J-S72009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MILTON R. FLORES

                            Appellant                No. 517 MDA 2016


           Appeal from the Judgment of Sentence February 1, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003923-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 12, 2016

        Appellant, Milton R. Flores, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his no-

contest pleas to indecent assault, unlawful contact with minors, and

corruption of minors.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

In June 2014, Appellant touched Victim’s buttocks, pulled down Victim’s

pants, and kissed her buttocks. Victim was 13 years old. At the time of the

incident, Appellant was in a romantic relationship with Victim’s mother.

Victim told her mother about Appellant’s conduct, and Victim’s mother

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1
    18 Pa.C.S.A. §§ 3126(a)(8); 6301(a)(1); 6318(a)(1).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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reported Appellant’s behavior to the police.

      The Commonwealth charged Appellant with the various offenses on

June 12, 2014. On February 12, 2015, Appellant filed a pretrial motion to

preclude the imposition of a 25-year mandatory minimum sentence based on

his prior conviction for statutory rape. The court denied Appellant’s motion

on April 24, 2015.     In a negotiated plea entered on November 2, 2015,

Appellant agreed to plead no-contest to all charges, in exchange for the

Commonwealth’s decision not to seek the 25-year mandatory minimum

sentence.    With the benefit of a pre-sentence investigation (“PSI”) report,

the court conducted Appellant’s sentencing hearing on February 1, 2016. At

the conclusion of the hearing, the court sentenced Appellant to consecutive

terms of one (1) to two (2) years’ incarceration on the indecent assault

charge, two (2) to four (4) years’ imprisonment on the unlawful contact with

minors charge, and two (2) to four (4) years’ incarceration on the corruption

of minors charge.    Thus, Appellant received an aggregate sentence of five

(5) to ten (10) years’ incarceration.

      Appellant timely filed a motion to modify the sentence on February 8,

2016, claiming the court imposed an illegal sentence by sentencing Appellant

above the aggravated range for each charge. After the Commonwealth filed

a response on February 25, 2016, the court denied Appellant’s motion on

March 2, 2016.      On March 31, 2016, Appellant timely filed a notice of

appeal.     The court ordered Appellant on April 4, 2016, to file a concise


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statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b);

Appellant timely complied on April 14, 2016.

      Appellant raises a single issue for our review:

          WAS IT SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE
          AN ABUSE OF DISCRETION FOR THE COURT TO ORDER AN
          AGGREGATE SENTENCE OF 5 TO 10 YEARS BY IMPOSING
          THREE CONSECUTIVE SENTENCE[S] AND TO IMPOSE
          SENTENCES OUTSIDE ALL RANGES OF THE SENTENCING
          GUIDELINES     WHEN    SUCH     SENTENCE    WAS
          “UNREASONABLE” WITHIN THE MEANING OF 42 PA.C.S. §
          9781(C)(3)?

(Appellant’s Brief at 6).

      Appellant argues his sentence is manifestly excessive because his

sentence for indecent assault constituted the statutory maximum, and his

sentences on the unlawful contact with minors and corruption of minors

charges exceeded all ranges of the sentencing guidelines.                     Appellant

contends the court focused solely on the similarity between his current

offense   and   his   prior   conviction    for   statutory   rape,     instead   of   his

rehabilitative needs or any mitigating factors.         Appellant asserts the court

improperly considered the terms of his plea agreement, under which the

Commonwealth agreed not to invoke the applicable 25-year mandatory

minimum     sentence.         Appellant    maintains   the    court’s    imposition    of

consecutive sentences was “clearly unreasonable.”                 Appellant’s claims

challenge the discretionary aspects of sentencing. See Commonwealth v.

Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing).

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        Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.     Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).       Prior to reaching the merits of a discretionary

sentencing issue, we must determine whether: (1) appellant has filed a

timely notice of appeal; (2) the issue was properly preserved at sentencing

or in a motion to reconsider and modify sentence; (3) appellant’s brief has a

fatal defect; and (4) there is a substantial question that the sentence is not

appropriate under the Sentencing Code.       Commonwealth v. Evans, 901

A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303

(2006) (internal citations omitted).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.”        Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895

(2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240


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(2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks

omitted).

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). 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.” Sierra, supra at 912-13. “[C]laims that a penalty is

excessive and/or disproportionate to the offense can raise substantial

questions.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super.

2006).      A substantial question exists where a defendant alleges the

sentencing court considered improper factors when imposing an aggravated

range sentence.      Commonwealth v. Stewart, 867 A.2d 589, 592

(Pa.Super. 2005).

     Instantly, Appellant filed his notice of appeal within thirty days of the

court’s denial of his post-sentence motions. See Pa.R.A.P. 903. Appellant’s

post-sentence motions properly preserved his sentencing challenge for

appellate review, as does his brief, which includes a concise statement

pursuant to Rule 2119(f) of reasons for allowance of appeal.             See

Pa.R.Crim.P. 720; Pa.R.A.P. 2119(f). For the crimes of unlawful contact with


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minors and corruption of minors, the court’s sentence exceeded the

aggravated range. Appellant’s complaint that the court relied on improper

factors presents a substantial question.         See Stewart, supra. Therefore,

we review the merits of the sentencing issue.2

       Our standard of review concerning the discretionary aspects of

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.

Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011)

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

(en banc)).

       “[A] court is required to consider the particular circumstances of the

offense and the character of the defendant.”         Commonwealth v. Griffin,

804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.

2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the

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2
  To the extent Appellant is displeased with the court’s decision to impose
consecutive sentences, that claim does not raise a substantial question; and
we will not review it. See Commonwealth v. Gonzalez-Dejusus, 994
A.2d 595 (Pa.Super. 2010) (reiterating general rule that challenge to court’s
decision to order consecutive sentences fails to raise substantial question).



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defendant’s prior criminal record, his age, personal characteristics and his

potential for rehabilitation.” Id.

      “[U]nder the Sentencing Code an appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to

assess   whether    the   sentencing     court       imposed   a   sentence    that   is

‘unreasonable.’”   Commonwealth v. Walls, 592 Pa. 557, 568, 926 A.2d

957, 963 (2007).     In making this “unreasonableness” inquiry, this Court

must consider four factors:

         § 9781. Appellate review of sentence

                                     *    *      *

           (d) Review of record.—In reviewing the record the
         appellate court shall have regard for:

                  (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.A. § 9781(d)(1)-(4).

      In Walls, supra, our Supreme Court explained that “the concept of

unreasonableness” is “inherently a circumstance-dependent concept that is

flexible in understanding and lacking precise definition.”          Id. at 568, 926


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A.2d at 963.

        Thus, given its nature, we decline to fashion any concrete
        rules as to the unreasonableness inquiry for a sentence
        that falls outside of applicable guidelines under Section
        9781…. We are of the view, however, that the Legislature
        intended that considerations found in Section 9721 inform
        appellate review for unreasonableness. That is, while a
        sentence may be found to be unreasonable after review of
        Section 9781(d)’s four statutory factors, in addition a
        sentence may also be unreasonable if the appellate court
        finds that the sentence was imposed without express or
        implicit consideration by the sentencing court of the
        general standards applicable to sentencing found in
        Section 9721, i.e., the protection of the public; the gravity
        of the offense in relation to the impact on the victim and
        the community; and the rehabilitative needs of the
        defendant. 42 Pa.C.S. § 9721(b).

Id. at 568-69, 926 A.2d at 964.

     Instantly, the court described its considerations when fashioning

Appellant’s sentence:

        At the time of sentencing, we noted our review of the
        applicable guidelines and acknowledged the intention to
        sentence outside the guidelines. The sentences imposed
        at Counts 2 and 3 fell outside the aggravated range but
        well below the maximum potential sentence.

        At the outset, we noted our review of the pre-sentence
        report. … We further set forth at length our reasons in
        support of the sentences imposed. As to the sentencing
        outside the aggravated range, we cited the fact of the
        repeat victimization of a child as relevant to several
        sentencing factors, namely, [Appellant’s] rehabilitative
        needs, the need for protection of the public and
        appropriate consideration of the seriousness of the crime.
        We noted that in 1994 at age 29, [Appellant] was
        convicted of statutory rape and corruption of minors
        involving an 11-year old child. Many years later, at age
        50, [Appellant] conducted himself in a similar manner
        involving another innocent child. We noted our belief that

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        [Appellant] requires long-term rehabilitation to prevent
        danger to other children at the time of release from
        incarceration.  We concluded that to impose a lesser
        sentence would violate the rights of the child-victim.

(Trial Court Opinion, filed July 18, 2016, at 4-5). The record supports the

court’s determination. Accordingly, we conclude Appellant is not entitled to

relief on his issue; and we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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