Com. v. Gadd, C. ( 2017 )

J-S24004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CODY GADD
Appellant No. 49 WDA 2016
Appeal from the Judgment of Sentence June 22, 2015
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001678-2014
BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 25, 2017
Appellant, Cody Gadd, appeals from the judgment of sentence entered
in the Washington County Court of Common Pleas, following his guilty plea
to ten counts of possessing child pornography. After careful review, we
affirm.
The relevant facts and procedural history of this case are as follows.
Dropbox, the online media storage application, contacted the National
Center for Missing and Exploited Children (“NCMEC”) with a tip about a user
suspected of downloading child pornography. Dropbox provided the user‟s IP
address, name, associated email address, and the suspicious files. NCMEC
forwarded the information to the Pennsylvania Attorney General‟s office,
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*
Former Justice specially assigned to the Superior Court.
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which reviewed the files and ultimately determined Appellant was the owner
of the Dropbox account.
Despite recovering over 1,000 videos and images of probable child
pornography from the Dropbox account, the Commonwealth charged
Appellant with just ten counts of possession of child pornography, and one
count of criminal use of a communications facility.1 Appellant entered a
guilty plea on March 3, 2015, to ten counts of possession. The court
accepted Appellant‟s plea, and ordered a presentence investigation (“PSI”)
report. The court sentenced Appellant to an aggregate five to ten years‟
incarceration, plus ten years of probation. Appellant filed a timely post-
sentence motion, and the court held a hearing. The motion was eventually
denied by operation of law, and Appellant thereafter filed a timely notice of
appeal. Appellant complied with the dictates of Pa.R.A.P. 1925(b).
On appeal, Appellant argues the trial court imposed an excessive term
of incarceration, and considered impermissible and irrelevant factors when
fashioning Appellant‟s sentence. Appellant concedes that his argument
challenges the discretionary aspects of the trial court‟s sentence. See
Appellant‟s Brief, at 9.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
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1
18 Pa.C.S.A. §§ 6312(d), 7512(a).
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claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
“Two requirements must be met before we will review this challenge
on its merits.” McAfee, 849 A.2d at 274. “First, an appellant must set forth
in his brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a sentence.” Id. (citation
omitted). “Second, the appellant must show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code.” Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted).
We examine an appellant‟s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted).
In the present case, Appellant‟s brief contains the requisite Rule
2119(f) concise statement. Additionally, Appellant successfully preserved his
argument against the discretionary aspects of his sentence through a post-
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sentence motion. Thus, he is in technical compliance with the requirements
to challenge the discretionary aspects of a sentence.
Appellant‟s Rule 2119(f) statement contains two arguments. The first
claim, that the trial court acted unreasonably by imposing multiple
consecutive sentences, fails to present a substantial question for our review.
“Although Pennsylvania‟s system stands for individualized sentencing,
the court is not required to impose the „minimum possible‟ confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). “Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.
Any challenge to the exercise of this discretion ordinarily does not raise a
substantial question.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013). See also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag,
665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is not
entitled to a “volume discount” for his crimes by having all sentences run
concurrently). “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.”
Moury, 992 A.2d at 171-72 (citation omitted).
An “extreme circumstance” is simply not present here. Far from it,
Appellant actually concedes in his brief that the court had discretion to
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fashion a sentence more than twice as long as the one it imposed. Thus,
Appellant‟s first argument fails to raise a substantial question.
However, Appellant presents a second argument for our consideration
in his Rule 2119(f) statement. He contends that the trial court relied on
factors already accounted for in the offense gravity score when fashioning
Appellant‟s sentence. We find this argument presents a substantial question
for our review. See Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.
Super. 2000) (finding allegation of potential deviations from Sentencing
Code, such as double-counting factors already considered, presents
substantial question). Therefore, we turn to the merits of this argument.
Sentencing 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. In this context, an abuse
of discretion 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
Preliminarily, we note that the trial court had the benefit of a PSI
report. See N.T. Sentencing, 6/22/15, at 26. Where the sentencing court
had the benefit of reviewing a PSI, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
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engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
Appellant argues that the trial court specifically recognized the young
age of the children represented in the videos and photographs as a factor in
shaping Appellant‟s sentence. Appellant avers the offense gravity score of
seven accounted for the fact that the offense involved children under the age
of thirteen.
In imposing sentence, the trial court noted:
The nature of the pornography, as described, I find aggravating.
These are not just children under the age of 13, with no clothes
on. These are toddlers engaging in sexual acts with adults. And
you tend to minimize that, too. In your interview with
[investigators,] you said, well, they chose the worst ones, but
these were all part of what was recovered from your Dropbox.
N.T. Sentencing, 6/22/15, at 27.
Appellant asserts the above excerpt shows the court focused on
impermissible factors already accounted for by the offense gravity score.
However, much of the court‟s focus at the lengthy sentencing hearing was
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on Appellant‟s own accountability for his actions, rather than the nature of
the crime itself—including in the above excerpt. The sentencing court also
heard extensive witness testimony, including from Appellant‟s pastor, his
former employer, his addiction counselor, and Appellant himself.
Additionally, the court noted at several points during sentencing that it
considered the PSI report.
The transcripts reveal the court did not sentence Appellant based on
impermissible factors, but instead considered Appellant‟s attempts to
minimize the seriousness of his crimes. The court also accounted for
Appellant‟s admission that he continued to watch adult pornography. As
Appellant had previously acknowledged to the court that legal adult
pornography was the catalyst for his later interest in child pornography, the
court considered this information when looking at Appellant‟s attempts to
treat his problem.
Given these circumstances, we cannot say the trial court abused its
discretion when sentencing Appellant. See Shugars, 895 A.2d at 1275.
Therefore, Appellant‟s argument merits no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
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