Com. v. McFarland, T. ( 2015 )

J-S44022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY A. MCFARLAND
Appellant No. 2033 WDA 2014
Appeal from the Judgment of Sentence entered October 31, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0000343-2014
BEFORE: LAZARUS, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2015
Appellant, Timothy A. McFarland, appeals from the judgment of
sentence the Court of Common Pleas of Erie County imposed on October 31,
2014. Appellant challenges the discretionary aspects of his sentence.
Specifically, Appellant argues his sentence is manifestly excessive. We
affirm.
The trial court summarized the relevant background of the case as
follows:
On September 8, 2014, [Appellant] entered a counseled
negotiated no contest plea to three counts of the information:
Count 1, simple assault; Count 2, endangering welfare of
children; and Count 4, corruption of minors. All were graded as
misdemeanors of the first degree. While serving as a
scoutmaster, [Appellant] inappropriately touched J.S. (DOB 8-3-
00) and C.S. (DOB 4-18-98). These events occurred between
2011 through June of 2013 in Erie County, Pennsylvania. The
children were between ten and twelve years of age and twelve to
fifteen years respectively during the commission of the offenses.
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On October 31, 2014, [Appellant] was sentenced to serve an
aggregate sentence of 60 months to 120 months, which was an
upward departure from the sentencing guidelines. On November
10, 2014, counsel filed a motion for reconsideration of
sentence[,] which this [c]ourt denied on November 12, 2014.
[This appeal followed.]
Trial Court Opinion, 1/22/15, at 1-2 (Citation to record and footnote
omitted).
On appeal, Appellant argues the trial court abused its sentencing
discretion by imposing a manifestly excessive sentence.1 Specifically,
Appellant argues that the trial court did not properly weigh mitigating factors
such as Appellant’s lack of prior criminal record, his status as “an upstanding
member of the Erie community,” and the fact he “took responsibility for
these allegations and spared the victims the trauma of trial.” Appellant’s
Brief at 8. Appellant, in essence, argues the trial court abused its discretion
because it should have given these mitigating factors more weight.
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1
On appeal, Appellant also argues the sentencing court abused its discretion
by relying on improper considerations, namely the sentencing judge
“improperly referenced a recent newspaper article that detailed
inconsistencies” between federal and state sentencing guidelines. The claim
is waived because Appellant raises it on appeal for the first time. See
Pa.R.A.P. 302(a). Additionally, nowhere did Appellant explain what the
alleged impropriety is. In essence, Appellant left us the task of
substantiating his claim. As such, the claim is also waived for failure to
articulate any argument in support of his allegation. See Pa. R.A.P.
2116(a). Finally, the claim is wholly meritless. A review of the transcript
reveals nothing improper about the trial court’s comments regarding the
guidelines. See N.T. Sentencing, 10/31/14, at 14-15.
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In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this
Court reiterated:
Appellant is not entitled as of right to a review [of challenges to
the discretionary aspects of sentence]. Our jurisdiction over a
claim regarding the discretionary aspects of sentence must be
established as follows:
We 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. § 9781(b).
Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (internal quotation marks, citations and modifications
omitted)).
A review of the record reveals that Appellant has satisfied the first
three elements of the test. We now turn to the fourth element, whether
there is a substantial question under 42 Pa.C.S.A. § 9781(b) that the
sentence appealed from is not appropriate.2
A claim of inadequate consideration of mitigating factors generally fails
to raise a substantial question. See, e.g., Commonwealth v. Johnson, J.,
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2
“A substantial question exists where an appellant sets forth a plausible
argument that the sentence violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process.” See, e.g., Commonwealth v. Johnson, G., 873 A.2d 704, 709
(Pa. Super. 2005).
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961 A.2d 877, 880 (Pa. Super. 2008). Additionally, we have held “[t]hat the
court[’s] refus[al] to weigh the proposed mitigating factors as Appellant
wished, absent more, does not raise a substantial question.” Moury, 992
A.2d at 175 (citations omitted). Here, Appellant’s challenge is limited to the
sentencing court’s alleged failure to account for mitigating factors as he
wished, providing no additional reason for challenging the sentence.
Accordingly, Appellant failed to raise a substantial question for our review.
Id.Even if we were to conclude Appellant raised a substantial question for
our review, Appellant failed to show the sentencing court abused its
discretion in fashioning Appellant’s sentence.3 In its written opinion, the
sentencing court summarized the reasons for Appellant’s sentence as
follows:
As the sentencing record reflects, this [c]ourt took into
consideration a number of factors before imposing sentence. I
considered the Pennsylvania Sentencing Code and all its factors,
the guidelines, the presentence investigation report and all the
information submitted at the time of sentencing. What was
particularly significant was [Appellant]’s exploitation of the
position of trust that he held as the boys’ scoutmaster. Just as
significant was the impact that his actions had upon these
children. In various ways[,] they suffered embarrassment,
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3
“In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court’s decision under an abuse of discretion standard.
Additionally, this Court’s review of the discretionary aspects of a sentence is
confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”
Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013)
(quotation marks and citations omitted).
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anger and reactions that were unabated up to the time of
sentencing. It was also noteworthy that he procured their
silence by threatening them, not with physical harm, but by
reporting their behavior, real or fabricated, to their parents. In
addition, I considered the positive aspects of [Appellant]’s
background. Nevertheless, his actions and the impact upon
these children justified a lengthy period of incarceration followed
by an adequate term of supervision to address his rehabilitation
needs and ensure the protection of the public. The sentence
imposed—albeit an upward departure from the sentencing
guidelines—was 5 to 10 years which was less than the statutory
maximum of 7½ - 15 years. Finally, the record clearly reflects
the reasons for the sentence.
Trial Court Opinion, 1/22/15, at 6-7 (citations to record omitted).
Additionally, a review of the sentencing hearing transcripts reveals the
sentencing court was aware of and carefully considered the facts, including
Appellant’s background and the mitigating factors Appellant suggests were
not taken into consideration. It is clear that the trial court made an
intelligent and informed decision in fashioning Appellant’s sentence. There is
no hint of bias, partiality, prejudice, ill-will, or manifest unreasonableness on
the part of the sentencing court. Accordingly, we conclude the trial court did
not abuse its discretion in fashioning Appellant’s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 9/24/2015
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