Com. v. Torres, L.

J-A13023-23

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  LUIS GABRIEL TORRES, JR.                     :
                                               :
                       Appellant               :   No. 962 MDA 2022

        Appeal from the Judgment of Sentence Entered April 18, 2022
   In the Court of Common Pleas of Lancaster County Criminal Division at
                      No(s): CP-36-CR-0005092-2018


BEFORE:      BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.:                            FILED: SEPTEMBER 27, 2023

       Luis Gabriel Torres, Jr., appeals from the judgment of sentence, entered

in the Court of Common Pleas of Lancaster County, following his convictions

of one count each of rape of a child1 and aggravated indecent assault of a

child,2 and three counts each of involuntary deviate sexual intercourse with a

child (IDSI),3 indecent assault of a person less than thirteen years of age,4

and unlawful contact with a minor-sexual offenses.5 Upon review, we affirm.


____________________________________________


* Former Justice specially assigned to the Superior Court.


1 18 Pa.C.S.A. § 3121(c).


2 Id. at § 3125(b).


3 Id. at § 3123(b).


4 Id. at § 3126(a)(7).


5 Id. at § 6318(a)(1).
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       Between June 2008 and March 2011, Torres, his mother, and four of his

younger half-siblings were living with maternal grandmother in a residence

located at 16 Parkside Avenue in Lancaster Township. Throughout this period,

Torres sexually abused three of his younger half-siblings, his half-sister

D.A.L.(f) and his half-brothers D.A.L.(m) and D.D.L.      At the time of the

offenses, all three children were between the ages of two-and-a-half and six

years old, and Torres was between the ages of 13 to 15. Torres was often left

in charge of his younger half-siblings because their mother was working

sixteen hours a day to support their family.

       D.A.L.(f) reported that she was approximately six years old when the

abuse began. Torres would make D.A.L.(f) go to Torres’ bedroom and touch

her in places where she did not want to be touched. Torres would also digitally

penetrate her vagina, force her to perform oral sex on him, force her to

swallow his ejaculate, and force her to have sex with him. In May 2009, she

attempted to disclose Torres’ abuse by telling her mother, who called the

police. Mother also confronted Torres, who claimed that his half-sister was

lying. Ultimately, D.A.L.(f) was interviewed by Lancaster County Children’s

Alliance, but she declined to tell the interviewer about the abuse. 6 None of

Torres’ other siblings was interviewed at this time, and no charges were filed.




____________________________________________


6 Prior to the interview, mother had warned D.A.L.(f) that if she reported the

accusations against Torres, Torres may kill himself.


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       Subsequently, in March 2018, D.A.L.(f) again told her parents that

Torres had sexually abused her. Following this report, Torres’ two younger

half-brothers D.A.L.(m) and D.L.L. came forward and also disclosed sexual

abuse by Torres.       Both D.A.L.(m) and D.L.L. reported that Torres would

individually bring each boy into Torres’ room, where he would force them to

perform oral sex on him and ejaculate in their mouths. Both D.A.L.(m) and

D.L.L. also reported that Torres would show them pornography. D.A.L.(m)

and D.L.L. were approximately 4 years old and 2½ years old, respectively,

when the abuse began.          All three half-siblings reported that Torres would

threaten them afterwards that things would get worse if they told anyone.

       On July 23, 2018, the Commonwealth charged Torres with, inter alia,

the above-mentioned offenses.              Torres was 23 years old when the

Commonwealth filed charges. On August 7, 2020, Torres filed a motion to

dismiss asserting, inter alia, that he could not be charged in criminal court

with offenses that he had committed as a juvenile and that he should be

prosecuted in Juvenile Court under the Juvenile Act.7 In particular, Torres

argued that the Commonwealth had acted in bad faith when it failed to

investigate D.A.L.(f)’s report in 2009 by failing to also interview the other

children. On November 16, 2020, the trial court denied Torres’ motion.

       On August 23, 2021, Torres proceeded to a three-day jury trial, after

which he was convicted of the above-mentioned offenses.           The trial court

____________________________________________


7 42 Pa.C.S.A. §§ 6301-6375.


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postponed sentencing and ordered a pre-sentence investigation report (PSI).

On April 18, 2022, the trial court conducted a sentencing hearing and

sentenced Torres to 10 to 20 years’ imprisonment for his conviction of rape of

a child; 10 to 20 years’ imprisonment for Torres’ conviction at Count 2 - IDSI;

9 to 20 years’ imprisonment for each of Torres’s conviction at Counts 3 and 4

of IDSI; 10 to 20 years’ imprisonment for one conviction of unlawful contact

with a minor; and 9 to 20 years’ imprisonment for each remaining conviction

of unlawful contact with a minor. The trial court merged the remainder of the

convictions for sentencing purposes.        The trial court imposed Torres’

sentences for rape of a child and Count 3 – IDSI consecutively. The remainder

of Torres’ sentences were imposed concurrently, resulting in an aggregate

sentence of 19 to 40 years’ imprisonment.

      Torres filed a timely post-sentence motion challenging the discretionary

aspects of his sentence and asserting that an “adult-based sentence” violated

his constitutional rights where he committed the crimes as a juvenile. On

June 3, 2022, the trial court denied Torres’ post-sentence motion. Torres filed

a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

      Torres now raises the following claims for our review:

      1. Did the trial court err in denying the [m]otion to [d]ismiss
      because the late[ ]filing of the charges against [] Torres, nine
      years after they were first reported to the police, violated []
      Torres’ due process rights under the Pennsylvania and United
      States Constitutions, and [] Torres was prejudiced by the late[
      ]filing of the charges against him because, inter alia, he lost the
      ability to have these charges resolved in the juvenile court?

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J-A13023-23



      2.    Did the mandatory minimum sentence of ten years’
      incarceration for rape of a child and the aggregate, adult-based
      sentence of 19 to 40 years constitute cruel and unusual
      punishment, in violation of the Pennsylvania and United States
      Constitutions, where [] Torres was between 13 and 15 years old
      when the offenses were committed?

      3. Was the imposition of consecutive sentences, for an aggregate
      sentence of 19 to 40 years[’] incarceration, manifestly excessive,
      clearly unreasonable under the circumstances, and an abuse of
      the court’s discretion?

Brief for Appellant, at 8-9.

      In his first claim, Torres claims the trial court erred in denying his motion

to dismiss based upon the Commonwealth’s purported late[ ]filing of the

instant offenses against him. See Brief for Appellant, at 25-34.

      Torres’ claim relies upon the contention that Torres should have received

benefits of the Juvenile Act because he was a minor at the time the offenses

were committed, despite the charges being filed when he was 23 years old.

This claim has been foreclosed by our Supreme Court’s recent decision in

Commonwealth v. Armolt, 

 (Pa. 2023).

      In Armolt, our Supreme Court determined that the Juvenile Act “clearly

and unambiguously refutes” the notion that an adult defendant should be tried

in juvenile court. See 

. The Court rejected the argument that the

defendant, a 42-year-old male who committed offenses when he was a

juvenile, should be tried in juvenile court where he alleged that the

Commonwealth’s bad faith in delaying the filing of charges caused him to lose

the benefits of juvenile court. See 

 Indeed, the Court, in rejecting the



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“bad faith” argument, emphasized that Section 6302 of the Juvenile Act

defines a “child” as an individual who is “under the age of 18 years” or “is

under the age of 21 years who committed an act of delinquency before

reaching the age of 18 years.” 42 Pa.C.S.A. § 6302; see also Armolt, supra.

Thus, the Supreme Court concluded that “the [Juvenile] Act plainly extends

juvenile jurisdiction to offenders who committed an offense while under the

age of eighteen only if they are prosecuted before turning twenty-one.”

Id. (emphasis added). We find Armolt to be directly on point and controlling.

      Here, Torres was between the ages of 13 and 15 years old at the time

the offenses occurred. However, Torres was not criminally charged until he

turned 23 years old. See Trial Court Opinion, 7/28/22, at 1. Consequently,

Torres was not entitled to be tried in Juvenile Court, and the trial court did err

when it denied Torres’s motion to dismiss.          See id.; Armolt, supra.

Accordingly, Torres is afforded no relief on this claim.

      In his second claim, Torres raises two sub-issues, which we address

together for ease of disposition. In his first sub-issue, Torres contends that

the trial court’s imposition of the mandatory minimum 10 years’ imprisonment

for his rape of a child conviction was unconstitutional. See Brief for Appellant,

at 35-58.    Torres argues that, because he was a minor at the time he

committed the offenses, the Eighth Amendment to the United States

Constitution and Article I, Section 13, of the Pennsylvania Constitution prohibit

the application of a mandatory minimum sentence. See id. at 36-40. In his

second sub-issue, Torres contends that his aggregate sentences of 19 to 40

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J-A13023-23



years’ incarceration constitute cruel and unusual punishment, in violation of

the United States and Pennsylvania Constitutions, because he was a minor at

the time of the offense. Id. at 35-58.

      In support of both sub-issues, Torres cites to myriad other jurisdictions’

case law, provides a robust history of various juvenile statutes in other states,

and cites our Supreme Court’s most recent decisions regarding juvenile life

sentences.    Id. (citing Commonwealth v. Felder, 

 (Pa.

2022)). Torres asks that this Court “declare that the Eighth Amendment to

the United States Constitution and Article I Section 13 of the Constitution of

the Commonwealth of Pennsylvania require a criminal court to consider the

diminished culpability of youth when imposing a sentence where the

defendant committed the crime as a child . . . [and] declare that the Eighth

Amendment and Article 1, Section 13, forbid the application of mandatory

minimum sentences to defendants who committed their crimes as children.”

Id. at 58.

      The Eighth Amendment to the United States Constitution states that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishment inflicted.”     U.S. Const. amend. VIII.      The Eighth

Amendment is unique in constitutional jurisprudence because it “must draw

its meaning from the evolving standards of decency that mark the progress of

a maturing society.” Trop v. Dulles, 

 (1958) (plurality).

“[T]he Eighth Amendment’s protection against excessive or cruel and unusual

punishment flows from the basic ‘precept of justice that punishment for [a]

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J-A13023-23



crime should be graduated and proportioned to [the] offense.’” Kennedy v.

Lousiana, 

 (2008) (quoting Weems v. United States, 

 (1910)).

      Additionally, “the guarantee against cruel punishment contained in the

Pennsylvania Constitution, Article 1, Section 13, provides no broader

protections against cruel and unusual punishment than those extended under

the Eighth Amendment to the United States Constitution.” Commonwealth

v. Lankford, 

 (Pa. Super. 2017) (citation omitted). The

Eighth Amendment does not require strict proportionality between the crime

committed and the sentence imposed; rather, it forbids only extreme

sentences that are grossly disproportionate to the crime. See 

      Here, Torres was convicted of rape of a child, and sentenced in

accordance with the mandatory minimum pursuant to section 9718, which

provides, in relevant part:

      Sentences for offenses against infant persons

      (a) Mandatory sentence.--

                                …

         (3) A person convicted of the following offenses shall be
         sentenced to a mandatory term of imprisonment as follows:

            18 Pa.C.S.[A.] § 3121(c) and (d)--not less than ten
            years.

42 Pa.C.S.A. § 9718(a)(3).




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J-A13023-23



       Importantly,     the    mandatory       minimum   sentence   under   section

9718(a)(3) has already been upheld by our Supreme Court.                      See

Commonwealth v. Resto, 

 (Pa. 2018).8 Additionally, Torres’

argument would essentially require us to invalidate all mandatory minimums

for juvenile offenders. To do so would invalidate case law set forth by the

Supreme Court of the United States, our Supreme Court of Pennsylvania, and

other panels of this Court. We categorically lack the authority to overturn any

of those decisions.

       Moreover, nearly all of the law Torres cites applies to life sentences

for juveniles tried as adults. See Miller v. Alabama, 

 (2012)

(holding mandatory life sentences without parole for juvenile offenders violate

the Eighth Amendment); Felder, supra. By contrast, as noted supra, Torres

is no longer a juvenile and Torres was sentenced to an aggregate 19 to 40

years in prison, not a life sentence. Therefore, none of those decisions is

applicable to the instant case and we decline Torres’ invitation to “forbid the

application of mandatory minimum sentences to defendants who committed
____________________________________________


8 The plurality’s OAJC in Resto, although binding on the parties in that case,

has limited precedential value because it did not command the majority of the
justices participating in the case. See Commonwealth v. Brown, 

 (Pa. Super. 2011) (citation omitted). However, where concurring
opinions enumerate the portions of the plurality’s opinion in which the author
joins, those portions in agreement gain precedential value. See 

 As the
plurality’s OAJC and the concurring opinions in Resto agree, section
9718(a)(3)’s ten-year mandatory minimum is not unconstitutional under
Alleyne v. U.S., 

 (2013). See 

 Consequently,
Resto is binding here, where Torres was sentenced to the ten-year mandatory
minimum under Section 9718(a)(3) for his conviction of rape of a child.


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J-A13023-23



their crimes as children.” See Brief for Appellant, at 58. Furthermore, Torres

was not entitled to any special sentencing benefits under the Juvenile Act.

See Armolt, supra.         We conclude that there is no support in the law for

Torres’ claim, and, therefore, Torres’ claim fails.9

         In his third claim, Torres contends that his sentence to 19 to 40 years’

incarceration is manifestly excessive, clearly unreasonable, and, in so

sentencing him, the trial court ignored significant mitigation including Torres’

age at the time of the offenses and the abuse Torres himself suffered as a

child.     See Brief for Appellant, 22-24.         Torres’ claim challenges the

discretionary aspects of his sentence, from which there is no automatic right

to appeal. See Commonwealth v. Austin, 

 (Pa. Super.

2013). Rather, 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. Commonwealth v. Yanoff, 

 (Pa. Super. 1997).

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, Pa.R.A.P. 2119(f); and (4) whether there is a

____________________________________________


9 To the extent that Torres argues the trial court erred in failing to consider

his age at the time of the offense, that argument is more appropriately framed
as a challenge to the discretionary aspects of his sentence, as we discuss
infra. See Commonwealth v. Summers, 

 (Pa. Super.
2021) (trial court’s alleged failure to consider defendant’s age at time of
offense invokes discretionary aspects of sentencing).

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J-A13023-23


      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 

 (Pa. Super. 2010) (quotation

marks and some citations omitted).

      Here, Torres has filed a timely notice of appeal, post-sentence motion,

and properly included a Rule 2119(f) statement in his brief. Moreover, Torres’

claim raises a substantial question. See Commonwealth v. Swope, 

 (Pa. Super. 2015) (excessive sentence claim combined with

claim that court failed to consider mitigating factors raises substantial

question). Accordingly, we shall review the discretionary aspects of Torres’

sentence.

      We adhere to the following standard of review:

      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 as a manifestly unreasonable decision.

Commonwealth v. Robinson, 

 (Pa. Super. 2007) (citation

omitted).

      A sentencing judge has broad discretion in determining a reasonable

penalty, and appellate courts afford the sentencing court great deference, as

it is the sentencing court that 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.” Commonwealth v. Walls, 

 (Pa.


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J-A13023-23



2007) (citation omitted). When imposing a sentence, the sentencing court

must consider “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.A. § 9721(b). “[A] court is

required to consider the particular circumstances of the offense and the

character of the defendant.” Commonwealth v. Griffin, 

 (Pa.

Super. 2002).     In particular, the sentencing court should refer to the

defendant’s prior criminal record, his age, personal characteristics, and his

potential for rehabilitation. 

      Instantly, the trial court had the benefit of a PSI.    N.T. Sentencing

Hearing, 4/18/22, at 7, 19. “[W]here the trial court is informed by a [PSI], it

is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 

(Pa. Super. 2009) (citation omitted). Additionally, the trial court sentenced

Torres in the standard range for each count, and the court imposed only two

sentences consecutively. See Sentencing Order, 4/18/22, at 1-3; see also

Commonwealth v. Gonzalez-Dejusus, 

 (Pa. Super.

2010) (this Court will not disturb consecutive sentences unless aggregate

sentence is “grossly disparate” to defendant’s conduct); Commonwealth v.

Radecki, 

 (Pa. Super. 2018) (sentencing court afforded

broad discretion to impose sentences concurrently or consecutively).




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J-A13023-23



      At the sentencing hearing, the trial court provided a robust history of

Torres’ life and upbringing including, but not limited to, the sexual, physical,

and emotional abuse Torres suffered at the hands of his biological mother and

stepfather. See N.T. Sentencing Hearing, 4/18/22, at 19-25. Additionally,

the trial court expressly stated that it considered that Torres was born to two

teenage parents, who later separated and remarried, his current engagement,

the bonds Torres has with his half-siblings on his biological father’s side, and

his employment history. 

 In total, the trial court considered a detailed

summary of Torres’ life from birth to present, including his struggles and his

achievements. 

      Therefore, our review confirms that the trial court considered all of the

relevant sentencing factors, and appropriately set forth its reasons for

imposing an aggregate 19 to 40 year period of incarceration.               See

Commonwealth v. Macias, 

 (Pa. Super. 2009) (appellate

court cannot reweigh sentencing factors in place of trial court merely because

trial court did not weigh factors as defendant would have liked). Moreover,

as indicated above, the trial court had the benefit of a PSI and imposed only

standard-range sentences.       See 

          The trial court’s

consecutive imposition of two of those sentences is of no moment.          See

 Therefore, we conclude that the trial court did not abuse its

discretion in imposing Torres’ sentence, and that Torres’ challenge to the

discretionary aspects of his sentence is without merit. See 

      Judgment of sentence affirmed.

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J-A13023-23




     Stevens, P.J.E., joins this Opinion.

     Bowes, J., files a Concurring Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2023




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