were made to the defendant’s house
      by the child’s mother, and then the following day they went to
      Children’s Hospital Emergency Room. At the emergency room
      they were met by a City police officer who referred the case to
      the City of Pittsburgh Sex Assault detectives, and Detective
      Campbell began an investigation. Detective Campbell set up a
      forensic interview which was conducted on September the 16th
      of 2010. At that forensic interview the child was qualified as a
      witness and, while being shy, was able to articulate the events of
      the day involving her grandmother’s party, the fact that Mr.
      Jones dug in her underwear.

            Based on these allegations, Detective Campbell then
      interviewed the defendant. He agreed to make a statement. He
      denied the allegations except he did admit that at some point in
      the early morning hours he recalled a young child attempting to
      wake up somebody else in the room and that that young child,
      the victim, might have gotten on top of his lap. Based on his
      statements and the child’s statements at the forensic interview,
      charges w[ere] ultimately filed, and that would be the
      Commonwealth’s summary of the evidence.

N.T., 3/7/12, at 12-14.

      Appellant was sentenced to five years probation, which fell below the

applicable guidelines in light of Appellant’s prior record score of five.   The



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trial court assigned supervision of Appellant’s probation to the Allegheny

County Sex Offender Court, which involved the imposition of special

conditions, including no contact with any minor.

     On March 7, 2012, when the probationary sentence herein was

imposed, Appellant was serving a jail term in another matter.         He was

paroled in June 2012. His probation in this matter was reviewed on August

16, 2012. At that time, he denied committing the offense in question and

had not started sex offender’s treatment. He had started a job on August

15, 2012. Then, Appellant was arrested on August 23, 2012, in Washington

County on charges of possession of a controlled substance with intent to

deliver (cocaine) (“PWID”) and receiving stolen property (“RSP”).

     After Appellant was convicted in Washington County for PWID and

RSP, Appellant was charged with violating the terms of his probation in this

case. A VOP hearing was held on June 2, 2014. In addition to proving these

direct violations of probation, the Commonwealth established that, during his

brief release from prison from June to August 2012, Appellant had violated

the terms and conditions of his special probation by failing to seek sex

offender’s treatment and by residing in an unapproved residence with his

girlfriend and her minor daughter.

     The trial court had the benefit of a presentence report. Based upon

the direct and technical violations of the terms of probation, the trial court

revoked it.   The trial court sentenced Appellant to eighteen to thirty-six

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months incarceration, which was made consecutive to the thirty to sixty

months incarceration that Appellant received in the Washington County case,

followed by two years probation. The trial court supported its sentence as

follows:

            As demonstrated by his poor supervision history, his
      escalating criminal behavior including new charges resulting in
      conviction, his continued contact with children, and his ongoing
      treatment failure, he is not amendable to community supervision
      and treatment. As Appellant repeatedly ignored his need for
      rehabilitation and treatment, intentionally disregarded court
      ordered supervision conditions, and demonstrated through his
      conduct the community’s need to be protected from him, this
      Court did not err in sentencing him to a sentence of confinement
      for a period of 18 to 36 months with three years of consecutive
      probation.

Trial Court Opinion, 3/27/15, at 6.

      Appellant filed a motion for reconsideration of the June 2, 2014

sentence as well as this timely appeal on July 2, 2014. He raises one issue

for our consideration:

            I. Di[d] the trial court abuse its discretion by sentencing
            Mr. Jones to 18 to 36 months of incarceration followed by
            two years of probation, when it failed to adequately
            consider and apply the required sentencing factors under
            42 Pa.C.S.A. § 9721 and 42 Pa.C.S.A. § 9725?

Appellant’s brief at 5.

      This contention relates to the discretionary aspects of the sentence

imposed upon Appellant.

            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. When challenging

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      the discretionary aspects of the sentence imposed, an appellant
      must present a substantial question as to the inappropriateness
      of the sentence. 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. [See Pa.R.A.P. 2119(f).] Second, the appellant
      must show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. That is,
      that the sentence violates either a specific provision of the
      sentencing scheme set forth in the Sentencing Code or a
      particular fundamental norm underlying the sentencing process.
      We examine an appellant's Pa.R.A.P. 2119(f) statement to
      determine whether a substantial question exists. Our inquiry
      must focus on the reasons for which the appeal is sought, in
      contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 365, 368 (Pa.Super. 2013).

      Appellant has complied with Rule 2119(f), and maintains in that

statement that the trial court “did not consider the evidence of [Appellant’s]

nature and characteristics, and his need for rehabilitation, or any mitigating

evidence presented on [Appellant’s] behalf.” Appellant’s brief at 14.     We

note that this position differs slightly from the one presented in his

statement of the issue raised on appeal, which was that the trial court did

not adequately consider his mitigating proof.      Nevertheless, it is “well-

established that a sentencing court's failure to consider mitigating factors

raises a substantial question.” Commonwealth v. Raven, 97 A.3d 1244,

1253 (Pa.Super. 2014).      Since Appellant’s Pa.R.A.P. 2119(f) statement

raises the existence of a substantial question, we will grant allowance of

appeal from the discretionary aspects of the sentence imposed.

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     Nonetheless, Appellant’s position must be summarily dismissed. The

record reveals that the court had the benefit of a presentence report; it

heard counsel’s argument in mitigation of the sentence.        Thus, we are

required to presume that the court did, in fact, weigh any mitigating

evidence presented by Appellant.      This precept was announced by our

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

and has been consistently applied thereafter.         As we more recently

commented:

           Where pre-sentence reports exist, we shall continue to
     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.
     In order to dispel any lingering doubt as to our intention of
     engaging in an effort of legal purification, we state clearly that
     sentencers are under no compulsion to employ checklists or any
     extended or systematic definitions of their punishment procedure.
     Having been fully informed by the pre-sentence report, the
     sentencing court's discretion should not be disturbed. This is
     particularly true, we repeat, in those circumstances where it can
     be demonstrated that the judge had any degree of awareness of
     the sentencing considerations, and there we will presume also
     that the weighing process took place in a meaningful fashion. It
     would be foolish, indeed, to take the position that if a court is in
     possession of the facts, it will fail to apply them to the case at
     hand.

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (citation

omitted); see also Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super.

2012) (“The record reveals that the court reviewed a pre-sentence report

and, therefore, appropriately weighed the requisite sentencing factors.”)



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     Hence, we reject Appellant’s position that the trial court did not

consider his mitigating evidence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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