Com. v. Charlemagne, H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAGGAI U. CHARLEMAGNE
Appellant No. 1840 EDA 2014
Appeal from the Judgment of Sentence May 27, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001931-2013
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 07, 2015
Appellant Haggai U. Charlemagne appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas. We affirm.
Appellant was charged with involuntary deviate sexual intercourse,1
unlawful contact with minor,2 statutory sexual assault,3 aggravated indecent
assault,4 incest of minor,5 endangering the welfare of children,6 corruption of
____________________________________________
1
18 Pa.C.S. § 3123(a)(7).
2
18 Pa.C.S. § 6318(a)(1).
3
18 Pa.C.S. § 3122.1(b).
4
18 Pa.C.S. § 3125(a)(8).
5
18 Pa.C.S. § 4302(b)(2).
6
18 Pa.C.S. § 4304(a).
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minors,7 indecent assault of a person less than 16 years of age,8 and
tampering with evidence.9 The charges stemmed from the sexual abuse of
Appellant’s niece.
On January 29, 2014, Appellant pled guilty to unlawful contact with a
minor and statutory sexual assault. For each offense, the standard
sentencing guidelines range was 12 to 24 months’ imprisonment, with an
aggravated range of 36 months. The maximum sentence for each offense
was 240 months’ imprisonment.
On May 27, 2014, the trial court sentenced Appellant to a 36 to 72
month term of imprisonment for unlawful contact with a minor and a
consecutive 36 to 72 month term of imprisonment for statutory sexual
assault. The aggregate sentence was 72 to 144 months’ imprisonment.
Appellant’s convictions subjected him to the lifetime registration requirement
of the Sex Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§ 9799.10, et seq., and to possible deportation.
On June 4, 2014, Appellant filed a motion for reconsideration of
sentence, which the trial court denied on June 5, 2014. On June 24, 2014,
____________________________________________
7
18 Pa.C.S. § 6301(a)(1)(ii).
8
18 Pa.C.S. § 3126(a)(8).
9
18 Pa.C.S. § 4910(1).
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Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
1. Did the trial court err and abuse its discretion by
imposing a manifestly excessive sentence at the highest
end of the aggravated range of the Pennsylvania
Sentencing Guidelines, by failing to consider the relevant
sentencing criteria of the Pennsylvania Sentencing Code,
including the personal characteristics of the Defendant, his
rehabilitative needs, the need for protection of the public
and the presence of mitigating circumstances?
2. Did the Trial Court err and abuse its discretion by
imposing a manifestly excessive sentence at the highest
end of the aggravated range of the Pennsylvania
Sentencing Guidelines, by failing to state sufficient reasons
on the record for the sentence imposed?
Appellant’s Brief at 6. Both issues challenge discretionary aspects of
Appellant’s sentence.
“Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of 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.
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant raised the issues in timely post-sentence motions, filed a
timely notice of appeal, and included a statement of reasons pursuant to
Rule 2119(f) in his brief. We must, therefore, determine whether his issues
present substantial questions and, if so, review the merits.
“The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists
where a defendant raises a plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d
251, 255 (Pa.Super.2003)).
Appellant first asserts that the trial court imposed an excessive
sentence and failed to consider the relevant sentencing criteria, including his
personal characteristics, his rehabilitative needs, the need for protection of
the public, and the presence of mitigating circumstances. Appellant’s Brief
at 13-15, 16-22. This raises a substantial question for our review.
Commonwealth v. Gonzales, -- A.3d ---, 2015 Pa. Super. 13, at *15
(Pa.Super.2015) (claim of excessiveness coupled with failure to consider
mitigating factors raised substantial question); Commonwealth v. Dodge,
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77 A.3d 1263, 1272 n.8 (Pa.Super.2013) (“Careful litigants should note that
arguments that the sentencing court failed to consider the factors proffered
in 42 Pa.C.S. § 9721 does present a substantial question whereas a
statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721, has been rejected.”).
Appellant next claims the trial court imposed an excessive sentence
without stating sufficient reasons on the record. Appellant’s Brief at 13-15,
22-23. Such a claim raises a substantial question for our review. See, e.g.,
Commonwealth v. Macais, 968 A.2d 773, 776 (Pa.Super.2009) (claim trial
court failed to adequately state its reasons for sentence imposed raises
substantial question); Commonwealth v. Simpson, 829 A.2d 334, 338
(Pa.Super.2003) (same).
Because the claims raise substantial questions, we will review their
merits. Further, because Appellant’s issues are interrelated, we will address
the issues together.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010) (citing
Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse
of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa.2007)).
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“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Crump, 995 A.2d at 1283 (citing Commonwealth v. Malovich, 903 A.2d
1247 (Pa.Super.2006)). Further, “where the trial court is informed by a pre-
sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super.2009) (citing Commonwealth v. Devers, 519
Pa. 88, 101–102, 546 A.2d 12, 18–19 (1988)).
Here, the trial court discussed Appellant’s “history of assaultive
behavior,” including that he was on bail for a child endangerment charge
when he committed the offenses at issue. N.T., 5/27/2014, at 7, 11. The
court noted simple assault and harassment charges were also filed against
Appellant, but did not proceed because the victim, Appellant’s wife, refused
to testify. Id., at 11-12. The trial court noted Appellant attempted to
deflect responsibility for the crime by saying “some pretty unforgiveable
things about the victim of this offense” and “attempt[ing] to paint the victim
as a ‘promiscuous youngster.’” Id. at 12. The court noted that although
Appellant did not qualify as a sexually violent predator, his sexual offender’s
assessment indicated his conduct was consistent with paraphilic interests
and his behavior was predatory in nature. Id. The court noted aggravating
circumstances, including the failure to accept responsibility and the attempt
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to deflect responsibility onto the minor victim. Id. The trial court also
reasoned that Appellant only attempted to take responsibility when he was
before the court, with the threat of a lengthy sentence. Id. at 12-13. The
trial court then noted the reasons set forth in the presentence report, which
it adopted in its entirety, and sentenced Appellant as set forth above. Id. at
13.
The trial court acted within its discretion when it sentenced Appellant.
Although the trial court discussed only the aggravating factors, it considered
the pre-sentence report and adopted all reasons set forth therein. See
Ventura, 975 A.2d at 1134 (where trial court has pre-sentence report, “it is
presumed that the court is aware of all appropriate sentencing factors and
considerations”). Further, the trial court stated sufficient reasons for the
sentence imposed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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