Com. v. Rogers, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK EDWARD ROGERS :
:
Appellant : No. 1442 MDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000316-2016
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 11, 2020
Appellant, Mark Edward Rogers, appeals from the judgment of sentence
of 20 to 40 years’ incarceration, imposed after he pled guilty to two counts of
involuntary deviate sexual intercourse with a child (IDSI-child), 18 Pa.C.S. §
3123(b). Appellant avers that the court erred by denying his post-sentence
motion to withdraw his guilty plea, and that his sentence is manifestly
excessive. We affirm.
Appellant was charged with the above-stated offenses, as well as
multiple other sexual crimes, based on evidence that he engaged in oral sex
with two girls who were nine and ten years old. Appellant was approximately
54 years old at the time of the assaults. On the day Appellant’s jury trial was
scheduled to begin, he agreed to plead guilty to two counts of IDSI-child in
exchange for the Commonwealth’s dismissing the remaining charges. The
parties did not reach a sentencing agreement. On July 10, 2019, the trial
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court imposed a term of 10 to 20 years’ incarceration for each of Appellant’s
convictions, and directed those sentences to run consecutively, totaling an
aggregate term of 20 to 40 years’ imprisonment.
Appellant filed a timely post-sentence motion seeking to withdraw his
guilty plea and also challenging his sentence. The trial court denied that
motion in an order and accompanying opinion filed on August 5, 2019.
Appellant timely appealed, and he also complied with the trial court’s order to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
The court apparently did not file a Rule 1925(a) opinion, presumably because
the issues raised in Appellant’s Rule 1925(b) statement were addressed in its
August 5, 2019 opinion denying his post-sentence motion.
Herein, Appellant states two issues for our review:
1. Whether the [t]rial [c]ourt erred in denying Appellant’s [post-
sentence] request to withdraw his … guilty plea?
2. Whether [Appellant’s] sentence is manifestly excessive?
Appellant’s Brief at 3.
Appellant first argues that the trial court should have granted his post-
sentence motion to withdraw his guilty plea. He contends that his decision to
plead guilty was made after rushed negotiations on the morning that his trial
was set to begin, and he did not “fully understand what he was pleading guilty
to or the potential sentencing consequences of his plea.” Id. at 7. More
specifically, Appellant claims that he did not understand that “the charge[s]
involved sexual intercourse with a child.” Id. He also asserts that, “because
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the Commonwealth agreed not to object to concurrent sentences,” he believed
“that he was actually going to receive concurrent sentences.” Id.
Appellant’s arguments do not demonstrate that his plea was unknowing,
unintelligent, or involuntary, such that a manifest injustice will result by not
permitting him to withdraw it. See Commonwealth v. Kpou, 153 A.3d 1020,
1023 (Pa. Super. 2016) (“[A]fter the court has imposed a sentence, a
defendant can withdraw his guilty plea only where necessary to correct a
manifest injustice. … A manifest injustice occurs when a plea is not tendered
knowingly, intelligently, voluntarily, and understandingly.”) (cleaned up).
First, we agree with the trial court that the plea colloquy indicates that
Appellant “understood the nature of the charges to which he was pleading
guilty.” Trial Court Opinion (TCO), 8/5/19, at 3. In particular, Appellant
stated that he understood the elements of the crime of IDSI-child, and he
described committing the underlying criminal acts (oral sex with the 9- and
10-year-old victims) that constituted his offenses. See N.T. Plea, 5/28/19, at
8. Appellant does not point to anywhere in the record that supports his current
assertion that he did not understand the crimes to which he was pleading
guilty.
Additionally, the record does not support Appellant’s contention that he
believed he would receive concurrent sentences by entering his plea. During
the colloquy, the court asked him if anything was promised to him in exchange
for his plea, and Appellant stated only that his remaining charges would be
nol prossed. Moreover, the court informed Appellant that he could be
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sentenced to up to 40 years’ incarceration for each of his IDSI-child offenses,
and asked Appellant if he understood that “[t]here’s no agreement whatsoever
on the sentence[.]” Id. at 7. Appellant answered in the affirmative. Id. He
also indicated that he understood that the sentencing “decision will be totally
up to [the court.]” Id.
This record demonstrates that Appellant comprehended the nature of
the charges to which he pled guilty, and that he understood he was not
guaranteed concurrent sentences by entering his plea. The fact that Appellant
is unhappy with the fact that he received consecutive sentences does not
constitute a manifest injustice warranting the post-sentence withdrawal of his
plea. Accordingly, his first issue is meritless.
Next, Appellant contends that his sentence is manifestly excessive.
Appellant mainly takes issue with the court’s decision to run his terms of
incarceration consecutively. He stresses that he “is 57 years of age[,] making
the minimum penalty essentially a life sentence.” Appellant’s Brief at 8.
Appellant also points out that, prior this case, he has “led a crime-free life”
and he was “remorseful and sincerely apologetic towards the victims and their
families.” Id. Moreover, Appellant “feels as if he is being punished for the
withdrawn charges as well as the charges he plead [sic] guilty to.” Id. at 9.
Appellant’s claims constitute a challenge to the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
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challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). 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.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal and preserved his claims
in his post-sentence motion. However, he has not included a Pa.R.A.P.
2119(f) statement in his appellate brief. Because the Commonwealth has not
objected to this omission, we will not deem Appellant’s sentencing claims
waived. See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.
2004) (“[W]hen the appellant has not included a Rule 2119(f) statement and
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the appellee has not objected, this Court may ignore the omission and
determine if there is a substantial question that the sentence imposed was not
appropriate….”). We also conclude that Appellant’s claim that his consecutive
sentences are excessive, in light of certain mitigating factors in his case, raises
a substantial question for our review. See Commonwealth v. Swope, 123
A.3d 333, 340 (Pa. Super. 2015) (finding a substantial question where Swope
argued that his consecutive sentences were excessive because the court failed
to consider his rehabilitative needs and mitigating factors).
Nevertheless, Appellant has failed to convince us that the court abused
its discretion in fashioning his aggregate term of incarceration. Moury, 992
A.2d at 169 (“[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of discretion.”). In
explaining Appellant’s sentence, the court stated:
THE COURT: We talked about the circumstances surrounding your
involvement with these girls. When I consider the sentence, the
law requires me to consider the protection of the public, the
impact on the victim and the community, as well as your
rehabilitative needs.
It’s clear from my review of the pre-sentence report, the
victim impact statements, [and] the statements given today by
the mothers of these two victims, that the impact is immeasurable
on your victims and their families and community beyond. I had
letters from grandparents detailing what your conduct has forced
them to endure in their family relationships.
I weigh that factor very heavily in determining what
sentence should be imposed here today. The standard range is 6
to 20 years on each of the offenses. Your attorney asked [that]
the sentence[s] be served concurrently. They will not be. They
will be consecutive sentences for the two individual victims. They
each deserve their own individual sentence.
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And your sentence will not be at the bottom of the range,
nor will it be at the top. I have to make it clear I cannot sentence
you for things you did not accept responsibility for. I can only
sentence you on these two charges for which you accepted
responsibility.
But after weighing the factors of protecting the public, the
gravity of the offense, and the impact on the victim[s], the
sentence I’m going to impose are from 10 to 20 years on each of
the counts running consecutively. So your sentence will be 20 to
40 years.
N.T. Sentencing, 7/10/19, at 17-18.
It is apparent from this record that the court considered the requisite
statutory factors, pre-sentence report, victim impact statements, facts of
Appellant’s crimes, applicable sentencing guideline ranges, and the fact that
Appellant took responsibility for the two crimes to which he pled guilty. The
court was aware of Appellant’s age and his lack of a prior criminal record, and
it also explicitly stated that it was not sentencing him for the charges that
were withdrawn. The court explained that it was imposing consecutive terms
because Appellant should serve separate sentences for each of his two victims.
Each sentence was in the middle of the standard guideline range. Nothing in
this record indicates that Appellant’s sentence is “manifestly unreasonable, or
the result of partiality, prejudice, bias or ill will.” Moury, 992 A.2d at 169-
70. Accordingly, Appellant’s sentencing claim does not warrant relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2020
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