J-S76009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 BRIGHAM LAWLESS                        :
                                        :   No. 1264 EDA 2017
                   Appellant            :

          Appeal from the Judgment of Sentence February 28, 2017
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000117-2016


BEFORE:    PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                         FILED MARCH 26, 2018

     Brigham Lawless appeals from the judgment of sentence entered in the

Court of Common Pleas of Monroe County. Lawless only challenges the

discretionary aspects of his sentence, arguing his sentence is too severe.

Finding his standard range sentence presumptively reasonable, we affirm.

     Lawless pleaded guilty to involuntary deviate sexual intercourse, where

the victim, his stepdaughter, was just five years old. See 18 Pa.C.S.A. §

3123(b). According to Lawless, his stepdaughter “begged” him to permit her

to perform oral sex on him. The victim’s twin brother was in the room and

observed the sexual abuse. After the sexual assault, Lawless asked the

brother to keep what he saw a secret.

     At sentencing, the court noted it had reviewed an extensive pre-

sentence investigation report, considered Lawless’s allocution, considered a


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* Retired Senior Judge assigned to the Superior Court.
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number of aggravating and mitigating factors, and imposed a sentence of

imprisonment of 15 to 30 years. Lawless filed a post-sentence motion and the

court held a hearing. The focus of the hearing was the severity of the sentence,

with Lawless again advancing numerous reasons to mitigate his punishment.

The court, once more, methodically explained its reasoning for imposing the

standard range sentence and denied the motion. This timely appeal followed.

      On appeal, Lawless challenges the discretionary aspects of his sentence.

Essentially, he argues the sentencing court imposed an excessive sentence.

In his Rule 2119(f) statement he references case law about departing from

the guidelines, see Appellant’s Brief, at 14, and that the court imposed “an

aggravated range sentence without giving any consideration to mitigating

circumstances[,]” id., at 15, but later in the same statement clarifies the court

did not give “substantial consideration,” id., at 16, to such factors, and still

later asserts the court “failed to properly deliberate,” id., at 17, on the

mitigating factors of record. So, the assertions in the statement conflict. The

court departed from the guidelines, but imposed a sentence in the aggravated

range. The court did not consider mitigating factors at all, but also failed to

properly consider mitigating factors of record. It is all confused. In any event,

the court neither departed from the guidelines, nor imposed a sentence in the

aggravated range.

      Lawless had a prior record score of zero. See N.T., Sentencing, 2/28/17,

at 2. The offense gravity score for § 3123(b) is 14. See 204 Pa. Code § 303.15.

Offense Listing (7th ed. 9/25/15). The standard range of the guidelines is

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72 months to the statutory limit, see 204 Pa. Code. § 303.16. Basic

Sentencing Matrix (7th ed. 9/25/15), which is 40 years, see 18 Pa.C.S.A. §

3123(d)(1). Thus, Lawless’s sentence of 15 years1 is squarely within the

standard range of the guidelines.2

       The standard range of the guidelines “is presumptively where a

defendant should be sentenced.” Commonwealth v. Fowler, 893 A.2d 758,

767 (Pa. Super. 2006) (citation omitted). As the sentence was within the

standard range, to succeed on this claim Lawless has to show that “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply not the

case here. Lawless had his five-year-old stepdaughter perform oral sex on him

while her twin brother watched. And he claimed she “begged” him to do that.

       Even putting aside the presumptive reasonableness of the standard

range sentence Lawless received, Lawless does not raise a substantial

question for our review. As detailed above, the claims in his Rule 2119(f)

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1“Pennsylvania utilizes an indeterminate sentencing scheme with presumptive
guidelines which limit the judge’s discretion only concerning the minimum
sentence.” Commonwealth v. Smith, 863 A.2d 1172, 1178 (Pa. Super.
2004) (emphasis added; citations omitted).

2 Despite statements to the contrary, Lawless implicitly recognizes the fact
that the court imposed a standard range sentence in his brief. See Appellant’s
Brief, at 27 n.2 (“As the court further pointed out, the guideline range was …
a standard ranhe [sic] of 72 to 240 months.”) Indeed, in his Rule 1925(b)
statement Appellant concedes this point: “Although the sentence was
admittedly within the ‘standard Guideline Range’ for the offense, it exceeded
the norm and was at the very top of the guideline range and thus excessive.”
Rule 1925(b) Statement, filed 5/5/17, at ¶ 10.

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statement conflict. The crux of Lawless’s argument is his assertion that the

court failed to properly consider various mitigating factors of record. See

Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013)

(“Careful litigants should note that arguments that the sentencing court failed

to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.”)

      Despite the issues with his Rule 2119(f) statement, we will very briefly

explain why the sentence passes muster. “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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citation omitted).

      At sentencing, the court noted it had reviewed an extensive presentence

investigation report, considered Lawless’s allocution, as well as aggravating

and mitigating factors. See N.T., Sentencing, 2/28/17, at 20-22. See also

N.T., Post-Sentence Motion Hearing, 3/17/17, at 23-27. As for Lawless’s

concern about the consideration of mitigating factors, those factors were of

record. Important in this regard, the sentencing court had the benefit of a pre-

sentence investigation report. Thus, we must

      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....
      Having been fully informed by the pre-sentence report, the

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      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. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). See also Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.

Super. 2005).

      The sentencing court in this case carefully considered the appropriate

factors, see 42 Pa.C.S.A. § 9721(b), and imposed a sentence firmly in the

standard range of the sentencing guidelines. In doing so, the court committed

no abuse of discretion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/18




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