Com. v. Nieves, A. ( 2017 )


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  • J-S84037-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    ANTHONY SCOTT NIEVES
    Appellant               No. 1371 EDA 2016
    Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
    at No(s): CP-45-CR-0000031-2013
    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    ANTHONY SCOTT NIEVES
    Appellant               No. 1373 EDA 2016
    Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
    at No(s): CP-45-CR-0000032-2013
    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    ANTHONY SCOTT NIEVES
    Appellant               No. 1374 EDA 2016
    Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
    at No(s): CP-45-CR-0000033-2013
    J-S84037-16
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    ANTHONY SCOTT NIEVES
    Appellant              No. 1375 EDA 2016
    Appeal from the Judgment of Sentence March 22, 2016
    in the Court of Common Pleas of Monroe County Criminal Division
    at No(s): CP-45-CR-0000669-2013
    BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 22, 2017
    Appellant, Anthony Scott Nieves, appeals from the judgment of
    sentence of eighteen to thirty-six years’ imprisonment imposed in the
    Monroe County Court of Common Pleas after a jury found him guilty of, inter
    alia, one count of involuntary deviate sexual intercourse (“IDSI”) 1 and two
    counts of rape.2 Appellant contends that the trial court abused its discretion
    when sentencing in the aggravated range. We affirm.
    Collectively, the four bills of information charged Appellant with
    committing sexual and drug-related offenses at his residence against four
    victims.    One victim was his thirteen-year-old daughter; the other victims
    were thirteen- or fourteen-year-old friends of Appellant’s daughter.      One
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S. § 3123(a)(7).
    2
    18 Pa.C.S. § 3121(a)(4).
    -2-
    J-S84037-16
    information alleged that during June 2011, one victim, L.B., stayed overnight
    at Appellant’s residence with his daughter. The following morning, Appellant
    drove his daughter to another friend’s house and left L.B. behind at his
    house. When Appellant returned, he had vaginal and oral intercourse with
    L.B. and recorded the assault on his video camera. Appellant also gave L.B.
    rum or prescription pills on two dates in June 2011.        The three other
    informations accused Appellant of committing crimes in November 2012.
    Specifically, on November 23, 2012, Appellant crushed up an oxycodone pill,
    a prescribed narcotic, put it on a spoon with whipped cream, and gave it to a
    second victim, M.M.     He also furnished rum to M.M., who vomited several
    times and had to visit a local hospital for examination.         Further, on
    November 23, 2012, Appellant furnished rum and oxycodone to a third
    victim, K.L. Later that night, Appellant had vaginal intercourse with K.L. in
    his bed. Finally, at some point between November 23, 2012 and November
    27, 2012, Appellant gave rum and oxycodone to his daughter, K.N., and
    then penetrated her vagina with his penis and finger.
    The trial court consolidated the four informations, and Appellant
    pleaded guilty to IDSI, production of child pornography,3 possession with
    intent to deliver a controlled substance (“PWID”)4 and two counts of rape.
    3
    18 Pa.C.S. § 6312(b).
    4
    35 P.S. § 780-113(a)(30).
    -3-
    J-S84037-16
    On March 22, 2016, the trial court held a hearing pursuant to 42
    Pa.C.S. § 9799.24 to determine whether Appellant is a sexually violent
    predator (“SVP”). The Commonwealth’s expert on SVP assessments testified
    that Appellant has an “unspecified paraphilic disorder,” which the expert
    characterized as an abnormal attraction to post-pubertal teenagers.       N.T.,
    3/22/16, at 16-17. The expert noted that Appellant manifested this disorder
    because “[w]e have three victims of the same age, three victims who were
    non-consenting, three victims who were groomed,[5] and three in a time
    period beyond . . . six months that also caused distress to the victims.” 
    Id. at 18.
    In addition, Appellant had a history of psychotic disorder, although “it
    does not appear that the psychotic disorder was the impetus for the sexual
    offending. The paraphilic disorder was.” 
    Id. at 19.
    The paraphilic disorder
    was an incurable lifelong condition that must be managed with appropriate
    treatment. 
    Id. at 19-20.
    Based on this evidence, the trial court determined
    that Appellant is an SVP.
    The trial court then reviewed a presentence investigation report
    (“PSI”) and heard statements from or on behalf of the victims, a statement
    from Appellant, and argument from counsel for both parties. 
    Id. at 31-40.
    The trial court sentenced Appellant to three consecutive terms of 72-144
    5
    The expert observed that the grooming mechanisms were furnishing
    alcohol and drugs to the victims and “telling one victim that he loved her and
    she was beautiful, also that she owed him . . . for loaning her money.” 
    Id. at 13.
    -4-
    J-S84037-16
    months’ imprisonment on the two counts of rape and the single count of
    IDSI.6
    Appellant filed a timely motion for reconsideration of sentence, which
    the trial court denied, and a timely notice of appeal. Both Appellant and the
    trial court complied with Pa.R.A.P. 1925.
    Appellant raises one issue in this appeal:
    Whether the trial court erred in sentencing [Appellant] to
    an aggravated range sentence of eighteen (18) to thirty
    six (36) years on two counts of [r]ape and one count of
    [IDSI], where said sentence was outside of the
    recommended sentence in the PSI, was grossly
    disproportionate to the sentence of others convicted of the
    same types of offenses, neither reflects his rehabilitative
    needs nor was . . . necessary to protect the community,
    and therefore violates the fundamental norms of the
    sentencing process?
    Appellant’s Brief at 13 (with minor grammatical revisions). No relief is due.
    This Court has stated that:
    [c]hallenges to the discretionary aspects of sentencing do
    not entitle an appellant to appellate review as of right.
    Prior to reaching the merits of a discretionary sentencing
    issue:
    [W]e conduct 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, Pa.R.A.P. 2119(f); and (4) whether there is a
    substantial question that the sentence appealed from
    6
    The court also imposed concurrent terms of imprisonment for one count of
    production of child pornography and one count of PWID.
    -5-
    J-S84037-16
    is not appropriate under the Sentencing Code, 42
    Pa.C.S.A. § 9781(b).
    Objections to the discretionary aspects of a sentence are
    generally waived if they are not raised at the sentencing
    hearing or raised in a motion to modify the sentence
    imposed at that hearing.
    Commonwealth v. Evans, 
    901 A.2d 528
    , 533-34 (Pa. Super. 2006)
    (quotation marks and some citations omitted).
    The Rule 2119(f) statement
    must specify where the sentence falls in relation to the
    sentencing guidelines and what particular provision of the
    Code is violated (e.g., the sentence is outside the
    guidelines and the court did not offer any reasons either on
    the record or in writing, or double-counted factors already
    considered). Similarly, the Rule 2119(f) statement must
    specify what fundamental norm the sentence violates and
    the manner in which it violates that norm . . . .
    Commonwealth v. Goggins, 
    748 A.2d 721
    , 727 (Pa. Super. 2000) (en
    banc).    “Our inquiry must focus on the reasons for which the appeal is
    sought, in contrast to the facts underlying the appeal, which are necessary
    only to decide the appeal on the merits.” 
    Id. (emphasis in
    original).
    Here, Appellant timely appealed, preserved his discretionary aspects of
    sentencing issue in his motion for reconsideration of sentence, and included
    a Pa.R.A.P. 2119(f) statement in his brief.    See 
    Evans, 901 A.2d at 533
    .
    Appellant notes that his PSI recommended an aggregate standard range
    sentence of fifteen to thirty years’ imprisonment, and that the trial court
    imposed    an   aggregate    sentence    of   eighteen   to   thirty-six   years’
    imprisonment, which fell in the aggravated range. Appellant’s Brief at 15.
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    Appellant asserts that the trial court abused its discretion because it
    sentenced   in   the   aggravated    range    without    adequately    considering
    mitigating factors, in particular, the fact that his psychosis could be
    controlled with medication. 
    Id. This presents
    a substantial question. See
    Commonwealth v. Fullin, 
    892 A.2d 843
    , 847 (Pa. Super. 2006) (citation
    omitted). Accordingly, we proceed to the merits of Appellant’s argument.
    This Court has stated:
    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. Sheller, 
    961 A.2d 187
    , 190 (Pa. Super. 2008) (citation
    omitted).
    When reviewing the reasonableness of a sentence, an appellate court
    should consider four factors: (1) the nature and circumstances of the offense
    and the history and characteristics of the defendant; (2) the opportunity of
    the sentencing court to observe the defendant, including any pre-sentence
    investigation; (3) the findings upon which the sentence was based; and (4)
    the guidelines promulgated by the commission.           42 Pa.C.S. § 9781(d)(1)-
    (4). A sentence may be found unreasonable if it fails to properly account for
    these four statutory factors, or if it “was imposed without express or implicit
    -7-
    J-S84037-16
    consideration by the sentencing court of the general standards applicable to
    sentencing[.]” Commonwealth v. Walls, 
    926 A.2d 957
    , 964 (Pa. 2007).
    These general standards mandate that a sentencing court impose a sentence
    “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. § 9721(b).
    Here, the trial court reviewed Appellant’s PSI. His prior record score
    was zero.   The offense gravity score for rape and IDSI is twelve, and the
    standard range minimum sentence is forty-eight to sixty-six months with an
    aggravated/mitigated range of plus or minus twelve months. N.T., 3/22/16,
    at 42. The court balanced the aggravating and mitigating factors as follows:
    Here we have four different victims, although one
    was not pled of a sexual nature, but the MO, if you will, of
    this has been fairly consistent on each of these.
    The lasting impact in this kind of a case to the
    victims is beyond measure. This is not the kind of thing—
    honestly, as much as a paraphilic disorder is something
    that’s never cured but managed, the trauma associated
    with these kinds of events on the victims is, likewise,
    something that doesn’t get cured but rather they have to
    manage day to day every day for the rest of their lives as
    well . . . .
    I also . . . agree with [the prosecutor] that there is
    an additional aggravating circumstance here which is the
    relationship . . . the position of trust and caregiver [to
    Appellant’s daughter]. There’s also a biological connection
    [with his daughter].
    There was also the videotaping which . . . aside or in
    addition to the physical, there’s the demeaning videotaping
    -8-
    J-S84037-16
    of these events, the fact that [Appellant’s] son was in the
    residence and he was a minor . . . .
    I agree with [defense counsel that] there is a
    mitigating circumstance here in that [Appellant] suffers
    from a serious mental illness. That’s uncontroverted, and I
    don’t take any issue with that whatsoever . . . . My
    balancing of that, however, takes me to a place where in
    its totality I believe an aggravated sentence is warranted .
    ...
    
    Id. at 40-41.
    Based on this reasoning, we conclude that the trial court carefully
    studied all relevant factors and imposed a sentence that was tailored to
    Appellant’s individual needs and circumstances and was “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. § 9721(b).        The court acted within its
    discretion by imposing consecutive aggravated range sentences on Appellant
    for two counts of rape and one count of IDSI. See 
    Walls, 926 A.2d at 966
    -
    67   (affirming   statutory   maximum    sentence    sentences   in   excess   of
    sentencing guidelines for rape of and IDSI with victim less than thirteen
    years old, where sentencing decision was individualized with respect to
    defendant, and properly took into account protection of public, gravity of
    offenses as they related to impact on life of victim and community, and
    rehabilitative needs or prospects of rehabilitation for defendant).
    Judgment of sentence affirmed.
    -9-
    J-S84037-16
    Judge Solano joins the Memorandum.   Judge Olson Concurs in the
    Result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/22/2017
    - 10 -
    

Document Info

Docket Number: 1371 EDA 2016

Filed Date: 9/22/2017

Precedential Status: Precedential

Modified Date: 4/17/2021