J-S58033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    EDGARDO LUIS REYES                         :
                                               :
                      Appellant                :       No. 212 MDA 2017

            Appeal from the Judgment of Sentence August 12, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005791-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 24, 2017

        Appellant, Edgardo Luis Reyes, appeals from the judgment of sentence

entered in the Lancaster County Court of Common Pleas, following his open

guilty plea to aggravated assault of a child less than six years of age,

endangering the welfare of children (“EWOC”), and simple assault. 1        We

affirm.

        The relevant facts and procedural history of this case are as follows.

On May 13, 2016, the Commonwealth charged Appellant with aggravated

assault of a child less than six years of age, EWOC, and simple assault. The

charges stemmed from Appellant’s abuse of his infant daughter (“Victim”)

between July 21, 2015 and August 15, 2015. On May 16, 2016, Appellant
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1   18 Pa.C.S.A. §§ 2702(a)(8), 4304(a), and 2701(a)(1), respectively.
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entered an open guilty plea to all charged offenses.      The court deferred

sentencing pending the preparation of a pre-sentence investigation (“PSI”)

report.

      On August 12, 2016, the court sentenced Appellant to a term of

twenty (20) to sixty (60) months’ imprisonment for the aggravated assault

conviction, a consecutive term of eighteen (18) to sixty (60) months’

imprisonment for the EWOC conviction, and a consecutive term of six (6) to

sixty (60) months’ imprisonment for the simple assault conviction, for a total

sentence of forty-four (44) to one hundred and eighty (180) months’

imprisonment. All of Appellant’s minimum sentences were in the aggravated

range of the sentencing guidelines. The court explained it based Appellant’s

sentence on: (1) Appellant’s acceptance of responsibility; (2) Appellant’s

amenability to rehabilitation; (3) Appellant’s ongoing abuse of Victim, as

evidenced by Victim’s prior healing injuries; (4) the fact that Victim was one

month old at the time of the abuse; (5) the impact of the crime on Victim;

(6) the serious nature of the crime; (7) the court’s need to educate and

deter others from engaging in similar behavior; (8) Appellant’s treatment

needs, which could be met by the imposition of a state sentence; and (9)

the information contained in Appellant’s PSI report.

      On August 22, 2016, Appellant timely filed a post-sentence motion for

modification of sentence, which was denied by operation of law on December

29, 2016. Appellant timely filed a notice of appeal on January 27, 2017. On


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January 31, 2017, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied on February 21, 2017. Appellant filed a request on March 3,

2017, to file an amended Rule 1925(b) statement, which the court granted

on March 9, 2017. Appellant subsequently filed an amended Rule 1925(b)

statement.

      Appellant raises the following issue for our review:

         ON INFORMATION NUMBER 5791-2015, DID THE TRIAL
         COURT ABUSE ITS DISCRETION BY IMPOSING A
         SENTENCE IN THE AGGRAVATED RANGE BASED, AT LEAST
         IN PART, UPON IMPERMISSIBLE AGGRAVATING FACTORS?

(Appellant’s Brief at 5).

      Appellant argues the court imposed aggravated range sentences based

on impermissible factors. Appellant first asserts the court’s consideration of

Victim’s age was improper because Victim’s age was an element of the

aggravated assault offense.    Appellant next claims the court’s reliance on

evidence of prior abuse injuries contained in Victim’s medical reports was

inappropriate because Appellant’s charges did not stem from the prior

injuries. Appellant next avers the court’s consideration of the need to

educate and deter the community from engaging in child abuse conduct was

wrong because it prevented Appellant from receiving an individualized

sentence. Appellant finally complains the court’s reliance on the ability of a

state correctional institution to meet Appellant’s treatment needs was

improper.    Appellant concludes the court’s reliance on these impermissible

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factors led to the imposition of a manifestly excessive aggravated range

sentence, and this Court should vacate and remand for resentencing.         As

presented, Appellant challenges the discretionary aspects of his sentence.2

See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

aspect of sentencing issue:

          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.A. § 9781(b).

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

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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super 2005). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.



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denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of

a sentence are waived if they are not raised at the sentencing hearing or

raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal

denied, 574 Pa. 759, 831 A.2d 599 (2003).

       When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,

621-22 (2002); Pa.R.A.P. 2119(f).       “The requirement that an appellant

separately set forth the reasons relied upon for allowance of appeal ‘furthers

the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.’”           Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745,

964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,

1387    (Pa.Super.   1989)   (en   banc)   (emphasis    in    original)).   “The

determination of what constitutes a substantial question must be evaluated


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on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,

1018 (Pa.Super. 2003).      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.”   Sierra, supra at 913 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)). Significantly, “[t]his Court has held that a

claim that the sentence is excessive because the trial court relied on

impermissible factors raises a substantial question.”    Commonwealth v.

Simpson, 829 A.2d 334, 338 (Pa.Super. 2003).

      Here, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion, amended Rule 1925(b)

statement, and Rule 2119(f) statement.       Additionally, his claim that the

court imposed aggravated range sentences based on impermissible factors

appears to raise a substantial question as to the discretionary aspects of his

sentence. See id.

      Our standard of review of a challenge to the discretionary aspects 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

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         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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

       Pursuant to Section 9721(b), “the court shall follow the general

principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”       42 Pa.C.S.A. § 9721(b).        “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”   Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id. “In

particular, the court should refer to the defendant’s prior criminal record, his

age,   personal   characteristics    and   his   potential   for   rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal

denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,


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125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). Notably, “[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 sentence to the aggravated

or mitigated range.”        Simpson, supra at 339. Nevertheless, “[e]ven if a

sentencing court relies on a factor that should not have been considered,

there is no abuse of discretion when the sentencing court has significant

other    support     for    its   departure    from       the   sentencing    guidelines.”

Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008), appeal

denied, 602 Pa. 666, 980 A.2d 607 (2009). Further, the court may rely on

the victim’s precise age and vulnerability to justify an above-guideline

sentence. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007).

Additionally,   case       law    authorizes     a    sentencing     court   to   consider

unprosecuted criminal conduct. Commonwealth v. P.L.S., 894 A.2d 120,

131 (Pa.Super. 2006), appeal denied, 588 Pa. 780, 906 A.2d 542 (2006). In

fact, “the sentencing guidelines essentially mandate such consideration when

a   prior   record     score      inadequately       reflects   a   defendant’s   criminal

background.” Id.

        Instantly, the court had the benefit of a PSI report at sentencing.

Therefore, we can presume the court considered the relevant factors when it

sentenced Appellant. See Tirado, supra at 368 (holding where sentencing

court had benefit of PSI, law presumes court was aware of and weighed

relevant information regarding defendant’s character and mitigating factors).


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The court also thoroughly explained its reasons for imposition of aggravated

range sentences at the sentencing hearing on August 12, 2016. Specifically,

the court explained it based Appellant’s sentences on: (1) Appellant’s

acceptance of responsibility; (2) Appellant’s amenability to rehabilitation; (3)

Appellant’s ongoing abuse of Victim as evidenced by Victim’s prior healing

injuries; (4) the fact that Victim was one month old and extremely

vulnerable at the time of the abuse; (5) the impact of the crime on Victim;

(6) the serious nature of the crime; (7) the court’s need to educate and

deter others from engaging in similar behavior; (8) Appellant’s treatment

needs, which could be met by the imposition of a state sentence; and (9)

the information contained in Appellant’s PSI report. Significantly, the court’s

consideration of Victim's precise age at the time of the offense was

acceptable in light of Victim’s extreme vulnerability. Additionally, the court

properly considered all of Victim’s injuries because Appellant’s convictions

stemmed from his repeated abuse of Victim between July 21, 2015 and

August 15, 2015. Further, even if Appellant’s convictions did not stem from

the entire period of abuse, the circumstances of the case warranted

consideration of Victim’s prior injuries.   See P.L.S., supra.      Finally, the

court appropriately weighed Appellant’s treatment needs and the impact of

the offense on the community. See 42 Pa.C.S.A. § 9721(b). Under these

circumstances, the court relied on a myriad of permissible sentencing factors

when it imposed Appellant’s aggravated range sentences. Thus, Appellant’s


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challenge to the discretionary aspects of his sentence fails.   See Hyland,

supra. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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