J-S76044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

HERBERT LEE SMITH

                            Appellant                      No. 753 EDA 2016


           Appeal from the Judgment of Sentence February 16, 2016
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0002193-2014


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED OCTOBER 21, 2016


        Appellant Herbert Lee Smith appeals from the judgment of sentence

entered on February 16, 2016, in the Court of Common Pleas of Monroe

County following his nolo contendere plea to one count of corruption of

minors.1 We affirm.

        Appellant’s conviction arose following his sexual molestation of his

paramour’s      eleven-year-old      daughter     on   numerous   occasions.     On

September 16, 2015, Appellant pled nolo contendere to count four of the

criminal information, corruption of minors, a felony of the third degree, and

signed a written guilty plea colloquy.          The trial court accepted Appellant’s
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6301(a)(1)(ii).
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plea, ordered a pre-sentence investigation (PSI) report and scheduled

sentencing.

       A sentencing hearing was held on February 16, 2016, at which time

the sentencing court had the benefit of the PSI and the report of the Sexual

Offender Assessment Board (SOAB) as well as letters written by the victim’s

mother. The court also heard counsel’s argument and statements from

Appellant’s    family.   Upon     consideration   of   both   the   aggravating   and

mitigating factors, the sentencing court ultimately sentenced Appellant to an

aggravated range sentence of twenty-four (24) months to sixty (60) months’

incarceration.2    The court further advised Appellant of his sexual offender

registration obligations under the Sex Offender Registration and Notification

Act (SORNA), 42 Pa.C.S.A. §§ 9799.10–9799.41.3

       Appellant filed his Motion to Reconsider Sentence on February 19,

2016, wherein he argued his sentence was excessive; the sentencing court

denied the motion on February 23, 2016.            On March 10, 2016, Appellant

filed a timely notice of appeal and complied with the trial court's order to file

____________________________________________


2
  Appellant’s prior record score was a three and the offense gravity score
was a six; therefore, the standard range sentence for the offense was twelve
months to eighteen months, with an aggravated/mitigated range of plus or
minus six months. N.T. Sentencing, 2/16/16, at 3.
3
  The sentencing court referred to the statute as Megan’s Law. N.T.
Sentencing, 2/16/16, at 18-19; however, Megan's Law II was succeeded by
Megan's Law III (Act 152 of 2004), which in turn was superseded by SORNA.




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a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant filed the same on April 30, 2016, wherein he presented

the following issue: “The [s]entencing [c]ourt committed an abuse of

discretion in imposing its sentence in light of the mitigating factors

mentioned at the time of sentencing.”       The sentencing court filed its Rule

1925(a) Opinion on May 5, 2015.

      In his appellate brief, Appellant presents the following issue for our

review:

            Whether the aggravated sentence of twenty-four (24)
      months to sixty (60) months is manifestly unreasonable and
      serves no purpose other than a purely retributive one.

Brief for Appellant at 6.

      Appellant’s contention his sentence was unduly harsh and excessive

under the circumstances presents a challenge to the discretionary aspects of

his sentence.   Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super.

2002) (stating claim that sentence is manifestly excessive challenges the

discretionary aspects of sentencing). Challenges to the discretionary aspects

of sentencing do not entitle an appellant to an appeal as of right.

Commonwealth v. Roberts, 133 A.3d 759, 774 (Pa.Super. 2016). For this

Court to reach the merits of a discretionary sentencing issue, Appellant must

invoke our jurisdiction by satisfying the following four-part test:


      (1) whether the appeal is timely; (2) whether [a]ppellant
      preserved his issue; (3) whether [a]ppellant's brief includes a
      concise statement of the reasons relied upon for allowance of

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      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Instantly,   Appellant   has   satisfied   the   first   three   requirements.

Appellant filed a timely notice of appeal, sought reconsideration of his

sentence in a post-sentence motion, and included a separate statement of

reasons relied upon for allowance of appeal in his appellate brief, as required

by Pa.R.A.P. 2119(f).    Nonetheless, while in his Rule 1925(b) statement

Appellant avers the sentencing court abused its discretion for failing to

consider mitigating factors when fashioning its sentence, in his brief he

asserts the aggravated range sentence is manifestly unreasonable and

retributive. We note that:

      for any claim that was required to be preserved, [an appellate
      court] cannot review a legal theory in support of that claim
      unless that particular legal theory was presented to the trial
      court. Thus, even if an appellant did seek to withdraw pleas or to
      attack the discretionary aspects of sentencing in the trial court,
      the appellant cannot support those claims in this Court by
      advancing legal arguments different than the ones that were
      made when the claims were preserved.


Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008).

      The arguments Appellant advances in his appellate brief are more

encompassing than that which he raised before the trial court; however,

Appellant’s contention on appeal that his aggravated-range sentence was


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retributive and manifestly unreasonable in light of the sentencing court’s

empathizing with the victim and resultant failure to consider mitigating

factors arises out of the claim he presented in his Rule 1925(b) statement.

Therefore, we decline to find his issue waived and turn our analysis to

whether there is a substantial question that Appellant’s sentence is

inappropriate under the Sentencing Code. See 42 Pa.C.S.A. § 9781(b).

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.”   Commonwealth v. Griffin, 65 A.3d 932, 935

(Pa.Super. 2013) (citation omitted).

     Generally, “[a]n allegation that a sentencing court failed to consider or

did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.” Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa.Super. 1995). However, the contention the

sentencing court imposed a sentence in the aggravated range without

considering mitigating circumstances constitutes a substantial question as to

the discretionary aspects of one’s sentence. Commonwealth v. Felmlee,

828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc). Notwithstanding, we find


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Appellant is not entitled to relief as to the discretionary aspects of

sentencing.

      Appellant baldly maintains the aggravated-range sentence arose

primarily out of the victim impact statement the probation department

submitted for inclusion in the PSI and that it no way serves to protect the

public or to advance the purpose of the Sentencing Code which is to

rehabilitate, reintegrate and divert appropriate offenders from prison. Brief

for Appellant at 13-14.     Appellant stresses that in the eighteen months

which followed the victim’s allegations Appellant sexually abused her,

Appellant had no contact with her and engaged in no additional criminal

conduct; therefore, the sentence exceeds that which would be necessary to

rehabilitate him.   Id. at 15.   Appellant further enumerates the mitigating

factors presented to the sentencing court at the sentencing hearing which he

avers it failed to consider. Id. at 16.

      Contrary to Appellant’s claims, both at the time of sentencing and in

its Rule 1925(a) Opinion the sentencing court announced numerous reasons

for its sentence. N.T., 2/16/16, at 15-16; Trial Court Opinion, filed 5/5/15,

at 3-5.   Specifically, the court noted it had read multiple times the PSI

report, letters written by various family members on Appellant’s behalf

pertaining to Appellant’s character along with those written by the victim’s

mother, and the report of the SOAB. N.T. Sentencing, 2/16/16, at 15. See

Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005) (stating where


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sentencing court had benefit of PSI, law assumes court was aware of and

weighed relevant information regarding mitigating factors). The sentencing

court also acknowledged that the SOAB did not determine Appellant was a

sexually violent predator and indicated it would not hold a hearing on that

issue.

         Nevertheless, the sentencing court explained its need to fashion a

sentence that focused upon the appropriate disposition for Appellant, given

his background and the factual basis of the case, which necessarily included

a consideration of the impact of his actions upon the victim. Id. at 15. The

sentencing court stressed Appellant held a position of trust and served as a

caregiver to the young girl who continues to struggle emotionally. Id. at 16.

It was also relevant to the court that Appellant was found to be in

possession of a firearm although he was prohibited to possess one, which

constituted an aggravating circumstance. Id. The sentencing court further

expressed concern that while he had not been found to be a sexually violent

predator, some of Appellant’s behavior was consistent with a paraphilic

interest; the court deemed this information to be relevant in determining

whether Appellant will reoffend.      Id.   See also, Trial Court Opinion, filed

5/5/15, at 3-4 (discussing the impact of Appellant’s actions on the victim

and her family and Appellant’s prior criminal history as revealed in the PSI);

         In light of the foregoing, the sentencing court carefully considered all

of the information before imposing Appellant’s sentence; therefore, we find


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no abuse of discretion. As Appellant’s sentence is not excessive or

unreasonable, his sole issue fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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