J-A18045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES ANTHONY BAKER, SR.

                            Appellant               No. 2059 MDA 2013


           Appeal from the Judgment of Sentence November 4, 2013
                In the Court of Common Pleas of Tioga County
             Criminal Division at No(s): CP-59-CR-0000127-2012


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 29, 2014

        James Anthony Baker, Sr., appeals from the judgment of sentence

imposed by the Court of Common Pleas of Tioga County after he pled nolo

contendere to two counts of corruption of minors1 and two counts of

indecent assault of a person less than 16 years of age.2 Prior to imposing

sentence, the court determined that Baker is a sexually violent predator

(SVP). Following careful review, we affirm.

        Baker and his wife were foster parents to two teenage girls, A.D. and

J.B. While A.D., a special education student, was between the ages of 13

and 15, Baker engaged in sexual activity with her.     He also sent her text

____________________________________________


1
    18 Pa.C.S. § 6301(a)(1).
2
    18 Pa.C.S. § 3126(a)(8).
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direction, J.B., who was between the ages of 17 and 18, sent him

photographs of her breasts.

      Baker was charged with six counts of involuntary deviate sexual

intercourse, four counts of statutory sexual assault, four counts of

aggravated indecent assault, five counts of corruption of minors and seven

counts of indecent assault. On March 18, 2013, Baker pled nolo contendere

to two counts of corruption of minors and two counts of indecent assault.

On April 22, 2013, the court ordered that Baker be evaluated by the Sexual

Offenders Assessment Board (the Board).

      The court held a hearing on November 4, 2013, at which Board

member William G. Allenbaugh, II, testified that Baker suffers from

paraphilia, and has an increased risk of re-offending.      N.T. SVP and

Sentencing Hearing, 11/4/13, at 9. After concluding that Baker was an SVP,



incarceration for corruption of minors, plus two consecutive sentences of 6

                                                                  eriod of

confinement of 3 to 8 years.

      On November 14, 2013, Baker filed a timely post-sentence motion

asserting that the trial court erred by designating him an SVP, and

requesting modification of sentence.     The court denied the motion the

following day.




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      This appeal followed, in which Baker raises the following issues for our

review:

      1. Whether the trial court erred in finding that the
         Commonwealth proved by clear and convincing evidence that
         Baker would qualify as a sexually violent predator.

      2. Whether the trial court erred in determining that Baker
         suffered from a mental abnormality and/or personality
         disorder that is linked to sexually violent offenses and that he
         in any way would be predisposed to commit acts of sexual
         violence.

      3. Whether the trial court imposed an unreasonable sentence by
         sentencing in the aggravated range and failing to state upon
         the record appropriate reasons for the sentence.

Brief of Appellant, at 6.

      Our standard of review is well settled:

                                                           ay only be
      made following an assessment by the Board and hearing before
      the trial court. In order to affirm an SVP designation, we, as a
      reviewing court, must be able to conclude that the fact-finder
      found clear and convincing evidence that the individual is a
      sexually violent predator.      As with any sufficiency of the
      evidence claim, we view all the evidence and reasonable
      inferences therefrom in the light most favorable to the

      SVP status only if the Commonwealth has not presented clear
      and convincing evidence that each element of the statute has
      been satisfied.

      The standard of proof governing the determination of SVP


      preponderance of the evidence test, but less exacting than proof
      beyond a reasonable doubt.

                                      ***




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      clear, direct, weighty, and convincing as to enable the [trier of
      fact] to come to a clear conviction, without hesitancy, of the


Commonwealth v. Fuentes, 991 A.2d 935, 941-42 (Pa. Super. 2010) (en

banc) (citations omitted).



on the analysis of the Honorable Robert E. Dalton, Jr., which includes a

discussion of the testimony of Board member William G. Allenbaugh, II, and

                             xpert witness, Dr. Timothy P. Foley, a licensed

psychologist.   Accordingly, we direct the parties to attach a copy of Judge



      Baker next asserts that the trial court abused its discretion by

imposing a sentence in the aggravated range.

      We apply the following standard of review to sentencing matters:

      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. Hoch, 936 A.2d 515, 517-18 (Pa. Super. 2007)

(citation omitted).

      The right to review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for allowance of appeal. Id. at




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518.    An appellant must satisfy a four-

jurisdiction when challenging the discretionary aspects of a sentence:

       [W]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal; (2) whether the
       issue was properly preserved at sentencing or in a motion to

       has a fatal defect; and (4) whether there is a substantial
       question that the sentence appealed from is not appropriate
       under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

omitted).

       Baker fulfilled the first two elements by filing a timely notice of appeal

and preserving his claim in a timely post-sentence motion. He has met the

third element because his brief contains the required concise statement of

the reasons relied upon for appeal as required by Pa.R.A.P. 2119(f).

Accordingly, we must determine if his challenge to the discretionary aspect

of his sentence raises a substantial question.

       Whether a particular challenge to a sentence amounts to a
       substantial question is determined on a case-by-case basis. A
       substantial question exists only when the appellant advances a

       either:  (1) inconsistent with a specific provision of the
       Sentencing Code; or (2) contrary to the fundamental norms
       which underlie the sentencing process.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(citations and internal quotation marks omitted). This Court has held that

an allegation that the trial court failed to state adequate reasons for

imposing a sentence in the aggravated range raises a substantial question.



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Commonwealth v. Booze, 953 A.2d 1253, 1278 (Pa. Super. 2008).



      Baker had a prior record score of zero. The offense gravity score on

the corruption of minors counts was 5. The standard range sentence was

restorati



sentences of 12 to 36 months.     The offense gravity score on the indecent

assault counts was 4. The standard range was restorative sanctions through




incarceration.

      Section 9721(b) of the Sentencing Code provides, in relevant part,




9721(b).

      Here, the trial court noted the following factors that it considered when

imposing




imposing.   Id.

treated more seriously than normal. We have an offender here who was in a

position of authority, actually as a foster parent, who was willing to take

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                                                       Id.

sentence than the one I am going to impose would deprecate the serious

nature of these charges. Id.

risk [were] he not incarcerated and also required to participate in mandatory

                                                         Id. at 49-50.

     The factors set forth by the trial court, which include the seriousness

                                                                   individual



sentence in the aggravated range.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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