J-S27021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    OWEN FRANCIS MCCAFFREY                     :   No. 2548 EDA 2016

              Appeal from the Judgment of Sentence July 1, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000479-2016


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 07, 2017

        The Commonwealth appeals from the judgment of sentence imposed

on Owen Francis McCaffrey, on July 1, 2016, in the Court of Common Pleas

of Monroe County, following his guilty plea to two counts of sexual abuse of

children/child pornography.        18 Pa.C.S. § 6312(d).1   McCaffrey received a

sentence of 11½ to 23 months’ incarceration followed by two years of

probation. McCaffrey was determined not to be a sexually violent predator.

In this timely appeal, the Commonwealth challenges the discretionary

aspects of McCaffrey’s sentence, claiming the trial court manifestly abused

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  One count was for possession of 446 images of children under the age of
13; the other count was for possession of 511 images of children between
the ages of 13 and 18. These were Counts 3 and 4 in the indictment.
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its discretion by imposing an excessively lenient sentence, which was outside

the sentencing guidelines.   After a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm.

      Before we begin our substantive analysis, we reiterate the well-known

standard of review:

         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.

         ***
         When imposing sentence, a court is required to consider
         the particular circumstances of the offense and the
         character of the defendant. In considering these factors,
         the court should refer to the defendant's prior criminal
         record, age, personal characteristics and potential for
         rehabilitation.

      Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa.
      Super. 2014) (internal citations and quotation marks omitted).

         An appellant is not entitled to the review of challenges to
         the discretionary aspects of a sentence as of right. Rather,
         an appellant challenging the discretionary aspects of his
         sentence must invoke this Court's jurisdiction. We
         determine whether the appellant has invoked our
         jurisdiction by considering the following four factors:

         (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.


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        2119(f); and (4) whether there is a substantial question
        that the sentence appealed from is not appropriate under
        the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
     Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.
     Super. 2014) (some citations omitted).

Commonwealth v. Kearns, 150 A.3d 79, 84 (Pa. Super. 2016).

     Additionally, when the trial court issues a sentence outside of the

sentencing guidelines,

      the court must provide in open court a contemporaneous
     statement of reasons in support of its sentence.

     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.



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Commonwealth v. Kitchen, ___ A.3d ___, 2017 PA Super 147, at *5 (Pa.

Super. 2017) (citation omitted).

     Initially, the appeal is timely and the Commonwealth preserved the

issue by filing a motion for reconsideration, which was denied by written

order on August 9, 2016.      Further, the Commonwealth filed the required

Pa.R.A.P. 2119(f) statement claiming the trial court had “unreasonably

deviated from the sentencing guideline[s]” and in doing so had imposed an

“excessively   lenient”   sentence,   “contrary    to   the   fundamental   norms

underlying the sentencing process and inconsistent with the Sentencing

Code.”   Commonwealth’s Brief at 3.         A claim that the sentencing court

sentenced outside the sentencing guidelines presents a substantial question.

Kitchen, 2017 PA Super 147, at *4. As all the technical requirements have

been met, we proceed to our substantive review.

     Although both counts are listed as 18 Pa.C.S. § 6312(d), they have

different offence gravity scores (OGS), based upon the ages of the victims.

Accordingly, Count 3 had an OGS of 7 (children under 13) and Count 4 an

OGS of 6 (children between 13 and 18).            McCaffrey had no prior record

(Prior Record Score – PRS).        Pursuant to the Sentencing Guidelines, 7th

Edition (9/25/2015), a standard range minimum sentence for OGS 7 and

PRS 0 is between 6 and 14 months’ incarceration; the mitigated range is

between 0 and 8 months’ incarceration.             A standard range minimum

sentence for OGS 6 and PRS 0 is between 3 and 12 months’ incarceration;




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mitigated range is between 0 and 6 months incarceration. However,

pursuant to 204 Pa.Code § 303.13(a)(11),

     In no case where the Sexual Abuse of Children Enhancement
     involving number of images is applied may the mitigated
     sentence recommendation be lower than 5 months for
     possession of greater than 50 to 200 images, be lower than 12
     months for possession of greater than 200 to 500 images, and
     be lower than 18 months for greater than 500 images.

204 Pa.Code § 303.13(a)(11).

     Therefore,   applying   the   applicable   Sexual   Abuse   of   Children

Enhancements, under Count 3, where McCaffrey possessed 446 images, the

recommended mitigated range sentence was raised to no less than 12

months’ incarceration; Count 4, where McCaffrey possessed 511 images, the

recommended mitigated range sentence was raised to no less than 18

months’ incarceration.   As stated above, McCaffrey received an aggregate

sentence of 11½ to 23 months’ incarceration. The sentence imposed is 6½

months below the guidelines’ 18-month minimum mitigated sentence.

     As announced in Kitchen, supra, our role as an appellate court is to

examine the trial court’s reasons for departing from the guidelines and

determine if those reasons are unreasonable. Taking into account that the

reasoning is faulty only if it evidences a manifest abuse of discretion,

Kearns, supra, we now examine the reasons placed on the record at

sentencing.




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     The trial court’s statements regarding the sentence issued cover the

majority of six pages of the transcription of the sentencing hearing of June

30, 2016.

     The Court: Well, I did review the presentence investigation
     report that was prepared in this matter along with the Sexual
     Offender’s Assessment Board evaluation. And notably they did
     not make a recommendation to this court that the defendant
     met the criteria to be deemed a sexually violent predator. I did
     also review some of the documents attached to the – all of the
     documents I did review, but some of which include a
     psychological report of a Philip H. Witt, W-I-T-T, Ph.d, who was,
     apparently, commissioned by the defendant, who analyzed Mr.
     McCaffrey.

     There’s also some information, discharge information, and other
     documents from the United States military confirming the
     defendant’s military service and honorable discharge from the
     United States Navy.

     In addition, I did review the sentencing memorandum submitted
     on behalf of Mr. McCaffrey, including the exhibits attached to
     that, which once again, Dr. Witt’s report was attached to that,
     but notably there were also character letters submitted on behalf
     of Mr. McCaffrey by many of his siblings, family members,
     children, and his ex-wife as well, giving the Court an indication
     of his background and character. And, certainly, he’s before the
     Court on a very serious matter here. These charges are very
     disturbing.

     Obviously, by his own admission, this behavior has been going
     on for quite a long time, at least with regard to the downloading
     and viewing, or at least viewing of child pornography since in or
     around 2006.

     And, you know, certainly I think that the Commonwealth’s
     argument is accurate. That, you know, a lot of people that view
     this stuff don’t think that there is a victim, and they come in and
     argue to me that nobody was hurt, they’re careful now when
     they say that, but I’ve heard that before, that there is no victim.
     But these children become adults and those images are out

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     there forever, and it’s harmful for them. And I’ve always said
     that if there weren’t people like you, Mr. McCaffrey, seeking out
     this type of pornography, child pornography, there wouldn’t be a
     market for it. There’d be less of an interest or desire for people
     to make it and put it out there.

            So it is very disturbing that this goes on. Apparently, you
     knew it was wrong, you continued to do it. For whatever reason,
     you couldn’t stop doing it. You knew, eventually, you were
     going to get caught doing it. And that time came, but, you
     know, sometimes I think it’s fortunate that the police are able to
     catch people doing that because they put out a search for these
     files. I don’t know how many – are they finding a lot of people
     with these files? Are they all over the place? Do they have to
     figure out whether the computer is local?

                                   ***
     A lot of people have peer-to-peer file sharing and they must be
     sharing this stuff. Our local law enforcement are looking at it
     and then probably not interested in trying to arrest somebody in
     New Jersey, New York or California.

                                    ***
     I looked at, certainly, the guidelines in this case are high and
     they’re higher than some other child pornography cases that I’ve
     had. And that’s why I was asking about the images. Quite
     frankly, if that enhancement didn’t apply, his guideline range
     would be 6 to 14 months and we’d be looking at a mitigated
     range. He very well may be looking at a probationary sentence.
     I have imposed probationary sentences in these type of cases in
     the past. Not always with the agreement of probation or the
     agreement of the Commonwealth, but I have done that.

     But in this case – one of the things I’m always trying to do in my
     sentencing is try to be consistent with my sentences.

     And in Mr. McCaffrey’s case, the fact of the matter is the
     guideline enhancement does apply. He had more images than
     ordinarily are found to the point that the Sentencing Commission
     felt an adjustment to the guidelines should be made. So he
     finds himself in an 18 to 26 month standard-range sentence.

     Now, Counsel has set forth mitigating circumstances. There are
     certainly mitigating circumstances here, a couple of them that

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       were found by the probation officer. The fact that the defendant
       is 63 years of age. The present offense presents the defendant’s
       first encounter with the criminal court system. While true he
       does have a zero prior record score, and probably does get
       credit for that in the prior record calculation, I’m going to accept
       that as a mitigating circumstance here. The defendant was
       gainfully employed as a plant operations supervisor before
       retiring, I’ll consider that as a mitigating circumstance. The fact
       that he accepts responsibility for his conduct. He does engage in
       and did engage in rehabilitation. He is honest, I’ll give him that
       to his credit. Although, the fact that he continues to [adult2]
       view pornography is still disturbing. If it’s legal or – we call it
       legal pornography. It’s still disturbing given the fact that this
       criminal case has been pending against him and he’s in
       treatment for this type of conduct.

       I reviewed these letters, his character and his attitude, I think,
       make it unlikely that he will reoffend. So there are certainly a
       number of mitigating circumstances in this case. And, certainly,
       the sentence that’s being imposed, it will be in the mitigated
       range.

       My intention, at this point, I can tell you, the recommendation is
       for what is effectively a departure sentence. It’s really not – I
       can tell you. I don’t always agree with the recommendation of
       probation, Ms. Borger knows that; but in this case I think that
       the recommendation the probation office has made is the
       appropriate sentence in this case.

                                      ***
       All right.    Well, I find that there are significant mitigating
       circumstances in this case that I’ve already discussed. I do not
       find that it would be appropriate, given Mr. McCaffrey’s age and
       his background, that it would be warranted or appropriate to
       sentence him to a state correctional institution. I feel that a
       county sentence, at this point, will sufficiently meet the punitive
       nature of the sentence as well as the rehabilitative needs.


____________________________________________


2
  See N.T. Sentencing, 6/30/2016, at 18.       The Commonwealth states
McCaffrey was recently viewing adult pornography, not child.



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       So I’m going to adopt the recommended sentence range of the
       probation office. I’m going to sentence him to 11 and-a-half to
       23 months to be followed by a consecutive two-year period of
       probation on the Count [1]. And on Count [2], I’ll impose that
       sentence to run concurrent to that imposed in Count [1].

N.T. Sentencing, 6/30/2016, at 20-26.

       The trial court’s reasons for imposing a sentence beneath the

mitigated range do not appear to be unreasonable. The trial court was in

the superior position to evaluate McCaffrey and balance the need for

punishment with rehabilitation.3         The trial court had before it a variety of

____________________________________________


3
 It is well known the trial court enjoys broad discretion in imposing a
sentence. Our Supreme Court has stated:

       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. Ward,
       524 Pa. 48, 568 A.2d 1242, 1243 (1990); see also
       Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587,
       591 (1992)(en banc) (offering that the sentencing court is in a
       superior position to “view the defendant's character, displays of
       remorse, defiance or indifference and the overall effect and
       nature of the crime.”). Simply stated, the sentencing court
       sentences flesh-and-blood defendants and the nuances of
       sentencing decisions are difficult to gauge from the cold
       transcript used upon appellate review. Moreover, 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 the
       sentencing guidelines, the power of sentencing is a function to
       be performed by the sentencing court. Ward, 568 A.2d at 1243.
       Thus, rather than cabin the exercise of a sentencing court's
       discretion, the guidelines merely inform the sentencing decision.

(Footnote Continued Next Page)


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written reports including the presentence investigative report, which

recommended the 11½-month minimum sentence; the Sexual Offender

Assessment Board report, which the trial court used to determined McCaffrey

was not a sexually violent predator; and a private mental health evaluation,

which concluded that McCaffrey posed little risk of re-offense. The trial court

looked at McCaffrey’s age, 63, and the fact he had never previously been in

trouble with the law.4 The certified record reveals the trial court considered

a    variety   of   sources    of    information,     including   the   Commonwealth’s

arguments, and concluded that the best balance between punishment and

rehabilitation for McCaffrey was the sentence imposed.

       In consideration of the above, our review of the certified record leads

us    to   conclude    that    the   sentence       imposed   was   not   unreasonable.

       Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007) (footnote
omitted).
4
  The Commonwealth has argued the trial court improperly double counted
McCaffrey’s clean criminal history. We believe the trial court was not double
counting, but was noting a qualitative difference of a 63 year-old person
with a 0 PRS and a far younger person with a 0 PRS.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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