Com. v. Shugars

• Citation: 895 A.2d 1270
• Parties: COMMONWEALTH of Pennsylvania, v. Leonard SHUGARS, Appellant.
• Decision Date: 24 March 2006
• Court: Superior Court of Pennsylvania

895 A.2d 1270

COMMONWEALTH of Pennsylvania, v. Leonard SHUGARS, Appellant.

Superior Court of Pennsylvania.

Argued October 5, 2005.

Filed March 24, 2006.

COPYRIGHT MATERIAL OMITTED

Douglas J. Garber, Public Defender, Smethport, for appellant.

John H. Pavlock, Asst. Dist. Atty., Smethport, for Com., appellee.

BEFORE: HUDOCK, PANELLA, and TAMILIA, JJ.

OPINION BY PANELLA, J.:

¶ 1 Appellant, Leonard Shugars, appeals from the judgment of sentence entered on August 26, 2004, by the Honorable Robert L. Wolfe, Court of Common Pleas of McKean County. After careful review, we affirm.

¶ 2 On September 12, 2003, after reaching an "open" plea agreement¹ with the Commonwealth, Shugars pled guilty to aggravated indecent assault,² stemming from his admission that he sexually assaulted an eight-year-old girl. Because the offense of aggravated indecent assault is one of the specified offenses listed in 42 PA.CONS.STAT. ANN. § 9795.1, the trial court ordered the Sexual Offenders Assessment Board to assess whether Shugars was a sexually violent predator under the Registration of Sexual Offenders Act, commonly known as Megan's Law II.³ On November 3, 2003, a report was filed by the Sexual Offenders Assessment Board which concluded that Shugars met the criteria for sexually violent predator status under the law.

¶ 3 On December 2, 2003, the Commonwealth filed a praecipe pursuant to 42 PA. CONS.STAT.ANN. § 9795.4(e) requesting a hearing to determine whether Shugars was a sexually violent predator. The trial court conducted a hearing on May 28, 2004. After receiving testimony from, among others, the Commonwealth's expert witness, Brenda A. Manno, MSW, LSW, the trial court concluded that the Commonwealth had presented clear and convincing evidence to support a determination that Shugars was a sexually violent predator. Subsequent thereto, on August 26, 2004, a sentencing hearing was held.

¶ 4 In imposing Shugar's sentence, of a period of imprisonment of four to eight years on the charge of aggravated indecent assault, the sentencing court stated the following:

I have considered the defendant's prior criminal record, the fact that he has been adjudged a sexually violent predator, and in my own notes here I have the phrase, tried everything. And this system, I think, certainly, since this problem started as a juvenile, has tried everything.

I don't see anything here that is going to accomplish much in the way of rehabilitation from all the information which I have before me.

And I guess that the main factor I am interested in and considering is simply incapacitation of the person from committing future criminal acts for as long a period as we can.

. . .

The sentence of the [c]ourt being an aggravated sentence is in excess of the standard range of the sentencing guidelines. I am required to state on the record my reasons for imposing this sentence. And, in addition to those I just stated, these reasons are as follows:

The defendant is a sexually violent predator, this having been determined not only by the Sexual Offenders Assessment Board, but also by this [c]ourt after hearing and testimony of various witnesses.

This means that he is likely to engage in predatory sexually violent offenses due to mental abnormality or personality disorder, in this case, pedophilia.

Second, that the defendant is likely to re-offend based on his prior criminal record, and lack of response to many attempts of treatment, including chemical therapy.

That in this case the defendant sexually abused a child he was supposed to be caring for at that time.

That the defendant, in the course of his treatment, has admitted molesting over 20 children and has committed an act of bestiality.

For these reasons, we are going outside the sentencing guidelines in this matter as I indicated.⁴

N.T., Sentencing, 8/26/04, at 12-14 (footnote added).

¶ 5 On September 7, 2004, Shugars filed a motion to modify sentence, which was denied on November 22, 2004. This timely appeal followed.

¶ 6 On appeal, Shugars raises only one issue for our review:

Did the [t]rial [c]ourt abuse its discretion in imposing a sentence in the aggravated range?

. . .

Appellant's Brief, at 4.

¶ 7 A review of Shugars' issue presented on appeal reveals that he is challenging the discretionary aspects of his sentence.⁵ Initially, we note that "[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super.2005) (citation omitted). Shugars timely filed a motion to modify his sentence in which he argued that the sentence he received was excessive and based on impermissible factors. As such, we find that Shugars' post-sentence motion preserved the claims now raised on appeal.

¶ 8 The right to appeal the discretionary aspects of a sentence is not absolute. See id. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. "An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate `the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.'" Id. (quoting Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002) (plurality)). We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists. See id. "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. (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)) (emphasis in original).

¶ 9 Shugars has failed to provide a Rule 2119(f) statement in his brief. The Commonwealth, however, has not objected to this violation of our Rules of Appellate Procedure.⁶ "[I]n the absence of any objection from the Commonwealth, we are empowered to review claims that otherwise fail to comply with Rule 2119(f)," Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super.2005), however, "we need not do so," id. Because the absence of a Rule 2119(f) statement in the present case does not significantly hamper our ability to review Shugars' claim, we will address his claim on the merits.

¶ 10 In his brief, Shugars basically argues that his sentence is excessive because the sentencing court relied on "impermissible factors." Appellant's Brief, at 6. Such a claim raises a substantial question. See, e.g., Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.Super.2004), appeal denied, 584 Pa. 684, 881 A.2d 818 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1089, 163 L.Ed.2d 863 (2006); Commonwealth v. Long, 831 A.2d 737, 750 (Pa.Super.2003), appeal denied, 576 Pa. 721, 841 A.2d 530 (2003). Specifically, Shugars contends that the sentencing court improperly considered the following factors: his prior criminal history, his status as a sexually violent predator, that he sexually assaulted a child that was under his care, and that he had admitted to a therapist that he had sexually offended over twenty children and committed an act of bestiality.

¶ 11 This Court recently set forth the applicable standard of review 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. Fullin, 892 A.2d 843, 847 (Pa.Super.2006) (citation omitted).

¶ 12 "When imposing a sentence, the sentencing court must consider the factors set out in 42 [PA.CONS.STAT.ANN.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant...." Id. Furthermore, "[a] trial court judge has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated range." Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.Super.2005) (citation omitted). The sentencing court, however, must also consider the sentencing guidelines. See Fullin, 892 A.2d at 847.

¶ 13 In the present case, Shugars had a prior record score of zero. See Sentencing Guideline Sheet, dated 8/26/04. An offense gravity score of ten is assigned to aggravated indecent assault. See 204 PA.CODE § 303.16. Therefore, the standard range is twenty-two to thirty-six months and the aggravated range is thirty-four to forty-eight months. See id. As noted, Shugars received a sentence of four to eight years (forty-eight to ninety-six months), which is in the aggravated range of the guidelines.

¶ 14 As mentioned, on appeal, Shugars maintains that the sentencing court relied on impermissible factors in sentencing him in the aggravated range of the guidelines. Shugars first argues that "the [sentencing] [c]ourt erred in considering [his] prior record to be an aggravating factor." Appellant's Brief, at 7.⁷ "It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range. Trial courts are permitted to use prior conviction history and other factors already included in the guidelines if, they are used to supplement other...