J-S09040-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                    Appellee                   :
                                               :
            v.                                 :
                                               :
MICHAEL ROMAIN HINTON,                         :
                                               :
                    Appellant                  :   No. 1333 WDA 2018

    Appeal from the Judgment of Sentence Entered September 11, 2018
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0003923-2017

BEFORE:          PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                            FILED APRIL 25, 2019

     Michael Romain Hinton (Appellant) appeals from the September 11,

2018 judgment of sentence of an aggregate term of three-and-a-half to

seven years of incarceration imposed after he pleaded guilty to simple

assault and indecent assault. Upon review, we affirm.

     At the time of the aforementioned offenses, Appellant was serving a

sentence of life in prison without parole at SCI Albion in Erie County. While

incarcerated, Appellant threatened another prisoner in order to get that

individual to “perform oral intercourse on [Appellant], and [Appellant

attempted] to penetrate the victim’s anus with [his] penis.” N.T., 4/4/2018,

at 10. As a result of this incident, Appellant was charged with a number of

offenses,    and     on   April   4,   2018,   Appellant   pleaded   guilty   to   the

aforementioned crimes. On September 11, 2018, Appellant was sentenced



* Retired Senior Judge assigned to the Superior Court.
J-S09040-19

to one to two years of incarceration for simple assault and two-and-a-half to

five years of incarceration for indecent assault. These sentences were to run

consecutively to each other and consecutively to Appellant’s life sentence.

      Appellant timely filed a post-sentence motion, claiming that the trial

court abused its discretion in sentencing Appellant where the trial court

failed to consider mitigating factors, gave greater weight to impermissible

factors, and sentenced Appellant in the aggravated range for indecent

assault.    Post-Sentence Motion, 9/12/2018.       The trial court denied that

motion, and Appellant timely filed a notice of appeal. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant contends his “sentence is manifestly excessive,

clearly unreasonable and inconsistent with the objectives of the sentencing

code.” Appellant’s Brief at 3. This issue implicates the discretionary aspects

of Appellant’s sentence; accordingly, we bear in mind the following.

      Challenges to the discretionary aspects      of sentencing do not
      entitle an appellant to review as of         right.   An appellant
      challenging the discretionary aspects of     his [or her] sentence
      must invoke this Court’s jurisdiction by     satisfying a four-part
      test:

           We 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.[] § 9781(b).


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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant timely filed a post-sentence motion and notice of

appeal, and included a statement pursuant to Rule 2119(f) in his brief. We

now consider whether Appellant has presented a substantial question for our

review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

      In his 2119(f) statement, Appellant argues that he has raised a

substantial question because “the sentencing court failed to sufficiently state

[on the record] its reasons for the sentence imposed” and because the

“sentence is excessive [where] the trial court relied upon an impermissible

factor.” Appellant’s Brief at 6.      Both arguments present substantial

questions. See Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.

Super. 2003) (holding claims that “the trial court failed to sufficiently state




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its reasons for the sentence imposed” and that “the sentencing court relied

upon impermissible factors” raise substantial questions).

      We address the merits of this claim mindful of the following.

      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.

                                    ***

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      As a general matter, Pennsylvania’s sentencing scheme, with its
      guidelines and suggested minimum sentences, is “indeterminate,
      advisory, and guided” in its nature. Pennsylvania judges retain
      broad discretion to sentence up to and including the maximum
      sentence authorized by statute; “the only line that a sentence
      may not cross is the statutory maximum sentence.”

Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007) (citations

omitted).   “Traditionally, the trial court is afforded broad discretion in

sentencing criminal defendants ‘because of the perception that the trial 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.’”


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Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002); see also

Commowealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017) (“To be clear,

while the court must consider the guidelines, the court is also afforded broad

discretion in sentencing matters, as it is in the best position to evaluate the

individual circumstances before it.”).

      Here, the trial court offered the following explanation at sentencing.

      In this case, I’ve got a defendant here who is serving a life
      sentence for murder and has no possibility of parole, unless he’s
      successful in some other forum, but that’s not the moving factor
      here, though. Before me is a plea and [Appellant] says he has
      [pleaded] guilty, although he clearly doesn’t admit even now
      that he actually did the act, but he indicates he’s [pleaded]
      guilty, thus a plea.[1]

            I’m not going to punish [Appellant] for continuing to deny
      it, nor am I going to adopt that he gets some credit for
      acceptance of responsibility. The record here is to the contrary.

            So I’ve considered the Pennsylvania Sentencing Code, the
      presentence report, the guidelines; I looked at the statement of
      [Appellant], his counsel, the Commonwealth; I looked at
      [Appellant], his age, his background, his character, his
      rehabilitative needs and the nature and circumstances of the
      offense and its seriousness.

            And here, although [Appellant] is incarcerated, this offense
      proves that he is a danger to others in the prison community,
      other inmates. The sexual assault that occurred here is a way

1  Despite having pleaded guilty, at sentencing, Appellant explained to the
trial court that there is another prisoner at SCI Albion with the same name
as Appellant, who is incarcerated for committing rape. N.T., 9/11/2018, at
19. It is Appellant’s position that the other prisoner must have committed
these crimes, because all of Appellant’s cases have “been [for] drugs, guns
and murder.” Id. However, according to the affidavit of probable cause, a
DNA test was performed, and the victim’s DNA was found in Appellant’s
underwear. Trial Court Opinion, 11/7/2018, at 1.

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      not only of gratifying sexual desire, but intimidating others and
      demonstrating power.

N.T., 9/11/2018, at 23-24.

      The trial court then acknowledged that the standard-range minimum

sentence   for   simple   assault   in   Appellant’s   case   was   one   year   of

incarceration, and the trial court sentenced Appellant in the standard range

to a minimum term of one year of incarceration. Id. at 24. The trial court

then pointed out that the standard-range minimum sentence for indecent

assault in Appellant’s case is 18 months of incarceration, but “because of the

depraved nature of the act,” the trial court imposed an aggravated-range

minimum sentence of 2½ years of incarceration. Id.

      According to Appellant, the “depravity” of the crime “is calculated into

the elements and parameters of the offense” and is therefore “not an

appropriate factor to consider outside of the statutory scheme.” Appellant’s

Brief at 8. Thus, Appellant argues that the trial court “failed to support its

reasons for [sentencing in the aggravated range] on the record and in

consideration of the sentence, as a whole, relied upon impermissible

factors.” Id.

      “A sentencing court may consider any legal factor in determining that

a sentence in the aggravated range should be imposed.” Commonwealth v.

Stewart, 867 A.2d 589, 592–93 (Pa. Super. 2005).               However, “[i]t is

impermissible for a court to consider factors already included within the

sentencing guidelines as the sole reason for increasing or decreasing a

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sentence to the aggravated or mitigated range.” Simpson, 829 A.2d at 339.

“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.” Id.

      The sentencing code specifically permits a trial court to consider the

“gravity of the offense” in fashioning its sentence. See 42 Pa.C.S.

§ 9721(b).    Thus, the depraved nature of a crime is a legal factor to

consider, and the trial court’s considering it was neither impermissible nor

improper. Therefore, Appellant is not entitled to relief on this basis.

      Moreover, our review of the trial court’s reasoning leads us to conclude

that the trial court took into account a number of factors in support of its

determination that Appellant should be sentenced in the aggravated range

for indecent assault. In particular, the trial court focused on the fact that

Appellant took advantage of a “fellow prisoner, [who] had no means to

escape Appellant’s deviant predations.” Trial Court Opinion, 11/7/2018, 7.

Moreover, despite pleading guilty, Appellant still denied having contact with

the victim at sentencing despite victim’s DNA having been found in

Appellant’s underwear. In addition, the trial court considered the fact that

Appellant’s actions rendered him a danger to the prison community. Based

on the foregoing, the trial court considered a number of legal and relevant

factors in reaching its conclusion that Appellant’s indecent assault conviction

warranted an aggravated-range sentence. See Simpson, 392 A.2d at 339


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(holding Simpson’s aggravated-range sentence was appropriate where the

“trial court considered not only Simpson’s prior record but also the impact on

the victim, the threat to the community, lack of successful rehabilitation and

the fact that Simpson was on probation and under supervision at the time of

the offense”).   In addition, as discussed supra, the trial court set forth its

reasoning on the record at sentencing, and supported that reasoning in its

Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 11/7/2018, at 6-9.

      Based on the foregoing, we discern no abuse of discretion in the trial

court’s sentencing of Appellant; thus, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019




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