J-A31015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MILTON M. GARCIA                           :
                                               :
                       Appellant               :   No. 1189 EDA 2016

              Appeal from the Judgment of Sentence March 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010316-2014


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                               FILED AUGUST 22, 2018

        Milton M. Garcia appeals from the judgment of sentence entered in the

Philadelphia    County     Court    of   Common    Pleas.   Garcia   challenges   the

discretionary aspects of his sentence. We affirm.

        The court summarized the relevant facts of this matter as follows:

        On June 21, 2014[,] around 1:00 a.m., Complainant Dr. [K.G. 1]
        was walking home to her apartment on the 1900 block of Spruce
        Street in Philadelphia. [Garcia] approached her from behind,
        grabbed her arm and waist and held her as he walked along side
        of her. [Garcia] told [K.G.] to walk to her apartment. When [K.G.]
        reached the steps of her apartment, she tried to break free of

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Throughout the record, K.G. is alternatively referred to as C.G. and K.B. See
Trial Court Opinion, 3/24/17, at 5 (referring to K.G. as C.G.); Commonwealth’s
Brief, 2-4, 14 (referring to K.G. as K.B.). As the original criminal complaint
refers to K.G. as K.G., we will continue to refer to her as such. See Criminal
Complaint, 6/24/14.
J-A31015-17


      [Garcia’s] grip. [Garcia] then grabbed [K.G.] by the back of the
      neck and told her to go into her apartment.

             Once [K.G.] unlocked the exterior door to her apartment,
      [Garcia] forced her up the stairs. When they reached [K.G.’s]
      apartment she tried to push [Garcia] out but he pushed her onto
      her apartment floor. Once inside, [Garcia] pulled [K.G.] onto the
      couch, told her to shut up and ordered her to take off her shorts.
      After [K.G.] removed her shorts, [Garcia] inserted his penis inside
      her vagina without her consent. A few minutes later, [Garcia]
      stopped and walked to another area of [K.G.’s] apartment and out
      of her view.

            After about 15 minutes, [Garcia] came back toward [K.G.]
      who was sitting on the couch. [Garcia] stood in front of [K.G.] and
      put his penis inside her mouth. [K.G.] tried to bite [Garcia’s]
      genitals and begged for him to stop. [Garcia] then forced his penis
      inside [K.G.’s] vagina while he covered her mouth with his hand.
      After he finished, [Garcia] took [K.G.] iPhone and keys to her
      apartment before he left.

Trial Court Opinion, 3/24/17, at 2-3 (citations to the record omitted).

      On June 24, 2014, police arrested and charged Garcia with K.G.’s rape

and related offenses. On November 10, 2015, Garcia entered a nolo

contendere plea to rape by forcible compulsion, involuntary deviate sexual

intercourse (“IDSI”), burglary, and kidnapping.

      Garcia’s sentencing was scheduled for March 7, 2016. Prior to

sentencing, the court considered a pre-sentence investigation (“PSI”), the

Commonwealth’s       sentencing     memorandum,        Garcia’s     sentencing

memorandum, K.G.’s victim impact statement, K.G.’s mother’s victim impact

statement, and Garcia’s allocution. Ultimately, the court sentenced Garcia to

7.5 to 15 years imprisonment for rape, 7.5 to 15 years’ imprisonment for IDSI,

4-8 years’ imprisonment for kidnapping, and 3-6 years imprisonment for



                                     -2-
J-A31015-17


burglary. The court ordered these sentences to be served consecutively, for

an aggregate sentence of 22-44 years’ imprisonment.

        Garcia filed a timely post-sentence motion challenging the discretionary

aspects of his sentence. The court denied Garcia’s motion. This timely appeal

follows.

        On appeal, Garcia contends that the court abused its discretion in

imposing sentence. Garcia relies upon three arguments to support this

contention.2 First, Garcia asserts that the imposition of four consecutive

sentences resulted in an unduly harsh sentence. Next, Garcia contends the

court erred by failing to properly consider his rehabilitative needs, and balance

these needs with the protection of the public and the gravity of the offense.

Finally, Garcia alleges the court abused its discretion by sentencing him

outside the aggravated range for rape and ISDI3 without contemporaneously

stating a sufficient reason for doing so on the record. Garcia concedes that all

three of these challenges implicate the discretionary aspects of the court’s

sentence.

        “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a


____________________________________________


2   We have reordered Garcia’s arguments for ease of disposition.

3 At the time of Garcia’s sentencing, the standard range sentence for both
rape and IDSI was 48-66 months’ imprisonment, plus or minus 12 months.
Therefore, a sentence of 7.5 years (90 months), is above the aggravate range
of the sentencing guidelines.

                                           -3-
J-A31015-17


claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). “Two requirements must be met before we

will review this challenge on its merits.” Id. (citation omitted).

      “First, an appellant must 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.” Id. (citation omitted). “Second, the appellant must

show that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code.” Id. (citation omitted). That is, “the

sentence violated either a specific provision of the sentencing scheme set forth

in the Sentencing Code or a particular fundamental norm underlying the

sentencing process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.

Super. 2005) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. (citation omitted). “Our inquiry

must focus on the reasons for which the appeal is sought, in contrast to the

facts underlying the appeal, which are necessary only to decide the appeal on

the merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f). Here, Garcia

has preserved his arguments through a post-sentence motion and his

appellate brief contains the requisite Rule 2119(f) concise statement.

Therefore, we must determine if any of Garcia’s three issues raised in his Rule

2119(f) statement raise a substantial question.




                                      -4-
J-A31015-17


       Moving to Garcia’s first issue, he claims the court imposed an unduly

harsh sentence by running his four sentences consecutively. Garcia, a

Honduran national, contends this sentence is unreasonable because he will

not be able to see his family in Honduras for the length of his imprisonment.4

We cannot review this claim because it does not raise a substantial question

for our review.

       “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the “minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted). The sentencing court “has the discretion to impose sentences

consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question.” Id. (citation omitted). See



____________________________________________


4 Garcia could apply for transfer to a Honduran prison. See 42 Pa.C.S.A. §
9171. Exchange of Offenders Under Treaty. “Prisoners may be transferred
to and from those countries with which the United States has a treaty. … A
state prisoner interested in transfer must find out from the appropriate state
authorities what the procedures are in that state for applying for a prisoner
transfer. In order for a state prisoner to obtain a transfer to his home country,
his application must be approved at both the state and federal levels.” The
United States Department of Justice, International Prisoner Transfer, How the
Program Works, available at https://www.justice.gov/criminal-oeo/how-
program-works (last visited August 7, 2018). The United States has a prisoner
transfer treaty with Honduras through the Council of Europe Convention on
the Transfer of Sentenced Persons. See The United States Department of
Justice, International Prisoner Transfer, List of Participating Countries,
available at https://www.justice.gov/criminal-oeo/list-participating-countries
(last visited August 7, 2018). Information specific for Pennsylvania is available
from the Department of Justice at https://www.justice.gov/criminal-
oeo/pennsylvania-state-contact-international-prisoner-transfer.

                                           -5-
J-A31015-17


also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Moury, 992 A.2d at 171-172 (citation omitted).

      An “extreme circumstance” is not present here. The court acted well

within its discretion in imposing four consecutive, and legal, sentences. Given

the egregious nature of the sexual assault in this matter—and the profound

effect the assault had on K.G.—we agree with the court’s conclusion that a

sentence of 22-44 years’ imprisonment is reasonable under the circumstances

and not excessive. Thus, Garcia’s first challenge to the discretionary aspects

of his sentence is without merit; it does not even raise a substantial question

for our review.

      Next, Garcia argues that the court failed to “carefully consider[ ] the

relevant factor of appellant’s rehabilitative needs and balanc[e] those with the

protection of the public and the gravity of the offense.” Appellant’s brief, at

10. Once again, this contention does not raise a substantial question for our

review. See Commonwealth v. Kane, 10 A.3d 327, 335-336 (Pa. Super.

2010) (finding claim that sentencing court failed to “carefully consider all

relevant factors set forth in 42 Pa.C.S.A. 9721(b)” does not raise a substantial

question). See also See Commonwealth v. Buterbaugh, 91 A.3d 1247,

1266 (Pa. Super. 2014) (en banc).


                                     -6-
J-A31015-17


      Even if this issue did raise a substantial question for our review, in

situations where the sentencing court had the benefit of a PSI, the law

presumes the court was aware of and weighed relevant information regarding

a defendant’s character along with mitigating statutory factors. See

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (“It would

be foolish, indeed, to take the position that if a court is in possession of the

facts, it will fail to apply them to the case at hand.”) See also Tirado, 870

A.2d at 368 (finding that where the sentencing court has a PSI “it is presumed

that the sentencing court was aware of the relevant information regarding

defendant’s character and weighed those considerations along with mitigating

statutory factors”) (internal quotation marks omitted).

      Finally, Garcia argues in his Rule 2119(f) statement that the court

abused its discretion by “sentencing appellant outside the aggravated ranges

as prescribed by the Sentencing Guidelines for rape and IDSI and not stating

adequate contemporaneous reasons on the record for such deviations….”

Appellant’s Brief, at 11. This claim raises a substantial question for our review.

See, e.g., Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

      The standard of review with respect to sentencing is as follows:

      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.

                                      -7-
J-A31015-17



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

(citation omitted).

      Where an excessive sentence claim is based on deviation from the
      sentencing guidelines, we look for an indication that the
      sentencing court understood the suggested sentencing range.
      When there is such an indication, the sentencing court may
      deviate from the sentencing guidelines

         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 offenses as it
         relates to the impact on the life of the victim and the
         community, so long as the court also states of record the
         factual basis and specific reasons which compelled him to
         deviate from the guideline range.
      Thus, simply stated, the sentencing guidelines are merely
      advisory and the sentencing court may sentence a defendant
      outside the guidelines as long as the sentencing court places its
      reasons for doing so on the record.

Tirado, 870 A.2d at 366 (citations omitted).

      Here, the court demonstrated its awareness of the sentencing guidelines

on the record. See N.T., Sentencing, 3/7/16, at 4-14. Further, the court

described its awareness of Garcia’s history as a student in his home country,

his lack of a prior record, and his statement of remorse. See id., at 30-31.

While the court noted that Garcia’s mitigating factors kept it from adopting

the maximum sentence of 40-80 years’ imprisonment, it ultimately

determined that the egregiousness of the crime and the severe impact on

K.G., justified an above guidelines sentence. See id., at 31-33 (emphasizing

its intent for the sentence to be “a fair sentence that recognizes the good

things about [Garcia]” as well as “the horror” of his crime).



                                     -8-
J-A31015-17



      Based our review of the sentencing transcript, we find no merit to

Garcia’s contention that the court failed to adequately state on the record its

reasoning for deviating from the guidelines. And we find no abuse of discretion

in the court’s imposition of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/18




                                     -9-
