Com. v. Toribio, K.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2025
• Docket: 1251 EDA 2024
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAYLA M. TORIBIO : : Appellant : No. 1251 EDA 2024

Appeal from the Judgment of Sentence Entered February 7, 2024 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002200-2022

BEFORE: LAZARUS, P.J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 13, 2025

Appellant, Kayla Toribio, appeals from the February 7, 2024 judgment

of sentence entered in the Northampton County Court of Common Pleas

following her plea of nolo contendere to Endangering the Welfare of Children

(“EWOC”).1 On appeal, she challenges the discretionary aspects of her

sentence. After careful review, we affirm.

The relevant procedural history is as follows. On December 20, 2023,

Appellant pleaded nolo contendere to one count of EWOC, after the

Commonwealth charged her with neglecting her two-month-old child. The

court deferred sentencing to obtain a presentence investigation (“PSI”) report

and psychological evaluation.

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1 18 Pa.C.S. § 4304(a)(1). J-S02017-25

During the sentencing hearing on February 7, 2024, the court explained

that it had considered the sentencing guidelines, the PSI report and

psychological evaluation, the facts of the case, Appellant’s unemployment,

and her lack of acceptance of responsibility, as evidenced by her decision to

plead nolo contendere. Regarding Appellant’s mental health, the court noted

that the diagnoses in the psychological evaluation—attention deficit

hyperactivity disorder, anxiety, and post-traumatic stress disorder—“are not

diagnoses that . . .prevent a mother to recognize [sic] that she’s not properly

taking care of her child.” N.T. Sentencing, 2/7/24, at 10. Ultimately, the

court determined that “a period of incarceration is necessary [and] that a

period of probation would depreciate the seriousness” of the crime. Id. at 11.

The court sentenced Appellant to 8 to 20 months of incarceration. Appellant

filed a timely post-sentence motion challenging the discretionary aspects of

her sentence, which the court denied.

Appellant timely appealed and complied with the court’s order to file a

Pa.R.A.P. 1925(b) Statement. The court did not issue a Rule 1925(a) opinion.

Appellant raises the following issues for our review:

Did the [t]rial [c]ourt abuse its discretion in sentencing Appellant?

Appellant’s Br. at 4.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right, and a challenge in this regard is properly

viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b);

Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). To obtain our

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review, an appellant must (1) preserve the issue at sentencing or in a post-

sentence motion; (2) file a timely notice of appeal; (3) include a concise

statement of the reasons relied on for appeal pursuant to Pa.R.A.P. 2119(f);

and (4) raise a “substantial question that the sentence is appropriate under

the [S]entencing [C]ode.” Commonwealth v. Carrillo-Diaz, 64 A.3d 722,

725 (Pa. Super. 2013) (citation omitted).

Here, Appellant filed a timely notice of appeal, preserved her challenge

in a post-sentence motion, and included a Pa.R.A.P. 2119(f) Statement in her

brief to this Court. Therefore, we must determine if she has raised a

substantial question.

We evaluate whether an appellant has raised a substantial question “on

a case-by-case basis.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.

Super. 2012) (citation omitted). “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.” Id. (quotation marks and citations omitted).

In her Rule 2119(f) Statement, Appellant avers that the court abused

its discretion by imposing a sentence that was both (1) excessive, without

considering mitigating factors and her rehabilitative needs, and (2)

inconsistent with 42 Pa.C.S. §§ 9721 and 9725. Appellant’s Br. at 11-12.

Appellant’s claim that the court imposed an excessive sentence and failed to

consider (1) the Section 9721(b) factors and (2) whether incarceration was

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appropriate under Section 9725 raises a substantial question.

Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa. Super. 2022)

(recognizing substantial question where appellant asserted that sentencing

court imposed an excessive sentence and failed to consider relevant

sentencing factors, including rehabilitative needs). Accordingly, we will

address the merits of her claim.

*

It is well-settled that “[s]entencing 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. Hyland,

875 A.2d 1175, 1184 (Pa. Super. 2005) (citation omitted). An abuse of

discretion is not merely an error in judgment—“[r]ather, 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.” Id. (citation

omitted).

The sentencing court must fashion an individualized sentence that is

consistent with “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.” 42 Pa.C.S. § 9721(b). The court must

“make as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

Id. Specifically, the court should refer to, inter alia, the defendant’s “age,

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personal characteristics, and [her] potential for rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). Additionally,

when sentencing to total confinement, the court must consider “the history,

character, and condition of the defendant” and determine if

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

42 Pa.C.S. § 9725.

When the sentencing court has the benefit of a PSI report, “we presume

that [it] was aware of relevant information regarding the defendant’s

character and weighed those considerations along with any mitigating factors”

when imposing a sentence. Commonwealth v. Sexton, 222 A.3d 405, 422

(Pa. Super. 2019).

Finally, “where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(stating that a standard range sentence, imposed with the benefit of a PSI

report, “absent more, cannot be considered excessive or unreasonable”).

Appellant argues that the trial court imposed an excessive sentence and

failed to consider certain mitigating factors: her “lack of a prior criminal

record, the minimal risk she poses to the public,” and her rehabilitative needs,

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which “would be better served by a sentence of probation or, alternatively, a

lesser sentence of incarceration.” Appellant’s Br. at 13. She also asserts that

her sentence is inconsistent with Section 9721 of the Sentencing Code because

it “is not necessary to protect the public and does not serve [her] rehabilitative

needs[.]” Id. Finally, she maintains that her sentence is inconsistent with

Section 9725 of the Sentencing Code because there was no “undue risk” that

she would commit another crime while on probation; incarceration would not

serve her “correctional treatment needs[;]” and a probationary sentence

would not “depreciate the seriousness of the crime.” Id. at 14.

Following our review, we conclude that the court sentenced Appellant

based on legitimate sentencing concerns and adequately explained its

reasoning on the record. N.T. Sentencing at 9-10. First, as Appellant

concedes, her sentence was within the standard range. 2 Appellant’s Br. at 7.

The court also explained the factors that informed its sentence, including the

facts of the case and Appellant’s failure to accept responsibility. Id. In

addition, the court acknowledged that it had read her PSI report and

psychological evaluation prior to imposing sentence. Id. at 9. Accordingly,

we presume that it considered all relevant mitigating factors, including her

lack of criminal record and her rehabilitative needs. Finally, our review

2 The court explained that Appellant’s prior record score was 0 and the

offense gravity score was 6, and thus, the standard range was 3 to 12 months. N.T. Sentencing at 9.

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indicates that Appellant failed to explain to this Court how a term of probation

or a shorter term of incarceration would better serve her rehabilitative needs.

Therefore, we conclude that the court did not abuse its discretion in sentencing

Appellant to 8 to 20 months of incarceration. This claim, thus, lacks merit.

Following our review, we conclude that Appellant’s claim merits no relief.

Accordingly, we affirm her judgment of sentence.

Judgment of sentence affirmed.

Date: 2/13/2025

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