J-S70024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CARLOS J.F. FIGUEROA-FAGOT               :
                                          :
                    Appellant             :   No. 3065 EDA 2017

         Appeal from the Judgment of Sentence Entered July 6, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0009312-2012


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                   FILED FEBRUARY 12, 2019

      Carlos J.F. Figueroa-Fagot appeals from the judgment of sentence

entered on July 6, 2017, following a resentencing hearing. He challenges the

discretionary aspects of his sentence. We affirm.

      The facts of this case are not dispositive of this appeal, as such we do

not restate them. The procedural history of this case is as follows:

             On September 12, 2013, [Figueroa-Fagot] was convicted of
      Attempted Kidnapping, Unlawful Contact with a Minor,
      Interference with Custody of Children, Corrupting the Morals of a
      Minor (CMOM), Indecent Assault, and Simple Assault following a
      jury trial before the Honorable Alice Beck Dubow. Sentencing was
      deferred for pre-sentence investigation, mental health evaluation,
      and sex offender assessment. On April 4, 2014, [Figueroa-Fagot]
      was sentenced to an aggregate term of incarceration of seventeen
      (17) to thirty four (34) years. A direct appeal followed. The
      Superior Court overturned the convictions for Unlawful Contact
      with a Minor, Corrupting the Morals of a Minor, and Indecent
      Assault. The judgment of sentence was also vacated and
      remanded to the trial court for re-sentencing.
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             On July 6, 2017, [Figueroa-Fagot] was resentenced before
      this [c]ourt to an aggregate sentence of fifteen (15) to thirty (30)
      years followed by 5 years of probation. [Figueroa-Fagot] filed a
      Motion for Reconsideration of Sentence, which was denied on
      August 28, 2017. This direct appeal followed.

Trial Court Opinion (“TCO”), filed February 13, 2018, at 1.

      On appeal, Figueroa-Fagot raises one issue:

             Did not the lower court err and abuse its discretion by
      sentencing Mr. Figueroa-Fagot to an unreasonable sentence that
      was higher than the standard range of the Sentencing Guidelines,
      without adequate reasons, on the basis of considerations,
      including the nature of the offense, his prior criminal history and
      the use of a deadly weapon, that were already factored into the
      Sentencing Guidelines and did not the lower court further err by
      failing to give proper consideration to Mr. Figueroa-Fagot’s
      personal circumstances and mitigating factors?

Figueroa-Fagot’s Br. at 3 (answer of trial court omitted).

      Figueroa-Fagot challenges the discretionary aspects of his sentence,

therefore before addressing the merits of his claim, we must determine

whether: (1) the appeal is timely; (2) the issue was preserved; (3) the brief

includes a Pa.R.A.P. 2119(f) statement; and (4) a substantial question is

raised. See Commonwealth v. Edwards, 194 A.3d 625, 636 (Pa.Super.

2018).

      Here, the appeal is timely; the issue was preserved in a post-sentence

motion; and his brief includes a Pa.R.A.P. 2119(f) statement. Therefore, we

now address whether he has presented a substantial question. First, Figueroa-

Fagot claims that the trial court counted factors that were already considered

in the Sentencing Guidelines, which raises a substantial question. See

Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa.Super. 2000) (en banc).


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Second, he claims his sentence is unreasonable and excessive, without further

explanation. This bald assertion of an excessive sentence does not raise a

substantial question. See Commonwealth v. Lutes, 793 A.2d 949, 964

(Pa.Super. 2002) (stating “a bald allegation that a sentence is excessive does

not raise a substantial question”).

      He also claims “that the lower court erred in sentencing him in violation

of 42 Pa.C.S.[A.] § 9721(b),” but fails to state how the trial court violated this

section. “[T]he Rule 2119(f) statement must specify . . .        what particular

provision of the Code is violated (e.g., the sentence is outside the guidelines

and the court did not offer any reasons either on the record or in writing).”

Goggins, 748 A.2d at 727. Additionally, he claims that his sentence was “not

individualized,” which raises a substantial question. See Commonwealth v.

Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (finding a claim that the trial

court failed to consider individualized needs raised a substantial question). We

now address the merits of the two claims raising a substantial question.

      First, Figueroa-Fagot claims that the trial court “relied upon factors

which were already accounted for by [his] prior criminal history, and the

nature of the offense.” Figueroa-Fagot’s Br. at 10.

      “Sentencing is a matter vested in the sound discretion of the sentencing

judge,” and therefore, we review a trial court’s imposed sentence for an abuse

of discretion. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super.

2008). An abuse of discretion is present “where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

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the action is a result of partiality, prejudice, bias or ill will.” Commonwealth

v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation omitted). “[A] sentencing

court may not ‘double count’ factors already taken into account in the

[S]entencing [G]uidelines.” Goggins, 748 A.2d at 732.

      Here, the record belies Figueroa-Fagot’s argument that the trial court

double counted factors, specifically his prior criminal history. Before imposing

its sentence, the trial court stated, “I certainly have a sense of the gravity of

the situation, the gravity of the crime, the need of the mental health issues

with regard to [Figueroa-Fagot], the impact on the complainant, her family,

and society.” N.T., Sentencing Hearing, 07/06/17, at 50. It then placed its

reasoning for sentencing in the aggravated range for each charge:

      I am going outside of the sentencing guidelines in the aggravated
      range based on the totality of the circumstance[s], the guidance
      that I received from Judge Dubow in terms of her sentencing, and
      all that I have heard and taken into consideration today. . . This
      is a situation that is clear – every child, every parent, one of the
      most fearful situations to have your young child snatched or
      attempted to be snatched off the streets of Philadelphia. In this
      instance, fortunately, it was not a completed act, but it certainly
      left its impact and its trauma. And it[’]s the type of crime that
      impacts not only the victims themselves, but the community,
      when you can’t send your child to do something as innocent as
      getting some water ice, and then forever having fear their safety
      on the streets.

Id. at 52-53. Based on the above, we conclude the court did not double count

Figueroa-Fagot’s criminal history. It imposed his sentence based on “the

protection of the public, the gravity of the offense as it relate[d] to the impact




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on the life of the victim and on the community, and the rehabilitative needs

of [Figueroa-Fagot].” 42 Pa.C.S.A. § 9721(b).

      Next, Figueroa-Fagot claims that the trial court failed to impose an

individualized sentence. Again the record negates this argument. As set forth

above, the trial court stated on the record at sentencing that it was aware of

the “gravity of the situation, the need of the mental health issues with regard

to [Figueroa-Fagot], the impact on the complainant, her family, and society.”

Defense counsel presented the trial court with significant details regarding

Figueroa-Fagot’s mental health during the sentencing hearing. See N.T. at

35-38. Cognizant of this information, the trial court ordered that he serve his

time of imprisonment at a correctional facility that specializes in mental health

treatment and that the Mental Health Unit of the Probation/Parole Unit

supervise him once he is released from prison. Id. at 46, 53. The court’s

sentence was thus tailored to Figueroa-Fagot’s particular circumstances.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/19




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