J-S84037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                 v.

ANTHONY SCOTT NIEVES

                        Appellant               No. 1371 EDA 2016


          Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
                    at No(s): CP-45-CR-0000031-2013

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                 v.

ANTHONY SCOTT NIEVES

                        Appellant               No. 1373 EDA 2016


          Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
                    at No(s): CP-45-CR-0000032-2013

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                 v.

ANTHONY SCOTT NIEVES

                        Appellant               No. 1374 EDA 2016


          Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
                    at No(s): CP-45-CR-0000033-2013
J-S84037-16


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ANTHONY SCOTT NIEVES

                               Appellant              No. 1375 EDA 2016


             Appeal from the Judgment of Sentence March 22, 2016
       in the Court of Common Pleas of Monroe County Criminal Division
                       at No(s): CP-45-CR-0000669-2013

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 22, 2017

        Appellant, Anthony Scott Nieves, appeals from the judgment of

sentence of eighteen to thirty-six years’ imprisonment imposed in the

Monroe County Court of Common Pleas after a jury found him guilty of, inter

alia, one count of involuntary deviate sexual intercourse (“IDSI”) 1 and two

counts of rape.2 Appellant contends that the trial court abused its discretion

when sentencing in the aggravated range. We affirm.

        Collectively, the four bills of information charged Appellant with

committing sexual and drug-related offenses at his residence against four

victims.    One victim was his thirteen-year-old daughter; the other victims

were thirteen- or fourteen-year-old friends of Appellant’s daughter.      One


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3123(a)(7).
2
    18 Pa.C.S. § 3121(a)(4).




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information alleged that during June 2011, one victim, L.B., stayed overnight

at Appellant’s residence with his daughter. The following morning, Appellant

drove his daughter to another friend’s house and left L.B. behind at his

house. When Appellant returned, he had vaginal and oral intercourse with

L.B. and recorded the assault on his video camera. Appellant also gave L.B.

rum or prescription pills on two dates in June 2011.        The three other

informations accused Appellant of committing crimes in November 2012.

Specifically, on November 23, 2012, Appellant crushed up an oxycodone pill,

a prescribed narcotic, put it on a spoon with whipped cream, and gave it to a

second victim, M.M.     He also furnished rum to M.M., who vomited several

times and had to visit a local hospital for examination.         Further, on

November 23, 2012, Appellant furnished rum and oxycodone to a third

victim, K.L. Later that night, Appellant had vaginal intercourse with K.L. in

his bed. Finally, at some point between November 23, 2012 and November

27, 2012, Appellant gave rum and oxycodone to his daughter, K.N., and

then penetrated her vagina with his penis and finger.

        The trial court consolidated the four informations, and Appellant

pleaded guilty to IDSI, production of child pornography,3 possession with

intent to deliver a controlled substance (“PWID”)4 and two counts of rape.



3
    18 Pa.C.S. § 6312(b).
4
    35 P.S. § 780-113(a)(30).



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      On March 22, 2016, the trial court held a hearing pursuant to 42

Pa.C.S. § 9799.24 to determine whether Appellant is a sexually violent

predator (“SVP”). The Commonwealth’s expert on SVP assessments testified

that Appellant has an “unspecified paraphilic disorder,” which the expert

characterized as an abnormal attraction to post-pubertal teenagers.       N.T.,

3/22/16, at 16-17. The expert noted that Appellant manifested this disorder

because “[w]e have three victims of the same age, three victims who were

non-consenting, three victims who were groomed,[5] and three in a time

period beyond . . . six months that also caused distress to the victims.” Id.

at 18. In addition, Appellant had a history of psychotic disorder, although “it

does not appear that the psychotic disorder was the impetus for the sexual

offending. The paraphilic disorder was.” Id. at 19. The paraphilic disorder

was an incurable lifelong condition that must be managed with appropriate

treatment. Id. at 19-20. Based on this evidence, the trial court determined

that Appellant is an SVP.

      The trial court then reviewed a presentence investigation report

(“PSI”) and heard statements from or on behalf of the victims, a statement

from Appellant, and argument from counsel for both parties. Id. at 31-40.

The trial court sentenced Appellant to three consecutive terms of 72-144

5
   The expert observed that the grooming mechanisms were furnishing
alcohol and drugs to the victims and “telling one victim that he loved her and
she was beautiful, also that she owed him . . . for loaning her money.” Id.
at 13.




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months’ imprisonment on the two counts of rape and the single count of

IDSI.6

      Appellant filed a timely motion for reconsideration of sentence, which

the trial court denied, and a timely notice of appeal. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

         Whether the trial court erred in sentencing [Appellant] to
         an aggravated range sentence of eighteen (18) to thirty
         six (36) years on two counts of [r]ape and one count of
         [IDSI], where said sentence was outside of the
         recommended sentence in the PSI, was grossly
         disproportionate to the sentence of others convicted of the
         same types of offenses, neither reflects his rehabilitative
         needs nor was . . . necessary to protect the community,
         and therefore violates the fundamental norms of the
         sentencing process?

Appellant’s Brief at 13 (with minor grammatical revisions). No relief is due.

      This Court has stated that:

         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [W]e conduct a four part analysis to determine: (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

6
 The court also imposed concurrent terms of imprisonment for one count of
production of child pornography and one count of PWID.



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             is not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).

          Objections to the discretionary aspects of a sentence are
          generally waived if they are not raised at the sentencing
          hearing or raised in a motion to modify the sentence
          imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(quotation marks and some citations omitted).

     The Rule 2119(f) statement

          must specify where the sentence falls in relation to the
          sentencing guidelines and 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, or double-counted factors already
          considered). Similarly, the Rule 2119(f) statement must
          specify what fundamental norm the sentence violates and
          the manner in which it violates that norm . . . .

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).    “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. (emphasis in original).

     Here, Appellant timely appealed, preserved his discretionary aspects of

sentencing issue in his motion for reconsideration of sentence, and included

a Pa.R.A.P. 2119(f) statement in his brief.    See Evans, 901 A.2d at 533.

Appellant notes that his PSI recommended an aggregate standard range

sentence of fifteen to thirty years’ imprisonment, and that the trial court

imposed    an   aggregate    sentence    of   eighteen   to   thirty-six   years’

imprisonment, which fell in the aggravated range. Appellant’s Brief at 15.


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Appellant asserts that the trial court abused its discretion because it

sentenced   in   the   aggravated    range    without    adequately    considering

mitigating factors, in particular, the fact that his psychosis could be

controlled with medication. Id. This presents a substantial question. See

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation

omitted). Accordingly, we proceed to the merits of Appellant’s argument.

      This Court has stated:

         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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).

      When reviewing the reasonableness of a sentence, an appellate court

should consider four factors: (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 pre-sentence

investigation; (3) the findings upon which the sentence was based; and (4)

the guidelines promulgated by the commission.           42 Pa.C.S. § 9781(d)(1)-

(4). A sentence may be found unreasonable if it fails to properly account for

these four statutory factors, or if it “was imposed without express or implicit



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consideration by the sentencing court of the general standards applicable to

sentencing[.]” Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

These general standards mandate that a sentencing court impose a sentence

“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.” 42 Pa.C.S. § 9721(b).

      Here, the trial court reviewed Appellant’s PSI. His prior record score

was zero.   The offense gravity score for rape and IDSI is twelve, and the

standard range minimum sentence is forty-eight to sixty-six months with an

aggravated/mitigated range of plus or minus twelve months. N.T., 3/22/16,

at 42. The court balanced the aggravating and mitigating factors as follows:

               Here we have four different victims, although one
         was not pled of a sexual nature, but the MO, if you will, of
         this has been fairly consistent on each of these.

                The lasting impact in this kind of a case to the
         victims is beyond measure. This is not the kind of thing—
         honestly, as much as a paraphilic disorder is something
         that’s never cured but managed, the trauma associated
         with these kinds of events on the victims is, likewise,
         something that doesn’t get cured but rather they have to
         manage day to day every day for the rest of their lives as
         well . . . .

                I also . . . agree with [the prosecutor] that there is
         an additional aggravating circumstance here which is the
         relationship . . . the position of trust and caregiver [to
         Appellant’s daughter]. There’s also a biological connection
         [with his daughter].

               There was also the videotaping which . . . aside or in
         addition to the physical, there’s the demeaning videotaping



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         of these events, the fact that [Appellant’s] son was in the
         residence and he was a minor . . . .

                I agree with [defense counsel that] there is a
         mitigating circumstance here in that [Appellant] suffers
         from a serious mental illness. That’s uncontroverted, and I
         don’t take any issue with that whatsoever . . . . My
         balancing of that, however, takes me to a place where in
         its totality I believe an aggravated sentence is warranted .
         ...

Id. at 40-41.

      Based on this reasoning, we conclude that the trial court carefully

studied all relevant factors and imposed a sentence that was tailored to

Appellant’s individual needs and circumstances and was “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.”     42 Pa.C.S. § 9721(b).        The court acted within its

discretion by imposing consecutive aggravated range sentences on Appellant

for two counts of rape and one count of IDSI. See Walls, 926 A.2d at 966-

67   (affirming   statutory   maximum    sentence    sentences   in   excess   of

sentencing guidelines for rape of and IDSI with victim less than thirteen

years old, where sentencing decision was individualized with respect to

defendant, and properly took into account protection of public, gravity of

offenses as they related to impact on life of victim and community, and

rehabilitative needs or prospects of rehabilitation for defendant).

      Judgment of sentence affirmed.




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J-S84037-16


      Judge Solano joins the Memorandum.   Judge Olson Concurs in the

Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2017




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