J-S70042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
LORRAINE MARRERO,                         :
                                          :
                   Appellant              :           No. 611 EDA 2016

            Appeal from the Judgment of Sentence January 22, 2016
                in the Court of Common Pleas of Lehigh County,
              Criminal Division, No(s): CP-39-CR-0002992-2015

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 19, 2016

        Lorraine Marrero (“Marrero”) appeals from the judgment of sentence

imposed following her guilty plea to aggravated assault.1 We affirm.

        In April 2015, Marrero was at home with her two sons, A., a 2-year-

old, and V., a 4-month-old. A. was sick, crying, and throwing himself on the

floor. V. also started crying. In a “fit of rage,” Marrero picked up V. by the

torso and squeezed him for approximately one minute. Marrero determined

that V. was okay because he was smiling, and she did not seek medical

attention for her son.

        On May 23, 2015, Marrero took V. to Sacred Heart Hospital (“Sacred

Heart”) to be treated for bronchitis. V. was treated at Sacred Heart and was

released after an x-ray was taken. After reviewing the x-ray, the medical

staff noticed that V. had two healing rib fractures on his right side, and



1
    18 Pa.C.S.A. § 2702(a)(8).
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asked Marrero to bring V. back to Sacred Heart. Sacred Heart also notified

the police and Children and Youth Services. Two days later, Marrero brought

V. back to Sacred Heart, and she was informed of the rib fractures. V. was

transferred to the pediatrics clinic at Lehigh Valley Hospital, where he was

examined by Dr. Debra Esernio-Jensen, who was part of the Child Advocacy

Center.

        During an interview, Marrero told police about the incident and gave a

written statement.    Marrero also has a history of mental health problems

and had not been taking her medication on a regular basis.       Marrero was

charged with aggravated assault and endangering the welfare of children.2

        On December 8, 2015, Marrero entered a guilty plea to aggravated

assault, with the agreement that the Commonwealth would not prosecute

the endangering the welfare of children charge, and the minimum sentence

would not exceed 36 months.         The trial court deferred sentencing and

ordered a pre-sentence investigation report (“PSI”). On January 22, 2016,

after reviewing the PSI, the trial court sentenced Marrero to 3 to 10 years in

prison.

        On February 1, 2016, Marrero filed a Motion for Reconsideration and

Modification of Sentence, which the trial court denied. Marrero subsequently

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement.


2
    18 Pa.C.S.A. § 4304(a)(1).


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      On appeal, Marrero raises the following question for our review:

      Whether the [trial] [c]ourt abused its discretion in imposing a
      manifestly excessive and unreasonable sentence[,] which has a
      minimum sentence that is higher than the [s]entencing
      [g]uideline [r]ange as applied to [Marrero,] when the Court
      failed to consider any significant mitigating factors, failed to
      apply and review all the necessary factors as set forth in 42
      Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c) and (d)[,] or
      otherwise failed to set forth appropriate reasons for its radical
      deviation from the standard sentencing ranges?

Brief for Appellant at 7.

      Marrero claims that the trial court abused its discretion by imposing a

sentence outside of both the standard and aggravated ranges of the

sentencing guidelines.      Id. at 11.   Marrero argues that her minimum

sentence should have been 6 to 14 months under the standard range, or 20

months under the aggravated range. Id. at 12. Marrero asserts that the

trial court failed to adequately explain its reasons for deviating from the

sentencing guidelines. Id. at 12-14. Further, Marrero claims that the trial

court considered only the seriousness of the offense and the fact that the

victim was her son, and failed to consider relevant mitigating factors. Id. at

15.

      Marrero’s claim challenges the discretionary aspects of her sentence.3

See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “It

is well-settled that, with regard to the discretionary aspects of sentencing,


3
 Marrero entered an open guilty plea for aggravated assault, so her plea did
not preclude a challenge to the discretionary aspects of her sentence. See
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).


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there is no automatic right to appeal.” Commonwealth v. Mastromarino,

2 A.3d 581, 585 (Pa. Super. 2010).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      We conduct a four-part analysis to determine: (1) whether the
      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 the 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).

                                     ***

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      Here, Marrero filed a timely Notice of Appeal, preserved her issue in a

Motion for Reconsideration and Modification of Sentence, and included a Rule

2119(f) Statement in her brief. Marrero’s argument that the trial court did

not provide adequate justification on the record for imposing a sentence

above   the   aggravated   range    raises   a   substantial   question.   See

Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa. Super. 2005)

(stating that “a substantial question exists where the sentencing court failed




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to provide sufficient reasons for imposing a sentence outside of the

guidelines.”). Thus, we will review Marrero’s sentence.

      Our standard of review of a challenge to the discretionary aspects of

sentence is well-settled:

      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.

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).                  “In

every case in which the court imposes a sentence for a felony … the 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.”

42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon, 812 A.2d

617, 620-21 (Pa. 2002) (plurality). In considering these factors, the court

should refer to the defendant’s prior criminal record, age, personal

characteristics and potential for rehabilitation.”          Commonwealth v.

McClendon, 589 A.2d 706, 712 (Pa. Super. 1991) (internal citations and

quotation marks omitted). Additionally, “[w]here pre-sentence reports exist,

we shall … presume that the sentencing judge was aware of relevant

information   regarding     the   defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors.           A pre-sentence




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report constitutes the record and speaks for itself.”    Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988).

      Upon our review, we conclude that the trial court adequately set forth,

on the record, its reasons for imposing a sentence outside of the guidelines:

Marrero was in a position of trust as V.’s mother; she harmed her own child;

she did not take complete responsibility for her actions until sentencing; the

community is at risk; the plea agreement allowed for departure from the

aggravated range; and imposing a lesser sentence would depreciate the

seriousness of the crime.   See N.T., 1/22/16, at 37.       Moreover, the trial

court indicated that it reviewed Marrero’s PSI in imposing the sentence. See

N.T., 1/22/16, at 3-4; see also Devers, supra (stating that where the trial

court had the benefit of a PSI, we presume that the trial court was aware of,

and considered all relevant factors, and “[h]aving been fully informed by the

pre-sentence report, the sentencing court’s discretion should not be

disturbed.”).   Therefore, the trial court did not abuse its discretion in

sentencing Marrero for the aggravated assault conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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