J-S70008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL COOPER

                            Appellant                No. 3264 EDA 2013


            Appeal from the Judgment of Sentence October 25, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009158-2012


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 09, 2014

        Paul Cooper appeals from his judgment of sentence entered in the

Court of Common Pleas of Philadelphia County. On appeal, Cooper claims

his sentence was an abuse of discretion. After our review, we affirm.

        On January 11, 2012, Cooper was arrested for crimes against a 16-

month-old child.      On September 4, 2013, Cooper entered a no contest plea

to charges of aggravated assault, simple assault, unlawful restraint,

endangering the welfare of a child, and recklessly endangering another

person (REAP).       The court sentenced Cooper to an aggregate sentence of




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*
    Retired Senior Judge assigned to the Superior Court.
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fourteen and one-half to thirty-two years’ incarceration.1           This appeal

followed.

       Cooper raises the following claim for our review: Did the court err as a

matter of law by imposing a harsh, excessive and manifestly unjust

sentence, which was beyond the standard range and not consistent with

Pennsylvania law under 42 Pa.C.S. §§ 9721 and 9781?            The court imposed

the following consecutive sentences:             for aggravated assault, 120-240

months, which is outside the guidelines (the top of the aggravated range is a

102-month minimum); for endangering the welfare of a child, 30-60

months, also outside the guidelines (the top of the aggravated range is a 21-

month minimum); for REAP, 12-24 months, which was within the standard

range of the guidelines; and for unlawful restraint, 12-60 months, also

within the standard range of the guidelines.2

       Contrary to Cooper’s claim, we conclude the sentence was not in

violation of either section 9721 or 9781 of the Sentencing Code.

       We note first that a plea of nolo contendere is treated the same as a

guilty plea in terms of its effect upon a particular case. Commonwealth v.

Boatwright, 590 A.2d 15, 19 (1991).              “A defendant who has pled guilty
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1
  The Commonwealth sought the maximum sentence of 16 to 32 years’
imprisonment. See N.T. Sentencing Hearing, 10/25/13, at 26.
2
  The court applied the 6th Edition of the Sentencing Guidelines, which apply
to sentences imposed for felony and misdemeanor offenses committed on or
after June 3, 2005.



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may challenge the discretionary aspects of his sentence as long as the

defendant did not agree to a negotiated sentence as part of a plea

agreement.”    Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.

Super. 2000) (citation omitted).   Therefore, Cooper, who entered an open

plea of no contest, may challenge the discretionary aspects of his sentence.

See id.; see also N.T. Plea Hearing, 9/4/13, at 6. However, [c]hallenges to

the discretionary aspects of sentencing do not entitle an appellant to

appellate review as of right. Prior to reaching the merits of a discretionary

sentencing issue, we must 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).
      Objections to the discretionary aspects of a sentence are
      generally 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. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(citations omitted).

      In his Pa.R.A.P. 2119(f) statement, Cooper claims his sentence was

excessive in that the court imposed his sentences to run consecutively and

failed to state sufficient reasons on record for imposing a sentence outside

the guidelines.   Appellant’s Brief, at 9.   This claim raises a substantial

question to invoke appellate review.   See Commonwealth v. Rodda, 723


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A.2d 212, 214 (Pa. Super. 1999) (en banc) (claim that sentencing court

imposed sentence outside guidelines without specifying sufficient reasons

presents substantial question for review).

      When imposing a sentence, the sentencing court is required to

consider the sentence ranges set forth in the Sentencing Guidelines, but it

not bound by the Sentencing Guidelines. See Commonwealth v. Yuhasz,

923 A.2d 1111, 1118 (Pa. 2007) (“It is well established that the Sentencing

Guidelines are purely advisory in nature.”); Commonwealth v. Walls, 926

A.2d 957, 965 (Pa. 2007) (referring to Sentencing Guidelines as “advisory

guideposts” which “recommend . . . rather than require a particular

sentence”). The court may deviate from the recommended guidelines; they

are “merely one factor among many that the court must consider in

imposing a sentence.” Yuhasz, 923 A.2d at 1118.

      A court may depart from the guidelines “if necessary, to fashion a

sentence which takes into account the protection of the public, the

rehabilitative needs of the defendant, and the gravity of the particular

offense as it relates to the impact on the life of the victim and the

community.”    Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.

2001).   When a court chooses to depart from the guidelines however, it

must “demonstrate on the record, as a proper starting point, . . . awareness

of the sentencing guidelines.”   Eby, 784 A.2d at 206.    Further, the court

must “provide a contemporaneous written statement of the reason or

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

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      In Walls, our Supreme Court observed that the parameters of this

Court's review of the discretionary aspects of a sentence is confined by the

dictates of 42 Pa.C.S. §§ 9781(c) and (d).          Section 9781(c) states in

relevant part that we may “vacate the sentence and remand the case to the

sentencing court with instructions” if we find that “the sentencing court

sentenced   outside     the   sentencing   guidelines   and   the   sentence   is

unreasonable.” 42 Pa.C.S. § 9781(c)(3).        Section 9781(d) provides that

when reviewing a sentence, we must 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).

      “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant [and], of course, the court must

consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d

843, 847-48 (Pa. Super. 2006) (citations omitted). “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) citing Commonwealth v. Duffy, 491 A.2d 230,

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233 (1985). “In addition, the sentencing judge’s statement of reasons on

the record must reflect this consideration, and the sentencing judge’s

decision regarding the aggravation of a sentence will not be disturbed absent

a manifest abuse of discretion.” Bowen, 975 A.2d 1120, 1122 (Pa. Super.

2009).

     Here, at the sentencing hearing, Judge Diana Anhalt, set forth on the

record her consideration of the applicable guidelines, see N.T. Sentencing

Hearing, 10/25/13, at 6, as well as the following reasons for the sentence

imposed:

     [F]or the following reasons I will be going above the guidelines
     in the case of the aggravated assault. The medically
     compromised situation of this 16-month old child [aggravates]
     this case in a tremendous way. If I recall the testimony or the
     plea correctly, that the child had seven surgeries before the age
     of 16 months; he had a colostomy bag, and he got—he had 13
     broken ribs, front and back, and the amount of pressure that
     would be needed to cause those type[s] of injuries that would
     also [puncture] a lung and puncture a liver, to me is a reason
     enough to [aggravate] the sentence. But then there’s also a
     lack of a sense of responsibility. The fact that the child could not
     be touched for three weeks, due to injuries, this is a major-- is
     an important factor. The fact that there is –I guess- did the
     prior record score, and I want to be very clear on the record,
     that the prior record score takes into account what you were
     convicted for in the other cases. But the fact that you had prior
     knowledge about how sensitive children are and you can’t pick
     them up by the legs, and you can’t pick them up too hard
     around the belly, those are things you know. And the fact that
     you have a second conviction for the same type of crime is what
     makes me [aggravate] the endangering the welfare of a child
     sentence, is that you have two of those, and potentially, you
     now, there was other evidence submitted at your homicide trial,
     where there was another kid that had been hurt as well. Those
     are very small factors, but factors nevertheless, that when I look
     at the guidelines for endanger the welfare , it’s 12 to 18 plus or

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       minus 3, given your history, I don’t think your record adequately
       reflects the criminal background, and because of that, that’s why
       I’m going to go – it’s only a little above the endangering the
       welfare of a child, but it’s above the [standard range of the]
       guidelines nonetheless. So, the sentence –oh, and then of
       course, last, but not being least, is protection of society. I
       believe that you are a danger to every child that you come into
       contact with, because there is no one safe from your touch.

N.T. Sentencing Hearing, 10/25/13, at 33-35.

       Based on the foregoing, we conclude that the trial court provided

adequate reasons on the record for its decision to sentence Cooper outside

the guidelines for the aggravated assault and endangering the welfare of a

child convictions. The court explained that its decision to aggravate 3 the

sentence was based primarily on the infant victim’s vulnerability and

medically compromised condition.           Id. at 35. The court also explained that

Cooper had a history of similar crimes and believed that Cooper was “a

danger to every child [he] come[s] into contact with[.]” Id.

       Because the aggravating factors relied on by the trial court are

adequate to sustain a sentence outside the guidelines, we find no abuse of

discretion.    See Commonwealth v. Sheller, 961 A.2d 187 (Pa. Super.

2008) (where sentence exceeded aggravated sentencing range, this Court

affirmed where trial court considered all statutorily required factors,


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3
  We note the distinction between an “aggravated sentence,” as described
herein by the trial court, which is outside the guidelines, and an
“aggravated-range sentence,” which is within the sentencing guidelines,
albeit in the aggravated range.



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including gravity of offense and defendant's rehabilitative needs as well as

defendant's   history    and   characteristics   contained    in   pre-sentence

investigation report, and factors outside guidelines supported departure,

including defendant's commission of crime in family home while victim's

twelve-year-old daughter was present); Commonwealth v. Holiday, 954

A.2d 6 (Pa. Super. 2008) (evidence supported imposition of sentence

beyond aggravated range of sentencing guidelines for several vehicular

crimes; defendant's criminal history began when he was 15 years of age, he

had repeated drug felonies, he continually violated parole, and in instant

case, he hit people with vehicle, did not stop, tried to outrun officer, then

killed one and permanently injured second victim, he again did not stop to

help, for four months he hid from police and did not turn himself in, his

license was suspended when he was driving as he was convicted of seven

probation violations, time spent in jail did not rehabilitate him, he was not

capable of functioning as law abiding citizen, and lengthy incarceration was

only solution to modify his behavior); Commonwealth v. Johnson, 873

A.2d 704 (Pa. Super. 2005) (sentences of two consecutive terms of two and

one-half to five years for driving under influence (DUI) were not excessive,

even though sentences were beyond what was recommended in sentencing

guidelines; defendant had been convicted of DUI more than 20 times,

completely failed to rehabilitate, failed to take responsibility for his actions,

failed to adhere to law requiring him not to drive, and failed to adhere to law

requiring him not to drive drunk, and trial court evaluated, among other

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things, circumstances of defendant's most recent DUI convictions, his

character, danger he represented to community, and high levels of alcohol

present in his blood).

      Additionally, at allocution, Cooper did not take responsibility for his

actions, reflecting his lack of character, his lack of remorse and his lack of

rehabilitative potential. After review of these factual matters, the sentencing

court concluded that it needed to protect society’s most vulnerable from

Cooper. Prior to imposing sentence, court had the benefit of a pre-sentence

investigation report and an opportunity to consider Cooper’s history and

characteristics. See Trial Court Opinion, 4/8/14, at 5; Commonwealth v.

Devers, 546 A.2d 12 (Pa. 1988) (when sentencing court has benefit of pre-

sentence report, we must presume sentencing judge was aware of, and duly

considered, any character-related information contained therein).

      The sentencing court considered all the requisite factors, including the

nature and circumstances of the offense, protection of the public, the

recommended guideline range, the gravity of the offense, and the

rehabilitative needs of the defendant.      See 42 Pa.C.S.A. §§ 9781(d),

9721(b). Based on our review of this record, we find no manifest abuse of

discretion. Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003).

      To the extent that Cooper challenges the trial court’s decision to

impose his sentences consecutively, we find no substantial question.      See

Commonwealth v. Pass, 914 A.2d 442, 446–47 (Pa. Super. 2006)

(Pennsylvania law affords sentencing court discretion to impose sentences

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concurrently or consecutively, and any challenge to exercise of discretion

ordinarily does not raise a substantial question); Johnson, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014




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