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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

PHILIP MICHAEL PLANO

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2873 EDA 2019 Appeal from the Judgment of Sentence dated August 30, 2019 In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP

- 09

- CR

- 0006496

- 2018

BEFORE: BOWES, J., STABILE, J., and COLINS, J. * MEMORANDUM BY COLINS, J.: FILED AUGUST 21, 2020 Appellant, Philip Michael Plano , appeals from the judgment of sentence
of four to eight years of confinement , which was imposed after he pleaded guilty to unlawful contact with minor (rela ting to sexual offenses) , criminal use of communication facility, and driving while operating privilege is suspended or revoked. 1 We affirm o n the basis of the trial court opinion. The facts underlying this appeal are as follows: Sergeant Kevin Stebner o f the Warrington Township Police

. . . in August of 2018, entered an online site called Doublelist and engaged the [Appellant] the using persona of a 14

- year - old female. The two exchanged 742 e

- mails, the majority of which were sexually explicit wherein th e [Appellant] discussed engaging in

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6318(a)(1), 7512(a) and 75 Pa.C.S. § 1543(a), respectively.J

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anal sex and using sex toys through a series of meets that the two mutually agreed upon; again, Sergeant Stebner using the persona of a 14

- year - old female. Several different police departments identified [Appellant] as showing up to the Valley Square Shopping Center in Warrington Township, Bucks County. And through that they were eventually able to take him into custody. The final meet between this, purported 14

- year - old girl and [Appellant] was supposed to occur on October 11th of 2018 around 3:30 p.m. when this young lady was purported to be getting out of school. When officers effectuated a car stop on the [Appellant], he was in possession of the phone which he utilized to send those e - mails and he admitted to tha t. The car seats were folded down and back, and 12 condoms were found in a trap compartment. When interviewed, he admitted to being the author of all of the e mails. H e claimed to be meeting the 14

- year - old female to save her from being preyed upon by ol der men. Trial Court Opinion, filed December 18, 2019 , at 1

- 2

. Following Appellant’s aforementioned guilty plea and sentencing, he filed a motion for reconsideration of sentence, which was denied by the trial court on September 13, 2019. On October 4, 20 19 , Appellant filed this timely appeal

. 2 Appellant presents the following issue for our review: Whether a sentence of four to eight years, which w as in the standard range of the P ennsylvania s entencing guidelines was clearly unreasonable p ursuant to 42 P a . C

. S . §9781(c)(2)? Appellant’s Brief at 4 (unnecessary capitalization omitted).

_________________ __________ ______ ____ _______ 2 On October 29, 2019, Appellant filed his statement of errors complained of on appe al. The trial court entered its opinion on December 18, 2019.J

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“ 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.” Commonwealth v. Lekka , 210 A.3d 343, 350 (Pa. Super. 2019). Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue[, w]e [normally] condu ct 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, 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. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018). In the current case, Appellant filed a timely notic e of appeal and preserved his i ssue in a post

- sentence motion, and his brief includes a
statement pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’ s Brief at 10

- 11. The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, “must be eval uated on

a case - by

- case basis .” Manivannan , 186 A.3d at 489. In his Rule 2119(f) Statement, Appellant contends that, “[w] hile the sentencing court sentenced Appellant within the guidelines, this case involves circumstances where the application of the guidelines is clearly unreasonable. ” Appellant’s Brief at 10.J

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“ Whe re a court sentences within the Guidelines but it is claimed the guidelines were erroneously applied, or where specific circum stances make application of the guidelines unreasonable , Appellant will satisfy his burden o f demonstrating that there is a substantial question that the sentence imposed is not appropriate. ” Com monwealth v. Pittman , 7 37 A.2d 272, 274 (Pa. Super. 1999)

. Consequently, Appellant’s Rule 2119(f) Statement raises a substantial question. Appellant argues: “ A sentence of four to eight years for Appellant, who was fifty

- one years old at the time of sentencing with no prior record and who had no contact with a minor was clearly unreasonable. ” Appellant’s Brief at
11

- 12. After a thorough re view of the record, the briefs of the parties, the applicable law, and the well

- reasoned opinion of the Honorable Wallace H. Bateman, Jr., we conclude Appellant’s issue merits no relief. The trial court opinion comprehensively discusses and properly dispo ses of that question. See Trial Court Opinion, filed December 18, 2019 , at 3

– 5 (the trial court took into account Appellant’s background , nature, and character and balanced those factors with a need to protect the community ; “[a] lthough there was not an a ctual 14

- year - old, th[e c] ourt believes that had Appellant encountered a child that Appellant would have appeared before it for a more
serious crime ” ). Accordingly, we affirm on the basis of the trial court opinion. The parties are instructed to attach t he opinion of the trial court in any filings referencing this Court’s decision. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/21/20