Com. v. Lellock, R. ( 2022 )

J-S25037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT LELLOCK :
:
Appellant : No. 658 WDA 2021
Appeal from the Judgment of Sentence Entered May 4, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013778-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT LELLOCK :
:
Appellant : No. 660 WDA 2021
Appeal from the Judgment of Sentence Entered May 4, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003936-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: NOVEMBER 29, 2022
Appellant, Robert Lellock, appeals pro se from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his
resentencing for multiple counts of endangering the welfare of children
J-S25037-22
(“EWOC”), corruption of minors, and related offenses.1 We affirm.
Appellant worked as a school police officer in Pittsburgh. During the
course of his employment, he sexually abused multiple boys. The trial court
opinion set forth the remaining procedural history of this appeal as follows:
On July 29, 2013, a jury found [Appellant] guilty [of
involuntary deviate sexual intercourse (“IDSI”) and multiple
counts of EWOC, corruption of minors, and indecent assault
at two different docket numbers]. The [court] sentenced
Appellant to an aggregate term of incarceration of 32-64
years and found him to be a sexually violent predator.
Judgment of sentence was affirmed on appeal, but the
Superior Court of Pennsylvania remanded the case for
resentencing, finding that the imposition of a mandatory
sentence was illegal. [The trial court] resentenced
[Appellant] to the same sentence, without the mandatory
sentence, on July 21, 2016. This sentence was affirmed on
August 16, 2017.
In 2017, appointed counsel filed an amended PCRA petition
and in 2018 the Commonwealth conceded a sentencing
issue on two counts of [EWOC]. On January 2[8], 2019,
just before retiring, [the trial jurist] granted a resentencing
hearing on the EWOC [convictions] and denied the rest of
the PCRA.[2] The case was reassigned to [the current jurist].
Next, counsel for Appellant filed a motion to reconsider, and
Appellant filed a pro se motion for a Grazier[3] hearing.
[The PCRA court] granted both motions and ordered
Appellant to refile a PCRA [petition] and raise all issues
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1 18 Pa.C.S.A. §§ 4304(a) and 6301(a)(1), respectively.
2 Regarding the need for resentencing, the court determined that two (2)
counts of EWOC at docket No. 13778 of 2012 were improperly graded as third-
degree felonies. Instead, these counts should have been graded as first-
degree misdemeanors. (See N.T. Resentencing Hearing, 5/4/21, at 2-3;
Order Granting PCRA Relief in Part, filed 1/28/19, at 1).
3 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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therein. Appellant complied and the Commonwealth
answered. [The PCRA court] reviewed the record, issued a
notice of intent to dismiss the non-sentencing related
issues, and scheduled a [resentencing] hearing. Appellant
filed motions to amend and to stay, which [the PCRA court]
granted. On [August 26], 2020, Appellant filed an amended
PCRA [petition]. The Commonwealth responded that claims
of ineffective assistance of counsel at claims 1-8 and 10-12
were without merit, and claim 13 of cumulative prejudice
was also meritless. Claim 9 is a time credit issue wherein
the Commonwealth believes [Appellant] is entitled to three
additional days. Appellant had been given credit from
9/12/12-12/18/12, but had not been released from custody
until 12/21/12.
(Trial Court Opinion, filed 7/28/21, at 2-3) (some capitalization omitted).
The court conducted Appellant’s resentencing hearing on May 4, 2021.
At that time, the court resentenced Appellant to terms of one (1) to two (2)
years’ imprisonment for each of the EWOC convictions that the PCRA court
identified as improperly graded. The court ordered these sentences to run
consecutive to the sentences for Appellant’s remaining convictions, which
resulted in an aggregate prison term of twenty-seven (27) to fifty-four (54)
years. The court also provided Appellant with credit for all time served. On
May 7, 2021, the court dismissed Appellant’s remaining PCRA claims.
Appellant filed a pro se post-sentence motion on May 17, 2021.4 In it,
Appellant argued that his sentence “was manifestly excessive, unreasonable
____________________________________________
4 Although the post-sentence motion was not docketed until May 17, 2021,
the motion included a copy of a “cash slip” indicating that Appellant provided
the motion to prison officials for mailing on May 5, 2021. Giving Appellant the
benefit of the “prisoner mailbox rule,” we deem the filing timely. See
(Footnote Continued Next Page)
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and [an] abuse of discretion where the court imposed … 27-54 years … of total
confinement on a 45-year-old man.” (Post-Sentence Motion, filed 5/17/21, at
3). Before the court ruled on the post-sentence motion, Appellant filed a pro
se notice of appeal on June 1, 2021.5, 6 Appellant voluntarily filed a pro se
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on
June 28, 2021.
Appellant now raises two issues for our review:
The sentencing court abused its discretion when it
sentenced Appellant to a manifestly excessive and
unreasonable period of twenty-seven to fifty-four years of
incarceration.
____________________________________________
Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied,
616 Pa. 625, 46 A.3d 715 (2012) (explaining pro se prisoner’s document is
deemed filed on date he delivers it to prison authorities for mailing).
5 More specifically, Appellant filed separate pro se notices of appeal at each
underlying docket number from the May 4, 2021 judgments of sentence.
Appellant also filed separate pro se notices of appeal at each underlying docket
number from the order denying PCRA relief. This Court docketed the appeals
related to the denial of PCRA relief at 657 and 659 WDA 2021. This Court
subsequently consolidated each set of appeals sua sponte.
6 The filing of Appellant’s post-sentence motion tolled the thirty-day appeal
period. See Pa.R.A.P. 720(A). Perhaps unaware of the tolling, Appellant filed
the instant notices of appeal before the entry of an order denying the post-
sentence motion. The trial court acknowledged this procedural history in its
opinion. (See Trial Court Opinion at 3). Thereafter, the trial court’s opinion
considered the claim raised in the post-sentence motion and concluded that
Appellant was not entitled to relief. (See id. at 7). Under these
circumstances, we will treat Appellant’s premature notices of appeal as having
been filed after the trial court’s opinion, which effectively serves as the order
denying the post-sentence motion. See Commonwealth v. Ratushny, 17
A.3d 1269, 1271 n.4 (Pa.Super. 2011) (treating appellant’s premature notice
of appeal as having been filed after entry of order denying post-sentence
motions, pursuant to Pa.R.A.P. 905).
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The sentencing court abused its discretion when it
sentenced Appellant to separate sentences for counts ten
(10) and eleven (11) and counts thirteen (13) and fifteen
(15) from [docket No. 13778 of 2012], counts ten and
eleven should have merged and thirteen and fifteen should
have merged for sentencing purposes.
(Appellant’s Brief at 4).
In his first issue, Appellant claims that his aggregate sentence of twenty-
seven (27) to fifty-four (54) years’ imprisonment is “so disproportionate as to
implicate the fundamental norms which underlie the sentencing process.” (Id.
at 6). Specifically, Appellant argues that his sentence was manifestly
excessive and unreasonable considering that his prior record score was zero
and he will be on supervision for the rest of his life due to the relevant sex
offender registration requirements. Appellant insists that a sentencing court
commits an error of law when “a sentence overlooks[s] pertinent facts.” (Id.
at 5). Appellant also notes that “no criminal activity of any kind was alleged
in the thirteen years after the allegations that brought Appellant to trial.” (Id.
at 10). As presented, Appellant’s issue implicates the discretionary aspects of
sentencing. See Commonwealth v. Lee, 876 A.2d 408, 411 (Pa.Super.
2005) (stating claim that sentence is manifestly excessive constitutes
challenge to discretionary aspects of sentence).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Anderson, 830 A.2d
1013 (Pa.Super. 2003). Prior to reaching the merits of a discretionary
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sentencing issue:
[W]e conduct 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by, inter alia, including in
his brief a separate concise statement demonstrating that there is a
substantial question as to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812
A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f). “The determination of what
constitutes a substantial question must be evaluated on a case-by-case basis.”
Anderson, supra at 1018. 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.” Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999)
(en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001). “An appellant
must articulate the reasons the sentencing court’s actions violated the
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sentencing code,” and this Court will not accept bald assertions of sentencing
errors. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010).
A claim that a sentence is manifestly excessive might raise a substantial
question if the appellant’s Rule 2119(f) statement sufficiently articulates the
way the sentence imposed violates a specific provision of the Sentencing Code
or the norms underlying the sentencing process. Mouzon, supra at 435, 812
A.2d at 627. A Rule 2119(f) statement does not raise a substantial question
if it “does not set forth the specific provision of the Sentencing Code or the
fundamental norm underlying the sentencing process that the trial court
violated in imposing the sentence.” Commonwealth v. Trippett, 932 A.2d
188, 202 (Pa.Super. 2007). “An allegation that the sentencing court failed to
consider certain mitigating factors generally does not … raise a substantial
question.” Moury, supra at 171. See also Commonwealth v. Kane, 10
A.3d 327, 335-36 (Pa.Super. 2010), appeal denied, 612 Pa. 689, 29 A.3d 796(2011) (stating bald assertion that sentencing court gave inadequate
consideration to certain mitigating factors does not raise substantial question).
Instantly, Appellant’s assertion that the court gave inadequate
consideration to his age, prior record score, or the collateral consequences of
his convictions does not raise a substantial question. See Moury, supra. To
the extent Appellant’s argument might be interpreted as a challenge to the
court’s imposition of consecutive sentences for certain counts, this also fails
to raise a substantial question. See id. at 171-72 (explaining court has
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discretion to impose sentences consecutively or concurrently; imposition of
consecutive sentences may raise substantial question in only most extreme
circumstances, such as where aggregate sentence is unduly harsh considering
nature of crimes and length of imprisonment). Therefore, we decline to
disturb the judgment of sentence on the grounds alleged.
In his second issue, Appellant argues the court should have merged the
counts of EWOC and corruption of minors for the conduct related to his first
victim, and it also should have merged the counts of EWOC and corruption of
minors for the conduct related to his second victim. Appellant emphasizes
that one act of inappropriate sexual contact formed the basis for all counts
related to each victim. Appellant concludes that his sentence is illegal, and
this Court must vacate his judgment of sentence and remand for resentencing.
We disagree.
Whether crimes merge for sentencing purposes implicates the legality
of the sentence. Commonwealth v. Tanner, 61 A.3d 1043 (Pa.Super.
2013). Merger of sentences is governed generally by the Sentencing Code,
which provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only
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way two crimes merge for sentencing is if all elements of the lesser offense
are included within the greater offense.” Commonwealth v. Coppedge, 984
A.2d 562, 564 (Pa.Super. 2009) (emphasis in original).
The Crimes Code defines the offense of EWOC as follows:
§ 4304. Endangering welfare of children
(a) Offense defined.—
(1) A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense if
he knowingly endangers the welfare of the child by violating
a duty of care, protection or support.
(2) A person commits an offense if the person, in an
official capacity, prevents or interferes with the making of a
report of suspected child abuse under 23 Pa.C.S. Ch. 63
(relating to child protective services).
(3) As used in this subsection, the term “person
supervising the welfare of a child” means a person other
than a parent or guardian that provides care, education,
training or control of a child.
18 Pa.C.S.A. § 4304(a).
The Crimes Code defines the offense of corruption of minors as follows:
§ 6301. Corruption of minors
(a) Offense defined.—
(1)(i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act
corrupts or tends to corrupt the morals of any minor less
than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of any crime,
or who knowingly assists or encourages such minor in
violating his or her parole or any order of the court, commits
a misdemeanor of the first degree.
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(ii) Whoever, being of the age of 18 years and
upwards, by any course of conduct in violation of Chapter
31 (relating to sexual offenses) corrupts or tends to corrupt
the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of an offense under Chapter 31 commits a
felony of the third degree.
18 Pa.C.S.A. § 6301(a).
Instantly, an examination of the statutory elements at issue reveals that
the offense of EWOC includes a violation of “a duty of care, protection or
support,” which does not appear in the offense of corruption of minors. 18
Pa.C.S.A. § 4304(a)(1). Compare 18 Pa.C.S.A. § 6301. Likewise, the offense
of corruption of minors includes an element requiring an act that “corrupts or
tends to corrupt the morals of any minor,” and such element is not included
in the offense of EWOC. 18 Pa.C.S.A. § 6301(a)(1)(i). Compare 18 Pa.C.S.A.
§ 4304. Thus, EWOC and corruption of minors contain different statutory
elements and do not merge for sentencing purposes. See 42 Pa.C.S.A. §
9765; Coppedge, supra. Consequently, Appellant is not entitled to relief on
his challenge to the legality of the sentence. See Tanner, supra.Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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