J. S31041/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ROBERT M. FLERX, JR., : No. 2009 MDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered November 13, 2019,

in the Court of Common Pleas of Lancaster County

Criminal Division at No. CP-36-CR-0000395-2016

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ROBERT MICHAEL FLERX, : No. 2010 MDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered November 13, 2019,

in the Court of Common Pleas of Lancaster County 

Criminal Division at No. CP-36-CR-0006289-2017

BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2020

In these consolidated appeals, Robert M. Flerx, Jr., appeals from the 

November 13, 2019 aggregate judgment of sentence of two to five years’ 
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imprisonment1imposed after he was found to be in violation of his probation 

and parole. After careful review, we affirm the judgment the sentence. 

The trial court summarized the relevant facts and procedural history of 

this case as follows: 

On July 15, 2016, [appellant] pled guilty to one count 

each of corruption of minors and indecent exposure at 

docket number 395-2016. He was sentenced on 

October 13, 2016 to concurrent five (5) year terms of 

probation with sex offender conditions. On March 30, 

2017, a motion to issue capias and bench warrant 

was filed alleging that [appellant] was in violation of 

the sex offender conditions of his probation for being 

discharged from sex offender treatment. [Appellant] 

was subsequently found to be in violation of his 

probation on April 26, 2017 and was sentenced to new 

five (5) year terms of probation, again with 

sex offender conditions. On November 14, 2017, a 

second motion to issue capias and bench warrant was 

filed alleging that [appellant] was in violation of the 

sex offender conditions of his probation for being 

discharged from sex offender treatment, for viewing 

pornography and for being in contact with minors. 

[Appellant] was subsequently found to be in violation 

of his probation following a hearing on December 15, 

2017.

Meanwhile, on October 12, 2017, [appellant] was 

charged with statutory sexual assault, corruption of 

minors and unlawful contact with a minor. On 

March 19, 2018, [appellant] pled guilty at docket 

 

1 Specifically, at CP-36-CR-0000395-2016, appellant was sentenced to 

concurrent terms of two to five years’ imprisonment for one count each of 

corruption of minors, 18 Pa.C.S.A. § 6301, and indecent exposure, 

18 Pa.C.S.A. § 3127. At CP-36-CR-0006289-2017, appellant was sentenced 

to concurrent terms of two to five years’ imprisonment for one count each of 

statutory sexual assault, 18 Pa.C.S.A. § 3122.1, and corruption of minors. 

The sentences for both dockets were ordered to be served concurrently. (See

sentencing order 11/13/19 at ¶¶ 1-2, 4-5, 8; notes of testimony, 11/13/19 at 

11-13.) 
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number 6289-2017 to one count each of statutory 

sexual assault and corruption of minors. He was 

sentenced at docket number 6289-2017 to concurrent 

split sentences of one (1) year less one (1) day to

five (5) years of incarceration and a consecutive 

five (5) years of probation with sex offender 

conditions pursuant to the terms of a negotiated plea 

agreement. For his probation violation at docket 

number 395-2016, his probation sentences were

ordered to be continued.

[Appellant] was granted parole on October 31, 2018. 

On August 23, 2019, a motion to issue capias and 

bench warrant was filed alleging that [appellant] was 

in violation of the sex offender conditions of his parole 

and probation for being discharged from sex offender 

treatment. [Appellant] was found to be in violation of

his probation and parole at a hearing on September 9, 

2019 where it was revealed that in addition to being 

discharged from sex offender treatment, [appellant] 

had also admitted to viewing pornography, 

masturbating in public, engaging in sexual intercourse 

in public, having continued contact with minors, 

engaging in “sexual chat” with minors on dating 

websites and having photographs of a minor. 

Following the completion and filing of a presentence 

investigation report (“PSI”), [appellant] was 

sentenced on November 13, 2019. At docket number 

395-2016, [appellant] was sentenced to concurrent 

two (2) to five (5) year terms of incarceration. At 

docket number 6289-2017, [appellant’s] parole was 

terminated and he was sentenced [to] concurrent 

two (2) to five (5) year terms of incarceration. The 

sentences for both dockets were ordered to be served 

concurrently.

[Appellant] filed a post-sentence motion on 

November 25, 2019 and a notice of appeal on 

December 12, 2019. [Appellant]’s post-sentence 

motion was denied by order dated January 2, 2020. 

[On December 17, 2019, the trial court directed 

appellant to file a concise statement of errors 

complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b).] In a statement of errors 
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complained of on appeal, filed on January 3, 2020, 

[appellant] challenges the discretionary aspects of his 

sentence, claiming that the sentence is manifestly 

excessive and unreasonable and failed to adequately 

take into consideration [appellant’s] history, character 

and rehabilitative needs. [The trial court filed its 

Rule 1925(a) opinion on February 5, 2020.]

Trial court opinion, 2/5/20 at 1-4 (footnotes and extraneous capitalization 

omitted).

On appeal, appellant raises the following issue for our review:

Considering the Sentencing Code as a whole, was the

sentence imposed was [sic] unreasonable, excessive, 

and an abuse of discretion where the [trial] court did 

not adequately consider the individual history and 

character of [a]ppellant nor the rehabilitative needs of 

[a]ppellant?

Appellant’s brief at 6.

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, 

[a]ppellant 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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation 

omitted), appeal denied, 117 A.3d 297 (Pa. 2015). “[I]t is within our scope 

of review to consider challenges to the discretionary aspects of an appellant’s 

sentence in an appeal following a revocation of probation.” Commonwealth 
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v. Ferguson, 893 A.2d 735, 737 (Pa.Super. 2006), appeal denied, 906 A.2d 

1196 (Pa. 2006).

Where an appellant challenges the discretionary aspects of his sentence,

as is the case here, the right to appellate review is not absolute. 

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). On the 

contrary, an appellant challenging the discretionary aspects of his sentence 

must invoke this court’s jurisdiction by satisfying the following four-part test:

(1) whether the appeal is timely; (2) whether 

appellant preserved his issue; (3) whether appellant’s 

brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing 

code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

Instantly, the record reveals that appellant has filed timely notices of 

appeal and preserved his discretionary sentencing claim in his post-sentence 

motion. Appellant also included a statement in his brief that comports with 

the requirements of Pa.R.A.P. 2119(f). (See appellant’s brief at 10-12.) 

Accordingly, we must determine whether appellant has raised a substantial 

question.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d 

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538 
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(Pa. 2013). “A substantial question exists only when 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012) 

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013). 

Here, appellant contends that the trial court imposed an excessive and 

unreasonable sentence without giving adequate consideration to his individual 

character and history, including his age, tumultuous childhood, and 

mental health and intellectual disability issues, work history, and his 

rehabilitative needs. (Appellant’s brief at 11, 16-18.) This court has 

recognized that a claim that the sentencing court failed to consider 

individualized circumstances in fashioning a sentence, including an appellant’s 

rehabilitative needs, raises a substantial question. See Commonwealth v. 

Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (stating, “appellant’s claim that 

the sentencing court disregarded rehabilitation and the nature and 

circumstances of the offense in handing down its sentence presents a 

substantial question for our review.”), appeal denied, 91 A.3d 161 (Pa. 

2014). Accordingly, we proceed to consider the merits of appellant’s 

discretionary sentencing claim.

Contrary to appellant’s contention, our review of the November 13, 2019

sentencing hearing transcript reveals that the trial court considered and 
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weighed numerous factors in fashioning appellant’s sentence, including his 

age (26), limited work history during his period of supervision, and 

intelligence. (Notes of testimony, 11/13/19 at 7-8.) The trial court reasoned 

that “[appellant is] intelligent enough to understand the significance of his 

acts, having graduated from high school despite the fact he has some learning 

disability claims.” (Id.) The trial court also explicitly indicated that it 

considered appellant’s repeated failure to comply with the conditions of his 

probation and parole, stating that his recent cases have involved serious 

offenses with minors and “[h]is violations have consistently been refusing to 

follow through with the appropriate instructions of the Court or sex offender 

counseling people relative to those minors.” (Id. at 8.) The record further 

reflects that the trial court considered appellant’s character and written 

statement to the court, and indicated that it was aware of appellant’s ADHD 

and other intellectual disabilities. (Id. at 8-9.) Although the record reflects 

that the trial court did not specifically mention the term ‘rehabilitation’ during 

the sentencing hearing, the trial court clearly considered this factor, stressing 

appellant’s continued refusal to rehabilitate. The trial court reasoned:

Specifically, since July you have indicated

masturbation to fantasies of minors that he knows;

sending sexual images of himself to his girlfriend

within the past four weeks; public masturbation while

riding on a public bus; public masturbation while in a

grocery store bathroom; public sex in a grocery store

bathroom; purchase of panties to masturbate with;

speaking to his girlfriend about having children and

preventing children from going out to have sex by 

buying sex toys for them; grooming individuals, two 
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minor females, to meet up with you; engaging them 

in communication so that you could get pictures, nude

pictures, of them; attempting to secrete and private 

meetings with minors.

It just continues. It doesn’t matter what we tell you 

you cannot do, you just continue to do whatever you 

please. And your please (sic) is sex with minors,

pornography with minors.

Id. at 9-10.

Additionally, the record reflects that the trial court was in possession of 

a PSI report and acknowledged that it considered it “in detail.” (Id. at 8.) 

Where the trial court has the benefit of a PSI report, “we shall . . . presume 

that the sentencing judge was aware of relevant information regarding the 

[appellant]’s character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d 736, 

761 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 

2014).

Based on the foregoing, we find that appellant’s challenge to the 

discretionary aspects of his sentence must fail. Accordingly, we affirm the 

November 13, 2019 judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/25/2020