J-S04009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROBERT SCOTT ADLEY,

                            Appellant                 No. 1312 MDA 2014


           Appeal from the Judgment of Sentence February 26, 2014
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001117-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED JANUARY 28, 2015

       Robert Scott Adley appeals from the judgment of sentence of eight and

one-half to twenty years incarceration after he pled guilty to aggravated

assault of a child less than thirteen years of age and endangering the

welfare of children (“EWOC”). We affirm.

       Appellant caused his four month old daughter to suffer fractured ribs,

vertebra, and other severe injuries.           As a result of this abuse, the

Commonwealth charged Appellant with attempted homicide, aggravated

assault of a child less than thirteen, EWOC, and simple assault. The abuse

occurred between March 15, 2013, and July 23, 2013. In exchange for the

Commonwealth’s withdrawal of the attempted homicide charge, Appellant
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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agreed to plead guilty to the remaining charges. The accord did not include

a sentencing agreement. The trial court imposed a sentence of seven and

one-half to fifteen years for the aggravated assault charge and a consecutive

sentence of one to five years for EWOC.

      Appellant filed a timely post-sentence motion. Therein, he contested

his sentence as excessive and argued that the court erred in entering a

sentence above the standard sentencing guideline range for the aggravated

assault count.    The court denied that motion and issued an opinion in

support of that denial. This timely appeal ensued. Appellant’s sole issue on

appeal is “whether the sentencing judge abused his discretion in sentencing

Appellant outisde [sic] the standard range of sentencing on count two,

specifically sentencing him to seven and one half (7 ½) years to a maximum

of fifteen (15) years.” Appellant’s brief at 3.

      Appellant’s issue relates to the discretionary aspects of his sentence.

To adequately preserve a discretionary sentencing claim, the defendant

must present the issue in either a post-sentence motion, or raise the claim

during the sentencing proceedings. Commonwealth v. Cartrette, 83 A.3d

1030, 1042 (Pa.Super. 2013) (en banc). Further, the defendant must

“preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise statement

and a Pa.R.A.P. 2119(f) statement.”      Id. Appellant preserved his issue in

his post-sentence motion, his Pa.R.A.P. 1925(b) statement, and has

provided a Pa.R.A.P. 2119(f) statement in his brief. Accordingly, the issue is


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preserved. Importantly, “[t]here is no absolute right to appeal when

challenging the discretionary aspect of a sentence.”         Id.   “[A]n appeal is

permitted only after this Court determines that there is a substantial

question that the sentence was not appropriate under the sentencing code.”

Id.

       When considering the merits of a discretionary aspects of sentencing

claim, we analyze the sentencing court’s decision under an abuse of

discretion standard.      Commonwealth v. Dodge, 77 A.3d 1263, 1274

(Pa.Super. 2013). In conducting this review, we are guided by the statutory

requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides

that   this   Court   shall   vacate   a   sentence   and   remand   under   three

circumstances. Relevant hereto is if the sentence is outside the sentencing

guidelines and the sentence is unreasonable. 42 Pa.C.S. § 9781(c)(3).           In

addition, we consider:

       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

        Appellant’s 2119(f) statement is insufficient.       He does not present

any argument regarding whether he presents a substantial question for



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review in this portion of his brief. Instead, he provides that position in the

merits portion of his brief. However, the Commonwealth has not objected.

Therefore, we decline to find waiver.     See Dodge, supra at 1271. Since

Appellant’s statement of the issue indicates that the sentencing court

sentenced outside the guideline ranges, see Commonwealth v. Felix, 539

A.2d 371, 377 (Pa.Super. 1988), and he alleges the court considered

improper   sentencing   factors,   we    find   a   substantial   question   exists.

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014);

Commonwealth v. Tirado, 876 A.2d 362, 365-366 (Pa.Super. 2005).

      Appellant argues that the trial court erred by considering factors

already included in the sentencing guidelines in aggravating his sentence;

specifically, the age of the victim. In addition, Appellant maintains that the

court focused on his duty as a parent and contends that this factor was

considered as part of the separate EWOC sentence.

      The Commonwealth counters that although age is a factor in the

aggravated assault crime, the extremely young age of the victim herein, and

the fact that since she was only four months old, she could not speak, walk,

or move, supports the sentencing court’s consideration of age. Indeed, the

victim was not merely under thirteen, she was an infant.           The sentencing

court also considered that the abuse was not a singular incident, but a series

of events. Further, the fact that the victim was Appellant’s daughter is not

part of the aggravated assault considerations for the sentencing guidelines.




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The fact that the EWOC charge herein did encompass such a factor does not

make aggravating a separate charge improper.

       Since the court considered more than the age of the victim, and in

considering the victim’s age noted that she was immobile, and incapable of

speaking, we find no abuse of discretion.        Sentencing Appellant to an

aggravated range sentence where he brutally abused his four month old

daughter is not unreasonable. Accordingly, we affirm.1

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




____________________________________________


1
  We are aware that a mandatory minimum statute exists for Appellant’s
aggravated assault crime. 42 Pa.C.S. § 9718. Based on decisions from this
Court, it appears that imposing such a mandatory is illegal.        See
Commonwealth v. Wolfe, 2014 PA Super 288; cf. Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).            However, the
sentencing court exceeded the mandatory minimum sentence; hence, the
court did not sentence the defendant based on that statute, and his
sentence is not illegal.



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