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[U] Commonwealth v. Defrancesco

Superior Court of Pennsylvania

January 8, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KEVIN ANTHONY DEFRANCESCO Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KEVIN DEFRANCESCO Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence November 16, 2012 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000082-2012, CP-43-CR-0000089-2012.

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

OLSON, J.

Appellant, Kevin Anthony DeFrancesco, appeals from the judgment of sentence entered on November 16, 2012, as made final by the denial of Appellant's post-sentence motion on November 21, 2012. We affirm.

On August 7, 2012, Appellant entered an open guilty plea to three crimes at two docket numbers. Specifically, at docket number 82 Criminal 2012, Appellant pleaded guilty to unlawful contact with a minor and sexual abuse of children;[1] at docket number 89 Criminal 2012, Appellant pleaded guilty to criminal attempt to commit sexual abuse of children.[2]

During the guilty plea colloquy, Appellant admitted to the factual basis underlying all of the crimes. With respect to the crimes at docket number 82 Criminal 2012, Appellant admitted that – while he was a 28-year-old teacher at a local high school – he repeatedly text-messaged a 14-year-old female student, and requested that the student send him nude photographs of herself. N.T. Guilty Plea Colloquy, 8/7/12, at 15-16. The 14-year-old student then transmitted to Appellant three fully nude photographs of herself. Id. at 16 and 18. Further, Appellant testified that he transmitted to the 14-year-old student two nude photographs of himself – at least one of which was a photograph of Appellant's erect penis. Id.

With respect to the crime at docket number 89 Criminal 2012, Appellant testified that, at approximately the same time that he was communicating with the 14-year-old student, Appellant also text-messaged a 13-year-old student and requested that she send him a nude photograph of herself. Id. at 17 and 18-19. The 13-year-old student did not, however, comply with Appellant's request and Appellant, likewise, did not transmit any nude photographs of himself to the 13-year-old girl. Id. at 17.

On November 16, 2012, Appellant was sentenced. At docket number 82 Criminal 2012, the trial court sentenced Appellant to serve two consecutive terms of 9 months to 36 months in prison; at docket number 89 Criminal 2012, the trial court sentenced Appellant to serve a term of 9 months to 24 months in prison, with the sentence to be served consecutively to that which was imposed at docket number 82 Criminal 2012. N.T. Sentencing, 11/16/12, at 57-58. All three sentences fell within the standard range of our Sentencing Guidelines. See Appellant's Brief at 15.

On November 20, 2012, Appellant filed a timely post-sentence motion and claimed that the trial court's sentence was manifestly excessive. Appellant also claimed that, in imposing its sentence, the trial court abused its discretion by placing "far too much weight [upon] the retributive aspect of sentencing" and by placing "far too little, if any, weight [upon] the mitigating evidence in this case." Appellant's Post-Sentence Motion, 11/20/12, at 4. The trial court denied Appellant's post-sentence motion on November 21, 2012 and Appellant filed a timely notice of appeal to this Court.

Now on appeal, Appellant raises the following claim:
Whether the sentencing court imposed a sentence that was clearly unreasonable, unduly harsh and manifestly excessive, where it focused exclusively on the retributive aspects of sentencing and failed to adequately consider the needs for the protection of the community and rehabilitative needs of [Appellant] and, thus, abused its discretion?

Appellant's Brief at 4.[3]

Since Appellant challenges the discretionary aspects of his sentence, we note that "sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion." Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.Super. 2001). Moreover, pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. ยง 9781(b). ...


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