Com. v. Alog, C.

J-S85036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : CHARLIE ALOG, : : Appellant : No. 2909 EDA 2015

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.: FILED January 20, 2017

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.1 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

1 See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3125(a)(1), 5126(a).

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forth herein. See Trial Court Opinion, 2/8/16, at 1-3.2, 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.

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?

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?

2 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. 3 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.

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Brief for Appellant at 4. We will address Alog’s issues together as they are related.

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

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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

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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.

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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

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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.4 We, therefore, affirm on this basis in rejecting Alog’s issues. See Trial Court Opinion, 2/8/16, at 3-7.

Judgment of sentence affirmed.

Judge Ransom joins the memorandum.

Judge Panella concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/20/2017

4 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).

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Circulated 12/21/2016 12:36 PM

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION CP-51-CR-0010608-2014 COMMONWEALTH OF PENNSYLVANIA FILED CP-51-CR-0010613-2014

v. FEB 0 8 2016 2907 EDA 2015 Criminal Appeal: unii 2909 EDA 2015 CHARLIE ALOG First Judicial District of PA OPINION February 8, 2016 BUTCHART, J.

I. PROCEDURAL BACKGROUND guilty to one count of Rape by On December 9, 2014, Defendant, Charlie Alog, pled of the first degree, Involuntary Forcible Compulsion (18 Pa.C.S. §3121(a)(1)) as a felony as a felony of the first degree, and Deviate Sexual Intercourse ( "IDSI ") (18 Pa.C.S. §3123(a)(1)) §3125(a)(1)) as a felony of the second Aggravated Indecent Assault without Consent (18 Pa.C.S. guilty to Flight to Avoid degree for CP- 51 -CR- 0010608 -2014. Defendant also pled a felony of the third degree for CP-51- Apprehension, Trial or Punishment (18 Pa.C.S: §5126(a)) that a pre- sentence report, mentathealth CR- 0010613 -2014. The Court deferred sentencing so ( "SOAB ") could be prepared. evaluation, and Sexual Offenders Assessment Board evaluation that Defendant did not meet the criteria of The SOAB evaluation dated March 9, 2015, indicated

a sexually violent predator ( "SVP"). and imposed the following On April 20, 2015, this Court conducted a sentencing the charge of Rape, seven and a half to concurrent sentences: seven and a half to fifteen years on on the charge of Aggravated Indecent fifteen years on the charge of IDSI, and five to ten years to one to three years Assault for CP- 51 -CR- 0010608-2014. Defendant was sentenced for CP-51 -CR- 0010613 -2014 to be incarceration on the charge of Flight to Avoid Apprehension

0010608 -2014. Defendant filed a post - served consecutive to his sentence for CP-51 -CR- 5, 2015. sentence motion, which the Court denied on August sentence on the grounds that: a) the Defendant now appeals from the Court's judgment of in violation of 42 Pa.C.S.A. §9721(b); Court failed to state its reasons for the sentence imposed,

b) in imposing a sentence above the sentencing guidelines range, the Court failed to provide a

reasons for the deviation from the guidelines, in contemporaneous written statement of reason or to consider the rehabilitative needs of the violation of 42 Pa.C.S.A. §9721(b); c) the Court failed by his waiver of the preliminary defendant; his acceptance of responsibility as demonstrated contact, in violation of the general hearings and his guilty plea; and his lack of any prior criminal in 42 Pa.C.S.A. §9721(b); and d) the standards and principles governing sentencing set forth Statement of Matters Court imposed a manifestly unreasonable and excessive sentence. the reasons set forth below, Defendant's Complained of on Appeal ( "Statement ") at ¶ 4a-d. For

claims are without merit and the judgments of sentence should be affirmed.

H. FACTUAL BACKGROUND

was at the Philadelphia home of On July 22, 2012, R.A. ( "Complainant ") R.A. age 16, ( "N.T. ") 12/9/14 p. 8, 4/20/15 p. 9. Defendant, her uncle, for a barbeque. Notes of Testimony on the level of an eight year-old Complainant has severe developmental delays and functions his niece to go to his bedroom to child. N.T. 12/9/14 p. 9, 4/20/15 p. 9. Defendant instructed inside the room, Defendant removed watch a video. N.T. 12/9/14 p.8, 4/20/15 p. 9. Once Defendant then performed oral sex Complainant's clothes and put his mouth on her breast. I_d.

N.T. 12/9/14 p. 9, 4/20/15 p. 9. on her and penetrated her vagina with his fingers and penis. mother ascend the stairs looking for Defendant ceased his actions when he heard Complainant's the bathroom and told her to put on her her daughter. Id. Defendant ordered Complainant into

shorts. N.T. 12/9/14 p. 9. Complainant's mother found her in the bathroom with her shorts

4/20/15 p. 9. Complainant's mother told down and wearing her underwear incorrectly. N.T. authorities. N.T. 12/9/14 p. 9, 4/20/15 p. Defendant that she planned to report the incident to the

9.

Canada to the Philippines. N.T. On July 25, 2012, Defendant fled the United States via later, Defendant was located, 12/9/14 pp. 9 -10, 4/20/15 pp. 9 -10. Approximately two years United States Marshals. Id. apprehended, and returned to the United States by the

III. DISCUSSION

for the sentence imposed, in Defendant claims that, "the Court failed to state its reasons This claim is without merit. violation of 42 Pa.C.S.A. §9721(b)." Statement at if 4(a). at Under 42 Pa.C.S.A. § 9721(b), the sentencing court is required to state, in open court

42 Pa.C.S.A. 9721(b). However, the time of sentencing, the reasons for the sentence it imposed. on the record, that it has been "[t]his requirement can be satisfied by the trial court indicating, 835 A.2d 720, 734 (Pa. Super. informed by a presentence report." Commonwealth. y. Reynolds, 12 (Pa. Super. 1988) (where pre-sentence 2003). See also Commonwealth v. Devers, 546 A.2d aware of relevant information regarding reports exist, it is presumed that the sentencing judge is along with mitigating statutory the defendant's character and has weighed those considerations

factors.)

In the present case, this Court satisfied the statement of reasons requirement for

was fully informed by the pre- sentence sentencing under 42 Pa.C.S.A. §9721(b). The Court N.T. 4/20/15 p. 7. The Court report, the mental health evaluation, and the SOAB evaluation. information contained therein in thoroughly xeviewed the documents and considered the the Court met the requirement fashioning an appropriate sentence for Defendant. Accordingly,

record that it had reviewed the pre- sentence of 42 Pa.C.S.A. §9721(b) by indicating on the evaluation. report, the mental health evaluation, and the SOAB

above the sentencing guidelines range, Defendant claims that, "in imposing a sentence

the Court failed to provide a contemporaneous written statement of reason or reasons for the

42 Pa.C.S.A. §9721(b)." Statement at 114(b). This deviation from the guidelines, in violation of

claim is without merit.

Commonwealth. v. Smith, 534 Courts are afforded considerable deference in sentencing. guidelines are advisory and not binding on the A.2d 836, 838 (Pa. Super. 1987). The sentencing

court. Commonwealth v. Walls, 926 A.2d 957, 962 -63 (Pa. 2007). Nevertheless, if the court

the court must provide a contemporaneous sentences a defendant outside those guidelines, Id..; 42 Pa.C.S.A. § 9721(b). written statement setting forth its reasons for the deviation. a proper `contemporaneous statement' "[W]hen imposing sentence, a trial court has rendered long as the record demonstrates with clarity under section 9721(b) of the Sentencing Code, so in a rational and systematic way and made a that the court considered the sentencing guidelines v. Rodda, 723 A.2d 212, 216 (Pa. dispassionate decision to depart from them." Commonwealth

Super. 1999).

for sentencing under 42 In the present case, this Court satisfied the requirements of the pre -sentence report, the mental health Pa.C.S.A. §9721(b). The Court was fully informed p. 7. The Court thoroughly reviewed the evaluation, and the SOAB evaluation. N.T. 4/20/15 therein in fashioning an appropriate documents and considered the information contained the testimony presented at the sentencing sentence for Defendant. The Court also considered Defendant's adult children. N.T. 4/20/15 hearing from Complainant's mother, Defendant, and

range and that the Court was aware of the sentencing pp. 15 -21, 29 -32. The record is clear the impact of The record contained ample testimony regarding guidelines. N.T. 4/20/15 pp. 6 -8. his the Defendant's attempt to avoid prosecution, the crime on the victim and her family, U.S. for purposes of prosecution, his subsequent decision to enter a non - involuntary return to the extensive for recidivism. The Court considered this negotiated guilty plea, and prospects The Court as well as the SOAB, etc. in its decision to impose consecutive sentences. testimony appropriate the guidelines and rationally deviated from the guidelines to fashion an considered without within the purview of 42 Pa.C.S.A. §9721(b). As such, Defendant's claim is sentence

merit.

failed to consider the rehabilitative needs of the Defendant next claims that, "the Court as demonstrated by his waiver of the preliminary defendant; his acceptance of responsibility the general hearings and his guilty plea; and his lack of any prior criminal contact, in violation of at and principles governing sentencing set forth in 42 Pa.C.S.A. §9721(b) ;" Statement standards

¶ 4(c). This claim is without merit. must impose a term of confinement consistent In fashioning a sentence, the trial court as it relates to the impact of with the protection of the public, the gravity of the offense the victim and to the community, and the rehabilitative needs of the defendant.... the Sentencing Guidelines, the court is not Although the trial court must consider At appropriate under the Sentencing Guidelines. obligated to impose a sentence deemed the same time, the trial court cannot justly sentence a defendant unless it possesses the circumstances of the offense and the sufficient and accurate information about its judgment. character of the defendant to formulate v. 1013, 1018. (Pa. Super. 2003) citing Commonwealth Commonwealth v. Anderson, 830 A.2d

Begley, 780 A.2d 605, 642 -43 (Pa. 2001).

rehabilitative needs, lack of prior criminal Here, the Court considered the Defendant's and ultimate decision to plead guilty. However, contact, his waiver of preliminary hearings,

against the those factors were not considered in isolation. The Court weighed those items

circumstances of the heinous offenses, the gravity and impact of the offenses on the victim,

of an eight Defendant's own niece whose cognitive and developmental functioning was that information year -old, and the protection of the community. The Court possessed sufficient informed of regarding the nature of the offenses. N.T. 4/20/15 pp. 8 -15. The Court was fully which indicated the pre- sentence report, the mental health evaluation, and the SOAB evaluation factors in the character of Defendant. N.T. 4/20/15 p. 7. The Court considered all these

fashioning an appropriate sentence for Defendant.

Lastly, Defendant claims that, "the Court violated sentencing norms by imposing a

without manifestly unreasonable and excessive sentence." Statement at IT 4(d). This claim is

merit.

It is well -settled that "[ seentencing is a matter vested in the sound discretion of the of that sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse a discretion." Commonwealth v. Glass, 50 A.3d 720,727 (Pa. Super. 2012). When challenging court ignored or sentence, an appellant must reference the record to establish "that the sentencing will, or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill consider arrived at a manifestly unreasonable decision." Id. Finally, the sentencing court must upon the victim, the need to protect the public, the gravity of the offense in relation to the impact

and the rehabilitative needs of the defendant. 42 Pa.C.S.A. §9721(b).

Here, in fashioning an appropriate sentence, the Court explicitly considered Defendant's acceptance of responsibility, the information contained in the pre- sentence report, the

information contained in the mental health evaluation and SOAB report, the Sentencing the victim and Guidelines, the need to protect the public, the gravity of the offense, the impact on

4/20/15 pp. 7, 15 -21. The Court also victim's family, and Defendant's rehabilitative needs. N.T. son, and the statement from considered testimony from Defendant, his daughter, his

Complainant's mother. N.T. 4/20/15 pp. 15 -21, 29 -32. The Court sentenced Defendant to

years on the charges of Rape and incarceration on concurrent terms of seven and a half to fifteen Assault, and a consecutive term IDSI, and five to ten years on the charge of Aggravated Indecent Avoid Apprehension. The of incarceration of one to three years for the charge of Flight to for each offense.' These sentences imposed by the Court were within the statutory maximum the term of sentences should be upheld because they are within the statutory maximum, gravity of the offense as it relates confinement is consistent with the protection of the public, the

to the life of the victim and community, and Defendant's rehabilitative needs.- Smith at 838. As

Pa.C.S. 9721(b) and sentenced the Court clearly considered the appropriate factors under 42 §

not "manifestly unreasonable" and Defendant within the statutory maximums, the sentences were

no relief is due.

IV. CONCLUSION

should be affirmed. For all the foregoing reasons, the Court's judgment of sentence

BY THE COURT:

ANN M. BUTCHART, J.

sentencing provisions are as follows: 'According to the Pennsylvania Commission on Sentencing, the maximum 3 offenses -7 years. Rape by Forcible Compulsion Felony I offenses -20 years, Felony 2 offenses -10 years, Felony Indecent Assault without Consent is a Felony 2 and IDSI are classified as Felony 1 offenses while Aggravated is Felony 3 offense. offense and Flight to Avoid Apprehension, Trial or Punishment