Com. v. Babinger, H. ( 2018 )

J-A16001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY BABINGER, II
Appellant No. 1101 WDA 2016
Appeal from the Judgment of Sentence imposed June 27, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007140-2015
BEFORE: STABILE, J. FORD ELLIOTT, P.J.E. , and STRASSBURGER,* J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2018
Appellant, Harry Babinger, II, appeals from the judgment of sentence
the Court of Common Pleas of Allegheny County imposed on June 27, 2016.
Appellant challenges the discretionary aspects of his sentence. Upon review,
we affirm the judgment of sentence. However, for the reasons explained
below, we reverse the trial court’s November 8, 2016 order finding that
Appellant is a Sexually Violent Predator and remand for the sole purpose of
having the trial court issue the appropriate notice under 42 Pa.C.S.A. §
9799.23 as to Appellee’s registration requirements.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A16001-17
The trial court summarized the procedural background of the instant
matter as follows:
On February 11, 2016, following a jury trial, [the trial court]
declared a mistrial. On April 12, 2016, a second jury found
Appellant guilty of Involuntary Deviate Sexual Intercourse With a
Child (“IDSI”), Unlawful Contact With Minor, Sexual Assault,
Incest of a Minor, Indecent Assault Person Less Than 13 Years of
Age, and Endangering Welfare of Children (“EWOC”). [The trial
court] sentenced Appellant to 20 to 40 years of incarceration for
IDSI and three to six years for Incest of a Minor consecutive to
the IDSI sentence. [The trial court] further sentenced Appellant
to two concurrent seven years probationary sentences,
consecutive to incarceration, at the Unlawful Contact and EWOC
counts. The aggregate sentence imposed was 23-46 years
incarceration with seven years consecutive probation. Appellant
filed a Post-Sentence motion on June 28, 2016, which [the trial
court] denied on June 30, 2016.
Trial Court Opinion, 1/18/17 at 1-2 (footnotes omitted).
Following a hearing, on November 7, 2016, the trial court found
Appellant to be a Sexually Violent Predator. See Trial Court Order,
11/8/16.1
Appellant argues the trial court failed to state any reason for
Appellant’s sentence.2 The statement is inaccurate. After presiding over
____________________________________________
1
The order in question is dated November 7, 2016, but it was filed on
November 8, 2016. The order does not provide any information as to the
length of term of registration. At time of sentencing, however, the trial
court indicated that Appellant “would be a lifetime registrant.” N.T.
Sentencing, 6/27/16, at 16.
2
The challenge raised on appeal involves the IDSI sentence only.
-2-
J-A16001-17
Appellant’s trial (twice), and after hearing two witnesses and counsel at
sentencing, the trial court stated:
Having sat through this case twice, having read the presentence
report and considering the relevant portions but not the portions
that were stricken, being the testimony and arguments made
here today at sentencing, [] in light of all of the information
provided to me, I do find that [Appellant] is a dangerous
predator whether or not he meets the criteria under [SORNA],
which I believe that he will, and I will order that he be submitted
to that evaluation.
N.T. Sentencing, 6/27/16, at 16-17.
Clearly, the trial court stated its reasons for the sentence imposed,
including finding Appellant to be a “dangerous predator.” Thus, Appellant’s
claim that the trial court failed to state any reason for the sentence is
groundless.3
We construe, therefore, Appellant’s claim as challenging the sufficiency
of the reasons for the sentence imposed, which constitutes a challenge to
the discretionary aspects of his sentence. See, e.g., Commonwealth v.
Thomas, 573 A.2d 9, 12 (Pa. Super. 1988) (“A challenge to the adequacy of
a statement of reasons is viewed as an appeal of a discretionary aspect of
sentencing.”). Even so, however, the claim does not have merit.4
____________________________________________
3
In his Rule 1925(b) statement, Appellant acknowledged that the trial court
remarks were sparse, and that the trial court’s explanation for the sentence
consisted of one reason, namely that he was a “dangerous predator.”
4
Our standard of review of challenges to the discretionary aspects of a
sentence is well-settled. We apply an abuse of discretion standard.
(Footnote Continued Next Page)
-3-
J-A16001-17
Assuming the sufficiency of the reasons claimed raise a substantial
question for our review, we find the claim meritless.
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects
court was aware of relevant information regarding defendant’s
character and weighed those considerations along with any
mitigating factors). Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 668
A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195(1996) (stating combination of PSI and standard range sentence,
absent more, cannot be considered excessive or unreasonable).
Moury, 992 A.2d at 171.
_______________________
(Footnote Continued)
Additionally, because challenges to the discretionary aspects do not entitle
to an appellate review as of right, an appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test to determine: 1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether appellant’s brief has
a fatal defect; and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code. See
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010).
-4-
J-A16001-17
As noted above, the trial court’s statements for the sentence came
after the trial court had the opportunity to consult Appellant’s Presentence
Investigation Report (“Report”), and hear two witnesses and counsel’s
arguments at the sentencing hearing.
It is uncontested that the Report provided information, inter alia,
about Appellant’s past, including a criminal conviction for endangering the
welfare of children and corruption of minors at docket 6198-2006, and a
conviction for corruption of minors at docket 12171-1996.5 The Report also
shows that Appellant was previously ordered to complete sex offender
treatment and “refused to participate, refused to accept responsibility, and
did not successfully complete the program before the period of his five
years[’] probation had expired.” Trial Court Opinion, 1/18/17, at 4 (quoting
Transcript, Sentencing Hearing, 6/27/16, at 13-14). Moreover, the Report
shows that in 2009 behavioral experts concluded that Appellant suffered
from pedophilia, and that he was a very “dangerous, predatory man.” N.T.
Sentencing, 10/20/16, at 14. Finally, it is uncontested that the sentence
imposed is within the standard range of the guidelines.
____________________________________________
5
It is worth noting that Appellant did not contest the accuracy of the Report,
with the exception of those matters discussed on page 7 of the sentencing
transcript, which are not relevant here.
-5-
J-A16001-17
Upon consideration of the record, and in light of the foregoing
authorities, we conclude Appellant’s claim that the sentencing court failed to
state sufficient reasons for the sentence imposed on the record fails.
Appellant also relies on Commonwealth v. Coulverson, 34 A.3d 135(Pa. Super. 2011), for the proposition that a trial court commits an abuse of
discretion if it considers “the impact on the victim to the exclusion of other
sentencing factors such as the rehabilitative needs of the defendant,”
Appellant’s Brief at 24, or the “impact on community.” Id. at 26.
Coulverson, however, is distinguishable. In Coulverson, the defendant
pled guilty to rape, IDSI, sexual assault, aggravated indecent assault,
robbery, unlawful restraint, terroristic threats, and two counts of indecent
assault that he committed when he was 19 years old. Coulverson, 34 A.3d
at 138-39. The sentencing court imposed an 18 to 90-year aggregate term
of imprisonment, which included the imposition of multiple consecutive
statutory maximum sentences to accomplish the upper end of the sentence.
Id. at 139. On appeal, we found that the imposition of a 90-year maximum
sentence on a 19-year old defendant was “clearly unreasonable” as the trial
court imposed a virtual life sentence, failing to give any consideration to
defendant’s characteristics and improperly basing its determination that
defendant should “spend as much of his life in prison as the court could
order[.]” Id. at 148.
-6-
J-A16001-17
In the present case, as opposed to Coulverson, the trial court
imposed a standard range sentence that did not extend to the statutory
maximum. Indeed, the minimum sentence and the maximum sentence are
both within the standard range of the guidelines and the maximum sentence
is two times the minimum sentence. In contrast, in Coulverson, the
defendant’s maximum sentence was five times his minimum sentence.
Additionally, we discern no indication that the sentencing court sentenced
Appellant with a “fixed purpose of keeping [Appellant] in jail for life,”
Coulverson, 34 A.3d at 149 n. 3, or other factors found improper in
Coulverson. Reliance on Coulverson is, therefore, misplaced.
Finally, Appellant seems to suggest that the trial court specifically had
to address on the record all points or statements he made at the sentencing
hearing, and that failure to do so equates to failure to consider those points.
For example, Appellant argues the trial court should have considered that he
was 53 years old. Appellant’s Brief at 25. In the same vein, Appellant
argues the trial court abused its discretion in not mentioning on the record
at what age he would be eligible for parole or at what age the court
supervision would end. Id. at 26-27. Similarly, Appellant argues that the
trial court’s failure to acknowledge on the record Appellant’s health
conditions and skills was an abuse of discretion. We are unaware of any
authority supporting Appellant’s suggestions. Indeed, “a lengthy discourse
on the trial court’s sentencing philosophy is not required. Rather, the record
-7-
J-A16001-17
as a whole must reflect the court’s reasons and its meaningful consideration
of the facts of the crime and the character of the offender.”
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006); see
also Commonwealth v. Brown, 741 A.2d 726 (Pa. Super. 1999) (en
banc), appeal denied, 790 A.2d 1013 (Pa. 2001) (stating court meets
requirement that it state on record reasons for sentence imposed if court
states that it has consulted presentence investigation (“PSI”) report). Here,
the record reveals the sentencing court was fully aware, inter alia, of
Appellant’s characteristics, as described in the Report reviewed by the
sentencing court. We conclude, therefore, Appellant is entitled to no relief
on the grounds raised before us.
While the instant appeal was pending, another panel of this Court
issued an opinion in Commonwealth v. Butler, --- A.3d ----, 2017 WL
4914155 (Pa. Super. October 31, 2017). In Butler we held that the
statutory mechanism for Sexually Violent Predator (SVP) designation was
constitutionally flawed under Apprendi6 and Alleyne7 because it increases
the criminal penalty to which a defendant is exposed without the chosen
fact-finder making the necessary factual finding beyond a reasonable doubt.
As a result, we held trial courts may no longer designate convicted
____________________________________________
6
Apprendi v. New Jersey, 530 U.S. 466 (2000).
7
Alleyne v. United States, 570 U.S. 99 (2013).
-8-
J-A16001-17
defendants SVPs (nor may they hold SVP hearings) until the General
Assembly enacts a constitutional designation mechanism. Id. at *6. In the
meantime, trial courts must notify a defendant that he or she is required to
register for 15 years if he or she is convicted of a Tier I sexual offense, 25
years if he or she is convicted of a Tier II sexual offense, or life if he or she
is convicted of a Tier III sexual offense. Id.
Here, Appellant was determined to be an SVP under the now
unconstitutional SVP mechanism. While Appellant does not challenge his
SVP determination, we raise it sua sponte as it involves the legality of the
sentence. Id. at *2. Accordingly, in light of Butler, we must reverse the
trial court’s SVP order, and remand this case to the trial court for the sole
purpose of issuing the appropriate notice under Pa.C.S.A. § 9799.23.
Butler, supra.
Order reversed. Judgment of sentence affirmed in all other aspects.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
-9-
J-A16001-17
- 10 -