Com. v. Lonergan, K. ( 2021 )

J-A04020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN LONERGAN :
:
Appellant : No. 1004 EDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004920-2018
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: MARCH 19, 2021
Appellant, Kevin Lonergan, appeals from the judgment of sentence
entered in the Lehigh County Court of Common Pleas, following his open guilty
plea to indecent assault.1 We affirm.
The relevant facts and procedural history of this case are as follows:
On June 11, 2018, a minor who was referred to throughout
the proceedings as “Jane Doe,” indicated that [Appellant]
had inappropriate sexual contact with her. At the time of
the incidents, [Appellant] was employed as a priest for the
Diocese of Allentown. Initially, Jane Doe had met
[Appellant] while assisting at Mass. However, she later
received inappropriate messages, including pictures, from
[Appellant] via social media. One of those messages
included a video of [Appellant] masturbating in... a shower
to the point of ejaculation.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3126(a)(1).
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Jane Doe was assisting at Mass in February of 2018, when
[Appellant] found her putting something away in the back
room. [Appellant] proceeded to hug Jane Doe and slid his
hand down to her buttocks, proceeding to grab them.
During this same incident, [Appellant] pushed his erect
penis against Jane Doe.
Later during the [g]uilty [p]lea [h]earing, [the prosecutor],
explained on the record that [Appellant] would be pleading
guilty to one count of [i]indecent [a]ssault. He also
explained that “This will be an open plea and the sentence
will be up to the [c]ourt[.]” [Defense counsel] expressed on
the record that [the prosecutor’s] explanation of the plea
agreement was consistent with his understanding.
Additionally, the [c]ourt explained during the oral colloquy
that a conviction of [i]ndecent [a]ssault “could carry with it
up to two years in jail[.]” [Appellant] expressed that [his
counsel] had explained the sentencing guidelines to him,
that it was his choice to plead guilty, that no one had forced
or threatened him to enter the plea, and that no additional
promises were made to him that were not covered by the
[c]ourt’s colloquy.
[Appellant]’s [s]entencing [h]earing was held on February
24, 2020. Jane Doe, along with her father and mother,
testified as to how the incidents have affected their lives.
They all agreed that their faith and livelihoods had been
shaken by [Appellant]’s actions. Further, they worry how
the incidents will affect Jane Doe’s future relationships.
Although Jane Doe and her family were in agreement with
the charge that [Appellant pled] guilty to, they requested
that he receive a prison sentence and be kept away from
children and adolescents in the future.
The [c]ourt imposed the maximum sentence of [one to two]
years of incarceration in a state correctional facility. The
reasons for imposing this sentence are “the position of trust
that... this [Appellant] was in with this victim. The victim
was particularly vulnerable because... of the relationship.
[Appellant] is a priest.”
(See Trial Court Opinion, filed June 18, 2020, at 1-2) (internal citations
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omitted).
Appellant timely filed a post-sentence motion on March 4, 2020. On
March 18, 2020, the court denied Appellant’s motion. That same day,
Appellant timely filed a notice of appeal.2 On April 30, 2020, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On May 19, 2020, Appellant timely filed his
concise statement.
Appellant raises four issues for our review:
Did the sentencing court err, abuse its discretion, and
violate the sentencing code in imposing the maximum
possible sentence on [Appellant] where such sentence was
the result of the court’s consideration of an improper
sentencing factor, namely an unverified, unsubstantiated
allegation of prior sexual misconduct for which there was no
actual supporting evidence?
Did the sentencing court err, abuse its discretion, and
violate the sentencing code in imposing the maximum
possible sentence on [Appellant] where such sentence was
the result of the court’s consideration of an improper
sentencing factor, namely the suggestion that he was
“showing up” in places where the victim was located, despite
the fact that such conduct, even if true, was lawful, legal
and did not result in any criminal charges being lodged
against him?
Did the sentencing court err, abuse its discretion, and
violate the sentencing code in imposing the maximum
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2
Appellant purported to appeal from the court’s order denying his post-
sentence motion. However, “[i]n a criminal action, [the] appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2
(Pa.Super. 2001) (en banc), appeal denied, 569 Pa. 681, 800 A.2d 932
(2002). We have corrected the caption accordingly.
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possible sentence on [Appellant] where it was the result of
the court’s consideration of conduct for which [Appellant]
was not convicted and did not plead guilty, specifically
conduct associated with the nolle prossed charge in this
case?
Did the sentencing court err, abuse its discretion, and
violate the sentencing code in imposing the maximum
possible sentence on [Appellant] where such sentence was
manifestly excessive and unreasonable, failed to consider
appropriate mitigating factors, and failed to avoid
sentencing disparities?
(Appellant’s Brief at 5-6).
Appellant’s first three issues are intertwined, and we address them
together. Appellant claims the sentencing court abused its discretion because
it considered improper sentencing factors, namely, 1) a prior accusation of
Appellant’s inappropriate sexual contact with a minor that had been
mentioned in the pre-sentence investigation “PSI” report;3 2) the suggestion
that Appellant was “showing up” in places where the victim was located
despite the fact that this conduct did not result in charges against him; and
3) conduct related to a nolle prossed charge against Appellant. (See id. at
27-38). Appellant argues the court indicated at a status conference in
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3
Specifically, the court asked the victim’s father whether he was aware of
Appellant’s transfer to another diocese following a similar incident to the
incident in the case at the bar, and also noted that Appellant had been
previously transferred from another diocese. (See N.T. Sentencing, 2/24/20,
at 9, 39). The incident was included in the PSI report, and Appellant did not
object to the court’s questioning or statements. (Id.). In his post-sentence
motion, however, Appellant argued that he had never been charged with any
offense in connection with the earlier incident, let alone convicted. (See Post
Sentence Motion, 3/4/20, at 3-4).
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November of 2019, that it was comfortable with a minimum term of
imprisonment of only one and one-half months. (Id. at 28). Appellant asserts
that the court was aware at that time that Appellant was a priest in a position
of trust with the victim. Consequently, Appellant insists the court had no
reason for subsequently imposing a lengthier prison sentence, unless the court
had considered improper factors. (Id. at 29). Appellant highlights that the
court mentioned the prior allegations, Appellant’s conduct after the assault,
and images and videos that Appellant allegedly sent to the victim at the
sentencing hearing. (Id. at 29-30, 35, 39). Appellant concludes the record
demonstrates that the court sentenced Appellant based on improper factors,
and this Court must vacate and remand for resentencing.
As presented, Appellant’s claims challenge the discretionary aspects of
his sentence. See Commonwealth v. Bowen, 975 A.2d 1120, 1122
(Pa.Super. 2009) (explaining claim that court considered improper factors in
fashioning sentence in aggravated range implicates discretionary aspects of
sentencing). 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 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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
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there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a timely-filed post-
sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008) (internal quotation marks omitted).
“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). A substantial question exists “only when
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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 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)).
A claim of excessiveness can raise a substantial question as to the
appropriateness of a sentence under the Sentencing Code, even if the
sentence is within the statutory limits. Mouzon, supra at 430, 812 A.2d at
624. However, bald allegations of excessiveness do not raise a substantial
question; a substantial question will be found “only where the appellant’s Rule
2119(f) statement sufficiently articulates the manner in which 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…” Id. at 435, 812 A.2d at 627. An allegation that the court
considered improper sentencing factors presents a substantial question.
Bowen, supra at 1122.
Here, Appellant preserved his first three sentencing challenges by timely
filing his notice of appeal, raising his issues in a timely post-sentence motion
and in his Rule 1925(b) statement, and including in his brief an appropriate
Rule 2119(f) statement. Further, his contentions that the court considered
improper sentencing factors raises a substantial question. See id.
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Accordingly, we will consider the merits of these claims.
This Court has explained:
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).
This Court has previously observed that prior uncharged criminal
conduct can be considered for sentencing purposes under certain limited
circumstances. Commonwealth v. P.L.S., 894 A.2d 120, 128 (Pa.Super.
2006). “[T]he fact that a defendant is guilty of prior criminal conduct for which
he escaped prosecution has long been an acceptable sentencing consideration.
However, this type of conduct can be used as a sentencing factor only under
tightly-prescribed circumstances when there is evidentiary proof linking the
defendant to the conduct.” Id. at 130. This Court has historically rejected
sentences where the trial court based the sentence on general,
unsubstantiated statements regarding other crimes. See Commonwealth v.
Sypin, 491 A.2d 1371, 1372 (Pa.Super. 1985) (vacating sentence where court
referenced thousands of children who were kidnapped or murdered every year
and defendant had not been charged or arrested in connection with death of
child).
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Instantly, at sentencing, the court stated:
THE COURT: The facts are that you pushed your
erect penis against a teenager in the Church. The facts are
that in a four-week period you sent over 20 inappropriate
images to this juvenile, including lots of images of your
penis, and also a video of you masturbating in a shower to
the point of ejaculation. I believe that was in the rectory.
In your comments about what you did you said you didn’t
see her as particularly vulnerable. Let’s see, you’re a priest
whose families have trusted you with their most precious
children. You don’t think they’re vulnerable? That’s an
actual question.
[APPELLANT]: I do believe they’re vulnerable, Your
Honor.
THE COURT: Your comments about what happened
that caused the church to transfer you here were that the
girl, the 15-year old, had a crush on you. The accusations
involved hands on molestation and, by [Appellant’s]
admission, were more serious in nature than the within
matter. Never questioned by law enforcement. No charges.
We transfer you.
This practice of the Church has been—I believe it was the
early 1980’s that this stuff started first coming out.
We are more than three decades from that and we’re still
transferring priests who molest children? There’s plenty of
blame to go around, most of it on your shoulders.
[APPELLANT]: Yes, ma’am.
THE COURT: I would say, had you not been
transferred but rather sanctioned, fired, removed from the
Church, this victim would not have been a victim.
You have made families feel that church is no longer a safe
place.
You have divided your Church because there is no
churchgoing person who should be supporting your actions.
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Period. Or saying that you’re not guilty. You are. You told
everyone you were.
In addition, after you assaulted indecently this child, you
made her further uncomfortable by being everywhere. She
couldn’t get away from you.
This is not a standard range sentence. This is not a standard
case.
The sentence is: The costs, 1 to 2 years, State Prison, and
you will be transferred immediately. Conditions—that is the
maximum and you deserve it.
The reason for the maximum sentence is the position
of trust that this defendant was in with this victim.
The victim was particularly vulnerable because of this
offense -- I’m sorry -- because of the relationship.
The defendant is a priest.
(N.T. Sentencing, 2/24/20, at 38-40) (emphasis added).
In its opinion denying Appellant’s post-sentence motion, the court noted
that it did not consider anything other than the facts of this case in fashioning
its sentence. (See Opinion in Support of Order Denying Post-Sentence
Motions, 3/18/20, at 7-8). The court noted that unlike the non-precedential
case Appellant cited in support of his arguments,4 it had heard the victim’s
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4
See Commonwealth v. Savage, No. 1509 WDA 2017, 2018 WL 6629333
(Pa.Super. filed Dec. 19, 2018). In Savage, the defendant entered a guilty
plea to various sexual offenses committed against children. A PSI report was
prepared and it did not mention any allegations of prior sexual or criminal
misconduct. At the sentencing hearing, the Commonwealth mentioned an
allegation regarding the defendant’s sexual misconduct with a younger cousin,
without evidence or sources beyond a psychological assessment, and where
the dates of the incident and age of the victim did not match the victim
referenced at sentencing. As the Commonwealth provided no new information
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testimony regarding the ongoing pain caused by Appellant’s betrayal of trust.
Id. As well, Appellant had not taken responsibility for his offense or sought
psychological help until after his arrest. Id. The court also noted that
Appellant’s conduct in this case was not isolated. Id. The court reiterated
that it considered only proper statutory factors in sentencing Appellant to the
maximum term of imprisonment. Id.
In its Pa.R.A.P. 1925(a) opinion, the court further stated:
In this case, although the [c]ourt inquired about other
incidents that were brought up at the [s]entencing
[h]earing, the [c]ourt gave no indication that it was
considering, nor did it consider the earlier incident or
anything other than the facts of the case at bar when
imposing [Appellant’s] sentence.
As to [Appellant’s] second issue specifically, that the court
suggested that [Appellant] was “‘showing up’ in places
where the victim was located,” the agreed[-]upon facts have
made it clear that the single count of [i]ndecent [a]ssault
did not stem from an isolated incident. [Appellant] had been
harassing Jane Doe by sending nude pictures of himself via
social media consistently for over a month even before he
physically touched her. Jane Doe was further forced to
continue seeing [Appellant] after these incidents through
her roles at the church that she attended.
(Trial Court Opinion, 6/18/20, at 5-6).
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to substantiate the allegations in the PSI report, this Court ultimately
concluded that the court abused its discretion in relying upon this incident
when sentencing the defendant. See id.
We further note that only non-precedential decisions filed after May 1, 2019,
may be cited for their persuasive value. See Pa.R.A.P. 126(b). Savage was
filed on December 19, 2018 and, accordingly, Appellant cannot rely on it for
precedential or persuasive value.
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Here, the record supports the court’s statements that it did not rely upon
improper sentencing factors in fashioning its sentence. Although the court
mentioned the prior incidents at sentencing because they had either been
included in the PSI report or introduced as facts at the guilty plea hearing, the
court made clear that its reason for imposing the maximum possible sentence
was based on Appellant’s abuse of his position of trust with the victim. (See
N.T. Sentencing, 2/24/20, at 40). Significantly, Appellant cites no case law to
suggest that the court’s consideration of his position of trust was an improper
sentencing factor. Under these circumstances, we cannot say the court
abused its broad sentencing discretion. See Shugars, supra.
In his fourth issue, Appellant argues the court abused its discretion by
imposing the maximum sentence because it was manifestly excessive and
unreasonable, and the court failed to consider appropriate mitigating factors.
(See Appellant’s Brief at 41). Appellant notes that the Lehigh County Adult
Probation Office recommended a sentence in the standard guideline range,
but his sentence was quadruple the top of the standard guideline range and
double the top of the aggravated guideline range. (Id. at 41-42).
Generally, bald allegations of excessiveness do not raise a substantial
question warranting our review. See Mouzon, supra. Further, an allegation
that a sentencing court failed to, or did not adequately consider certain
factors, does not present a substantial question. See Commonwealth v.
Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa.
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653, 676 A.2d 1195 (1996). Therefore, as presented, Appellant’s fourth issue
arguably fails to raise a substantial question.
Even if the claim does warrant appellate review, however, Appellant is
not entitled to relief. With regard to Appellant’s claim of excessiveness, the
court noted:
In the instant case, [Appellant] received the statutory
maximum sentence for the offense to which he [pled] guilty.
Unquestionably, the sentence imposed did not exceed the
statutory limits. Further, [Appellant] entered an open plea
and testified in [c]ourt that he was aware of the amount of
time that the offense of [i]ndecent assault could subject him
to. Therefore, [Appellant’s] sentence must be evaluated to
determine if it was “manifestly excessive.” …
* * *
In imposing [Appellant’s] sentence, this Court considered
the protection of the public, the gravity of the offense as it
relates to the impact on the victim and the community,
[Appellant’s] rehabilitative needs, [Appellant’s] acceptance
of responsibility, [Appellant’s] expressed remorse,
[Appellant’s] prior record or lack of thereof, [Appellant’s]
subsequent acts of self-improvement, [Appellant’s]
employment history and community ties, and the
sentencing guidelines.
(Trial Court Opinion, 6/18/20, at 5-7) (internal citations omitted). We
reiterate that the court had the benefit of a PSI report, so we can presume
the court considered all relevant and mitigating factors. See
Commonwealth v. Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005). Under
these circumstances, we see no reason to disrupt the court’s sentencing
rationale. See Shugars, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/21
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