J-A24039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

VINCENT FRANKLIN,

                        Appellant                   No. 209 EDA 2015


            Appeal from the Judgment of Sentence May 23, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0000743-2004


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.                FILED December 18, 2015

     Vincent Franklin (Appellant) appeals from the judgment of sentence

entered on May 23, 2014, by the Honorable Stephen G. Baratta, Court of

Common Pleas of Northampton County. The instant sentence was imposed

after Appellant filed a habeas corpus petition in federal court, wherein the

court left-standing his underlying convictions for rape, involuntary deviate

sexual intercourse (IDSI), aggravated indecent assault, and indecent

assault, but vacated an illegal sentence imposed for rape and remanded for

resentencing. We affirm.

     Appellant was arrested and charged with several offenses stemming

from his sexual abuse of his girlfriend’s minor daughter over a three-year

period from January 1, 2001 to January 30, 2004. Appellant was charged

originally with 61 counts of rape, eleven counts of IDSI, 25 counts of



* Retired Senior Judge assigned to the Superior Court.
J-A24039-15



aggravated indecent assault, 86 counts of indecent assault, and one count of

intimidation of witness or victim. However, prior to trial, the Commonwealth

amended the criminal information to consist of just a single count for each

sex offense.1

        Following a jury trial, Appellant was convicted of one count each of

rape, IDSI, aggravated indecent assault, and indecent assault. Thereafter,

the trial court, the Honorable William F. Moran, on July 8, 2005, imposed an

aggregate term of 25 to 50 years’ imprisonment, consisting of 20 to 40

years for rape, five to ten years of consecutive imprisonment for aggravated

indecent assault, and one to two years of concurrent imprisonment for

indecent assault. At the sentencing hearing, the trial court merged the IDSI

count with the rape count and did not impose a sentence for IDSI.         In

fashioning the judgment of sentence, the trial court applied the mandatory

minimum term of 20 years’ imprisonment for rape of a child under the

version of 18 Pa.C.S. § 3121(e)(1) that became effective on February 7,

2003.2




____________________________________________


1
    The Commonwealth withdrew the intimidation of witness or victim charge.
2
  Prior to the effective date of the 2003 revisions, the mandatory minimum
sentence for rape of a child was 10 years’ imprisonment. See 18 Pa.C.S.
§ 3121(a)(6)(2002).




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     The trial court denied Appellant’s post-sentence motions.    This Court

affirmed the judgment of sentence, and our Supreme Court denied his

petition for allowance of appeal.   Commonwealth v. Franklin, 911 A.2d

179 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 917

A.2d 313 (Pa. 2007).

     Appellant’s first PCRA petition was denied after an evidentiary hearing.

This Court affirmed the PCRA court’s denial, and our Supreme Court denied

his petition for allowance of appeal.   Appellant filed two subsequent PCRA

petitions, which were denied by the PCRA court and affirmed by this Court.

     On August 6, 2009, Appellant filed a habeas corpus petition in federal

court. United States Magistrate Judge Timothy R. Rice twice recommended

that Appellant’s petition be denied with prejudice.   Appellant subsequently

filed an objection on the basis that his sentence for the rape conviction was

illegal because he was sentenced under the incorrect statute.

     Following an evidentiary hearing, Magistrate Judge Rice filed a Third

Supplemental   Report   and   Recommendation     wherein   he   opined   that

Appellant’s sentence for rape was illegal because Appellant was sentenced

under the current version of the rape statute, under which 20 years’

imprisonment was the mandatory minimum, rather than the pre-February 7,

2003 version, under which 10 years’ imprisonment was the mandatory

minimum. Magistrate Judge Rice came to this conclusion on the basis that it

was impossible to determine whether the jury found that the rape for which

Appellant was convicted occurred before or after February 7, 2003, the

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effective date of the statutory change. See United States Magistrate Judge

Timothy   R.   Rice’s   Third   Supplemental    Report   and    Recommendation,

8/7/2013, at 8-9.

      Judge Norma L. Shapiro of the Eastern District of Pennsylvania

subsequently     approved       and   adopted      Magistrate     Judge   Rice’s

recommendation to grant Appellant’s habeas corpus petition. Judge Shapiro

vacated Appellant’s 20-to-40 year-sentence for rape and remanded the

matter to the state court for resentencing under the pre-February 7, 2003

sentencing guidelines. Judge Shapiro set forth the legal and factual support

for her decision as follows.

      On August 7, 2013, Magistrate Judge Rice issued a Third
      Supplemental Report and Recommendation. Magistrate Judge
      Rice found that petitioner’s claim that the sentence imposed for
      rape of a child exceeded the statutory maximum was not barred
      by procedural default and he examined the merits of that claim.
      At trial, Appellant was convicted of one count of rape of a child
      on an unspecified date between January 1, 2001 and January
      30, 2004. The trial court imposed a sentence of twenty-to-forty
      years imprisonment, the maximum possible sentence under the
      current Pennsylvania rape statute.      See 18 Pa.C.S. § 3121
      (e)(1). In December 2002, the Pennsylvania legislature modified
      the sentencing provisions of Section 3121.         The modified
      provisions became effective on February 7, 2003. The statutory
      change doubled the maximum sentence for rape of a child from
      twenty years to forty years imprisonment. It is impossible to
      determine whether the jury found that the rape for which
      Appellant was convicted occurred before or after the February 7,
      2003 statutory change, thus the rule of lenity requires that the
      trial court should have sentenced Appellant for the lesser
      offense. Appellant should have been sentenced under the pre-
      February 7, 2003 Pennsylvania rape statute, 18 Pa.C.S.
      § 3121(a)(6) (2002), which carried a maximum penalty of
      twenty years imprisonment.


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J-A24039-15


Judge Norma L. Shapiro’s Order, 5/30/2014, at 2 ¶ l (emphasis added).

      On May 23, 2014, pursuant to Judge Shapiro’s Order, a second trial

court judge, the Honorable Stephen G. Baratta, resentenced Appellant to 10

to 20 years’ imprisonment for the rape count.            However, Judge Baratta

imposed the same aggregate sentence as originally imposed by the first trial

judge of 25 to 50 years’ imprisonment. The breakdown of the new sentence

is as follows: 10 to 20 years for rape, 10 to 20 years of consecutive

imprisonment for IDSI, five to ten years of consecutive imprisonment for

aggravated    indecent    assault,   and    one   to   two   years   of   concurrent

imprisonment for indecent assault.         Appellant filed a post-sentence motion

for reconsideration, which the trial court denied.             This timely appeal

followed.

      In his first issue, Appellant contends that the sentence imposed on

remand was illegal because Judge Shapiro’s order only granted the trial

court authority to resentence on the count of rape. Appellant’s Brief at 20-

22.   Appellant claims that other than the sentence imposed for the rape

count, which was the subject of the federal court’s order, all other aspects of

the original sentence imposed constituted a final judgment of sentence that

was not subject to resentencing. Id. Thus, Appellant maintains that Judge

Baratta’s resentencing on the IDSI, aggravated assault, and indecent assault

counts was illegal. Id.




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J-A24039-15


      Appellant’s claim challenges the legality of his sentence.     It is well-

settled that “[i]ssues relating to the legality of a sentence are questions of

law.... Our standard of review over such questions is de novo and our scope

of review is plenary.”   Commonwealth v. Brougher, 978 A.2d 373, 377

(Pa. Super. 2009) (citation omitted).

      Under Pennsylvania law, if a reviewing court determines that a

sentence must be corrected, it has the option of amending the sentence

directly or remanding the case to the trial court. See Commonwealth v.

Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996). However, if a correction by a

reviewing court may disrupt the sentencing scheme envisioned by the trial

court, the proper practice is to remand so that that trial court can correct the

sentence within the framework provided by the reviewing court. See id.

      “When    a   defendant   challenges   one   of   several   interdependent

sentences, he, in effect, challenges the entire sentencing plan.”       United

States v. Busic, 639 F.2d 940, 947 n.10 (3d Cir. 1981).           Thus, “[a]ny

expectation of finality in Appellant’s original sentencing scheme [is]

subverted by [filing an appeal].”     Commonwealth v. Sutton, 583 A.2d

500, 502 (Pa. Super. 1990) (citation omitted). See also Commonwealth

v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986). “[I]f a trial court errs in

its sentence on one count in a multi-count case, then all sentences for all

counts will be vacated so that the court can restructure its entire sentencing

scheme.” Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super.


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J-A24039-15


1999). “This has been held true even where [an appellant] specifically limits

his appeal to one particular illegal sentence ... [and] does not appeal [other]

sentences ... where those sentences are part of a common sentencing

scheme.” Id. (citation omitted).

      In his opinion, Judge Baratta maintained that he complied with Judge

Shapiro’s order by imposing 10 to 20 year sentence on the rape count

pursuant to the pre-February 7, 2003 sentencing guidelines. Sentencing

Court Opinion, 12/23/2014, at 16-18. Moreover, citing precedent from both

the state and federal courts, the sentencing court reasoned that it had

authority under Pennsylvania and federal law to resentence Appellant on all

other counts on the basis that resentencing on only the rape charge would

have disrupted the original sentencing scheme fashioned by Judge Moran.

Id.

      We agree with Judge Baratta’s reasoning and conclude that Appellant’s

sentence is legal.     Significantly, the sentencing court followed Judge

Shapiro’s order and the aggregate sentence imposed remained the same.

Moreover, by challenging the legality of his term of imprisonment for the

rape count, Appellant intentionally upset the finality of the original

sentencing scheme.     See, Sutton.     In filing his habeas corpus petition,

Appellant assumed the risk that his sentencing on the remaining counts

would be adjusted as necessary to preserve the integrity of the original

sentencing scheme. Additionally, as the sentencing court aptly notes, even


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J-A24039-15


though Appellant only appealed the sentence imposed for the rape count,

both Pennsylvania and federal precedent grant the sentencing court the

authority to vacate the sentences imposed at the other, inter-related counts

in order to maintain the original sentence scheme.   Accordingly, Appellant is

not entitled to relief.

        In his second issue, Appellant argues that Judge Baratta erred in

determining that the crimes of rape and IDSI do not merge for the purposes

of sentencing. Appellant’s Brief at 29. Accordingly, Appellant contends that

the trial court’s determination that the rape and IDSI counts merged for

sentencing purposes is final and not susceptible to modification on appeal.

Id. Thus, Appellant maintains that by imposing a separate sentence for the

IDSI count on remand, the sentencing court erred by illegally sentencing

him twice for the same criminal act. Id.       “A claim that the trial court

imposed an illegal sentence by failing to merge sentences is a question of

law.”   Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa. Super. 2005)

(citation omitted). Accordingly, as with Appellant’s first issue, our scope of

review is plenary and our standard of review de novo. Brougher, 978 A.2d

at 377.

        As a preliminary matter, we note that the current merger statute,

adopted in 2003, provides that “[n]o crimes shall merge for sentencing

purposes unless the crimes arise from a single criminal act and all of the

statutory elements of one offense are included in the statutory elements of


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J-A24039-15


the other offense.” 42 Pa.C.S. § 9765.           Appellant contends that his case

should be analyzed under the pre-2003 standard:

       Whether the elements of the lesser crime are included within the
       elements of the greater crime, and the greater offense includes
       at least one additional element which is different, in which case
       the sentences merge, or whether both crimes require proof of at
       least one element which the other does not, in which case the
       sentences do not merge. We note, however, that the specific
       facts underlying each conviction must also be considered.

Commonwealth v. Fisher, 787 A.2d 992, 994 (Pa. Super. 2001) (citations

omitted).    Because the victim testified that Appellant’s sexual abuse was

ongoing for a number of years, from 2001 to 2004, we will analyze the issue

under the pre-2003 standard; however, we note that the result is the same

under both the pre-2003 case law and the statute.

       Here, Appellant was convicted of one count of rape of a child and one

count of IDSI. A person commits rape of a child if “he or she engages in

sexual intercourse with a complainant ... [w]ho is less than 13 years of age.”

18 Pa.C.S. § 3121(a)(6).3 “Sexual intercourse,” in addition to its ordinary

meaning, includes “intercourse per os or per anus, with some penetration

however slight; emission is not required.” 18 Pa.C.S. § 3101. The “ordinary

meaning” of sexual intercourse is not defined in the statute; however, it



____________________________________________


3
  This is the applicable statute governing conduct committed prior to the
February 3, 2003 statutory change.




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J-A24039-15


refers to penetration of the vagina by the penis. See Commonwealth v.

Lee, 638 A.2d 1006, 1010 (Pa. Super. 1994).

       Involuntary deviate sexual intercourse occurs where an individual

“engages in deviate sexual intercourse with a complainant ... who is less

than 13 years of age.”             18 Pa.C.S. § 3123(a)(6). 4   Deviate sexual

intercourse is defined as “[s]exual intercourse per os or per anus between

human beings and any form of sexual intercourse with an animal. The term

also includes penetration, however slight, of the genitals or anus of another

person with a foreign object for any purpose other than good faith medical,

hygienic or law enforcement procedures.” 18 Pa.C.S. § 3101.

       We recognize that both rape and IDSI share common elements.

However, in Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989), the

Pennsylvania Supreme Court distinguished rape from IDSI and highlighted

the importance of sanctioning separate punishments for each.

       The purpose of the statutes [applicable to rape and IDSI] is to
       protect against forcible sexual penetration of the three orifices of
       the body by making it a crime to do any or all to a victim. The
       forcible sexual penetration of another person is not a free choice
       of the type or method of penetration desired by the perpetrator.
       If the perpetrator does more than one on the same occasion,
       then the perpetrator violates different protections and different
       interests of the victim for which separate penalties follow.
       Where the victim is a woman she may be injured by three
       different penetrations on the same occasion. Where each is
       separately charged ... each may be separately punished.
____________________________________________


4
  This is the applicable statute governing conduct committed prior to the
February 3, 2003 statutory change.



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J-A24039-15



Id., at 1161.

       Instantly, the victim testified at trial that Appellant “put his private in

[the victim’s] private” on certain occasions, N.T., 3/15/2005, 90, 99, where

on other occasions they engaged in anal sex, id. at 91-94, and additionally,

on other, separate occasions, oral sex, id. at 96.       Pursuant to 18 Pa.C.S.

§ 3121(a)(6), by forcibly placing his penis in the victim’s vagina, Appellant

committed the crime of rape.            Pursuant to 18 Pa.C.S. § 3123(a)(6), by

forcibly engaging in oral and anal sex with the victim, he committed IDSI.

Moreover, based on the victim’s testimony, it was permissible for the jury to

find that Appellant’s acts constituted two separate and distinct crimes

occurring at different times; therefore, it is clear that the trial court erred

when it merged the offenses for sentencing purposes.            Accordingly, we

conclude that the sentencing court, on remand, had the authority to

resentence separately for the rape and IDSI counts.5

       In his third issue, Appellant asserts that the sentencing court erred

and violated his double jeopardy rights by resentencing him on the IDSI,

____________________________________________


5
  We also note that an exception to the coordinate jurisdiction rule applies
because, as noted above, the trial court’s determination that the counts
merged was clearly erroneous under both 42 Pa.C.S. § 9765 and Fisher,
and a manifest injustice would certainly result if that determination was
followed. See Commonwealth v. Starr, 644 A.2d 1326, 1332 (Pa. 1995).
See also Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003).




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aggravated indecent assault, and indecent assault counts. Appellant’s Brief

at 25-29. Appellant again asserts that he had a legitimate expectation of

finality in those sentences. Id.

       We disagree.      As noted above, Appellant intentionally disrupted the

sentencing scheme imposed by the first trial court when he filed this appeal.

When Appellant’s sentence for rape was vacated by the federal court, the

entire sentence was considered a legal nullity, and, on remand, Judge

Baratta had the authority to resentence Appellant on all counts.               See

Bartrug, 732 A.2d at 1289; Goldhammer, 517 A.2d at 1283.                  See also

Pennsylvania v. Goldhammer, 474 U.S. 28 (1985) (per curiam) (holding

Double Jeopardy Clause does not bar resentencing on counts affirmed on

appeal when a sentence of imprisonment on another count is vacated).

“[D]ouble jeopardy principles do not prevent a sentencing court from

correcting, modifying, or increasing a sentence which the same court

previously imposed.”        Commonwealth v. Rainey, 488 A.2d 34, 35 (Pa.

Super. 1985) (citation omitted).               “[N]o double jeopardy violation is

implicated where the aggregate sentencing does not exceed the original

aggregate sentencing.”        Commonwealth v. Sutton, 583 A.2d 500, 502-

503 (Pa. Super. 1990) (citation omitted).6         Thus, Appellant’s contention that


____________________________________________


6
  This Court has also ruled that in certain situations, a sentencing court has
the authority to correct an illegal sentence even if that means increasing the
(Footnote Continued Next Page)


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J-A24039-15


the trial court’s determination that the rape and IDSI counts merge

constitutes a final judgment, and his new sentence violates the principles of

double jeopardy, is meritless. See id.

      In his fourth issue, Appellant raises a constitutional due process

challenge to his sentence by invoking North Carolina v. Pearce, 395 U.S.

711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794

(1989). In Pearce, the United States Supreme Court held that when a new

trial is granted to a defendant and the defendant is re-convicted, a due

process concern is presented if the defendant is sentenced to a harsher

sentence than that originally imposed. See 395 U.S. at 725-726. The Court

explained that under the Constitution, a sentence may not be increased

solely to punish a defendant for successfully asserting his rights.   See id.

To guard against this possibility, the Court established a “presumption of

vindictiveness” where a court increases a defendant’s sentence upon

resentencing. Id. In order to rebut the presumption, the sentencing court

must show that the increase in the new sentence is premised upon

identifiable conduct committed by the defendant after the first sentencing

proceeding. See id.



                       _______________________
(Footnote Continued)

aggregate sentence. See Commonwealth v. Jones, 554 A.2d 50, 52 (Pa.
1989); Commonwealth v. Greer, 554 A.2d 980, 987 (Pa. Super. 1989).




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      The holding of Pearce was subsequently modified by Smith, in which

the Court held that the Pearce presumption should be applied only if there

is a “reasonable likelihood ... that the increase in sentence is the product of

actual vindictiveness on the part of the sentencing authority.” Smith, 490

U.S. at 799.   “Where there is no such reasonable likelihood, the burden

remains upon the defendant to prove actual vindictiveness.” Id.

      In Texas v. McCullough, 475 U.S. 134 (1986), the Court expanded

the exceptions to the judicial vindictiveness presumption announced in

Pearce and held that a sentencing court may enhance a sentence on the

basis of other objective information that was not previously available to the

court or for other legitimate sentencing concerns, rather than solely for

subsequent conduct by the defendant. See 475 U.S. at 141-144.

      The Pearce presumption applies not only where a defendant is

resentenced following a new trial, but also where a defendant is resentenced

to correct an illegal sentence.   See Commonwealth v. Hermankevich,

286 A.2d 644, 646 (Pa. Super. 1971).

      Preserving the integrity of a prior sentencing scheme is a legitimate

sentencing concern. See Commonwealth v. Walker, 568 A.2d 201, 205

(Pa. Super. 1989). When resentencing, a sentencing court is permitted to

keep its overall sentencing scheme identical without violating Pearce. See

Commonwealth v. McHale, 924 A.2d 664, 673 (Pa. Super. 2007). “[I]n

most circumstances, a judge can duplicate the effect of the original


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J-A24039-15


sentencing plan by adjusting the sentences on various counts so that the

aggregate punishment remains the same.”                 Walker, 568 A.2d at 206.

However, “[i]f a judge could have imposed the same aggregate sentence ...

handed down at the original sentencing hearing, and ... instead imposes a

harsher aggregate sentence, the presumption of vindictiveness could not be

rebutted by invoking the need to preserve the original sentencing plan.” Id.

      In this case, Appellant asserts that his due process rights were

violated because the sentence imposed by the sentencing court on remand

“constituted   an    increase     in     punishment    representing    actual   judicial

vindictiveness,     or   giving   rise    to   a    presumption   of   vindictiveness.”

Appellant’s Brief at 30. Specifically, Appellant argues that his new sentence

constitutes a harsher punishment than originally imposed because the trial

court declined to merge his convictions and imposed a consecutive sentence

on the IDSI count.

      The sentencing court explained that the sentence it imposed was not

the result of judicial vindictiveness because it preserved the integrity of the

original sentencing scheme.        Moreover, the court stated that the sentence

did not violate Appellant’s due process rights because it was the same

aggregate sentence as the one originally imposed.

      We agree with the sentencing court’s reasoning and conclude that

Appellant’s due process rights were not violated.                 Here, the sentence

imposed on remand was not harsher than the original sentence because it


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J-A24039-15


was the same aggregate sentence of 25 to 50 years’ imprisonment.

Although the trial court erroneously merged the IDSI and rape counts, the

sentencing court had the discretion to correct that error and impose a

sentence for the IDSI count to preserve the original sentencing scheme.

Because     preserving      the   original     sentencing    scheme    is    a    legitimate

sentencing concern, the Pearce presumption is inapplicable.

        Moreover, the sentencing court provided legitimate and proper reasons

for resentencing Appellant to a total aggregate term of imprisonment

identical to that originally imposed. The court made expressly clear that a

lesser sentence would not be sufficient punishment due to the horrific nature

of Appellant’s crimes.      See N.T., Resentencing Hearing, 5/23/2014, at 13-

15, 17. The court cited physical evidence of the horrible pattern of abuse

that the victim suffered through the repeated vaginal and anal rapes, forced

oral sex, and digital penetration. See id. In addition, the court noted that

the victim was only ten years old when she was diagnosed with a serious

case of vaginal herpes due to Appellant’s sexual abuse. See id. Finally, the

court recognized that Appellant was cited for four misconducts while in

prison and was unsuitable for community service supervision.                     See id., at

12.

        In his final issue, Appellant asserts that the individual statutory

maximum sentences and the aggregate sentence imposed by the sentencing

court    constituted   an    abuse     of     discretion    because   they       represented


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J-A24039-15


“unreasonable and excessive statutory maximum sentences outside of the

sentencing guidelines without adequate consideration of the sentencing

guidelines, without adequate basis and without contemporaneous statement

of reasons for deviation.” Appellant’s Brief at 35.

        We start by noting that “issues challenging the discretionary aspects of

a sentence must be raised in a post-sentence motion or by presenting the

claim     to   the   trial   court   during    the    sentencing   proceedings.”

Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006).

Without such efforts, an objection to a discretionary aspect of a sentence is

waived. See id.

        Here, Appellant timely filed a motion for reconsideration in which he

argued that the sentence he received was unreasonable, excessive, and

outside the sentencing guidelines.     See Appellant’s Post-Sentence Motion,

filed 5/30/14, at ¶¶ 41-46.          Thus, Appellant’s post-sentence motion

preserved the claims now raised on appeal.

        “When challenging the discretionary aspects of the sentence imposed,

an appellant must present a substantial question as to the inappropriateness

of the sentence.” Shugars, 895 A.2d at 1274. A “substantial question” as

to the inappropriateness of the sentence under the Sentencing Code 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


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J-A24039-15


the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.

Super.   2012)   (citation   omitted).   “An   appellant   must,   pursuant   to

Pennsylvania Rule of Appellate Procedure 2119(f), articulate ‘the manner in

which the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process.” Shugars, 895 A.2d at 1274.

      In his brief, Appellant asserts that his sentence is excessive and

exceeds the recommended range in the sentencing guidelines without an

adequate basis. See Appellant’s Brief, at 36. This claim raises a substantial

question.   See Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.

Super. 1995).

      Our standard of review for a challenge to the discretionary aspect of

sentencing is as follows.

      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.

Id., at 1274-1275 (citation omitted).

      In imposing a sentence, the sentencing court must consider relevant

statutory factors, including “the protection of the public, gravity of offense in

relation to impact on victim and community, and rehabilitative needs of the

defendant.” 42 Pa.C.S. § 9721(b). A sentencing court has broad discretion

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J-A24039-15


in fashioning its sentence. See Commonwealth v. Walls, 926 A.2d 957,

962-963 (Pa. 2007). A sentencing court is required to consider the sentence

ranges set forth in the sentencing guidelines, but it is not bound by them.

See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

Sentencing guidelines are “merely one factor among many that the court

must consider in imposing a sentence.” Id. (citation omitted).            However, if

a sentencing court deviates from the sentencing guidelines, it must “provide

a contemporaneous written statement of the reason or reasons for the

deviation from the guidelines.” 42 Pa.C.S. § 9721(b).

      After reviewing the certified record, we conclude that the sentencing

court did not abuse its discretion.    By sentencing Appellant to consecutive

sentences of 10 to 20 years’ imprisonment for both the rape and IDSI

counts, the court imposed a sentence outside of the sentencing guidelines.

Nevertheless, at the resentencing hearing and again in its opinion pursuant

to Pa.R.A.P. 1925(a), the court provided valid reasons for Appellant’s

sentence,   including   Appellant’s   personal      history,   prison    misconducts,

unsuitability for supervision, and most importantly, the “horrific pattern of

abuse” that he inflicted upon the victim, which resulted in her contracting

vaginal herpes at the age of ten.      See N.T., 5/23/14, at 13-15, 17.          The

court also stated its desire to maintain the first trial court’s sentencing

scheme due to the seriousness of the crimes committed.                  Id. at 14-15.

Accordingly, Appellant is not entitled to relief.


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J-A24039-15


     Judgment of sentence affirmed.

     Judge Wecht joins.

     Judge Panella did not participate in this decision.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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