J   -S65017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                  1   IN THE SUPERIOR COURT
                                                          OF PENNSYLVANIA
                              Appellee

                       v.

    JUSTIN M. GARDNER

                              Appellant                  No. 363 MDA 2018


       Appeal from the Judgment of Sentence imposed January 22, 2018
                 In the Court of Common Pleas of Tioga County
               Criminal Division at No: CP-59-CR-0000132-2016

BEFORE:     SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                            FILED JANUARY 07, 2019

        Appellant, Justin    M.   Gardner, appeals from the judgment of sentence

the Court of Common Pleas of Tioga County imposed on January 22, 2018.

On appeal, Appellant challenges the discretionary aspects of his sentence.

Upon review, we affirm.

        The factual background and the procedural history are not at issue here.

Briefly, on April 28, 2017, Appellant pled no contest to indecent assault by

forcible compulsion,   a    misdemeanor of the third degree. On January 22, 2018,

the trial court sentenced Appellant outside the sentencing guidelines to two

and one-half to five years of prison. Appellant timely filed for reconsideration,

which the trial court denied. This appeal followed.
J   -S65017-18



        On appeal, Appellant argues the sentencing court abused its discretion

for not giving more weight to his lack of       a   prior criminal record history, and

for failing to provide      a   sufficient basis for deviating upward from the

sentencing guidelines. We disagree.

        Our review of discretionary aspects             of sentencing      claims
        implicates the following principles:

              [T]he proper standard of review when considering
              whether     to    affirm     the    sentencing       court's
              determination is an abuse of discretion.         .   .  [A]n
                                                                       .


              abuse of discretion is more than a mere error of
              judgment; thus, a sentencing court will not 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. In
              more expansive terms, our Court recently offered: An
              abuse of discretion may not be found merely because
              an appellate court might have reached a different
              conclusion, but requires a result of manifest
              unreasonableness, or partiality, prejudice, bias, or ill -
              will, or such lack of support so as to be clearly
              erroneous.

              The rationale behind such broad discretion and the
              concomitantly deferential standard of appellate review
              is that the sentencing court is in the best position to
              determine the proper penalty for a particular offense
              based     upon an evaluation of the individual
              circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-70                (Pa. Super. 2010) (quoting

Commonwealth v. Walls, 926 A.2d 957, 961               (Pa. 2007)).

        "Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right." Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011). As this Court explained in Allen,


                                          -2
J   -S65017-18


        An appellant challenging the discretionary aspects of his sentence
        must invoke this Court's jurisdiction by satisfying a four-part test:
        (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.
Id.
        Appellant meets the first three requirements.          We must therefore

consider whether there     is a   substantial question that Appellant's sentence    is

inappropriate under the Sentencing Code.

        An allegation that the sentencing court failed or did not adequately

consider Appellant's prior record score does not necessarily raise     a   substantial

question.     See Moury, 992 A.2d at 171.              However, to the extent that

Appellant argues that the sentencing court did not provide sufficient reasons

for its upward departure, Appellant raises         a   substantial question for our

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

Super. 1999) (en banc) ("Where the appellant asserts that the trial court failed

to state sufficiently its reasons for imposing sentence outside the sentencing

guidelines, we will conclude that the appellant has stated            a    substantial

question for our review.") (citation omitted).         Accordingly, we address the

merits of Appellant's claims.

        In every case where a sentencing court imposes a sentence
        outside of the sentencing guidelines, the court must provide in
        open court a contemporaneous statement of reasons in support of
        its sentence.



                                         -3
J   -S65017-18


        The statute requires   a trial judge who intends to sentence a
        defendant outside of the guidelines to demonstrate on the record,
        as a proper starting point, [its] awareness of the sentencing
        guidelines. Having done so, the sentencing court may deviate
        from the guidelines, if necessary, 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 offense
        as it relates to the impact on the life of the victim and the
        community, so long as [it] also states of record the factual basis
        and specific reasons which compelled [it] to deviate from the
        guideline range.

        When evaluating a challenge to the discretionary aspects of
        sentence   .   . it is important to remember that the sentencing
                           .


        guidelines are advisory in nature. If the sentencing court deems
        it appropriate to sentence outside of the guidelines, it may do so
        as long as it offers reasons for this determination. [O]ur Supreme
        Court has indicated that if the sentencing court proffers reasons
        indicating that its decision to depart from the guidelines is not un
        reasonable [(sic)], we must affirm a sentence that falls outside
        those guidelines.

        A sentencing court, therefore, in carrying out its duty to impose
        an individualized sentence, may depart from the guidelines when
        it properly identifies a particular factual basis and specific reasons
        which compelled [it] to deviate from the guideline range.

Commonwealth v. Shull, 148 A.3d 820,835-36                 (Pa. Super. 2016) (citations

and quotation marks omitted).

        We note that the trial court reviewed the presentence investigation

report, and, thus, "we presume that the court properly considered and

weighed      all   relevant    factors   in   fashioning    [Appellant's]    sentence,"

Commonwealth v. Baker, 72 A.3d 652,663                 (Pa. Super. 2013), including

Appellant's prior record score and the offense gravity score.               Further, the

record reveals that the trial court heard and considered the victim's remarks,

arguments by the Commonwealth and Appellant's counsel, and afforded

                                          - 4 -
J   -S65017-18


Appellant the opportunity to address the matter prior to the imposition of his

sentence. The trial court explained the sentence imposed as follows:

        The [c]ourt notes in justifying the imposition of a sentence outside
        the guidelines that [Appellant]'s behavior in this series of events
        represents the actions of a person who serially preys upon
        vulnerable victims and the [c]ourt believes the guidelines as
        calculated are not appropriate or applicable in this sentence and
        believes that the sentence imposed herein is necessary for the
        purpose of punishment and rehabilitation more so and additionally
        for the purpose of public protection.

Trial Court Order, 1/23/18, at 1; see also N.T. Sentencing, 1/22/18, at 27.

        While Appellant believes that his prior record score warranted               a   more

lenient sentence, the sentencing court found that the gravity of the crime,

Appellant's rehabilitation needs, and protection of the public considerations

outweighed Appellant's prior record score, justifying   a       sentence outside of the

sentencing guidelines. We find no abuse of discretion in doing so.

        Similarly, while its explanation was brief, we note that the sentencing

court stated adequate reasons in support of the sentence imposed. "Although

a   'sentencing judge must state his or her reasons for the sentence imposed,

a    discourse on the court's sentencing philosophy         .    .   .   is   not required.'

Commonwealth         v.   Hill, 629 A.2d 949, 953   (Pa. Super. 1993) (citation

omitted).

        Judgment of sentence affirmed.




                                       -5
J   -S65017-18


Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 1/7/2019




                     -6
