J-S19018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HAGGAI U. CHARLEMAGNE

                            Appellant                No. 1840 EDA 2014


             Appeal from the Judgment of Sentence May 27, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001931-2013


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 07, 2015

        Appellant Haggai U. Charlemagne appeals from the judgment of

sentence entered in the Monroe County Court of Common Pleas. We affirm.

        Appellant was charged with involuntary deviate sexual intercourse,1

unlawful contact with minor,2 statutory sexual assault,3 aggravated indecent

assault,4 incest of minor,5 endangering the welfare of children,6 corruption of

____________________________________________


1
    18 Pa.C.S. § 3123(a)(7).
2
    18 Pa.C.S. § 6318(a)(1).
3
    18 Pa.C.S. § 3122.1(b).
4
    18 Pa.C.S. § 3125(a)(8).
5
    18 Pa.C.S. § 4302(b)(2).
6
    18 Pa.C.S. § 4304(a).
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minors,7 indecent assault of a person less than 16 years of age,8 and

tampering with evidence.9 The charges stemmed from the sexual abuse of

Appellant’s niece.

        On January 29, 2014, Appellant pled guilty to unlawful contact with a

minor and statutory sexual assault.              For each offense, the standard

sentencing guidelines range was 12 to 24 months’ imprisonment, with an

aggravated range of 36 months. The maximum sentence for each offense

was 240 months’ imprisonment.

        On May 27, 2014, the trial court sentenced Appellant to a 36 to 72

month term of imprisonment for unlawful contact with a minor and a

consecutive 36 to 72 month term of imprisonment for statutory sexual

assault.    The aggregate sentence was 72 to 144 months’ imprisonment.

Appellant’s convictions subjected him to the lifetime registration requirement

of the Sex Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.

§ 9799.10, et seq., and to possible deportation.

        On June 4, 2014, Appellant filed a motion for reconsideration of

sentence, which the trial court denied on June 5, 2014. On June 24, 2014,




____________________________________________


7
    18 Pa.C.S. § 6301(a)(1)(ii).
8
    18 Pa.C.S. § 3126(a)(8).
9
    18 Pa.C.S. § 4910(1).



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Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

     Appellant raises the following issues on appeal:

        1. Did the trial court err and abuse its discretion by
        imposing a manifestly excessive sentence at the highest
        end of the aggravated range of the Pennsylvania
        Sentencing Guidelines, by failing to consider the relevant
        sentencing criteria of the Pennsylvania Sentencing Code,
        including the personal characteristics of the Defendant, his
        rehabilitative needs, the need for protection of the public
        and the presence of mitigating circumstances?

        2. Did the Trial Court err and abuse its discretion by
        imposing a manifestly excessive sentence at the highest
        end of the aggravated range of the Pennsylvania
        Sentencing Guidelines, by failing to state sufficient reasons
        on the record for the sentence imposed?

Appellant’s Brief at 6.    Both issues challenge discretionary aspects of

Appellant’s sentence.

     “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super.2000)).     Before this Court can address a discretionary

challenge, we must engage in a four-part analysis to 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.




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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see

also Allen, 24 A.3d at 1064.

      Appellant raised the issues in timely post-sentence motions, filed a

timely notice of appeal, and included a statement of reasons pursuant to

Rule 2119(f) in his brief. We must, therefore, determine whether his issues

present substantial questions and, if so, review the merits.

      “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

where a defendant raises a plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d

251, 255 (Pa.Super.2003)).

      Appellant first asserts that the trial court imposed an excessive

sentence and failed to consider the relevant sentencing criteria, including his

personal characteristics, his rehabilitative needs, the need for protection of

the public, and the presence of mitigating circumstances. Appellant’s Brief

at 13-15, 16-22.      This raises a substantial question for our review.

Commonwealth v. Gonzales, -- A.3d ---, 2015 PA Super 13, at *15

(Pa.Super.2015) (claim of excessiveness coupled with failure to consider

mitigating factors raised substantial question); Commonwealth v. Dodge,

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77 A.3d 1263, 1272 n.8 (Pa.Super.2013) (“Careful litigants should note that

arguments that the sentencing court failed to consider the factors proffered

in 42 Pa.C.S. § 9721 does present a substantial question whereas a

statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”).

       Appellant next claims the trial court imposed an excessive sentence

without stating sufficient reasons on the record. Appellant’s Brief at 13-15,

22-23. Such a claim raises a substantial question for our review. See, e.g.,

Commonwealth v. Macais, 968 A.2d 773, 776 (Pa.Super.2009) (claim trial

court failed to adequately state its reasons for sentence imposed raises

substantial question); Commonwealth v. Simpson, 829 A.2d 334, 338

(Pa.Super.2003) (same).

       Because the claims raise substantial questions, we will review their

merits. Further, because Appellant’s issues are interrelated, we will address

the issues together.

       “Sentencing is a matter vested within the discretion of the trial court

and will not      be   disturbed absent       a manifest abuse         of   discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse

of   discretion   requires   the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”            Id. (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa.2007)).

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      “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d

1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-

sentence report, it is presumed that the court is aware of all appropriate

sentencing factors and considerations.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519

Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).

      Here, the trial court discussed Appellant’s “history of assaultive

behavior,” including that he was on bail for a child endangerment charge

when he committed the offenses at issue. N.T., 5/27/2014, at 7, 11. The

court noted simple assault and harassment charges were also filed against

Appellant, but did not proceed because the victim, Appellant’s wife, refused

to testify.   Id., at 11-12.   The trial court noted Appellant attempted to

deflect responsibility for the crime by saying “some pretty unforgiveable

things about the victim of this offense” and “attempt[ing] to paint the victim

as a ‘promiscuous youngster.’”    Id. at 12.   The court noted that although

Appellant did not qualify as a sexually violent predator, his sexual offender’s

assessment indicated his conduct was consistent with paraphilic interests

and his behavior was predatory in nature. Id. The court noted aggravating

circumstances, including the failure to accept responsibility and the attempt

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to deflect responsibility onto the minor victim.    Id.   The trial court also

reasoned that Appellant only attempted to take responsibility when he was

before the court, with the threat of a lengthy sentence. Id. at 12-13. The

trial court then noted the reasons set forth in the presentence report, which

it adopted in its entirety, and sentenced Appellant as set forth above. Id. at

13.

      The trial court acted within its discretion when it sentenced Appellant.

Although the trial court discussed only the aggravating factors, it considered

the pre-sentence report and adopted all reasons set forth therein.        See

Ventura, 975 A.2d at 1134 (where trial court has pre-sentence report, “it is

presumed that the court is aware of all appropriate sentencing factors and

considerations”).   Further, the trial court stated sufficient reasons for the

sentence imposed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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