J-S18036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOAQUIN CASTRO                             :
                                               :
                       Appellant               :   No. 1471 MDA 2018

          Appeal from the Judgment of Sentence Entered July 16, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0000245-2017


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 28, 2019

       Appellant, Joaquin Castro, appeals from the judgment of sentence

entered in the Court of Common Pleas of Lackawanna County on July 16,

2018, following his guilty plea to one count of Statutory Sexual Assault, 18

Pa.C.S.A. § 3122.1(a)(2). Additionally, Appellant’s counsel has filed a petition

seeking to withdraw her representation, as well as a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v.

Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter “Anders Brief”).1




____________________________________________


1  Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S18036-19


After a careful review, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      The trial court aptly set forth the relevant factual and procedural history

herein as follows:

             Under docket number 17 CR 245, the Appellant was charged
      with one (1) count of Involuntary Deviate Sexual Intercourse With
      a Person Less Than Sixteen Years of Age in violation of 18 Pa.
      C.S.A. § 3123(a)(7), one (1) count of Statutory Sexual Assault in
      violation of 18 Pa. C.S.A. § 3122.1(a)(2), one (1) count of Sexual
      Assault in violation of 18 Pa. C.S.A. § 3124.1, and one (1) count
      of Incest of a Minor- Complainant 13-18 Years in violation of 18
      Pa. § 4202(b)(2). These charges stemmed from a December 2,
      2016 interview between the victim and the Children's Advocacy
      Center. Gowarty, Affidavit of Probable Cause, December 27,
      2016, at p. 1. The Appellant forced the victim, who is his fifteen
      year old sister, to engage in vaginal and anal sex in her bedroom
      on various occasions. Id. The Appellant eventually admitted to
      these actions in a written statement. Id.
             On November 29, 2017, the Appellant entered a negotiated
      guilty plea under 17 CR 245 t one (1) count of Statutory Sexual
      Assault in violation of 18 Pa. C.S. § 3122.1(a)(2). Prior to entering
      the guilty plea, utilizing a certified Spanish interpreter, the
      Appellant executed a lengthy written, Spanish plea colloquy form
      in which he indicated awareness of the maximum penalty, the
      elements of the crime charged, his satisfaction with counsel, the
      terms of the plea agreement, and knowledge of the potential for
      deportation. See Written Plea Colloquy, para. 5, 8, 13, 15,
      16, and 20. The Appellant's plea terms further acknowledged that
      the remaining charges would be nolle pressed. Id. at para 13.
      Specifically, in Paragraph 20 of the written guilty plea colloquy,
      the Appellant indicated awareness he was not a U.S. citizen and
      could be subject to deportation. Id at para. 20, 20(a).
      Concomitantly, this Court conducted an oral inquiry to determine
      whether the Appellant was entering a knowing, voluntary, and
      intelligent plea. See N.T. Guilty Plea, November 29, 2017, at
      p. 3-6. The Appellant demonstrated knowledge of the
      constitutional rights he forfeited as well as the resultant penalties.
      Id. The Appellant admitted to the Commonwealth's allegations in
      that he forced his (fifteen) 15 year old sister to have sexual
      intercourse on various occasions. Id. at 4-5. After receiving all

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       affirmative responses from the Appellant, this [c]ourt accepted
       the guilty plea as valid. Id. at 5-6. Likewise, the Appellant
       executed a written Spanish Sexual Offenders Registration and
       Notification Act colloquy (hereinafter "SORNA"). The Appellant
       acknowledged that his guilty plea triggered a twenty-five (25)
       year registration period as well as the specific provisions included
       within that period. See SORNA Colloquy [2] Thereafter, this
       [c]ourt deferred sentence until completion of a Presentence
       Investigation Report (hereinafter “PSI”) and an Assessment by the
       Pennsylvania Sex Offenders' Assessment Board. Id. at 6.
              Upon review of the Appellant's PSI and sexual offender
       assessment, this [c]ourt sentenced the Appellant to twenty-five
       (25) to sixty (60) months of state confinement with two (2) years
       of state probation on July 16, 2018. Subsequently, on July 25,
____________________________________________


2 SORNA 42 Pa.C.S.A. §§ 9799.10-9799.41, was enacted on December 20,
2011, and became effective on December 20, 2012. Effective February 21,
2018, the legislature enacted Act 10, which added a new subchapter to
SORNA, “Continued Registration of Sexual Offenders.” 42 Pa.C.S.A. §§
9799.51-9799.75. The stated purpose of Act 10 was, inter alia, to address
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). Act 29 of
2018 reenacted Act 10, effective June 12, 2018.
       In Muniz, our Supreme Court held that the retroactive application of
SORNA’s registration provisions to defendants whose crimes occurred prior to
SORNA’s effective date (December 20, 2012) violated the ex post facto clause
of the Pennsylvania Constitution. In the case sub judice, Appellant committed
his crimes in December of 2016, entered his plea in November of 2017, and
was sentenced after the 2018 amendments to SORNA became effective; thus,
there was no retroactive application of SORNA. See Commonwealth v.
Luciani, 2018 WL 6729854 (Pa.Super. filed Dec. 24, 2018). We conclude
that Appellant properly was sentenced in accordance with the applicable
SORNA tier-based registration period. See Commonwealth v. Prieto, 2019
WL 1234379 at *4 (Pa.Super. filed Mar. 18, 2019) quoting Commonwealth
v. Golson, 189 A.3d 994, 1003 (Pa.Super. 2018) (directing “trial courts to
apply only the applicable tier-based registration period, as those periods apply
based on the conviction itself, and not due to any additional fact not found,
under SORNA's procedures, by the fact-finder”).




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      2018, the Appellant filed a Motion for Reconsideration of
      Sentence, which this [c]ourt denied on August 3, 2018.
      Accordingly, the Appellant filed a Notice of Appeal to the
      Pennsylvania Superior Court on August 30, 2018. However, the
      Pennsylvania Superior Court directed the Appellant to show cause
      as to why his appeal should not be quashed as untimely. The
      Appellant filed a response on October 26, 2018, yet failed to
      present any legal argument justifying appellate jurisdiction,
      therefore, the appeal was quashed. Afterwards, the Appellant filed
      an application for reinstatement of the instant appeal. The
      Pennsylvania Superior Court vacated the November 14, 2018
      order which quashed the appeal as untimely, and reinstated the
      above captioned appeal.

Trial Court Opinion, filed 1/11/19, at 1-3.

      On September 5, 2018, the trial court entered its Order pursuant to

Pa.R.A.P. 1925 directing Appellant to file a concise statement of matters

complained of on appeal. On September 25, 2018, Appellant filed his “Motion

for Extension of Time to File Concise Statement of Matters Complained of on

Appeal,” and the trial court granted the same on October 5, 2018. On October

23, 2018, Appellant filed his “Concise Statement,” and the trial court filed its

Opinion pursuant to Pa.R.A.P. 1925(a) on January 11, 2019.

      In the Anders Brief, counsel presents the following Statement of

Questions Involved:

      A.        Whether the sentencing court erred when it believed
      that an aggravated sentence was necessary due to not only the
      age difference between Appellant and the victim, but also to the
      conduct to which he pled guilty, which factors are already
      elements of the statutory sexual assault offense.

      B.       Whether the sentencing court erred when it imposed a
      probationary sentence in addition to a sentencing of incarceration




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       which, due to Appellant’s ICE[3] detainer he would potentially have
       to serve the maximum of his sentence before he is placed into
       immigration custody, and which amounts to a harsh and
       unreasonable sentence amounting to cruel and unusual
       punishment.

Anders Brief at 4 (unnecessary capitalization omitted).

       As this Court recently reiterated, prior to addressing any issue raised on

appeal, first must resolve counsel’s petition to withdraw. Commonwealth v.

Prieto, 2019 WL 1234379 at *2 (Pa.Super. filed Mar. 18, 2019) quoting

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en

banc). We further stated:

             There are procedural and briefing requirements imposed
       upon an attorney who seeks to withdraw on appeal pursuant to
       which counsel must:
           1) petition the court for leave to withdraw stating that,
           after making a conscientious examination of the record,
           counsel has determined that the appeal would be
           frivolous; 2) furnish a copy of the brief to the
           [appellant]; and 3) advise the [appellant] that he or she
           has the right to retain private counsel or raise additional
           arguments that the [appellant] deems worthy of the
           court’s attention.
       Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super.
       2013) (en banc) (citation omitted). In addition, our Supreme
       Court in Santiago stated that an Anders brief must:
           (1) provide a summary of the procedural history and
           facts, with citations to the record; (2) refer to anything
           in the record that counsel believes arguably supports the
           appeal; (3) set forth counsel’s conclusion that the appeal
           is frivolous; and (4) state counsel’s reasons for
           concluding that the appeal is frivolous. Counsel should
           articulate the relevant facts of record, controlling case
____________________________________________


3“ICE” refers to the United States Department of Immigration and Customs
Enforcement.


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           law, and/or statutes on point that have led to the
           conclusion that the appeal is frivolous.
      Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must
      provide the appellant with a copy of the Anders brief, together
      with a letter that advises the appellant of his or her right to “(1)
      retain new counsel to pursue the appeal; (2) proceed pro se on
      appeal; or (3) raise any points that the appellant deems worthy
      of the court’s attention in addition to the points raised by counsel
      in the Anders brief.” Commonwealth v. Nischan, 928 A.2d
      349, 353 (Pa.Super. 2007) (citation omitted). Substantial
      compliance      with     these     requirements      is    sufficient.
      Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
      2007).

Prieto, at *2-3.

      Herein, counsel contemporaneously filed her petition to withdraw as

counsel and Anders Brief. In her petition, counsel states that after a thorough

and conscientious examination of the record, she has determined that an

appeal herein lacks merit.     See Application to Withdraw as Counsel, filed

2/28/19, at ¶7.    Additionally, in accordance with Nischan, supra, counsel

has mailed Appellant a copy of the Anders Brief and a letter informing him

that: (1) she believes any appeal herein would be frivolous; (2) Appellant has

the right to retain new counsel; (3) Appellant may proceed further with his

case pro se; and (4) Appellant may raise any points that he deems worthy of

the this Court’s attention. Counsel attached her conforming correspondence

to her petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748

(Pa.Super. 2005). Counsel also has complied with the requirements set forth

in Santiago, supra, and both the Anders Brief and the petition to withdraw

as counsel contain proof of service on Appellant.


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      In the Anders Brief, counsel provides a summary of the facts and

procedural history of the case, refers to evidence of record that might arguably

support the issues raised on appeal, provides citations to relevant case law,

and states her reasoning and conclusion that the appeal is wholly frivolous.

Accordingly, counsel substantially has complied with all of the technical

requirements of Anders and Santiago. Therefore, we proceed to examine

the issues counsel identified in the Anders Brief and to conduct “a full

examination of all the proceedings, to decide whether the case is wholly

frivolous.”   Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.

2018) (en banc) (quotation omitted). See also Prieto, supra.

       “Our law presumes that a defendant who enters a guilty plea was

aware of what he was doing. He bears the burden of proving otherwise.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(citation omitted). Generally, upon the entry of a guilty plea, a defendant

waives all claims and defenses other than those sounding in the jurisdiction of

the court, the validity of the plea, and the legality of the sentence imposed.

See Commonwealth v. Eisenberg, 626 Pa. 512, 527, 98 A.3d 1268, 1276

(2014) (holding that the proper entry of a guilty plea acts to extinguish

virtually all legal challenges that could have been brought upon the trial or

appeal of the case). The trial court’s jurisdiction never has been in question

herein, and Appellant has not challenged the voluntariness of his plea. In

addition, in his “Statement Pursuant to Pa.R.A.2119(f),” Appellant indicates


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that his claims presented on appeal pertain to the discretionary aspects of the

sentence, not its legality.     See Anders Brief at 9.4

       Appellant pled guilty to one count of statutory sexual assault; however,

despite the trial court’s referring to the plea as a negotiated one, there were

no specific penalties outlined in the plea agreement. Where there have been

no sentencing restrictions in a plea agreement, an “open plea,” the entry of a

guilty plea will not preclude a challenge to the discretionary aspects of

sentencing. Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994),

appeal denied, 655 A.2d 983 (Pa. 1995). The record in this case reveals that

Appellant entered into an open guilty plea. Accordingly, because of his open

plea of guilty, Appellant is permitted to challenge the discretionary aspects of

his sentence.

       It is well-settled that one’s right to appeal a discretionary aspect of his

or her sentence is not absolute. Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa.Super. 2011).             Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered as a

petition for allowance of appeal. Commonwealth v. W.H.M., Jr., 932 A.2d

155, 163 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992

A.2d 162 (Pa. Super. 2010):

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


4 For the reasons stated infra, Appellant’s second issue presents a challenge
to the legality of his sentence.

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            [W]e 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Herein, Appellant satisfied the first three requirements of the four-part

Moury test. He filed a timely appeal to this Court, preserved the issue on

appeal through his post-sentence motion, and included a Pa.R.A.P. 2119(f)

statement in his brief.5 Thus, we next must determine whether Appellant’s

sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,



____________________________________________


5  Pa.R.A.P. 2119(f) provides that “[a]n appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in his
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



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828 (Pa.Super. 2007).       We have found that a substantial question exists

“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.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009),

cert. denied, 556 U.S. 1264 (2009).

       Upon our review, we find Appellant has a raised a substantial question

with   respect   to   his   discretionary   aspects   of   sentence   claim.   See

Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (concluding

appellant raised substantial question where he argued “that the trial court

improperly based [appellant’s] aggravated range sentence on a factor that

constituted an element of the offense”); Commonwealth v. Robinson, 931

A.2d 15, 27 (Pa.Super. 2007) (a claim that the trial court impermissibly

double-counted factors already incorporated in the sentencing guidelines

raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54,

56–57 (Pa.Super. 2003) (a claim that the trial court relied on impermissible

factors raises a substantial question). Accordingly, we will address the merits

of Appellant’s first claim, and in doing so we are mindful of the following

standard of review:

       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. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial court

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      will not be found to have abused its discretion unless the record
      discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.Super. 2012) (quoting

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002)),

appeal denied, 64 A.3d 630 (Pa. 2013).

      Initially, we address Appellant’s argument that the trial court imposed a

sentence in the aggravated range due to factors that also were elements of

the statutory sexual assault offense. Specifically, Appellant asserts the trial

court relied upon the difference in age between his victim and him which was

a material element of the charged offense already taken into consideration

under the Sentencing Guidelines. Anders Brief at 4, 7, 11-13.

      Generally, “[i]t is impermissible for a court to consider factors already

included within the sentencing guidelines as the sole reason for increasing or

decreasing    a   sentence    to   the    aggravated     or   mitigating    range.”

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)

(emphasis in original). However, “[t]rial courts are permitted to use factors

“already included in the guidelines if, they are used to supplement other

extraneous sentencing information.” Id. When deciding whether a court

improperly has based an aggravated sentence on a factor that is already

considered by the sentencing guidelines, we have stated:

      [t]he guidelines were implemented to create greater consistency
      and rationality in sentencing. The guidelines accomplish the above
      purposes by providing a norm for comparison, i.e., the standard
      range of punishment, for the panoply of crimes found in the crimes

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      code and by providing a scale of progressively greater punishment
      as the gravity of the offense increases. ... The provision of a
      “norm” also strongly implies that deviation from the norm should
      be correlated with facts about the crime that also deviate from the
      norm for the offense, or facts relating to the offender's character
      or criminal history that deviates from the norm and must be
      regarded as not within the guidelines contemplation. Given this
      predicate, simply indicating that an offense is a serious, heinous
      or grave offense misplaces the proper focus. The focus should not
      be upon the seriousness, heinousness or egregiousness of the
      offense generally speaking, but, rather, upon how the present
      case deviates from what might be regarded as a “typical” or
      “normal” case of the offense under consideration.

Fullin, 892 A.2d at 848 (citation omitted). Moreover, “[a]n aggravated range

sentence [is] justified to the extent that the individual circumstances of [the

defendant’s] case are atypical of the crime for which [the defendant] was

convicted, such that a more severe punishment is appropriate.” Id.          The

Fullin Court affirmed an aggravated range sentence because the trial court

justified the sentence by opining on the extreme indifference for the

consequences of the defendant’s actions and on the extreme nature of the

harm to the victim. Id. at 849.

      In the matter sub judice, the trial court presided over the guilty plea

hearing and had the benefit of a PSI report prior to sentencing. “Where a PSI

exists, we presume that the trial court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors. A PSI constitutes the record and speaks for

itself.” Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa.Super. 2016)




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(original brackets and citation omitted). The trial court also was aware of the

sentencing guidelines. See Trial Court Opinion, N.T., 7/16/18, at 5.

      Regardless of whether this case is typical or atypical, and even if the

trial court impermissibly considered the age difference between Appellant and

the victim when fashioning its sentence, prior to imposing its aggravated-

range sentence, the court indicated on the record it has considered additional,

permissible reasons for its doing so.         The trial court explained it was

sentencing Appellant in the aggravated range based upon his lack of

acceptance of responsibility for his actions as was reflected in the PSI, his

prior commission of two protection from abuse violations, and the fact that

the victim was his sister. Id. at 4-5. In addition, as the trial court further

explained in its Rule 1925(a) Opinion:

      [T]his [c]ourt did meaningfully consider the section 9721(b)
      factors, as well as all mitigating factors, and did offer specific
      reasons for an aggravated sentence. Specifically, this [c]ourt
      referenced, the Appellant’s lack of acceptance during the pre-
      sentence investigation as well as the age difference between the
      Appellant and the victim, including the familial half-blood
      relationship and position of trust. . . .
             Prior to sentencing, this [c]ourt thoroughly reviewed the
      pre-sentence investigation report (PSI) and became aware of the
      Appellant’s relevant personal background, including his birthplace
      in El Salvador and relocation to Pennsylvania in 2005. Also, this
      [c]ourt considered the particular circumstances of the Appellant’s
      criminal history specifically that the Appellant committed two prior
      protection from abuse violations. N.T. Sentencing July 16,
      2018, at p. 4-5. This [c]ourt also acknowledged that initially the
      Appellant denied the victim’s allegations, yet later showed
      remorse at sentence. Id. at 2-5. . . .
             To suggest that this [c]ourt was presented with the pre-
      sentence investigation outlining all mitigating and aggravating
      factors as well as counsel’s statements regarding deportation and

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      ignored this sentencing information is disingenuous and baseless.
      After review of these factual matters, this [c]ourt concluded that
      it needed to protect society from the Appellant and imposed an
      individualized sentence adequately accounting for the Appellant’s
      history. The sentence imposed was reasonable and consistent
      with the protection of the public, gravity of the offense, as well as
      the Appellant’s rehabilitative needs. This [c]ourt observed that
      the Appellant did not appreciate the seriousness of his offenses
      nor did the Appellant assure this [c]ourt that future inappropriate
      behavior would cease. The Appellant’s offenses involved multiple
      sexual acts including vaginal and anal intercourse with his half-
      sister. All of the above-cited factors highlights the Appellant’s
      individual offense pattern and criminality.

Trial Court Opinion, filed 1/11/19, at 7-9. (emphasis in original; case citations

and footnote omitted).

      Given the trial court’s use of other permissible factors, it did not abuse

its discretion in considering the age difference between Appellant and his sister

when fashioning his sentence. See Commonwealth v. P.L.S., 894 A.2d 120,

133 (Pa.Super. 2006) (finding that even if the trial court considered an

inappropriate factor at sentencing, “the court offered significant other support

for sentencing in excess of the guidelines in this case”), appeal denied, 906

A.2d 542 (Pa. 2006).

      In his second issue, Appellant contends the trial court’s imposition of a

probationary tail in addition to his prison sentence constitutes cruel and

unusual punishment in violation of the federal and Pennsylvania constitutions

because he will likely have to serve the maximum of his sentence before he is




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placed into immigration custody due to his ICE detainer.6 This Court has held

that “an appellant who challenges the constitutionality of his sentence of

imprisonment on a claim that it violates his right to be free from cruel and

unusual punishment raises a legality of sentencing claim since he is

challenging     the   trial   court's   authority   in   imposing   the   sentence.”

Commonwealth v. Yasipour, 957 A.2d 734, 740 (Pa.Super. 2008) (citation

omitted), appeal denied, 980 A.2d 111(Pa. 2009). This Court has explained

that a punishment is cruel and unusual if it is “wholly and irrationally

disproportionate to the crime,” or, in other words, “so greatly disproportionate

to an offense as to offend evolving standards of decency or a balanced sense

of justice.” Commonwealth v. Ehrsam, 512 A.2d 1199, 1210 (Pa.Super.

1986), appeal denied, 527 A.2d 535 (Pa. 1987), cert. denied, 493 U.S. 932,

(1989).

       We hold the mere fact that a defendant has a detainer from ICE does

not usurp the discretion of the trial court on sentencing issues.




____________________________________________


6Both the Eighth Amendment of the United States Constitution and Article 1,
Section 13 of the Pennsylvania Constitution forbid the imposition of “cruel and
unusual punishments.” U.S. Const., amend. VIII; Pa. Const., Art. 1, Sec. 13.
See Commonwealth v. Spells, 612 A.2d 458, 461 (Pa.Super. 1992) (the
guarantee against cruel punishment in the state and federal constitutions is
coextensive), appeal dismissed as improvidently granted, 537 Pa. 350,643
A.2d 1078 (Pa. 1994).



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      In pleading guilty to a single count of Statutory Sexual Assault,

Appellant admitted that on December 2, 2016, he had engaged in sexual

intercourse with his fifteen year old sister at which time he was between eight

and eleven years older than the child. N.T. Guilty Plea, 11/29/17, at 4-5.

That crime constitutes a felony of the second degree, and Appellant was

informed it carries a maximum sentence of ten years in prison.         See 18

Pa.C.S.A. §§ 3122(a), 1103(2); N.T. Guilty Plea, 11/29/17, at 5. Appellant’s

actual sentence of twenty-five (25) months to sixty (60) months in prison to

be followed by two (2) years of probation falls well below that maximum. As

such, we find the trial court’s imposition of the sentence is not grossly

disproportionate to his crime and, therefore, does not amount to cruel and

unusual punishment.

      Accordingly, we agree with counsel that the sentencing claims presented

in the Anders brief are wholly frivolous. In light of the foregoing, and after

conducting a full examination of all the proceedings, we discern no non-

frivolous issues to be raised on appeal. Yorgey, supra, 188 A.3d at 1195.

Therefore, we grant counsel's petition to withdraw and affirm the judgment of

sentence.




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     Petition to withdraw as counsel granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2019




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