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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
ALFREDO HERRERA-ORTIZ,                      :          No. 1383 EDA 2017
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, November 18, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0011805-2014


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED FEBRUARY 14, 2019

        Alfredo Herrera-Ortiz appeals the judgment of sentence in which the

Court of Common Pleas of Philadelphia County sentenced him to serve an

aggregate sentence of 15 to 30 years’ imprisonment followed by 10 years’

probation1 for his convictions for rape of a child, involuntary deviate sexual

intercourse with a child, unlawful conduct with a minor, endangering the

welfare of a child, and corruption of a minor.2          After careful review, we

affirm.

        The factual history, as stated by the trial court, is as follows:


1 Appellant received a sentence of 10 to 20 years’ imprisonment for rape,
5 to 10 years for involuntary deviate sexual intercourse with a child, and
10 years of probation for unlawful conduct with a minor. He received no
further penalty on the remaining charges.

2   18 Pa.C.S.A. § 3121, 3123, 6318, 4304, and 6301, respectively.
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           During  the   no-contest    plea   hearing    the
           Commonwealth recited the following facts into the
           record:

                   If this case proceeded to trial, the
                   Commonwealth would have proven
                   beyond a reasonable doubt that on
                   September 14th of 2014 . . ., here in
                   Philadelphia, [appellant] resided at that
                   location.   He had a bedroom on the
                   second floor. He was a family friend. On
                   that date, the victim in this case, her
                   name is [V.M.], who, at the time was age
                   six -- her birthday is [] -- she returned
                   from the park with her brother,
                   who’s [sic] name is [J.M.], same spelling,
                   who at the time was age 8. They went
                   upstairs to the second floor of the home.
                   [Appellant] asked both children to come
                   into his bedroom and he locked the door.
                   At that point, both children were on the
                   bed. [Appellant] proceeded to remove
                   [V.M.’s] pants. And he penetrated her
                   both vaginal [sic] and anally with his
                   penis.    The mother, whose name is
                   [M.A.], was calling out for the children.
                   She did not -- they weren’t answering, so
                   she went upstairs. Eventually the door
                   was opened and the children explained to
                   her what happened. At that point, the
                   police were called to the home.
                   [Appellant] was arrested.

                   ....

           [Appellant] averred that he did not contest the
           summary of the facts placed on the record.

Trial court opinion, 1/23/18 at 2 (some brackets in original; citations to

record omitted).




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        Initially, appellant was tried in a jury trial in late June and early July of

2016.     On July 5, 2016, the trial court declared a mistrial after the jury

announced that it could not reach a verdict because it was hopelessly

deadlocked.       On August 16, 2016, after the selection of several jurors,

appellant entered a plea of no contest.          On November 18, 2016, the trial

court sentenced appellant.         On November 27, 2016, appellant filed a

post-sentence motion. On March 29, 2017, the post-sentence motion was

denied by operation of law.

        On April 27, 2017, appellant filed a notice of appeal.           On May 22,

2017, the trial court ordered appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On September 8,

2017, after receiving an extension, appellant complied with the order. On

January     23,   2018,    the   trial   court   filed   an   opinion,   pursuant   to

Pa.R.A.P. 1925(a).

        Appellant raises the following issue for this court’s review:        “Did not

the trial court err and abuse its discretion when it imposed a manifestly

excessive and clearly unreasonable sentence of fifteen to thirty years of

incarceration following a mistrial and a plea of nolo contendere, where

appellant . . . presented significant mitigation?” (Appellant’s brief at 3.)

        Appellant challenges the discretionary aspects of his sentence.

              [T]he proper standard of review when considering
              whether    to   affirm  the   sentencing     court’s
              determination is an abuse of discretion. . . . [A]n
              abuse of discretion is more than a mere error of


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            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment       exercised      was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly 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. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly   preserved    at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).


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Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of his sentence.    First, appellant timely filed his notice of appeal

pursuant to Pa.R.A.P. 903. Second, appellant raised the issue that the trial

court imposed a sentence that was excessive and unreasonable and did not

take into account his rehabilitative needs and other mitigating factors which

essentially is the issue before this court.       Third, appellant included a

Rule 2119(f) statement in his brief in which he avers he raises a substantial

question because the trial court imposed an excessive sentence and failed to

consider mitigating factors. Fourth, this court must next determine whether

appellant raises a substantial question for this court’s review.

      We determine whether an appellant raises a substantial question on a

case-by-case basis. Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.

2015).   “A substantial question exists only when an 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.” Id. at 338 (citation omitted).

      Appellant argues that the appeal presents a substantial question

because the trial court imposed an extremely harsh aggregate sentence

without considering mitigating factors and improperly considering that


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appellant pled nolo contendere.       This court has held that an excessive

sentence claim coupled with an allegation that the trial court failed to

consider mitigating factors raised a substantial question. Commonwealth

v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). As appellant has presented

a substantial question, we will address this claim on the merits.

      Appellant asserts that the trial court sentenced him to a sentence of

more than twice the lower end of the sentencing guidelines for rape.

Actually, the guidelines state that the minimum confinement for rape for a

person with a “0” for a prior record score is 72 months to the statutory limit.

On the rape conviction, appellant received a sentence of 10 to 20 years.

Therefore, the minimum sentence was not twice the lower end of the

guidelines and was within the standard range of the guidelines. This court

has determined that a standard range sentence is presumptively reasonable.

See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super.

2006). Thus, to succeed on this claim, appellant must show that “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

      Appellant argues that the sentence was unreasonable because the trial

court failed to consider mitigating factors. The trial court had the benefit of

a pre-sentence investigation report (“PSI”). “Where a [PSI] exist[s], we []

presume that the [trial court] was aware of relevant information regarding

the defendant’s character and weighed those considerations along with



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mitigating factors.   A [PSI] constitutes the record and speaks for itself.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014). This court finds no merit to the

charge that the trial court did not consider appellant’s rehabilitative needs

when it fashioned the sentence so as to make the sentence unreasonable.

      Appellant also asserts that the trial court’s imposition of consecutive

sentences for rape and involuntary deviate sexual intercourse with a child

was excessive especially when there is no indication that the trial court

considered any factors regarding his amenability to rehabilitation.

      With respect to the contention that the trial court imposed consecutive

sentences, Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A.

§ 9721, permits the sentencing court to use its discretion to impose a

sentence   consecutively   or   concurrently   to   other   sentences   that   the

sentencing court is imposing. “In imposing a sentence, the trial judge may

determine whether, given the facts of a particular case, a sentence should

run consecutive to or concurrent with another sentence being imposed.”

Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005).

      Here, the trial court imposed consecutive standard range sentences for

the charges for which appellant pled nolo contendere. This court discerns

no abuse of discretion.

      While appellant asserts that the trial court punished him excessively

for making his plea after the mistrial and after eight jurors were selected for



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the new trial, a review of the hearing transcript indicates that the trial court

commented on the horrific nature of the crime and the fact that the children

had to relive it at trial.   See 42 Pa.C.S.A. § 9781(d)(1).    The nature and

circumstances of the offense is one of the statutory factors a court shall

consider when imposing a sentence.

      The trial court carefully considered the relevant factors set forth in

Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced

appellant.   The trial court did not abuse its discretion when it imposed

consecutive sentences for appellant’s crimes.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/14/19




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