J-S01023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP WOMACK                             :
                                               :
                       Appellant               :   No. 420 EDA 2019


      Appeal from the Judgment of Sentence Entered December 10, 2018,
                in the Court of Common Pleas of Bucks County,
             Criminal Division at No(s): CP-09-CR-0004798-2018.

BEFORE:       BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.:                               FILED MAY 06, 2020

        Phillip Womack appeals from the judgment of sentence imposed

following the entry of his guilty plea to corruption of minors.1 We affirm.

        The trial court set forth the relevant factual and procedural background,

as follows:

              On July 24, 2018, Bensalem Township police officers
        responded to the Knights Inn located in Bensalem Township,
        Bucks County. There was a report of a wanted adult male staying
        there. An officer knocked on the hotel room door, used a key
        provided by hotel staff, and entered the room. Upon entering the
        hotel room, the officer observed [Womack] naked along with J.O.,
        a 13 year-old female, who was also naked at the time. [When
        questioned by police, Womack acknowledged his awareness that
        the victim was 13 or 14, and that it was inappropriate for them to
        be naked in the room together.] [Womack] was taken into

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 6301(a)(1)(i).
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       custody on the active warrant for rape arising out of Philadelphia
       County.

             On December 10, 2018, [Womack] entered into a guilty plea
       and pleaded guilty to [one count of] corruption of minors. This
       court sentenced him to imprisonment for not less than eleven and
       a half (11-1/2) months to no more than twenty-three (23)
       months.

             On December 20, 2018, [Womack] filed a motion for
       reconsideration of sentence. On January [7], 2019, [the trial]
       court denied [Womack’s] motion for reconsideration of sentence.
       On February 5, 2019, [Womack] filed a notice of appeal to the
       Superior Court.

Trial Court Opinion, 10/23/19, at 1-2, 4 (footnote and some capitalization

omitted).2

       The trial court issued an order pursuant to Pa.R.A.P. 1925(b) requiring

Womack to file a concise statement of errors complained of on appeal.

Womack did not receive the order, and accordingly failed to file a concise

statement.     The trial court thereafter filed a Rule 1925(a) opinion finding

waiver of Womack’s issues on appeal.             In this Court, Womack filed an

application for remand to file a concise statement. We granted the requested

relief, and remanded for the filing of a Rule 1925(b) concise statement, as




____________________________________________


2 Womack purported to appeal from the trial court’s denial of his post-sentence
motion. However, his appeal lies from the entry of the judgment of sentence.
See Commonwealth v. Alvarado, 437 Pa. Super. 518, 520, 650 A.2d 475,
476 (Pa. Super. 1994) (holding that, in the context of a criminal proceeding
where the case has proceeded through the sentencing phase, the appeal lies
from the entry of the final judgment of sentence).

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well as a supplemental Rule 1925(a) opinion. This matter is now ripe for our

review.

      Womack raises one issue for our review: “Did the [trial] court abuse its

discretion in imposing a sentence in the aggravated range of the applicable

sentencing guidelines by not considering mitigating evidence and by relying

on factors that were already contemplated by said guidelines?” Womack’s

Brief at 4.

      Womack    challenges    the   discretionary   aspects   of   his   sentence.

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

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).       Prior to reaching the merits of a discretionary

sentencing issue, this Court conducts 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, [see] 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, [see] 42 Pa.C.S.A. §
      9781(b).

Id. (citation omitted). When an appellant challenges the discretionary aspects

of his sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).




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         In the instant case, Womack filed a timely notice of appeal, preserved

his claims in a timely post-sentence motion, and included in his appellate brief

a Rule 2119(f) statement. As such, he is in technical compliance with the

requirements to challenge the discretionary aspects of his sentence.       See

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we

will proceed to determine whether Womack has presented a substantial

question for our review.

         A substantial question is raised where an appellant alleges the

sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances. See Commonwealth v Felmlee,

828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (stating that a substantial

question is raised where appellant claims the sentencing court imposed an

aggravated range sentence without considering mitigating circumstances);

see also Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012).

Thus, as Womack has raised a substantial question for our review, we will

consider the merits of his claim.

         The following principles apply to our substantive review of Womack’s

issue.     “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa. Super. 2009).        “We cannot reweigh the sentencing


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factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009). Rather,

we review the trial court’s determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014).

      In imposing a sentence, the sentencing court must consider “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.A. § 9721(b).

      Moreover, this Court has observed that

      although the sentencing guidelines are an important factor in
      sentencing, they are but only one factor when determining an
      individualized sentence: The guidelines have no binding effect,
      create no presumption in sentencing, and do not predominate
      over other sentencing factors — they are advisory guideposts that
      are valuable, may provide an essential starting point, and that
      must be respected and considered; they recommend, however,
      rather than require a particular sentence.

Commonwealth v. Holiday, 954 A.2d 6, 13 (Pa. Super. 2008) (citation,

paragraph break, and brackets omitted).

      Womack indicates that the sentencing guidelines provide for a mitigated

range sentence of restorative sanctions, and a standard range sentence of

restorative sanctions to nine months of incarceration. He argues that the trial

court imposed an aggravated range sentence without considering certain

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mitigating factors, including the absence of drugs or alcohol in the hotel room,

the victim’s statement to police that there had been no discussion of sexual

activity, the fact that Womack had no prior convictions and maintained good

conduct in prison while awaiting sentencing, and that Womack has two

children and is a roofer and tattoo worker.

      The trial court offered the following explanation for its decision to impose

an aggravated-range sentence:

             At the beginning of his guilty plea, [Womack] stated that he
      understood he was pleading guilty to engaging in some type of
      inappropriate conduct with a thirteen[-]year[-]old. Upon questioning
      from [the trial] court, [Womack] stated that he had gotten the hotel for
      her because she said it was late and they had been shopping in
      Bensalem area all day. [Womack] explained that he was naked because
      he had just gotten out of the shower and he was about to change into
      new clothes he had just brought and leave for the night. [Womack]
      stated that he just got out of the shower when he heard a knock at the
      door and then police just entered after the knock at the door. [Womack]
      insisted to the [trial] court that he was just a good guy providing the
      teenager with a place to stay that night. The Commonwealth presented
      evidence . . . that [Womack] did not appear to be wet and there was no
      water in the shower. [The Commonwealth also presented evidence that
      the victim’s parents did not know of her location, and did not know
      Womack.] When asked by [the trial] court why [Womack] did not simply
      take the teenager home, he stated the thirteen[-]year[-]old had called
      her parents and they knew she was staying in a hotel room with him.
      [Womack’s] counsel highlighted for [the trial] court certain mitigating
      factors that it should take into account such as there were no drugs or
      alcohol found, the minor spoke with police and stated there was no talk
      of sexual activity taking place, and that [Womack] was young [23-
      years-old] and had never been arrested for any prior incident. In
      response, [the trial] court stated . . . “The facts of this case are so bad
      that compared to his explanation I can’t – I mean, that’s why I don’t
      believe him. . . . I don’t buy it. I just want everybody to know.” It is
      clear from the record that [Womack] failed to understand the
      seriousness of his actions of being alone and naked in a hotel room with
      a thirteen[-]year[-]old. [Womack] also failed to accept any kind of
      responsibility for his actions and continued to say that nothing sexual

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        happened. The [trial] court acknowledged [Womack’s] mitigating
        factors but sentenced in the aggravated [range] due to [Womack’s]
        statements during his guilty plea.

Trial Court Opinion, 10/23/19, at 4-5 (citations to the record omitted).

        Based on the record before us, we find no merit to Womack’s claim that

the trial court failed to consider mitigating factors.    The trial court was

informed of several mitigating factors by Womack’s counsel, including

Womack’s age, that he has two children (ages one-year-old and ten-months-

old), that he had never been incarcerated prior to this incident, that he had

maintained good behavior while incarcerated prior to sentencing, that he had

enrolled in technical school and planned to start classes prior to his

incarceration, and that he had been employed to perform roofing and tattoo

work.     See N.T. Sentencing, 12/10/18, at 5-6, 8.      Additionally, defense

counsel highlighted the facts that no drugs or alcohol were found in the hotel

room, and that the victim told police that there were no discussions regarding

sexual activity. Id. at 6.

        Moreover, the trial court heard Womack’s allocution, where he failed to

acknowledge the seriousness of his conduct, and instead maintained that he

did not have sex with the victim, and that he simply rented her a room because

it was late (11:30 p.m.), and he was about to leave her there for the night.

Id. at 9-10, 13. Ultimately, the trial court found Womack’s explanations to

be non-credible. Id. at 11, 13.




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      Based on the record before us, it is clear that the trial court heard and

considered all of the mitigating factors raised by Womack. Simply because

the trial court did not believe Womack’s version of events, and found that he

failed to understand the seriousness of his actions of being alone and naked

in a hotel room with the minor victim, does not mean that the court failed to

consider the relevant mitigating factors. Rather, the trial court determined

that those mitigating factors were outweighed by other legitimate sentencing

considerations. Hence, as we discern no abuse of discretion by the trial court,

Womak’s claim merits no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2020




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