J-S15041-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                         Appellant         :
                                           :
                 v.                        :
                                           :
JEREMY MATTHEW HETRICK,                    :
                                           :
                         Appellee          :     No. 1202 MDA 2013


           Appeal from the Judgment of Sentence January 30, 2013
              In the Court of Common Pleas of Lebanon County
              Criminal Division No(s).: CP-38-CR-0000855-2012

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

MEMORANDUM BY BOWES, J.:                        FILED SEPTEMBER 24, 2014

       This appeal by the Commonwealth is from the discretionary aspects of

a sentence imposed upon Appellee, Jeremy Matthew Hetrick. We affirm.

       Appellee was charged with various offenses in connection with the

following events, which we have gleaned from the affidavit of probable

cause.    At a                                                            -

sixteen-year-old daughter, hereinafter the victim, arrived home, changed

into her pajamas, and fell asleep on the living room floor while watching

television. The victim awoke when Appellee rubbed her stomach. Appellee

pulled down her pajama bottoms, touched her vagina, and engaged in

sexual intercourse with her. Appellee then placed his tongue on her vagina

*
    Former Justice specially assigned to the Superior Court.
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and touched her breasts.       After Appellee ceased his sexual assault, the

victim immediately telephoned her boyfriend, who retrieved the victim from

her home.      The boyfriend woke up his parents to inform them about the

crime, and they took the victim to the state police barracks.

         The victim arrived at the police station at 4:30 a.m. on May 16, 2011,

and told police about the sexual assault.      She also stated that her father

drank alcohol and that he was drinking when she arrived at home on

May 15th.     Police took the victim to a local hospital where evidence was

gathered to confirm the occurrence of the sexual assault.          Sperm was

recovered from an external genitalia swab and a stain on the pajama

bottoms.

         At 12:20 p.m. on May 16, 2011, Pennsylvania State Police Troopers



Appellee agreed to accompany them to the police barracks, but advised

officers that he needed a ride since he had been drinking alcohol. Appellee

told police that he started drinking beer and vodka at 1:00 p.m. on May 15,

2011. Appellee did not remember the v

night.     After being advised that the victim accused him of raping her,



Appellee gave the identical response when asked if he was so intoxicated

that he could not remember sexually assaulting the victim.       Appellee then




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told police that he was an alcoholic and could not remember anything.



of the sperm recovered from the victim at the hospital after the sexual

assault.

      On October 25, 2012, Appellee pled guilty to rape, involuntary deviate

sexual intercourse, two counts of sexual assault, incest, corruption of a

minor, endangering the welfare of a child, and two counts of indecent

assault.   An assessment by the Sexual Offenders Assessment Board was

ordered, and Appellee was determined not to be a sexually violent predator.

The matter proceeded to sentencing on January 30, 2013.



was not charged with any crimes until one year after the events transpired.




                                               being an alcoholic for basically

his entire adult life, he began treatment at AA and . . . through his church,

the bible study, developing a group of friends who could support him so he

could finally kick the disease of alcoholism that haunted him for yea      Id.

at 2-3. Appellee also engaged in treatment at a facility called Triad, which is

an agency that deals with sexual issues and the type of offenses committed




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          Id. at 3. After Appellee was charged, he immediately consulted



wished to plead guilty to the charges, to get through them as quickly as

possible and not cause any more pain to his fam        Id. at 2.



sentencing court and were present at sentencing. They indicated that they



have seen an amazing improvement [in] the person he has become in the

past two years since he got over alcohol addiction and started to address

                        Id. at 4. Appellee was separated from his wife prior

to the events in question, and he had primary physical custody of the

children before June 2011, when he moved in with his parents.




                                             He had a problem with alcohol

                                                  Id. at 5. After the incident,



                                                                             d

                                                     Id. at 5. The employer

continued that he concluded that the horrible events of May 15, 2011, would

not have occurred but for the alcohol.




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                                                                       in his



support his children and to be in their lives no matter how simplistic the

            Id. at 6. Prior to May 2011, Appellee spent many hours with his

children, including camping, attending their sporting events, speaking with

them on the telephone, hiking, bowling, shopping, and going to the movies.



                                                       Six nights a week he

                                    Id. at 9.

     Christopher A. Goodling, another witness for Appellee, was involved

with Triad.     Appellee was involved with that agency since July 2012.



Id. at 11. Appellee admitted that his behavior, after consuming alcohol, was

unsavory.     Mr. Goodling indicated that Triad would continue to work with

Appellee until he successfully finished the program, which normally took two

to five years.      Appellee suffered depression and child abuse, which

contributed, along with his intoxication, to his commission of the offense in

question. Id. at 13.



applicable guideline ranges. Id. at 21. It indicated that, in addition to the




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                                                     -in-law, co-workers, his

sponsor at AA, and other people who attende



Jeremy Hetrick that we see now who is decidedly different than the old

                      Id. at 21.   All the people, including those who wrote

letters and those who testified at sentencing, believed that alcohol was a

                                                                  Id.

      The district attorney responded that Appellee did not immediately

accept responsibility for his actions and had not done so until the results of



failure to immediately acknowledge the misdeed was directly the result of

the fact that Appellee was too intoxicated to remember the events. Id. at

22.

      The sentencing court delineated that, based upon the evidence it

                                                                  longstanding

alcohol abuse, being an alcoholic, being really kind of an unfortunate integral

                               Id. at 24. The court stated that it had often

sentenced for these types of crimes and its reaction typically had been that



                                    Id. at 25.




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      The sentenci

case different and why it believed Appellee should be accorded leniency, as



receive the type of letter that I received from your daughter who was the

victim in this case, the very rare circumstance in terms of her forgiveness of

       Id

were the result of his alcohol abuse.       Second, the court considered that

immediately after the crime, Appellee addressed his alcoholism and was

attending AA meetings daily. Third, the court took into account the reports

                               -

dramatically since he ceased consuming alcohol.            Finally, the court



on his behalf at the sentencing.



that the sentencing guideline ranges indicate would not be appropriate in

this case.     I have considered those guidelines.     I have rejected those

                Id

                                                              Id. First,

impact from the victim in this case.     I took to heart her words and her

             Id. at 27. Second, the court credited the representations in the

letters and from witnesses that Appellee had cured his alcoholism and was a




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different man from the one who committed the horrific crimes at issue.

Third, the court believed a lenient sentence was appropriate in that the



                                           -

Id

                  Id. Fifth, the court weighed the fact that Appellee had an

                                        Id. Sixth, the court concluded that

the steps that Appellee took by treating his alcoholism and attending the



                                                                        Id.

      Accordingly, the court fashioned a sentence below the guidelines that

enabled Appellee to continue to support his family while ensuring that

Appellee continued to avoid alcohol and to address any other problems that

led to his crimes.   Appellee was sentenced to jail for eleven and one-half

months to two years less one day, with work release privileges, followed by

ten years special state probation.   After release from prison, Appellee was

subject to house arrest with electronic monitoring.      As a condition of

probation, Appellee had to attend four AA meetings a week and continue

with psychological counseling at Triad. He was ordered to have no contact

with the victim unless she wanted it.




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     The    Commonwealth    filed   a   timely   post-sentence     motion   for

modification of the sentence.   This timely appeal followed denial of that



Sentencing Court abused its discretion when it imposed a sentence below

the mitigated sentencing range violating the fundamental norms of the



     We have articulated on numerous occasions that:

           Before this Court may reach the merits of a challenge to
     the discretionary aspects of a sentence, we must engage in a
     four part analysis to determine: (1) whether the appeal is
     timely; (2) whether Appellant preserved his issue; (3) whether
     Appellant's brief includes a concise statement of the reasons
     relied upon for allowance of appeal with respect to the
     discretionary aspects of sentence see Pa.R.A.P. 2119(f); and (4)
     whether the concise statement raises a substantial question that
     the sentence is appropriate under the sentencing code. If the
     appeal satisfies each of these four requirements, we will then
     proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation

omitted).

     Herein, the claim was preserved in a post-sentence motion and a

timely Pa.R.A.P. 1925(b) statement was filed and contained the issue. The

                                                                 R.A.P. 2119(f)



The sentence in question is not within the guidelines ranges, and the

Commonwealth complains that the reasons proffered by the court for the




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deviation were insufficient.   Id.   The Commonwealth has therefore raised

the existence of a substantial question, permitting appellate review of the

sentence in question.    Commonwealth v. Hill, 66 A.3d 365 (Pa.Super.

2013).

                                                                       cts of

sentencing, we evaluate the court's decision under an abuse of discretion

               Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa.Super.

2013) (quoting Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.Super.

2011)). In the seminal case of Commonwealth v. Walls, 926 A.2d 957,



have abused its discretion unless the record discloses that the judgment

exercised was manifestly unreasonable, or the result of partiality, prejudice,

bias or ill-

       [I]n the best position to determine the proper penalty for a
       particular offense based upon an evaluation of the individual
       circumstances before it . . . the sentencing court enjoys an
       institutional advantage to appellate review, bringing to its
       decisions an expertise, experience, and judgment that should
       not be lightly disturbed. Even with the advent of sentencing
       guidelines, the power of sentencing is a function to be performed
       by the sentencing court . . . the guidelines merely inform the
       sentencing decision.

Id., at 965.

                                                                    . § 9781,

which authorizes the appellate court to vacate the sentence and remand the




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outside the sentencing guidelines and the sentence is unreasonable. In all

other cases the appellate court shall affirm the sentence imposed by the

                    Id. at § 9781(c)(3) (emphasis added). Section 9781(d)

provides that when reviewing a sentence, we must consider:

      (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. § 9781(d).       Simply put, the guidelines have no binding effect;

they are merely advisory guideposts.

      Even further, our Supreme Court in Walls noted that the term



guided by sound judgment.         It held that a sentence can be defined as

unreasonable either upon review of the four elements contained in

§ 9781(d), or if the sentencing court failed to take into account the factors

outlined in 42 Pa.C.S. § 9721(b). Walls, supra at 964.         Section 9721(b)

states in pertinent part:

      [T]he 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




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     the impact on the life of the victim and on the community, and
     the rehabilitative needs of the defendant.

Section 9721 also mentions that if a court imposes a sentence outside the



statement of the reason or reasons for the deviation . . . [and] his



     Herein, the sentencing court clearly considered the factors outlined in

§ 9721(b) and gave overwhelmingly compelling reasons for its decision to

deviate from the guidelines, as follows.     Appellee had addressed the

alcoholism and psychological issues that were the root of the crime.     He

quickly acknowledged guilt once evidence was presented to him as to a

crime that he could not remember committing. Appellee immediately sought

to plead guilty to avoid further harm to the victim.     Appellee needed to

support his family financially and the sentence of county imprisonment with

work release permitted him to continue to do so. All of his family members,

including the victim, forgave Appellee, wanted him to be afforded leniency,

and recognized that the consumption of alcohol caused the behavior in

question.   These reasons are neither irrational nor unguided by sound

judgment. The factors of § 9781(d) warrant affirmance.

     We routinely affirm sentences that fall outside the recommended

guidelines ranges where the reasons for the deviation were logical and

compelling. See, e.g., Commonwealth v. Hoch, 936 A.2d 515 (Pa.Super.



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2007 (affirming sentence that fell below mitigated range where it was

adequately    supported   by   logical   justifications).1     We   reject   the



court in imposing this mitigated sentence were insufficient.

       On appeal, the Commonwealth focuses on the seriousness of the

crime.    It also insists that the sentence sent a bad message to the

community that alcohol can be used as an excuse for criminal behavior and

that the sentence will inhibit victims of sexual abuse from reporting crimes.

These positions are nothing more than a request for us to hold that these

two factors, i.e., the protection of the public and the gravity of the offense,

outweigh the ones relied upon by the court. However, this type of allegation

cannot form the basis for reversal of the present sentence.

       It is clear that the sentencing court considered all of the pertinent

factors. It acknowledged the seriousness of the offenses at the sentencing

hearing. It also concluded that Appellee, who had no prior record score, was

no longer a danger to the community since he had addressed the root of the

criminal behavior in that he had not consumed any alcohol for a significant

period of time and was enrolled in the Triad program. We simply are not

permitted to reverse a sentence based upon the weight that the court gave

to the various factors involved in a sentencing decision. Commonwealth v.



1
    There are myriad cases affirming an upward guideline departure.


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Bricker, 41 A.3d 872 (Pa.Super. 2012); Commonwealth v. Macias, 968

A.2d 773, 776 (Pa.Super. 2009). Hence, we must affirm. Walls, supra.

     Judgment of sentence affirmed.

     Judge Olson joins the memorandum.

     Justice Fitzgerald files a Dissenting Statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2014




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