Com. v. Showalter, L. ( 2017 )

J-S16023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY SHOWALTER,
Appellant No. 1049 WDA 2016
Appeal from the Judgment of Sentence entered June 22, 2016,
in the Court of Common Pleas of Bedford County,
Criminal Division, at No(s): CP-05-CR-0000132-2013.
BEFORE: MOULTON, RANSOM, and PLATT,* JJ.
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 08, 2017
Appellant Larry Showalter appeals from the judgment of sentence
imposed on June 22, 2016. We affirm.
The pertinent facts and procedural history, as gleaned from our review
of the certified record are as follows. The multiple charges brought against
Appellant stem from allegations made by his biological daughter that he
raped her on multiple occasions when she was between the ages of 8 and
11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a
child, two counts of involuntary deviate sexual intercourse (IDSI), two
counts of aggravated indecent assault, two counts of incest, endangering the
*Retired Senior Judge assigned to the Superior Court.
J-S16023-17
welfare children, corruption of minors, and three counts of indecent
exposure.1 Appellant was found not guilty of an additional fourteen charges.
After an evidentiary hearing on September 24, 2014, the trial court
designated Appellant a sexually violent predator and sentenced him to an
aggregate term of 60-120 years of imprisonment.
Appellant filed a timely appeal to this Court in which he asserted trial
court error in its admission of hearsay statements made by the victim, as
well as a challenge to the discretionary aspects of his sentence. Although
we concluded that the trial court erred in admitting the statements as an
excited utterance, we found the error harmless because the victim had
already made the same statements in her own testimony at trial. We then
raised sua sponte the issue of whether Appellant’s sentence, which included
the application of mandatory minimums, was illegal in light of the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (2013), and subsequent Pennsylvania cases applying the Alleyne
holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014). Because these cases concluded that the application of the
mandatory minimums were unconstitutional, we vacated and remanded for
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1
18 Pa.C.S. §§ 3121(c), 3123(b), 3125(a)(7), 4302, 4304(a)(1),
6301(a)(i), and 3127(a), respectively.
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resentencing. See Commonwealth v. Showalter, 145 A.3d 770 (Pa.
Super. 2016 (unpublished memorandum).
Upon remand, Appellant was resentenced on June 22, 2016, to an
aggregate term of 56-120 years. The trial court denied Appellant’s timely-
filed motion for reconsideration of sentence. This appeal follows. 2 Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue:
I. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION IN SENTENCING APPELLANT CONSECUTIVELY
ON SEVERAL COUNTS OUTSIDE THE GUIDELINES,
FAILING TO PROPERLY CONSIDER MITIGATING FACTORS,
AND IMPOSING AN OVERALL EXCESSIVE SENTENCE?
Appellant’s Brief at 6.
A challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, Appellant must petition for allowance of
appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856
A.2d 1254, 1257 (Pa. Super. 2004). When an appellant challenges a
discretionary aspect of sentencing, we must conduct a four-part analysis
before we reach the merits of the appellant’s claim. Commonwealth v.
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2
In a prior memorandum, we remanded the case for the preparation and
filing of either a petition to withdraw and brief pursuant to Anders v.
California, 386 U.S. 738 (1967), or an advocate’s brief. Appellant’s counsel
has filed the latter, and the trial court has addressed the issue raised
therein. Thus, the appeal is ready for disposition.
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Martin, 611 A.2d 731, 735 (Pa. Super. 1992). In this analysis, we must
determine: (1) whether the present appeal is timely; (2) whether the issue
raised on appeal was properly preserved; (3) whether Appellant has filed a
statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has
raised a substantial question that his sentence is not appropriate under the
Sentencing Code. Id.In the instant case, Appellant timely filed a notice of appeal and
properly preserved his claim in a post-sentence motion. Additionally,
Appellant has complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 11.
We must therefore determine whether Appellant has raised a substantial
question for our review.
A substantial question will be found where an appellant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Code or is contrary to the fundamental norms
underlying the sentencing process. Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted). Here, Appellant argues
that the trial court erred in sentencing him consecutively on several counts,
including the statutory maximum on two counts of incest. See Appellant’s
Brief at 10. He also asserts that the trial court “did not properly consider
mitigating factors such as the fact that the victim did not report the assaults
until five years after it ceased and [he] had no legal troubles whatsoever
during those five years.” Id. Additionally, Appellant claims that the trial
court failed to consider his “excellent institutional behavior as shown by the
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updated PSI.” Id. Finally, Appellant argues that his overall sentence is
excessive because it amounts to a life sentence for him. Id.This Court has held that a challenge to the imposition of consecutive
sentences as unduly excessive, together with a claim that the trial court
failed to consider a defendant’s rehabilitative needs when fashioning its
sentence presents a substantial question. Commonwealth v. Bonner, 135
A.3d 592 (Pa. Super. 2016). Thus, we will consider the merits of Appellant’s
claim.
Sentencing is a matter vested in the sound discretion of the sentencing
court, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion, which in this context, 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 at a
manifestly unreasonable decision. Commonwealth v. Shull, 148 A.3d 820(Pa. Super. 2016).
Before resentencing Appellant, the trial court noted for the record that
it had re-read the original sentencing transcript, which included the victim’s
statement, as well as an update on Appellant’s behavior while incarcerated.
The court then heard argument from counsel for both parties and granted
Appellant allocution. The trial court then stated the following:
THE COURT: Okay, All right. Well, I’ll note my view on the
sentencing. It really hasn’t changed in any way in the case. I’ll
still give the same reasons I gave at the prior sentencing.
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***
And [the original sentence] I imposed - - although, I imposed
it mainly due to mandatory minimums that were applicable at
the last time at sentencing, I still think that’s an appropriate
sentence given the circumstances here.
For those reasons being: The age of the victim. [] I know
the Rape of a Child takes that into consideration that she’s under
the age of 13. In this case the victim was very, very young at
the time of the offense. She was in third grade. She was eight-
years-of-age [sic]. There was also testimony regarding that at
various points she complained [to Appellant] that the acts that
were committed on her caused her pain. And nonetheless
[Appellant] continued to do it.
Also, also [sic] the big point: None of these, the Rape of a
Child, and the IDSI, do not take into consideration the
relationship between [Appellant] and the victim which was a big
part of the reason for the reasons [sic] for my lengthy sentence
at the time. [Appellant] not only broke down the barriers of an
adult male and a female child, but also the very strong barrier
that one, that a person should have in a civilized society of not
molesting your own children.
The other aspect [is] that we found [Appellant] to be a
Sexually Violent Predator. That standing has not been disturbed
by the Appellate Courts. So, there’s a finding here that he not
only suffers from a mental abnormality, but [Appellant’s] likely
to [re]offend in our opinion, and also the opinion of the Sex
Offender’s Assessment Board.
N.T., 6/22/16, at 13-14.
The trial court also expounded on Appellant’s lack of remorse:
And the other reason that I think I may be touched on, in
general his lack of remorse. I’ll stress that a little bit stronger
today because while it’s completely [Appellant’s] Constitutional
right to take to, to take the matter to trial, I’m not going to
punish him, or sentence him in any way based on that.
But I have a hard time believing as I said I think at the last
sentencing proceeding just a complete denial of anything when
especially one of the statements on the tapes made was that his
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discussion with his own daughter that when she wanted to
question him about the allegations. And [Appellant’s] statement
was that he didn’t stick it all the way up inside of her.
I have a hard time rectifying that there’s no grasp of any
remorse, or anything like that. Like I said: I’ll stress that more
today because apparently [Appellant] to date here wants to talk
about things that are completely extraneous even to this case.
[Appellant] wants to take about things such as accepting value
for other things, and doesn’t even want to discuss the case.
So, I find there’s even more, a complete lack of remorse, and
even a grasp of the seriousness of what he did in this case. So,
I think essentially the same sentence is appropriate in this case.
***
THE COURT: Again, I’m not sentencing in accordance [with]
what the mandatory minimums were, but given the effect on the
victim, the relationship to the actions that [Appellant] did, and
all of those things wrapped up into the protection of the public,
the gravity of the offense, and then [Appellant’s] rehabilitative
needs.
N.T., 6/22/16, at 13-16.
The trial court then imposed its new sentence on all of the counts and
made the following additional comments:
The sentence is a standard-range sentence on all of the other
counts except for Incest. And my reasons for that are that the
Incest Counts do not take into account - - they take into account
[Appellant’s] relationship with the victim. But, as I stated at the
prior sentencing hearing, they do not take into account the
victim’s age.
So in other words [Appellant] could have been convicted of
[incest] even if the victim was 21, and it was consensual. So,
that Guideline range does not take that into account. And given
the victim’s very young age in this case, and that she couldn’t
consent, I think that warrants a departure from the Guidelines
on, on that offense from [sic]. It’s a standard range Guideline
sentence in all other respects.
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It is the intended aggregate sentence of the Court to be fifty-six
(56) years to one-hundred twenty (120) years.
And my reason for the overall sentencing structure of that is,
again, the very young age of the victim which is not necessarily
taken into account on the Guideline ranges for the Rape, the
IDSI, and the Aggravated Indecent Assault. It does take into
account she’s under 13. But, again, she was eight–years-of age
[sic]. [Appellant] is a Sexually Violent Predator.
Again, there were circumstances that she testified to that caused
her pain. And nonetheless [Appellant] still continued in this
course of conduct, his lack of remorse here today, and the fact
that the Rape of a child, the IDSI, and the Aggravated Indecent
Assault, don’t take into accounts [sic] that this was his own
daughter.
As far as the overall sentencing structure, the fifty-six (56) to
one-hundred twenty [(120)] years that I’ve run a lot of these
consecutive to one another. I feel that I’m just giving a force
and effect to the jury’s verdict in the case on several accounts
that the jury found him not guilty [sic].
I think given her testimony in the case, but there was clear
testimony each one of the counts that they did convict him on
were separate instances. In fact [the victim] testified to about
[sic] separate counts of the Aggravated Indecent Assault, the
Rape of a Child, and IDSI.
So, I think just to give effect to the length [of time] that the
molestation took, took place in, and given her age, I think this is
an appropriate sentence. And, again, in consideration with the
protection of the public, [Appellant’s] rehabilitative needs, and
the gravity of the offenses.
So, the intended aggregate sentence is fifty-six (56) to one-
hundred-twenty (120). The remaining counts of the information
are nolle prossed. Bail is revoked.
N.T., 6/22/16, 20-22.
Given these lengthy comments, the trial court provided ample reasons
for its sentencing choice. Our review of the sentencing transcript confirms
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the trial court’s finding regarding the lack of remorse. When addressing the
court, Appellant, rather than discussing the case and the effect of his crimes
on his daughter, he stated that that he would “accept for value any offers
that are presented to me,” and then he “formally request[ed] that [the trial
court] specify to him on the record exactly what statute, or statutes,
authorize you to impose the sentence you are imposing at this time.” Id. at
11.
Moreover, as the trial court noted, except for the incest convictions,
the sentence imposed fell within the standard range. When the trial court
has the benefit of 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.” See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(discussing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)).
Finally, the instant case is not one in which the imposition of
consecutive sentences results in an overall excessive sentence. “[T]he
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013) (citation omitted). No such extreme circumstances
are present here. Indeed, the trial court ran several counts concurrent to
those it imposed consecutively. See N.T., 6/22/16, at 18-19. The court
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also provided its reasons for departing from the guideline ranges for the
incest convictions.
In sum, given consideration of the trial court’s reasons for imposing
the new sentence upon Appellant, we discern no abuse of discretion and
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
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