J-S02044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN GEORGE SOSNA

                            Appellant                  No. 1920 EDA 2016


               Appeal from the Judgment of Sentence April 8, 2016
              In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-0002342-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                                FILED MAY 25, 2017

       Brian George Sosna appeals from the April 8, 2016 judgment of

sentence entered in the Northampton County Court of Common Pleas

following his nolo contendere plea to aggravated indecent assault –

complainant less than thirteen years old.1 We affirm.

       The trial court set forth the following factual and procedural history:

            From November 2012 until approximately September
            2014, Sosna resided with family members, including his
            five-year old niece, R.M [(“Victim”)]. . . . in [address] in
            Walnutport, Northampton County, Pennsylvania (the
            “Residence”). On April 24, 2015, Sosna was interviewed
            by the Jefferson Police Department in Jefferson, Indiana,
            where the Commonwealth alleges Sosna confessed to
            sexually assaulting [Victim] in the upstairs bathroom of the
            Residence, on multiple occasions, while she was in his
            care. Through his alleged confession, Sosna asserted that
____________________________________________


       1
           18 Pa.C.S. § 3125(a)(7).
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       he had sexual contract with the victim approximately ten
       times at the Residence. On two occasions, Sosna forced
       [Victim] to touch his bare penis, of which one of the times
       he had her ejaculate him into the toilet of the Residence’s
       upstairs bathroom. Additionally, Sosna admitted to placing
       his tongue on [Victim]’s bare vagina to perform oral sex on
       her, as well as touching her bare vagina with his fingers
       while masturbating himself until he ejaculated. Further, on
       at least two occasions, Sosna indicated that he rubbed his
       bare penis against [Victim]’s bare vagina.

                                  ...

          On December 10, 2015, Sosna pleaded nolo contendere
       to one count of Aggravated Indecent Assault –
       Complainant Less than Thirteen Years Old. As part of the
       factual basis for the plea, the Commonwealth alleged that
       Sosna sexually abused [Victim] while living at the
       Residence by rubbing her vagina and placing his fingers
       inside her vagina. As an aid to sentencing, we ordered a
       Sexually Violent Predator evaluation from the Pennsylvania
       Sexual Offenders Assessment Board, a Psychosexual
       Evaluation, and a Presentence Investigation (“PSI”) from
       the Northampton County Department of Adult Probation
       and Parole.

                                  ...

          On April 8, 2016, Sosna appeared for sentencing . . . .
       Sosna, through his attorney, indicated that he had
       reviewed the PSI and found it to be factually accurate.
       Sosna also reviewed the guideline calculations on the
       Sentencing Guideline Forms and acknowledged that the
       calculations were correct. The calculations indicated that
       Sosna had a prior record score of one.

          For the charge [to which Sosna pled], the Sentencing
       Guideline Form indicated an offense gravity score of ten, a
       standard range of thirty months to forty-two months as a
       minimum, a mitigated-range sentence of eighteen months
       as a minimum, an aggravated-range sentence of fifty-four
       months as a minimum, and a statutory maximum sentence
       of ten years imprisonment and a $25,000 fine.

                                  ...


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            [T]he court sentenced Sosna to the statutory
         maximum, i.e., a minimum period of five years to a
         maximum period of ten years. As a condition of Sosna’s
         parole, he was prohibited from having any contact with the
         victim or any other minor child, and was required to abide
         by the recommendations in the Psychosexual Evaluation
         and complete all sexual treatment[] programs required by
         the Department of Corrections. The court ordered that the
         sentence of imprisonment and parole run consecutive to all
         other sentences Sosna was currently serving and gave
         Sosna credit for all time served.

Pa.R.A.P. 1925(a) Stmt., 7/21/16, at 2-5, 13 (“1925(a) Op.”).

      On April 15, 2015, Sosna filed a motion for reconsideration of

sentence, which the trial court denied on May 20, 2016. On June 15, 2016,

Sosna filed a timely notice of appeal.

      Sosna raises one issue on appeal:

         WAS THE COURT[’]S SENTENCE OF SIXTY TO ONE[-
         ]HUNDRED TWENTY (60-120) MONTHS[’] IMPRISONMENT
         MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND
         WITHOUT SUFFICIENT STATED REASONS IN THE RECORD,
         AND CONSTITUTING AN ABUSE OF DISCRETION[?]

Sosna’s Br. at 7 (suggested answer omitted).

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

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

1064 (Pa.Super. 2011). Before we address such a challenge, we must first

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)).

      Sosna filed a timely notice of appeal and included a concise statement

of the reasons relied upon for allowance of appeal pursuant to Pennsylvania

Rule of Appellate Procedure 2119(f).     We must now determine whether

Sosna preserved his discretionary aspects of sentencing claims in his motion

to reconsider sentence before considering whether he has raised a

substantial question.

      We conclude that Sosna’s motion for reconsideration failed to

challenge the trial court’s alleged failure to state the reasons for the

sentence imposed. In his motion, Sosna averred that “the Commonwealth

requested a sentence in the top end of the standard range” and “the

sentence imposed by the [trial c]ourt was a deviation from the [S]entencing

[G]uidelines.” See Mot. for Recon., 4/15/16. Sosna asked the trial court to

“reconsider its sentence and modify the sentence so that [he] would be

sentenced within the standard range.” Id. However, Sosna’s motion did not

challenge the trial court’s alleged failure to state adequate reasons for

deviating upward from the guideline range, thereby denying “the sentencing

judge an opportunity to reconsider or modify [his] sentence on this basis.”

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




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Sosna has waived this claim.2 See Commonwealth v. Bullock, 948 A.2d

818, 826 (Pa.Super. 2008) (finding waiver where “[a]ppellant failed to raise

the specific claim regarding the sentencing court’s alleged failure to state the

reasons for his sentence on the record”).

       However, we conclude that Sosna preserved his claim that the trial

court’s sentence was manifestly excessive and unreasonable.              Sosna’s

motion stated that he was sentenced above the Sentencing Guideline range

sentence and the Commonwealth asked for a sentence at the “top end” of

that range, and requested that the trial court reconsider its deviation. See

____________________________________________


       2
        Even if Sosna had preserved this claim for review, he would not be
entitled to relief. While a claim that the trial court failed to place its reasons
on the record for deviating from the Sentencing Guidelines raises a
substantial question, see Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999), the record shows that the trial court placed its reasons for
an “outside above” range sentence on the record, including:

           . . . . 1) the fact that Sosna lied about his education
           history; 2) Sosna’s age coupled with his sporadic prior
           work history; 3) Sosna’s outstanding case for sexual
           assault; 4) the fact that the victim was an innocent five-
           year old girl; 5) the fact that the victim was particularly
           vulnerable due to her age; 6) the effect the crime has had
           upon the victim; 7) the fact that Sosna was the victim’s
           uncle and in a close relationship with the victim; 8) the
           finding in the Psychosexual Evaluation that Sosna was in
           the moderate range risk to reoffend; 9) that the offense
           was more significant than a crime of similar circumstances;
           and 10) the fact that Sosna did not express any concern
           over the severe effect the crime had upon the victim.

1925(a) Op. at 26-27. The trial court also stated these reasons at the time
of sentencing. See N.T., 4/8/16, at 12-17.



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Mot. for Recon., 4/15/16.    While we recognize that Sosna’s motion could

have better clarified the issues for review, the motion did allow the trial

court to review its sentence and determine whether it had imposed an

excessive or unreasonable sentence.

      We must now determine whether Sosna’s issue raises a substantial

question for our review. We evaluate whether a particular sentencing issue

raises a substantial question on a case-by-case basis. Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011).          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.”     Commonwealth v. Dodge, 77 A.3d

1263, 1268 (Pa.Super. 2013) (quotation omitted).           A claim that the

sentence imposed was excessive and unreasonable, when that sentence is

above the aggravated range under the Sentencing Guidelines, presents a

substantial question for our review. See Commonwealth v. Sheller, 961

A.2d 187, 190 (Pa.Super. 2008) (finding that appellant’s “contention that

the [trial] court exceeded the recommended range in the Sentencing

Guidelines without an adequate basis raises a substantial question for this

Court to review.”). Therefore, Sosna’s claim that the trial court’s imposition

of a sentence above the aggravated range of the Sentencing Guidelines is

not appropriate under the Sentencing Code raises a substantial question.




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     “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). This

Court has stated:

           When reviewing a sentence outside of the guideline
        range, the essential question is whether the sentence
        imposed was reasonable. An appellate court must vacate
        and remand a case where it finds that the sentencing court
        sentenced outside the sentencing guidelines and the
        sentence is unreasonable. In making a reasonableness
        determination, a court should consider four factors:

           (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.

        A sentence may be found unreasonable if it fails to
        properly account for these four statutory factors. A
        sentence may also be found unreasonable if the sentence
        was imposed without express or implicit consideration by
        the sentencing court of the general standards applicable to
        sentencing.    These general standards mandate that a
        sentencing court impose a sentence 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.

Sheller, 961 A.2d 190-91 (internal citations and quotation marks omitted).

     We conclude that the trial court did not abuse its discretion in

sentencing Sosna to five to ten years’ incarceration.   While the trial court

deviated from the Sentencing Guidelines, it placed the Sentencing Guidelines



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ranges on the record and provided comprehensive reasons for imposing the

sentence:

           According to the [G]uideline form, Mr. Sosna has a prior
        record score of 1. For the charge of aggravated indecent
        assault, the . . . form provides for an offense gravity score
        of 10, a standard range sentence of 30 months to 42
        months as a minimum, a mitigated sentence of 18 months
        as a minimum and an aggravated range sentence of 54
        months as a minimum. The statutory maximum is 10
        years in prison and a $25,000 fine.

                                    ...

           I’ve reviewed the Pre-Sentence Investigation, the
        Psychosexual Evaluation[,] and the Sexual Offenders
        Assessment.      I’ve considered the testimony presented
        today, the statements made today by Mr. Sosna, his
        counsel[,] and counsel for the Commonwealth.             In
        addition, I’ve also considered the guideline form submitted
        to the Court.

           Mr. Sosna, you stand before the Court after having pled
        nolo contendere to the crime of aggravated indecent
        assault involving a 5 year-old girl. At the time of your
        plea[,] the Commonwealth indicated that it was prepared
        to present the following facts to the jury, namely that
        while [Sosna] resided in a home in Walnutport with several
        of his family members, one of which was a 5-year-old girl,
        [Sosna] rubbed the girl’s vagina and placed his fingers
        inside of her vagina.

           The Pre-Sentence Investigation indicates that on April
        24, 2015 at 1130 hours, Sosna was interviewed at
        Jefferson Police Department located at 2200 East 10th
        Street in Jeffersonville, Indiana.   Sosna was read his
        Miranda warning and agreed to be interviewed. The
        interview was recorded audibly and visibly.         Sosna
        provided a confession to sexually assaulting the victim in
        the upstairs bathroom on multiple occasions.

           Sosna related that the sexual contact with the victim
        occurred approximately 10 times while he resided at the
        residence. Sosa related that the victim touched his bare

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       penis twice, of which one of the times he had her ejaculate
       him into the toilet of the upstairs bathroom. Sosna related
       that he placed his tongue on the victim’s bare vagina and
       performed oral sex on her in addition to touching her bare
       vagina with his fingers and masturbating himself until he
       ejaculated. Sosna also indicated on at least two occasions
       he rubbed his bare penis against the victim’s bare vagina.
       The reports also indicated that the girl contracted herpes
       from Mr. Sosna.

                                     ...

       With respect to education, Mr. Sosna indicated that he
       received a Special Education degree but that he never
       obtained a GED. This information could not be verified.

          With respect to employment, you are 39-years-old and
       the jobs that you have held have been mostly sporadic
       positions. The last job that you held was in Indiana where
       you were employed at a stone company from 1996 to
       1999. You reported that you were employed by [another
       company] as a full-time worker from the age of 19. Until
       March of 2015, you have been receiving Social Security
       Disability. You stated that you received this disability
       because your father had dropped you on your head when
       you were an infant and your mother drank alcohol while
       she was pregnant causing you to have Fetal Alcohol
       Syndrome.

          You reported that you have not had any alcohol or drug
       dependency issues and have never received any form of
       treatment for drug and alcohol use.

          I have also considered your prior criminal record as an
       adult. In 1994 you were convicted of malicious injury to
       property in South Carolina. In 2012 you were convicted of
       an assault in Kentucky and I believe there is a current
       investigation pending regarding a sexual assault.

         You stated that you were married on Valentine’s Day,
       2015, to Dawn Gutierrez and that you have no children.

          I    have considered the fact that the victim in the case
       was    a completely innocent 5-year-old girl. Therefore, the
       fact   that the victim was particularly vulnerable due to her
       age    is also a fact that I’ve considered. I have considered

                                    -9-
J-S02044-17


       the effect that the crime has had on the victim. Based
       upon the victim impact statement made by the [mother of
       the victim], she has set forth what effect the crime has
       had on her daughter. I have considered the fact that you
       were the victim’s uncle and in a close relationship to the
       victim.

          I’ve also considered all of the information and
       conclusions set forth in the Psychosexual Evaluation . . . .
       [which] concludes that based upon the information
       provided, you are in the moderate range risk to re-offend.
       I’ve also considered the Sexual Offenders Assessment . . .
       as well as the testimony presented today at this hearing.

          Mr. Sosna, you are 39-years-old. I have considered
       your age, the information you have given to me, the
       information in the Pre-Sentence Investigation, the
       Psychosexual Evaluation, the Sexual Offenders Assessment
       . . ., the testimony presented today, the guideline form,
       the statement made today made by you, your counsel,
       counsel for the Commonwealth as well as the victim – the
       victim’s mother, the fact that the victim was particularly
       vulnerable due to her age, your family relationships and
       background, your education, work history, whether you
       are good candidate for rehabilitation, your potential
       rehabilitative needs, the protection of the public, the need
       to deter future similar conduct, the fact a lesser sentence
       would depreciate the seriousness of the crime, the
       protection of the public, the effect your crime has had on
       the community.

          In addition, I’ve considered the offense was more
       significant than a usual offense of similar circumstances.
       I’ve considered all of those factors.

          Now, Mr. Sosna, based upon what you did to this little
       5-year-old girl, I’m sure that now she believes in monsters
       and things that go bump in the night. She just never
       thought that it was her uncle that would be the monster.
       You listened to what your sister said was the effect that
       your crime has had on this little girl and it is a horrific
       effect that will stay with her her entire life.




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N.T., 4/8/16, at 4-5, 12-18.               The trial court’s extensive statement

demonstrates that it considered the requisite statutory factors, the nature

and circumstances of Sosna’s offense, the impact of Sosna’s offense on the

victim and the community, and the Sentencing Guidelines. The trial court

also reviewed multiple pre-sentence reports,3 and considered the testimony

at the sentencing hearing.4 Therefore, we discern no abuse of discretion by

the trial court.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2017




____________________________________________


       3
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
       4
       At the hearing, Victim’s mother testified that as a result of the crime,
Victim now struggles to concentrate on any task, Victim is separated from
her brother and mother, and Victim’s relatives can no longer celebrate
holidays or important family moments together. N.T., 4/8/16, at 7-9.



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