Com. v. Bowling, K. ( 2017 )

J-S30045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH LEWIS BOWLING, :
:
Appellant : No. 1650 MDA 2016
Appeal from the Judgment of Sentence August 29, 2016
in the Court of Common Pleas of Franklin County,
Criminal Division, No(s): CP-28-CR-0001517-2015
BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 16, 2017
Kenneth Lewis Bowling (“Bowling”) appeals from the judgment of
sentence imposed following his conviction of one count each of rape of a
child, sexual assault, aggravated indecent assault of a child under 13 years
of age, involuntary deviate sexual intercourse with a child under 16 years of
age (“IDSI”), and two counts of incest.1 We dismiss the appeal.
Between 2003 and 2013, Bowling sexually abused two minor females.
According to the Affidavit of Probable Cause, Victim 1 was 8 years old at the
time of the first assault, and Bowling had sexual intercourse with her on a
regular basis during this time period. Victim 2 was approximately 10 years
old when she was first assaulted by Bowling, who regularly showered with
her and digitally penetrated her vagina with his fingers. When Victim 2 was
approximately 14 years old, Bowling anally raped her as a punishment.
1
See 18 Pa.C.S.A. §§ 3121(c), 3124.1, 3125(a)(7), 3123(a)(7), 4302.
J-S30045-17
On March 24, 2016, a jury found Bowling guilty of the above-
mentioned crimes. On August 29, 2016, the trial court sentenced Bowling as
follows: rape of a child (240 months to 480 months in prison);2 aggravated
indecent assault of a child under 13 years of age (36 months to 120 months
in prison); IDSI (66 months to 240 months in prison); incest (24 months to
120 months in prison); and incest (24 months to 120 months in prison).
Additionally, the trial court ordered that each of Bowling’s sentences were to
run consecutively. Bowling filed a post-sentence Motion, which the trial
court denied on September 12, 2016. Bowling filed a timely Notice of
Appeal, and a court-ordered Concise Statement of Matters Complained of on
Appeal, pursuant to Pa.R.A.P. 1925(b).
On appeal, Bowling raises the following claim for our review: “Did the
trial court abuse its discretion when it sentenced [Bowling] to an aggregate
sentence of 32½ years to 90 years in a State Correctional Institution, which
constitutes cruel and unusual punishment?” Brief for Appellant at 13.
Bowling challenges 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. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
2
For sentencing purposes, Bowling’s conviction for sexual assault merged
with his conviction for rape of a child.
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[this Court conducts] 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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
In the instant case, Bowling filed a timely Notice of Appeal, preserved
his claim in a timely post-sentence Motion, and included in his appellate brief
a separate Rule 2119(f) statement. As such, he is in technical compliance
with the requirements to challenge the discretionary aspects of his sentence.
See Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010).
Thus, we will proceed to determine whether Bowling has presented a
substantial question for our review.
We determine the existence of a substantial question 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.
Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.
Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal
citations and quotation marks omitted).
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In his Rule 2119(f) Statement, Bowling asserts that, because the trial
court consecutively imposed each sentence with a minimum in the top of the
standard range, and a maximum at the statutory maximum, his prison
sentence of 32½ years to 90 years is essentially a life sentence. Brief for
Appellant at 17.3
Bald excessiveness claims premised on the imposition of consecutive
sentences do not raise a substantial question for review unless the case
involves circumstances where the application of the guidelines would be
clearly unreasonable. See Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa. Super. 2013). In order to raise a substantial question, the sentencing
court’s decision to sentence consecutively must appear, on its face, to be
excessive in light of the criminal conduct at issue. Id. at 1273.
Where, as here, the sentences are within the applicable guideline
ranges, the sentencing judge’s decision to impose consecutive sentences
3
Bowling also contends that, when imposing sentence, the trial court failed
to consider his rehabilitative needs, and the fact that he had no prior record
score. Brief for Appellant at 17. Bowling failed to preserve these claims for
our review because he did not raise them in his post-sentence Motion. See
Moury, 992 A.2d at 170. Even if Bowling had preserved these claims for
our review, we would have concluded that they do not raise a substantial
question. See Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006) (holding that “[a] claim that a sentencing court failed to consider
certain mitigating factors does not raise a substantial question that the
sentence is inappropriate.”); see also Commonwealth v. Haynes, 125
A.3d 800, 807 (Pa. Super. 2015) (holding that an assertion that the trial
court failed to consider the defendant’s rehabilitative needs does not raise
substantial question).
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standing alone does not raise a substantial question. As the Dodge Court
explained:
[t]o make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application
of the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a
substantial question. See [] Moury, [] 992 A.2d [at] 171-172 []
([holding that] “[t]he 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.”)[.]
Id. at 1270 (emphasis in original).
Here, the consecutive imposition of Bowling’s sentences did not result
in a clearly unreasonable or excessive sentence, and Bowling’s bald claim of
excessiveness due to the consecutive nature of his sentences does not raise
a substantial question. See id.4
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
4
Even if we were to conclude otherwise, upon review of the record and the
trial court’s Opinion, we would conclude that Bowling’s challenge to his
sentence has no merit for the reasons stated by the trial court. See Trial
Court Opinion, 11/21/16, at 3-7.
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