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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NON-PRECEDENTIAL DECISION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. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id.

As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [42 Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa.Super. 2007).

In the case at bar, Appellant satisfied the first three requirements, as he filed a timely notice of appeal, properly preserved his discretionary challenge in a post-sentence motion, and facially complied with Pennsylvania Rule of Appellate Procedure 2119(f). We must now determine whether Appellant has presented a "substantial question that the sentence appealed from is not appropriate under the Sentencing Code." Cook, 941 A.2d at 11.

Generally, to raise a substantial question, an appellant must "advance a colorable argument that the trial judge's actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa.Super. 1993); Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa.Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining whether an appellant has raised a substantial question, we must limit our review to Appellant's Rule 2119(f) statement. Goggins, 748 A.2d at 726. This limitation ensures that our inquiry remains "focus[ed] 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. at 727 (internal emphasis omitted).

In his Rule 2119(f) statement, Appellant claims that, at sentencing, the trial court abused its discretion by "focus[ing] exclusively on the retributive aspects of sentencing and fail[ing] to adequately consider the needs for the protection of the community and rehabilitative needs of [Appellant]." See Appellant's Brief at 4 and 15-17. Since these claims allege that the trial court failed to consider two requisite, statutory factors under the Sentencing Code, the claims raise a substantial question under the Code. See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010); Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009).[4]

Appellant's claim, however, fails on its merits, as the trial court indeed fashioned a sentence that was "consistent with the protection of the public, the gravity of the offense as it relates to the impact on the li[ves] of the victim[s] and on the community, and the rehabilitative needs of [Appellant]." 42 Pa.C.S.A. § 9721(b). As the trial court explained at sentencing:

In looking at this, the first thing is in all cases and in all situations perspective is important. There are three crimes: [unlawful contact with a minor, sexual abuse of a child, and attempted sexual abuse of a child]. In this case, the facts are, and the [bases] of the crime[s] involve[], the requesting of a minor pictures of the minor unclothed, the receiving of such [] photograph[s], and [Appellant] transmitting a photograph of his sexual organs. That is the crime.
. . . [W]e have a variety of crimes of a sexual nature. This is not a rape; this is not a voluntary deviate sexual intercourse. This is not a crime of violence or a crime where somebody died. This is a crime where you destroyed trust, where you have ultimately changed a minor's life. You were in a tremendous place of trust as a teacher. Students look up to teachers. Students develop crushes on teachers. Teachers are supposed to react responsibly. You did not.
I do note that you have both an alcohol and substance abuse problem and do have mental health issues. I've known and worked with [Dr. Robert Wettstein, the psychiatrist who evaluated Appellant in this case and who testified that Appellant's conduct in this case was "a product of his substance abuse, substance dependence, substance use, and his mental illness." However, ] that does not excuse you from punishment. If it did, then almost every murderer would not be punished. Almost every one who commits a crime of violence would not be punished.
To some extent the sentence does provide a healing process in that it presents that quantum justice is done. There will be disagreements on whether or not what I do is justice or is not justice, and that is appropriate. But it does start a process. It's necessary.
The effect on the community was substantial, although, as I indicated[. P]erspective is important, because when a community loses perspective, when family [loses] perspective of what actually happened, and what other situations are, emotions run over and there is no healing. The community needs perspective of what happened here. Otherwise, these young women will be further traumatized.
[Appellant] has made an effort to rehabilitate himself and has done the appropriate things. When you balance the effect on the community and the seriousness of the offenses, this does require total incarceration.

N.T. Sentencing, 11/16/12, at 54-56.

From the above, it is clear that, in sentencing Appellant, the trial court expressly considered "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." See 42 Pa.C.S.A. § 9721(b). Moreover, as the trial court explained, even though Appellant was no longer a teacher and even though Appellant had "made efforts to turn his life around, " the seriousness of the crimes required that the trial court impose its particular sentence. Trial Court Opinion, 1/15/13, at 4. Such a determination was within the trial court's discretion and Appellant's claim to the contrary fails.

Judgment of sentence affirmed.

Judgment Entered.


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