J-S57024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WALDEMAR RIVERA

                            Appellant                No. 3441 EDA 2014


           Appeal from the Judgment of Sentence October 13, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001201-2014


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 12, 2015

        Waldemar Rivera appeals the judgment of sentence entered October

13, 2014, in the Lehigh County Court of Common Pleas.          On October 13,

2014, the trial court imposed a sentence of eight to 20 years’ imprisonment

following Rivera’s guilty plea to one count of statutory sexual assault. 1 On

appeal, Rivera challenges only the discretionary aspects of his sentence. For

the reasons that follow, we affirm the judgment of sentence.

        The facts underlying Rivera’s plea were summarized at his guilty plea

hearing as follows:

        [T]his incident occurred on January 20th of [2014]. The victim is
        [B.C.], who was 14 years old at the time of the incident.

____________________________________________


1
    18 Pa.C.S. § 3122.1(b).
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        [Rivera] was 28 years old at the time of the incident. [Rivera]
        was … a family member. …

              A relative, staying at … [the victim’s] address.

              At some point in the evening of January 20th [Rivera]
        engaged in a conversation with [the victim] which culminated
        with [Rivera] pulling his pants down and [the victim] performing
        oral sex on [him].

              Three days later [the victim] was interviewed by the child
        interview specialist where she disclosed what happened.

              The next day [Rivera] was interviewed by the police at
        headquarters where [he] acknowledged that his penis was in
        [the victim’s] mouth.

               He did minimize the event indicating it was there for only
        five seconds. He also acknowledged that he told [the victim] not
        to tell anyone because she was a minor and he knew that he
        could get in trouble.

N.T., 7/7/2014, at 4-5.

        Rivera was arrested and charged with involuntary deviate sexual

intercourse, statutory sexual assault, and sexual assault.2 On July 7, 2014,

he entered a guilty plea to one count of statutory sexual assault, in

exchange for which the Commonwealth withdrew the remaining charges. On

October 10, 2014, prior to sentencing, Rivera filed a motion to withdraw his

plea, asserting his innocence.            However, just prior to this sentencing

hearing on October 13, 2014, he withdrew the motion.                 Rivera was

subsequently sentenced to a term of eight to 20 years’ imprisonment, which



____________________________________________


2
    18 Pa.C.S. §§ 3123(a)(7), 3122.1(b), and 3124.1, respectively.




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fell above the aggravated range of the sentencing guidelines.3 Rivera filed a

timely post-sentence motion seeking reconsideration of his sentence, which

the trial court denied on October 29, 2014. This timely appeal followed.4

       Rivera’s sole issue on appeal challenges the discretionary aspects of

his 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).           To reach the merits of a discretionary

issue, this Court must 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; and
       (4) whether the concise statement raises a substantial question
       that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
____________________________________________


3
   Prior to sentencing, the trial court ordered Rivera to undergo an
assessment by the Sexual Offenders Assessment Board (“SOAB”) to
determine if he met the criteria for classification as a sexually violent
predator under the Sexual Offenders Registration and Notification Act
(“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.14.           The SOAB evaluator
determined Rivera did not meet the criteria for classification as a sexually
violent predator.
4
  On December 2, 2014, the trial court ordered Rivera to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Rivera complied with the court’s directive, and filed a concise statement on
December 22, 2014.




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      Rivera complied with the procedural requirements for this appeal by

filing a post-sentence motion for reconsideration of sentence and a timely

notice of appeal. Moreover, counsel included in the brief before this Court a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must consider whether Rivera raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Rivera contends the trial court imposed a sentence

outside the guideline ranges without providing sufficient reasons on the

record for doing so, without properly considering mitigating factors, and by

relying on factors already considered in the sentencing guidelines.      These

claims raise a substantial question for our review.        See 42 Pa.C.S. §

9781(c)(3) (stating appellate court “shall vacate the sentence and remand

the case to the sentencing court with instructions if it finds … the sentencing

court sentenced outside the sentencing guidelines and the sentence is

unreasonable.”);   Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.

Super. 2012) (finding substantial question when “appellant alleges the


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sentencing court erred by imposing an aggravated range sentence without

consideration   of   mitigating   circumstances”)    (citation   omitted),   appeal

denied, 64 A.3d 630 (Pa. 2013); Commonwealth v. Shugars, 895 A.2d

1270, 1274 (Pa. Super. 2006) (finding substantial question when appellant

argues “his sentence is excessive because the sentencing court relied on

‘impermissible factors.’”).

      When reviewing a challenge to a sentence imposed outside the

guideline ranges:

      We look, at a minimum, for an indication on the record that the
      sentencing court understood the suggested sentencing range.
      When the court so indicates, it may deviate from the guidelines,
      if necessary, to fashion a sentence which takes into account the
      protection of the public, the rehabilitative needs of the
      defendant, and the gravity of the particular offenses as it relates
      to the impact on the life of the victim and the community, so
      long as the court also states of record “the factual basis and
      specific reasons which compelled him to deviate from the
      guideline range.”

      In evaluating a claim of this type, an appellate court must
      remember that the sentencing guidelines are merely advisory,
      and the sentencing court may sentence a defendant outside of
      the guidelines so long as it places its reasons for the deviation
      on the record. “Our Supreme Court has indicated that if the
      sentencing court proffers reasons indicating that its
      decision to      depart    from     the guidelines is        not
      unreasonable, we must affirm a sentence that falls
      outside those guidelines....”

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(internal   citations   omitted    and    emphasis    supplied).       See    also

Commonwealth v. Walls, 926 A.2d 957, 964-964 (Pa. 2007) (reaffirming




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that sentencing guidelines “have no binding effect, create no presumption in

sentencing, and do not predominate over other sentencing factors”).

      Furthermore, when considering any challenge to the discretionary

aspects of a sentenced, we are mindful that:

      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
      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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(citation omitted).

      Here, our review of the sentencing transcript reveals the trial court

considered both the presentence investigation report and the SOAB

assessment before imposing sentence. N.T., 10/13/2014, at 4. The court

acknowledged that Rivera had a prior record score of zero, and, therefore,

the standard guideline range called for a minimum sentence of 12 to 24

months’ imprisonment.     Id. at 4-5.   The trial court also reviewed letters

submitted by the victim and her mother, which stated both the victim and

her younger sister were admitted to a psychiatric hospital following the

incident, and the victim continues to receive treatment, as she suffers from

depression and experiences nightmares. See id. at 6-13.

      During the hearing, the court was particularly concerned by Rivera’s

insistence, even after his plea, that the victim initiated the sexual contact.


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See id. at 17 (“Unbelievable that you still don’t get it, that a child doesn’t

consent.     She’s a child.      You are more than double her age.”).5       After

considering defense counsel’s argument that Rivera had a “disconnect” or

different “perspective” regarding the significance of the victim’s age, the trial

court made the following comments:

             Well, that’s a good way to put it. I’d say that he knew full
       well, perspective issues or not, because he told her not to say
       anything because he could get into trouble.

             And I’m not going to, you know – the law is that at her
       age she can’t consent to that. So I find it one of the most
       offensive defenses a person in your position can raise, that it
       was the fault of the child. Despicable.

              The sentence will be beyond the aggravated range as
       [Rivera] expresses no remorse, takes no responsibility, was in a
       position of trust as a family member to the victim, and as a
       result of [Rivera’s] actions the victim has suffered great harm for
       which she still requires intervention.

Id. at 17-18.      Thereafter, the court imposed a sentence of not less than

eight, nor more than 20 years’ imprisonment.

       Accordingly, we conclude the trial court provided several reasons on

the record for its decision to impose a sentence above the aggravated range

of the sentencing guidelines, namely, (1) Rivera’s lack of remorse, (2)

Rivera’s failure to fully accept responsibility for his actions, (3) Rivera’s

position of trust with the family, and (4) the harm suffered by the victim.

See Order, 10/28/2014, at 3. Therefore, his argument to the contrary fails.
____________________________________________


5
 At the time of the offense, the victim was 14 years old and Rivera was 28
years old. See N.T., 7/7/2014, at 4.



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       Moreover, to the extent Rivera claims the court failed to consider

mitigating factors, such as his lack of a prior record and his need for

rehabilitation, we also find he is entitled to no relief. 6 Where, as here, a trial

court had the benefit of a pre-sentence investigation report, we will presume

the trial court was “aware of all appropriate sentencing factors and

considerations.”     Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted).          Moreover, in its order denying Rivera’s

motion for reconsideration of sentence, the court specifically stated it

considered all relevant factors prior to imposing sentence, including, the

“protection of the public, the gravity of the offense as it relates to the impact

on the victim and the community, the defendant’s rehabilitative needs, and

the sentencing guidelines.”          See Order, 10/28/2014, at 3, quoting 42

Pa.C.S. § 9721(b).

       Lastly, Rivera contends the trial court improperly relied on factors

already considered in the sentencing guidelines, namely “the age of the

victim and [her] legal inability to consent to sexual contact[.]” Rivera’s Brief

at 15. Accordingly, he contends, the trial court’s reference to this fact as a

reason    to   enhance     his   sentence      constituted   an   “unjustified   double

enhancement.” Id. at 16. Again, we disagree.


____________________________________________


6
  Although Rivera contends his remorse was a mitigating factor, the trial
court found Rivera lacked remorse for his actions since he continued to
blame the victim for the incident. See N.T., 10/13/2014, at 17-18.



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       This Court has explained:

       “It is impermissible for a [trial] court to consider factors already
       included within the sentencing guidelines as the sole reason for
       increasing or decreasing a sentence to the aggravated or
       mitigated range. Trial courts are permitted to use prior
       conviction history and other factors already included in the
       guidelines if, they are used to supplement other extraneous
       sentencing information.”

Shugars, supra, 895 A.2d at 1275 (citation and emphasis omitted). Our

review of the sentencing hearing reveals the trial court did not rely on the

age of the victim and her inability to consent as the sole reason for

imposing a sentence above the aggravated guidelines range.           Rather, as

noted above, the court considered this factor only the context of Rivera’s

failure to accept full responsibility for his actions. See N.T., 10/13/2014, at

16-17 (noting that in his presentence report, Rivera remarked “the victim is

the one that jumped on [him].”).7 Because the victim’s age and inability to

consent was not the only factor the court relied upon in imposing an

enhanced sentence, Rivera is entitled to no relief.      See Shugars, supra,

895 A.2d at 1275 (concluding trial court did not abuse its discretion in

considering defendant’s prior criminal record as reason to enhance sentence


____________________________________________


7
   We note that, despite Rivera’s entry of a guilty plea, his version of the
events in the presentence report demonstrate his unwillingness to take
responsibility for his actions.    See Presentence Investigation Report,
10/13/2014, at 3 (Rivera told the investigator the victim “jumped on [him]
first[,]” stated the victim “never had my penis in her mouth[,]” and
questioned why it took the victim three days to report the incident.).



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because “it was merely just one factor among several that led to the

increased sentence.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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