J-A13028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HAMLIN A. REID                             :
                                               :
                       Appellant               :   No. 1655 EDA 2018

             Appeal from the Judgment of Sentence April 17, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002813-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 12, 2019

        Appellant Hamlin A. Reid appeals from the judgment of sentence

imposed following his open guilty plea to incest.1 Appellant contends that the

trial court imposed an unreasonable sentence that fell outside of the

sentencing guideline range. We affirm.

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

Appellant engaged in sexual intercourse with his biological, adult daughter and

fathered a child with her. On September 9, 2016, Appellant entered an open

plea of guilty to one count of incest. At the conclusion of the hearing, the trial

court accepted the plea, deferred sentencing, and ordered a pre-sentence

investigation (PSI) report.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 4302(a).
J-A13028-19



       The trial court conducted Appellant’s sentencing hearing on April 17,

2018. At that time, Appellant’s counsel noted, “[T]he delay in sentencing [was

due to the fact] that the parties had tried to negotiate an outcome in this case

related to [Appellant’s] mental illness and were not able to come to any kind

of an agreement . . . .” N.T. Sentencing, 4/17/18, at 5. At the conclusion of

the hearing, the court sentenced Appellant to the statutory maximum term of

five to ten years’ incarceration.2

       On April 26, 2018, Appellant timely filed a post-sentence motion.

Appellant argued that the trial court should have imposed a lesser sentence

because his history of mental illness amounted to a mitigating factor. Further,

Appellant claimed that he could manage his mental illness with medication,

thereby ensuring the protection of the public following his release from

incarceration. The trial court denied Appellant’s post-sentence motion on May

7, 2018.

       Appellant timely filed a notice of appeal on May 30, 2018. Thereafter,

Appellant submitted a court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court issued a responsive opinion,

concluding that it properly weighed all of the relevant criteria when fashioning

Appellant’s sentence.


____________________________________________


2 With a prior record score of zero and an offense gravity score of nine, the
standard range of the sentencing guidelines called for a minimum sentence of
twelve to twenty-four months’ imprisonment, plus or minus twelve months for
aggravating or mitigating factors. See N.T. Sentencing at 5.

                                           -2-
J-A13028-19



      Appellant now raises one question on appeal:

      Was [Appellant’s] statutory maximum sentence manifestly
      excessive when it was approximately five times the standard
      guidelines range, [Appellant] had zero criminal record, [Appellant]
      was suffering from a severe mental illness that prompted his
      criminal activity, there were other mitigating factors and no
      aggravating factors, and the [c]ourt failed to properly account for
      the sentencing factors set forth in 42 Pa.C.S. § 9721(b)?

Appellant’s Brief at 2.

      Appellant asserts that the trial court imposed an unreasonable sentence

outside the guideline range. Id. at 12. Specifically, Appellant claims that the

court treated his mental illness as an aggravating factor rather than a

mitigating factor.   Id. at 22.    Appellant contends that mental illness is a

mitigating factor, because it is “outside the control of the afflicted,” and it can

impair one’s ability to appreciate the seriousness of his behavior. Id. at 25.

Appellant insists that “[i]t was reversible error for the court to view [his]

mental illness as an aggravating factor and [such] misapplication . . . requires

resentencing.” Id.

      Additionally, Appellant argues that the trial court “never fully considered

the guidelines and . . . never indicated its sentence was a guidelines

departure.” Id. at 19. Further, Appellant contends the trial court failed to

consider relevant sentencing criteria, including “how treating [Appellant’s]

mental illness could mitigate any risk to the community,” and his “zero

criminal record.” Id. at 25, 28. Appellant maintains the court ignored these

factors, because it disagreed with the applicable guideline range and the

grading of the offense. Id. at 27. Appellant concludes that the court abused

                                       -3-
J-A13028-19



its discretion by imposing a manifestly excessive and unreasonable sentence.

Id. at 12-13.

       “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

       (1) whether the appeal is timely; (2) whether [the a]ppellant preserved
       his issues; (3) whether [the a]ppellant’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
       inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted). “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted).

       Here, Appellant timely filed a notice of appeal, preserved his claim in a

post-sentence motion, and included a concise statement of reasons relied

upon for allowance of appeal in his brief.       See Corley, 31 A.3d at 296.

Additionally, the claim that the trial court imposed an unreasonable sentence

that exceeded the standard guideline range presents a substantial question.3
____________________________________________


3 Appellant’s post-sentence motion did not raise his specific argument that the
trial court failed to indicate that the sentence was outside the guidelines.
Therefore, the argument is waived. See Malovich, 903 A.2d at 1251.

                                           -4-
J-A13028-19



See Commonwealth v. Hess, 745 A.2d 29, 30 n.3 (Pa. Super. 1999).

Therefore, we will review Appellant’s claim.

      In matters involving the discretionary aspects of sentencing, our well-

settled standard of review 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Section 9721 of the Sentencing Code states that in sentencing a

defendant

      the court shall follow the general principle that the sentence
      imposed should call for confinement that is 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. The court shall also
      consider any guidelines for sentencing and resentencing adopted
      by the Pennsylvania Commission on Sentencing . . . .

42 Pa.C.S. § 9721(b).

      Section 9781(d) sets forth the factors considered by this Court in

evaluating the reasonableness of a sentence outside the guidelines:

      (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.

                                      -5-
J-A13028-19


     (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. § 9781(d).

     Where a pre-sentence investigation report exists, we shall “presume

that the sentencing judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.

2007) (citation omitted). “Even if a sentencing court relies on a factor that

should have not been considered, there is no abuse of discretion when the

sentencing court has significant other support for its departure from the

sentencing guidelines.” Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.

Super. 2008) (citations omitted).

     Instantly, the trial court explained its sentencing decision as follows:

     [P]rior to imposing sentence[, the trial] court had the benefit of
     [PSI] report. [The trial] court also balanced the protection of the
     public, the nature of the offense and [Appellant’s] rehabilitative
     needs, all while cognizant of [Appellant’s] mental health issues.
     It then placed the following reasons on the record in support of
     the penalty imposed:

        THE COURT: This is one of the saddest cases I have ever
        heard. For whatever motivates you―and you say it is your
        belief in God, correct?

        [Appellant]: (No Response.)

        THE COURT: That is what motivated you to do this?



                                    -6-
J-A13028-19


       [Appellant]: I did exactly what Jesus wanted me to do, sir.
       Yes, sir.

       THE COURT: Okay, just so I am correct. The damage here
       involving your daughter and your grandson and son, I
       guess―your son is just incomprehensible.

       Actually, I was shocked to find the maximum you could be
       sentenced to is lower than I would have imagined if I was in
       the legislature. Incest is abominable to me and to this
       society.

       And I have to balance your rehabilitative needs versus
       protection of society. I have considered your age, the
       information about yourself that you have given me, and the
       [PSI], and the fact―the circumstances of the offense that I
       am familiar with now and at the time when you pled guilty.

       This was an open plea. There are no agreements between
       your counsel and the District Attorney. No deal.

       And as you have stated today, you have refused the
       opportunity to allocute and the only thing that you have to
       say to me is that Jesus told you to do this. And he is your
       Lord.

       And if he would ask you to do it again, you would do it again,
       correct?

       [Appellant]: I do exactly what Jesus wants me to do, sir.

                                *    *    *

       THE COURT: We know what the standard range is and we
       know what the maximum is you could receive, which would
       be 10 years in jail.

                                *    *    *

       The facts as to your personal background and circumstances
       are not in dispute. And you have admitted to the offense.

       And on Count 1, incest, after considering all of these factors,
       the [c]ourt feels there would be an undue risk that during a

                                    -7-
J-A13028-19


         period of probation or partial confinement you will commit
         another crime, that you are in need of correctional
         treatment that can be provided most effectively by your
         commitment to an institution. Any lesser sentence would
         depreciate the seriousness of your crime.

      [The trial] court further noted that it found [Appellant] to be a
      danger to society who showed no remorse and a poor candidate
      for rehabilitation. As such, [the trial] court did not, as [Appellant]
      claims, base its sentence solely on his mental health issues, nor
      did it fail to articulate legally sufficient reasons for the sentence
      imposed. Rather, while [the] court did impose the statutory
      maximum term of incarceration, it did so only after weighing all
      of the above-discussed factors.

Trial Ct. Op., 10/23/18, at 4-7 (record citations omitted).

      Significantly, the trial court had the PSI. Therefore, we can presume it

was aware of the relevant sentencing factors. See Walls, 926 A.2d at 967

n.7. Further, the trial court placed its reasons for imposing the sentence on

the record, and it emphasized concerns over the protection of the public, which

includes the victim.    Such concerns stemmed from Appellant’s continued

insistence that he would commit the same act if “Jesus wants me to.” See

N.T. Sentencing at 15. On this record, the trial court had adequate support

for its decision to impose the instant sentence that exceeded the standard

guideline range. See Sheller, 961 A.2d at 192.

      Based on our review of the record, the trial court did not abuse its

discretion in imposing the sentence of five to ten years’ imprisonment. See

Raven, 97 A.3d at 1253. Therefore, Appellant’s claim is meritless.

      Judgment of sentence affirmed.




                                      -8-
J-A13028-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/19




                          -9-
