Com. v. Jodun, W. ( 2015 )

J-A18045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM HENRY JODUN
Appellant No. 1948 MDA 2014
Appeal from the Judgment of Sentence entered on September 15, 2014
in the Court of Common Pleas of Clinton County
Criminal Division at No. CP-18-CR-0000224-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 29, 2015
William Henry Jodun (“Jodun”) appeals from the judgment of sentence
imposed following his negotiated guilty plea to aggravated indecent assault.
See 18 Pa.C.S.A. § 3125(a)(8). We affirm.
In May 2014, Jodun, a sixty-year-old man, penetrated the vagina of a
fourteen-year-old girl with his fingers, performed oral sex on her and
convinced the minor to give him a “hand job.” Jodun subsequently entered
a negotiated guilty plea to one count of aggravated indecent assault.1
Following the trial court’s acceptance of Jodun’s plea, the court ordered the
preparation of a pre-sentence investigation report (“PSI”). On September
____________________________________________
1
The guilty plea agreement contained a provision recommending that the
trial court impose a sentence within the standard range.
J-A18045-15
15, 2014, the sentencing court sentenced Jodun to 36 to 120 months in
prison, which was within the standard guideline range.2 Jodun timely filed a
post-sentence Motion, asserting, inter alia, that his sentence was excessive
and inappropriate given the sentencing court’s failure to consider certain
mitigating factors. The sentencing court denied Jodun’s post-sentence
Motion, after which Jodun filed a timely Notice of Appeal.
On appeal, Jodun raises the following question for our review:
Did the trial court abuse its discretion when it sentenced [Jodun]
to serve the maximum of his standard range [sentence] despite
the totality of the circumstances?
Brief for Appellant at 7.
Jodun’s claim challenges the discretionary aspects of his sentence,
from which there is no automatic right to appeal. See Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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
____________________________________________
2
Under the sentencing guidelines applicable to Jodun’s offense, the standard
range for the minimum prison sentence is twenty-two to thirty-six months.
See N.T., 10/17/14, at 2.
-2-
J-A18045-15
not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (citations and quotation marks omitted).
Here, Jodun filed a timely Notice of Appeal, raised his claims in a post-
sentence Motion, and included a Rule 2119(f) Statement in his brief.
Therefore, Jodun has met the first three requirements of Moury.
In an attempt to satisfy the substantial question prong of Moury,
Jodun argues that the sentencing court imposed an excessive and
unreasonable sentence that failed to take into consideration various
mitigating factors, such as his lack of any prior criminal record, his
employment, and responsibilities as a father. See Brief for Appellant at 11.
Jodun essentially argues that the sentencing court abused its
discretion by failing to adequately consider certain mitigating factors.
However, such a claim does not raise a substantial question for our review.
See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009);
see also Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (stating that
“[a]n allegation that the sentencing court failed to consider mitigating
factors generally does not raise a substantial question for review.”).
-3-
J-A18045-15
Likewise, Jodun’s bald allegation that his standard-range sentence was
excessive does not present a substantial question. See Commonwealth v.
Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (holding that a bald
allegation of excessiveness does not raise a substantial question).
However, even if Jodun had raised a substantial question, the record
reflects that the sentencing court properly considered all relevant mitigating
factors and exercised sound discretion in sentencing Jodun. See
Commonwealth v. Butterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(stating that “[s]entencing 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.”). Initially, we observe that the sentencing
court in the instant case had the benefit of a PSI. Where a sentencing 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.” Ventura, 975
A.2d 1128, 1135 (citation omitted).
Moreover, the record reflects that the sentencing court considered
Jodun’s lack of a criminal record, ability to retain employment, his remorse
and the fact that he took responsibility for his actions. See Trial Court
Opinion, 10/22/14, at 2 (unnumbered). The record further reflects that the
sentencing court considered Jodun’s testimony that his daughter had
previously been molested. See id. at 3; see also N.T., 11/18/14, at 5
-4-
J-A18045-15
(wherein Jodun stated that he shared this experience with the trial court in
order to empathize with the victim). In addition, our review discloses that
the sentencing court considered that Jodun had no infractions while in
prison. See Trial Court Opinion, 10/22/14, at 2.
After having considered all of these mitigating factors, the sentencing
court did not abuse its discretion in determining that Jodun’s standard-range
sentence was appropriate where the court was informed by PSI and
considered the nature of the crime and the age of the victim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
-5-