Opinion
J-S85036-16 No. 2909 EDA 2015
01-20-2017
COMMONWEALTH OF PENNSYLVANIA v. CHARLIE ALOG, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 20, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0010608-2014; CP-51-CR-0010613-2014 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Charlie Alog ("Alog") appeals from the judgment of sentence imposed after he pled guilty to rape, involuntary deviate sexual intercourse ("IDSI"), aggravated indecent assault, and flight to avoid apprehension, trial or punishment. We affirm.
The trial court concisely set forth in its Opinion the relevant factual and procedural history underlying this appeal, which we adopt as though fully set forth herein. See Trial Court Opinion, 2/8/16, at 1-3., Following the trial court's denial of Alog's post-sentence Motion (wherein he asserted, inter alia, that his sentence was excessive and the trial court failed to state adequate reasons on the record for its sentence), Alog timely filed a Notice of Appeal. In response, the trial court ordered Alog to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Alog timely filed a Concise Statement.
The trial court incorrectly states in its factual recitation that the victim was 16 years old at the time of the sexual assault; rather, the record reveals that she was 18 years old. Additionally, we observe that following the trial court's acceptance of Alog's guilty plea, the court ordered the preparation of a pre-sentence investigation report.
Notably to this appeal, the sentence that the trial court imposed on Alog's rape conviction was outside and above the aggravated range of the applicable sentencing guidelines by 12 months. None of the sentences imposed on the remaining convictions were above the sentencing guidelines ranges.
Alog presents the following issues for our review:
1. Did not the sentencing court err and abuse its discretion when it imposed a sentence above the aggravated sentencing guidelines range without providing a contemporaneous statement of reasons for the deviation from the guidelines, in violation of sentencing laws?Brief for Appellant at 4. We will address Alog's issues together as they are related.
2. Was not the imposition of a total sentence of 8.5 to 18 years, a consecutive sentence that was above the aggravated guidelines range, unreasonable and manifestly excessive and contrary to the norms underlying sentencing[,] when [Alog] was a 62-year-old first[-]time offender[,] who had waived the preliminary hearing and pleaded guilty[,] and for whom such a sentence would likely represent a life sentence?
Alog's claims challenge the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Where, as here, the appellant has preserved the sentencing challenge for appellate review by raising it at sentencing or in a timely post-sentence motion, the appellant must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Hill , 66 A.3d at 363-64.
Here, Alog included the requisite Rule 2119(f) Statement in his brief. See Brief for Appellant at 13-15. Moreover, Alog's above-mentioned claims present a substantial question for our review. See Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008) (noting that an "[a]ppellant's contention that the sentencing court exceeded the recommended range in the Sentencing Guidelines without an adequate basis raises a substantial question for this Court to review."); see also Commonwealth v. Holiday , 954 A.2d 6, 10 (Pa. Super. 2008) (stating that "[a] claim that the sentencing court imposed a sentence outside of the guidelines without specifying sufficient reasons presents a substantial question for our review."). Accordingly, we will review Alog's claims.
Our standard of review is 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. Garcia-Rivera , 983 A.2d 777, 780 (Pa. Super. 2009) (citation omitted).
The Sentencing Code sets forth the considerations a sentencing court must take into account when formulating a sentence, providing that "the 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 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). Additionally, in every case where a sentencing court imposes a sentence outside of the sentencing guidelines, the court must provide, in open court, a contemporaneous statement of reasons in support of its sentence. Id. When doing so,
a [sentencing] judge ... [must] 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.Commonwealth v. Bowen , 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation and brackets omitted); see also Commonwealth v. Dutter , 617 A.2d 330, 333 (Pa. Super. 1992) (stating that "[i]f the court finds it appropriate to sentence outside the guidelines, of course it may do so as long as it places its reasons for the deviation on the record."). An appellate court must vacate and remand a case where it finds that "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S.A. § 9781(c)(3). Finally, when evaluating a challenge to the discretionary aspects of sentence, it is important to remember that the sentencing guidelines are purely advisory in nature. Commonwealth v. Yuhasz , 923 A.2d 1111, 1118 (Pa. 2007); see also Commonwealth v. Walls , 926 A.2d 957, 963 (Pa. 2007) (stating that "rather than cabin the exercise of a sentencing court's discretion, the [sentencing] guidelines merely inform the sentencing decision.").
Here, Alog argues that the trial court abused its discretion in imposing an unreasonable and manifestly excessive aggregate sentence, which was outside and above the aggravated range of the sentencing guidelines on the rape conviction, without providing a contemporaneous statement for its reasons for deviating from the guidelines. See Brief for Appellant at 16-27. Alog asserts that, at sentencing, and in violation of the Sentencing Code, [t]he court simpl[y] announced the sentence without an explanation of why it deviated from the guidelines. Indeed, the court did not even acknowledge that it deviated from the guidelines." Id. at 16 (citations to record omitted) (citing, inter alia, Dutter , supra , and 42 Pa.C.S.A. § 9721(b) (providing that a sentencing court's failure to provide on the record a contemporaneous statement of reasons in support of an above-guidelines sentence "shall be grounds for vacating the sentence or resentence and resentencing the defendant.")). Alog further argues that
[t]he total sentence imposed was unreasonable, excessive and contrary to the norms of sentencing in light of the fact that [Alog] was a 62-year-old first[-]time offender[,] who had waived the preliminary hearing and pleaded guilty[,] and for whom the total sentence would likely represent a life sentence. In particular, the above-guidelines sentence on the [rape] charge[] was greater than necessary to comply with the goals of sentencing and was unreasonable, especially in light of the complete lack of explanation by the trial court as to the reasons behind its sentence.Brief for Appellant at 22; see also id. at 24 (asserting that Alog "presented an extremely low risk of recidivism"); id. at 25 (asserting that Alog's sexual assault of the victim "was a single occurrence of impulse.").
In its Opinion, the trial court addressed Alog's claims, discussed the relevant law, and opined that the court had properly exercised its discretion in imposing a reasonable sentence under the circumstances, and in compliance with the Sentencing Code. See Trial Court Opinion, 2/8/16, at 3-7; see also Walls , 926 A.2d at 967 (where the defendant had sexually assaulted his minor granddaughter, and thereby "violated a position of trust and responsibility" to the victim, holding that the sentencing court properly exercised its discretion in imposing a sentence above the sentencing guidelines range). The trial court's analysis is supported by the law and the record, and we discern no abuse of discretion by the court in sentencing Alog. We, therefore, affirm on this basis in rejecting Alog's issues. See Trial Court Opinion, 2/8/16, at 3-7.
We additionally emphasize that the trial court ordered the sentences imposed on Alog's convictions of IDSI and aggravated indecent assault to run concurrent to the sentence imposed on the rape conviction. Had the trial court exercised its discretion to run these sentences consecutively, Alog would have received a substantially longer aggregate sentence than the sentence imposed (which was well below the maximum permissible aggregate sentence, and that sought by the Commonwealth).
Judgment of sentence affirmed.
Judge Ransom joins the memorandum.
Judge Panella concurs in the result.
Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/20/2017
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