Com. v. Vonlunen, I. ( 2018 )

J-S68026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IVAN KLIMEK VONLUNEN :
:
Appellant : No. 413 WDA 2018
Appeal from the Judgment of Sentence January 23, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000189-2017
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2018
Appellant, Ivan Klimek VonLunen, appeals from the January 23, 2018
Judgment of Sentence entered in the Crawford County Court of Common Pleas
following his guilty plea to two counts of Sexual Abuse of Children
(Dissemination of Photos/Film), one count of Sexual Abuse of Children
(Possession of Child Pornography), and one count of Possession of
Instruments of Crime.1 On appeal, Appellant challenges the discretionary
aspects of his sentence. After careful review, we affirm.
The relevant facts and procedural history are as follows. On August 28,
2017, Appellant entered a guilty plea to the above charges, arising from
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1 18 Pa.C.S § 6312(c); 18 Pa.C.S § 6312(d); and 18 Pa.C.S. § 907(a),
respectively.
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* Former Justice specially assigned to the Superior Court.
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Appellant’s possession and transmittal of child pornography.2 The lower court
ordered the preparation of a Pre-Sentence Investigation (“PSI”) Report and a
Sexually Violent Predator (“SVP”) assessment.3
On January 23, 2018, the court sentenced Appellant to an aggregate
term of incarceration of 3½ to 15 years’ incarceration, consisting of three
consecutive 14- to 60-month terms of incarceration for his Sexual Abuse of
Children convictions and a concurrent term of 1 to 12 months’ incarceration
for his Possession of Instrument of Crime conviction.4 At the sentencing
hearing, the court explained in detail why it sentenced Appellant as it did,
including why it imposed an aggravated range sentence for Appellant’s
Possession of Child Pornography conviction. See N.T. Sentencing, 1/23/18,
at 14-18, 20.5
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2 Police retrieved more than 100 movies and 1500 still images of child
pornography from Appellant’s computer. See N.T. Sentencing, 1/23/18, at 5.
3 The assessor concluded that Appellant is not a SVP.
4 The court imposed standard range sentences for Appellant’s convictions of
Dissemination of Child Pornography, but imposed an aggravated range
sentence for his conviction of Possession of Child Pornography. It also
imposed a standard range sentence for his conviction of Possession of
Instruments of Crime.
5 The sentencing court’s stated reasons included: (1) that Appellant would
otherwise be subject to federal prosecution if not for the plea agreement; (2)
the impact Appellant’s crimes had had on the victim; (3) the extraordinary
amount of pornography in Appellant’s possession; and (4) that it sentenced
Appellant to a concurrent sentence for his Possession of Instruments of Crime
conviction. See N.T. at 20. See also Trial Ct. Op., 4/12/18, at 3.
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On February 1, 2018, Appellant filed a Post-Sentence Motion asking the
court to modify his sentence based on mitigating factors. Motion, 2/1/18, at
¶ 7. The trial court denied Appellant’s Motion on February 14, 2018.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant’s raises the following issue on appeal:
Whether [A]ppellant’s sentence is manifestly excessive, clearly
unreasonable[,] and inconsistent with the objectives of the
Sentencing Code?
Appellant’s Brief at 5.
Appellant’s issue challenges the discretionary aspects of his sentence.
In particular, Appellant argues in his Brief that the sentencing court abused
its discretion in imposing consecutive sentences—one of which was in the
aggravated range—and by failing to consider mitigating factors. Id. at 8-10.6
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa. Super. 2000).
Prior to reaching the merits of a discretionary sentencing issue, we must
determine whether: (1) appellant has filed a timely notice of appeal; (2) the
issue was properly preserved at sentencing or in a motion to reconsider and
modify sentence; (3) appellant’s brief has a fatal defect; and (4) there is a
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6 In his Post-Sentence Motion, Appellant did not challenge the court’s
imposition of consecutive sentences per se or allege that the court abused its
discretion in imposing an aggravated range sentence for his Possession of
Child Pornography conviction.
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substantial question that the sentence is not appropriate under the Sentencing
Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Here, Appellant filed a timely Notice of Appeal. Our review of Appellant’s
Post-Sentence Motion indicates that he preserved his claim that the court
abused its discretion in failing to consider mitigating factors. Appellant has
also included a separate Pa.R.A.P. 2119(f) Statement in his Brief to this Court.
We, thus, consider whether the issue Appellant preserved raises a substantial
question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa. Super. 2003) (citation omitted). 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.” Sierra, supra at 912-13 (citation
and quotation omitted).
Appellant avers that the trial court erred in failing to consider mitigating
factors. Appellant’s Brief at 8, 10. He asserts that his sentence is inconsistent
with the objectives of the Sentencing Code, but he fails to indicate which
provision of the Sentencing Code the court violated and in what way. Id. at
7. See also Sierra, supra at 913. Rather, Appellant claims his sentence is
excessive because it includes consecutive sentences without regard to his
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acceptance of responsibility, his remorse, his age, and the fact that he has no
prior criminal record. Appellant’s Brief at 8.
Claims that the sentencing court did not adequately consider mitigating
factors generally do not raise a substantial question. See Commonwealth
v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court has held on
numerous occasions that a claim of inadequate consideration of mitigating
factors does not raise a substantial question for our review.”);
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have
held that a claim that a court did not weigh the factors as an appellant wishes
does not raise a substantial question.”).
It is also well-settled that a bare challenge that the trial court erred in
imposing consecutive sentences does not raise a substantial question. See
Zirkle, 107 A.3d at 133; Commonwealth v. Moury, 992 A.2d 162, 171-72
(Pa. Super. 2010) (“The 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.”).
Based on our review of the above precedential case law, the nature of
the crimes at issue, and the length of imprisonment, we conclude that
Appellant has failed to present a substantial question in challenging the
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discretionary aspects of his sentence. We, thus, decline to review the merits
of the issue raised.7
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2018
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7 To the extent that Appellant purports to challenge the imposition of an
aggravated-range sentence for his Possession of Child Pornography
conviction, we note that he has failed to develop the claim in his Brief beyond
the mere acknowledgement that the sentence is in the aggravated-range. We,
thus, find this claim waived. See Commonwealth v. Johnson, 985 A.2d
915, 924–25 (Pa. 2009) (claims not developed in appellate brief are waived;
“we will not develop Appellant's arguments for him”).
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