Com. v. Farfan, A.

J-S03042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ALFREDO FARFAN :

:

Appellant : No. 1981 EDA 2022

Appeal from the Order Entered June 22, 2022

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002071-2021

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED JUNE 13, 2023

Alfredo Farfan (“Farfan”) appeals from the judgement of sentence

imposed following his conviction for involuntary deviate sexual intercourse

(“IDSI”) with a child (less than 13 years of age) and corruption of minors.1

We affirm.

In March 2022, pursuant to a plea agreement, Farfan entered an open

guilty plea to the above offenses, which stemmed from his sexual assault of a

twelve-year-old girl on multiple occasions between 2017 and 2018. Pursuant

to the plea agreement, the Commonwealth dismissed five other criminal

charges arising from the sexual assaults. The trial court ordered that a

presentence investigation report (“PSI”) be prepared in advance of the

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1 See 18 Pa.C.S.A. §§ 3123(b), 6301(a)(1)(ii).

J-S03042-23

sentencing hearing. On June 22, 2022, the trial court conducted a sentencing

hearing at which Farfan’s sister and daughter testified, and the impact

statement prepared by the child victim was read into the record. At the

conclusion of the hearing, the trial court imposed a standard range sentence

of twelve to twenty-four years in prison for IDSI,2 and a consecutive standard

range sentence of one to two years in prison for corruption of minors, for an

aggregate term of thirteen to twenty-six years in prison.3 Farfan filed a motion

to reconsider sentence which the trial court denied.4 Farfan then filed a timely

notice of appeal and a court-ordered concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).5

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2 Farfan’s conviction for IDSI of a child less than thirteen years of age required

the imposition of a mandatory minimum sentence of ten to twenty years in

prison. See 42 Pa.C.S.A. § 9718(a).

3 The trial court also determined that Farfan was subject to lifetime

registration requirements pursuant to the Sex Offender Registration and

Notification Act (“SORNA II”), 42 Pa.C.S.A. § 9799.10 et seq. As Farfan has

not appealed his registration requirements, we need not address them.

4 In his post-sentence motion, Farfan argued that his sentence “is an

extremely severe punishment in regards to [his] background,” noting that his

prior record score was zero and that he has never had any infractions with the

law. Petition for Reconsideration of Sentence, 7/1/22, at unnumbered 1.

Farfan additionally argued that his convictions stemmed from the same

incident with the same victim, and that his sentences should therefore be

imposed to run concurrently, resulting in a reduced aggregate prison term of

ten to twenty years. See id.

5 In his Rule 1925(b) concise statement, Farfan argued that his sentence

“represented an unreasonable and excessive sentence which failed to consider

mitigating factors.” Concise Statement, 8/10/22, at unnumbered 1. In lieu

(Footnote Continued Next Page)

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Farfan raises the following issue for our review:

Did the trial court err when it imposed a sentence inconsistent

with the Sentencing Code and/or contrary to the fundamental

norms which underlie the sentencing process, in that said

sentence constituted an abuse of discretion because the sentence

imposed represented an unreasonable and excessive sentence

which failed to consider mitigating factors?

Farfan’s Brief at 7 (unnecessary capitalization omitted).

Farfan’s issue presents a challenge the discretionary aspects of his

sentence. “Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d

162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary

sentencing issue, this Court conducts a four-part analysis to determine:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly

preserved at sentencing or in a motion to reconsider and modify

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief

has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. §

9781(b).

Id. at 170 (citation omitted). When an appellant challenges the discretionary

aspects of his sentence, we must consider his brief on this issue as a petition

for permission to appeal. See Commonwealth v. Yanoff, 690 A.2d 260,

____________________________________________

of authoring a Rule 1925(a) opinion, the trial court directed this Court to the

place in the record where the reasons for its judgment of sentence may be

found. See Pa.R.A.P. 1925(a).

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267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d

17, 18 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).

In the instant case, Farfan filed a timely post-sentence motion and a

timely notice of appeal, and included in his appellate brief a separate Rule

2119(f) statement. As such, he is in technical compliance with the

requirements to challenge the discretionary aspects of his sentence. See

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we

will proceed to review the Rule 2119(f) statement to determine whether Farfan

has presented a substantial question for our review.

We determine the existence of a substantial question on a case-by-case

basis. A substantial question exists only when:

the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.

Additionally, we cannot look beyond the statement of questions

presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

In his Rule 2119(f) statement, Farfan maintains that the sentencing

court abused its discretion by imposing consecutive sentences for an

aggregate prison sentence of thirteen to twenty-six years without adequately

considering certain mitigating factors, such as Farfan’s history of employment,

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lack of a prior criminal record, and his financial and emotional support for his

family. See Farfan’s Brief at 15-16.

Initially, we observe that Farfan has waived any challenge the

consecutive nature of his sentences. Although Farfan challenged the

consecutive nature of his sentences in his post-sentence motion, he failed to

preserve that challenge in his concise statement, wherein he claimed only that

the trial court imposed “an unreasonable and excessive sentence which failed

to consider mitigating factors.” Concise Statement, 8/10/22, at unnumbered

1; see also Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not included in

the concise statement are waived). Moreover, in the trial court, the only

mitigating factors that Farfan claimed the court failed to consider were his

prior record score of zero and lack of prior infractions with the law. See

Petition for Reconsideration of Sentence, 7/1/22, at unnumbered 1. As Farfan

did not raise any other challenge in the trial court regarding the court’s lack

of consideration of other mitigating factors, he failed to preserve any challenge

regarding other mitigating factors for our review. See Pa.R.A.P. 302(a)

(providing that issues not raised in the lower court are waived and cannot be

raised for the first time on appeal).

Nevertheless, to the extent that Farfan claims that his sentence is

excessive and that the trial court failed to consider that he had a prior record

score of zero and no prior infractions with the law, we conclude that he has

raised a substantial question for our review. See Commonwealth v. Hill,

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210 A.3d 1104, 1116 (Pa. Super. 2019) (finding a substantial question where

the appellant averred that the trial court failed to consider certain sentencing

factors in conjunction with an assertion that the sentence imposed was

excessive); see also Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa.

Super. 2016) (holding that a claim that a standard range consecutive sentence

was excessive and the trial court failed to consider rehabilitative needs raises

substantial question); Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2015) (holding that “[t]his Court has held that an excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question”). Therefore, we will proceed

to address the merits of Farfan’s discretionary aspects of sentencing claim.

Our standard of review of a discretionary sentencing claim is well-

established:

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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation

omitted). “[W]hen imposing sentence, the trial court is granted broad

discretion, as it is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020).

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The Pennsylvania Supreme Court has explained the reason for our

deferential review as follows:

[T]he sentencing court is in the best position to measure

various factors and determine the proper penalty for a particular

offense based upon an evaluation of the individual circumstances

before it. Simply stated, the sentencing court sentences flesh-

and-blood defendants and the nuances of sentencing decisions are

difficult to gauge from the cold transcript used upon appellate

review. Moreover, the sentencing court enjoys an institutional

advantage to appellate review, bringing to its decisions an

expertise, experience, and judgment that should not be lightly

disturbed.

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations omitted);

see also Commonwealth v. Brown, 249 A.3d 1206, 1217 (Pa. Super. 2021)

(holding that “when reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime”).

When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant. See

Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa. Super. 2022). In

considering these factors the court should refer to the defendant’s prior

criminal record, age, personal characteristics, and potential for rehabilitation.

Id. However, when a PSI exists, we “presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018)

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(emphasis added; citation omitted). Stated differently, where a sentencing

court is informed by a PSI, “it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and where the court has

been so informed, its discretion should not be disturbed.” Commonwealth

v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth

v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

Here, Farfan concedes that the trial court correctly applied the

sentencing guidelines and that his sentences fall within the standard range of

the sentencing guidelines. Farfan further concedes that, where the trial court

had the benefit of a PSI, this Court will presume that the trial court was aware

of and weighed all relevant evidence, including any mitigating factors. Farfan

nevertheless contends that his sentence was clearly unreasonable given that

he has no prior criminal record.

At the sentencing hearing, the trial court expressed its reasoning for the

sentence imposed as follows:

[I]n terms of trying to fashion an appropriate sentence in

this matter, the court has taken into consideration all the

information that was supplied to the court at the time that [Farfan]

entered his guilty pleas. The court has also taken into

consideration all the information that has been presented to the

court today at the sentencing proceeding including but not limited

to the testimony of [Farfan’s] sister and [his] daughter as well as

the impact statement that was read into the record by the

assistant district attorney that was written by the victim in this

case.

The court has taken into consideration the arguments of

both the defense counsel and the assistant district attorney. . . .

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The court takes into consideration the mitigating standard

and aggravated ranges of both of. those offenses as set forth on

the Pennsylvania Commission on Sentencing Guideline Forms.

The Court takes into consideration the fact that [Farfan]

has a prior record score of 0. The court has reviewed the

information that was set forth in the [PSI] report dated

June 15, 2022. The court has also reviewed the report of the

Pennsylvania Board of Sexual Offenders Assessment Board, notes

that in that report that it was determined that . . . Farfan does not

meet the criteria to be classified as a sexually violent predator

under [SORNA II]. The court also has reviewed and takes into

consideration the psychosexual evaluation report.

[The court has] also taken into consideration the

information regarding this offense, and the court is very

concerned about what happened to this young girl. As noted by

the assistant district attorney, she was a 12-year-old girl at the

time of these sexual assaults, and . . . Farfan was 50 years of age.

The court takes into consideration that [Farfan] prior to these

offenses appears to have lived a law-abiding life, as far as we

know. There’s no information that was presented to the

court that he had any type of problems with criminal

matters either in his home country or here in the United

States, and he’s been here for a number of years. The court

notes that he has been employed and has supported his family for

a long period of time and has been described by his family,

daughter and sister, as a good person.

The court is a little bit perplexed because in some of the

information that has been presented in the reports it appears that

at times [Farfan] has expressed remorse, but then at times he

also has blamed the victim for what happened, and that is of

concern to us as well. The court also notes that, as the assistant

district attorney noted, this is not a situation where it was a lapse

of judgment on one occasion. This was an ongoing event that put

this young girl in a situation of being available for [Farfan] at any

time he thought it was an appropriate time that he could take

advantage of this child and engage in the sexual abuse of this

child.

I also am concerned and take into consideration the fact that

as noted again by the assistant district attorney that [Farfan] used

his character and his ability to gain trust to be involved in this

family and to ultimately to commit these very serious crimes

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against this young girl. And despite the fact that [Farfan] has a

record of no criminal matters in his past, these are very serious

crimes against this victim, and there’s trauma here to this young

girl which is lifelong. It’s a lifelong trauma to be the victim of

sexual assaults at this age, of any age[,] but particularly her

tender years at the age of 12. This crime that . . . Farfan

committed has had impact on his own family, and he has brought

pain to them as well.

It’s not clear really to the court as to what’s going on with

. . . Farfan because there’s no obvious information in these reports

in terms of any mental health issues. There really has been

nothing that’s been identified that would impact or lead to these

kinds of crimes. He seems to be a person who has been law-

abiding his whole life. . . . I think that there might have been

some alcohol issues at times here, but nothing that really strikes

me as other than an inability to control himself and to be attracted

in whatever way he was to a 12-year-old girl and take advantage

of her in a sexual manner. . . . He’s a danger to the community

because of his inability to conduct himself in an appropriate

fashion. I believe that[] it's a concern to the court for him to be

around minor children in the future moving forward.

[Farfan] gets some credit for the fact that he has pleaded

guilty to these crimes not requiring this child to undergo a trial

and testimony in open court. Because of the nature of these

crimes and the information that I’ve just made a part of the

record, I do find that incarceration is necessary in this case and

no other form of punishment would be sufficient.

N.T., 6/22/22, at 20-25 (unnecessary capitalization omitted, emphasis

added).

After careful review, we conclude Farfan’s standard range sentences

were neither excessive nor unreasonable and discern no abuse of discretion

by the trial court when imposing sentence. See, e.g., Moury, 992 A.2d at

171 (holding that “where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

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Sentencing Code,” and the sentence is not unreasonable where the trial court

had the benefit of a PSI and imposed a standard range sentence); see also

Raven, 97 A.3d at 1254-55 (holding that defendant’s standard range

sentences were neither unreasonable nor excessive where the “record reflects

that the [sentencing] court carefully considered all of the evidence presented

at the sentencing hearing”).

Moreover, the record demonstrates that, when imposing Farfan’s

sentence, the trial court considered the PSI and

all mitigating factors, including Farfan’s prior record score of zero and

lack of a criminal record. See N.T., 6/22/22, at 20-25. As the trial court did

not abuse its discretion, we affirm Farfan’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2023

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