Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee

v.

JUSTIN BEAUMONT

Appellant No. MDA 2016 Appeal from the Judgment of Sentence September 1, In the Court Common Pleas Lackawanna County Criminal Division at No(s): CP-35-CR-0002435-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.* FILED MAY 05, 2017

MEMORANDUM BY GANTMAN, P.J.: Appellant, Justin Beaumont, appeals from judgment of sentence entered Lackawanna County Court of Common Pleas, following his corruption of minors disorderly conduct.' We affirm. relevant facts procedural history of this case are follows. Appellant sexually abused stepdaughter ("Victim") from approximately October 2014 October 2015. After Victim told her mother about the abuse November 2015, Appellant exhibited suicidal tendencies checked himself into the hospital. On November Appellant confessed to sexual abuse of Victim voluntary statement to police. Police subsequently arrested Appellant, the Commonwealth charged ' Pa.C.S.A. §§ 6301(a)(1)(ii) 5503(a)(1), respectively.

*Former Justice specially assigned the Superior Court. Appellant with two counts each of involuntary deviate sexual intercourse and sexual assault, and one count each of unlawful contact with minor, indecent assault, corruption of minors, and indecent exposure on December 23, 2015. On June 6, 2016, Appellant entered corruption of minors disorderly conduct, exchange for the Commonwealth's request court dismiss the remaining charges against Appellant. After accepting Appellant's plea, court deferred sentencing pending preparation of pre -sentence investigation ("PSI") report.

On September 1, 2016, the court sentenced Appellant term of eighteen (18) thirty-six (36) months' imprisonment for corruption of minors conviction consecutive term one (1) year probation for disorderly conduct conviction. Both sentences are above the aggravated range of the sentencing guidelines. explained it imposed these sentences for Appellant's convictions due to: (1) the the offense; (2) Appellant's minimization involvement; (3) Appellant's failure to accept responsibility for action by placing blame on Victim; (4) the impact on Victim, who feels responsible for ending the relationship between Appellant Victim's mother; (5) Appellant's need sex offender mental health treatment.

On September 6, 2016, Appellant timely filed post -sentence motion, which the denied September 2016. Appellant timely filed notice of appeal September 2016. On October 2016, the ordered Appellant file concise statement of errors complained of on pursuant Pa.R.A.P. 1925(b), Appellant timely complied on October 2016.

Appellant raises the following issue for our review: WHETHER THE SENTENCES IMPOSED WERE INAPPROPRIATELY HARSH AND EXCESSIVE AND AN ABUSE OF DISCRETION, SINCE IT APPEARS THAT THE SENTENCING COURT SENTENCED [APPELLANT] AS IF HE HAD A PRIOR [RECORD] SCORE OF REFEL?

(Appellant's Brief at 4).

Appellant claims the failed to consider Appellant's lack of criminal background, steady employment, status provider for his family, and expression of remorse at sentencing. Appellant also avers the misinterpreted his statement given to police during his hospitalization for Appellant asserts the court mistook Appellant's suicidal tendencies. statement evidence of Appellant's failure exhibit remorse or accept responsibility for his actions. Appellant concludes the court's failure to consider certain factors its misinterpretation statement to police resulted harsh excessive sentence, we should vacate remand resentencing. As presented, Appellant challenges aspects sentence.2 Lutes, "[W]hile which includes sentence negotiation ordinarily precludes defendant from contesting the validity his...sentence other than argue illegal or did not (Footnote Continued Next Page)

A.2d 949 (Pa.Super. 2002) (stating sentence is manifestly excessive challenges discretionary aspects of sentencing).

Challenges to discretionary aspects of sentencing do not entitle an appellant to an right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspects of issue: four-part analysis determine: (1)

[W]e conduct a whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 903; (2) whether issue was properly preserved at sentencing or in a motion reconsider and modify sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant's brief has fatal defect, Pa.R.A.P. 2119(f); (4) whether there is substantial question sentence appealed from not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections discretionary aspects of sentence are generally waived if they are not raised at the sentencing hearing or raised in motion modify the imposed at hearing. Mann, 820 A.2d 788, (Pa.Super. 2003), appeal denied, A.2d 599

When appealing the discretionary aspects sentence, an appellant (Footnote Continued)

have jurisdiction, plea agreements are exception in which defendant will not be precluded from appealing the aspects of the sentence." Tirado, 870 A.2d 362, 365 n.5 2005) (emphasis original). "An 'open' plea agreement one which there no negotiated sentence." Id. 363 n.1. Here, Appellant's included no negotiated sentence. must invoke the appellate court's jurisdiction by including brief separate concise statement demonstrating there a substantial question as the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement an appellant separately set forth reasons relied upon allowance of furthers purpose evident the Sentencing Code a whole of limiting any challenges trial court's evaluation of the multitude factors impinging the sentencing decision to exceptional cases." Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 745, 964 A.2d 895 (2009), cert. denied, U.S. 129 S.Ct. 174 L.Ed.2d determination what constitutes a substantial question must be evaluated a case -by -case basis. Anderson, A.2d 2003). A substantial question exists "only when appellant advances colorable argument the sentencing judge's actions were either: (1) inconsistent with specific provision of the Sentencing Code; or (2) contrary fundamental norms which underlie sentencing process." Sierra, supra 913. A excessiveness can raise substantial question the appropriateness of sentence under the Sentencing Code, even if the sentence within the statutory limits. Mouzon, supra at 430, 812 A.2d at 624. "A substantial question raised where appellant alleges the sentencing erred by imposing an aggravated without consideration of mitigating range circumstances." Hyland, 875 A.2d 1175, 1183 2005), appeal denied, 723, 890 A.2d 1057

Here, Appellant properly preserved his discretionary aspects of sentencing claim in post -sentence motion and Rule 2119(f) statement; and his that the imposed an above -aggravated range sentence without consideration of certain mitigating factors appears to raise substantial question as to the discretionary aspects sentence. id.

Our standard of review of a challenge the aspects of follows: Sentencing matter vested sound discretion of the sentencing judge, sentence will not be disturbed absent manifest abuse discretion. In this context, abuse of discretion not shown merely by an error judgment. Rather, appellant must establish, by reference the record, the sentencing ignored or misapplied the law, exercised its judgment for reasons partiality, prejudice, bias or ill will, or arrived at manifestly unreasonable decision. Id. (quoting Rodda, 723 A.2d (Pa.Super. 1999) (en banc)).

Pursuant Section 9721(b), "the shall follow the general principle the sentence imposed should call for confinement is consistent with the protection of the public, the of the offense it relates the impact life of the victim and on community, rehabilitative needs of the defendant." Pa.C.S.A. § 9721(b). "[T]he court shall make as part of the record, disclose court at the time of sentencing, statement of the reason or reasons for the sentence imposed." Id. Nevertheless, "[a] sentencing court need not undertake lengthy discourse its reasons for imposing sentence or specifically reference the statute question...." Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record whole must reflect the court's consideration of the facts of the case and the defendant's character. Id. "In particular, court should refer defendant's prior criminal record, his for rehabilitation." age, personal characteristics potential Griffin, 804 A.2d 10 2002), appeal denied, 582 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 162 L.Ed.2d

Instantly, record belies Appellant's contentions. court had benefit of PSI report at sentencing. Therefore, we can presume it considered the relevant factors when it sentenced Appellant. Tirado, supra (holding where sentencing had benefit PSI, law presumes was aware weighed relevant information regarding defendant's character mitigating factors). Additionally, explained its reasons for Appellant's follows: [c]ourt[']s imposition sentence[s] above

This aggravated range was appropriate given 1) the nature of the offense, 2) [Appellant's] failure accept [V]ictim, responsibility for actions, 3) the impact on - -

and 4) [Appellant's] serious rehabilitative needs.

First, this court considered the nature and offense in this matter. Here, [Appellant] preyed on [Victim] over year's time. [Appellant] reports that he himself was also victim of molestation, yet he continued to sexually abuse [Victim] even though he understood the serious consequences of his actions. Second, the court considered [Appellant's] failure to accept responsibility for his actions. Here, [Appellant] blamed [V]ictim initial instigator minimized actions during the year he preyed on [Victim]. Third, the court considered the impact [V]ictim. Here, [V]ictim stated this abuse "has always had an emotional effect on her." [V]ictim also stated that..."over span year she would not be able sleep in fear [Appellant] would come into her room in the middle of the night." [V]ictim had also stated "it is her fault that [Appellant] no longer in home" be with [Victim's] mother sister. Lastly, considered [Appellant's] rehabilitative needs. serious Here, [Appellant] serious need sex offender mental health treatment that can best be addressed State Correctional Institution.

Therefore, the appeal should be denied. (See Trial Court Opinion, filed November 2016, at 7-8) (internal citations omitted). We accept the court's analysis. Hyland, supra. Therefore, Appellant not entitled relief on his challenge aspects of sentence. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 5/5/2017