J-S39010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MILTON RAY FRISBIE

                            Appellant                No. 1389 MDA 2015


          Appeal from the Judgment of Sentence entered July 2, 2015
              In the Court of Common Pleas of Bradford County
               Criminal Division at No: CP-08-CR-000864-2014


BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 25, 2016

        Appellant, Milton Ray Frisbie, appeals from the July 2, 2015 judgment

of sentence imposing six months to twenty-three months and twenty-nine

days of incarceration followed by twenty-four months of probation after

Appellant pled nolo contendere to felony and misdemeanor indecent

assault.1 We affirm.

        The two minor victims were Appellant’s step-grandchildren.       The

Commonwealth accused Appellant of groping both victims in the vaginal

area. Appellant assaulted one of the two victims when she appeared to be

asleep. Both offenses occurred in the home Appellant shared with his wife,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3126(a)(7) and (b)(3).
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the victims’ grandmother.    Appellant entered his nolo contendere plea on

March 27, 2015, and the trial court sentenced Appellant on July 2, 2015.

Appellant’s sole argument is that the trial court abused its sentencing

discretion in forbidding Appellant to have any contact with any person under

the age of eighteen during the term of Appellant’s probation.       Appellant

argues the probation condition is draconian, not necessary for the protection

of the public, “possibly” in conflict with Appellant’s program of sex offender

treatment. Appellant’s Brief at 3.

      To preserve a challenge to the trial court’s sentencing discretion, an

appellant must raise the issue in a timely post-sentence motion, file a timely

notice of appeal, include in his brief a Pa.R.A.P. 2119(f) statement, and

explain in the 2119(f) statement why the challenge presents a substantial

question in accord with 42 Pa.C.S.A. § 9781(b). Commonwealth v. Allen,

24 A.3d 1058, 1064 (Pa. Super. 2011).       Appellant has complied with the

procedural requirements.    We must therefore assess whether Appellant’s

Pa.R.A.P. 2119(f) statement presents a substantial question. “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), appeal denied, 76 A.3d 538 (Pa. 2013).




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       Appellant   argues    that   forbidding   any       contact—supervised    or

otherwise—with minors violates 42 Pa.C.S.A. § 9754(c)(13), which states

that probation conditions must not be unduly restrictive of the defendant’s

liberty. Appellant’s Brief at 4. Appellant asserts this condition will separate

him from his family—which includes children under age 18—and community

support. Id. at 4-5. Also, as noted above, Appellant believes his inability to

have    contact    with   minors    could   hinder   his    rehabilitation.     The

Commonwealth argues that a bald assertion that the restriction is unduly

restrictive of Appellant’s liberty fails to raise a substantial question.

Commonwealth’s Brief at 2.

       We have held that a sentencing court’s alleged failure to consider an

offender’s rehabilitative needs does not raise a substantial question.

Commonwealth v. Haynes, 125 A.2d 800, 807 (Pa. Super. 2015).                     To

raise a substantial question, the offender must assert that the sentence is

inconsistent with a specific provision of the Sentencing Code.                Here,

Appellant does not baldly assert that the sentencing court failed to consider

his rehabilitative needs.   He argues that the trial court’s sentence violates

§ 9754(c)(13), as the prohibition on contact with minors will deprive him of

family and community support.        We conclude this is sufficient to raise a

substantial question.     See Commonwealth v. Fullin, 892 A.2d 843, 853

(Pa. Super. 2006) (noting that an alleged inconsistency with § 9754 raises a

substantial question).


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     We review the merits of Appellant’s argument as follows:

             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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). “A

probation order is unique and individualized. It is constructed as an

alternative to imprisonment and is designed to rehabilitate a criminal

defendant while still preserving the rights of law-abiding citizens to be

secure in their persons and property.” Commonwealth v. Koren, 646 A.2d

1205, 1208 (Pa. Super. 1994). The trial court has discretion to order any

reasonable conditions. Id. at 1209.

     Appellant relies on Commonwealth v. Houtz, 982 A.2d 537 (Pa.

Super. 2009). There, the court forbade the defendant to access the internet

or have access to a computer. Id. at 540. The sentence resulted from the

defendant’s guilty plea to corruption of a minor and indecent assault. Id. at

537. The defendant argued that the restriction was unreasonable because

there was no evidence she used a computer or the internet to further her

crimes. Id. at 540. Furthermore, the defendant noted her receipt of food

stamps and medical benefits was conditional on her continued search for

employment through an online career search service. Id. This Court agreed




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and concluded the condition was punitive and not related to the defendant’s

rehabilitative needs or her underlying offense. Id. at 541.

         In Commonwealth v. Dewey, 57 A.3d 1267 (Pa. Super. 2012), the

sentencing court forbade the defendant to have unsupervised contact with

minors after the defendant pled guilty to corruption of minors and furnishing

alcohol to minors.     Id. at 1268.    The defendant sought to remove that

condition, arguing it was not related to his rehabilitative needs or the safety

of the public. Id. at 1269. This Court held that the defendant failed to file a

timely post-sentence motion, thus rendering the remainder of its opinion

dicta.     Id. at 1269-70.    The Dewey Court went on to opine that the

condition was reasonable. Id. at 1270. Appellant relies on Dewey because

the defendant was permitted supervised contact with minors.           Appellant

argues that supervised contact with minors would be more reasonable in this

case.

         Appellant’s reliance on Houtz and Dewey is misplaced.       In Houtz,

this Court found the defendant’s lack of access to the internet and a

computer unreasonable because the defendant did not use a computer to

commit her offenses, and because the lack of internet access would

jeopardize her ability to obtain food stamps and medical insurance for her

family.    Instantly, the probation condition is directly related to Appellant’s

offense.    He victimized two girls under age 18, and now he is prohibited

from any contact with persons under age 18. Appellant’s argument that the


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condition restricts his contact with his family is unpersuasive, as both victims

were Appellant’s step-granddaughters.      This Court’s alternative holding in

Dewey—that supervised contact with minors was a reasonable probation

condition—does not imply that total elimination of contact with minors is

unreasonable. Sentencing courts have discretion to tailor a sentence to the

unique circumstances of each case.      Here, unlike Dewey, the sentencing

court was faced with multiple instances of sexual assault.      The sentencing

court reasoned:

            [Appellant] complains that he is unable to have contact
      with his grandchildren and step-grandchildren as a result of this
      prohibition [on contact with minors]. The condition is meant for
      rehabilitative purposes. In light of the fact the criminal charges
      of indecent assault and corruption of minors arose from
      [Appellant’s] taking advantage of and molesting his step-
      grandchildren staying in his home, prohibiting [Appellant] from
      having contact with any child is rationally related to the
      rehabilitative goals. […] [Appellant] has a large family with
      numerous grandchildren and stepchildren.          The prohibition
      preserving [sic] the rights of those children to be secure in their
      persons so as not to become a victim of [Appellant]. Until
      [Appellant] is hopefully rehabilitated after completing the other
      conditions of his probation, which include a sex offender
      evaluation and counseling and treatment as may be
      recommended, [Appellant] should not have any contact with
      children.

Trial Court Opinion, 12/29/15, at 3 (pagination ours).

      In light of all of the foregoing, we conclude the trial court acted within

its permissible discretion in imposing the conditions of probation.         We

therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.



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     Judge Platt joins this memorandum.

     Judge Strassburger files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016




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