Com. v. Otey, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA DAVID OTEY :
:
Appellant : No. 218 WDA 2023
Appeal from the Judgment of Sentence Entered January 31, 2023
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000914-2020
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 8, 2023
Joshua David Otey appeals from the judgment of sentence, entered in
the Court of Common Pleas of Washington County, following Otey’s open guilty
plea to one count each of aggravated indecent sexual assault—person less
than 16 years of age and defendant four or more years older,1 and involuntary
deviate sexual intercourse (IDSI)—person less than 16 years old.2 We affirm.
Otey entered his guilty plea on April 20, 2022, and, on September 9,
2022, following review of a presentence investigation report (PSI), the trial
court sentenced Otey to 8½ to 17 years on the IDSI conviction, which was
outside the aggravated range of the Sentencing Guidelines, see 204 Pa. Code
____________________________________________
1 18 Pa.C.S.A. § 3125(a)(8).
2 Id. at § 3123(a)(7).
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303.16(a),3 and 4 to 8 years’ imprisonment on the aggravated indecent
assault conviction, for an aggregate term of 12½ to 25 years’ imprisonment.
See Order of Sentence, 9/9/22. Otey filed a direct appeal,4 and, at the trial
court’s request, this Court remanded the case for resentencing. See Order,
11/10/22. On January 31, 2023, the court resentenced Otey to the same
sentence and provided a written statement of reasons why the court deviated
upwards from the Sentencing Guidelines on the IDSI count. See Order and
Sentencing Statement, 1/31/23.5 At resentencing, the court informed Otey
of his appellate rights, as follows:
____________________________________________
3 The trial court noted the standard range of 48-66 months for a minimum,
with an aggravated range of plus 12 months. See Trial Court Opinion,
3/21/23, at 7.
4 This appeal was docketed at 1161 WDA 2022.
5 The sentencing court stated:
This deviation from the sentencing guidelines is based on [Otey’s]
statement in which he blamed his actions on ignorance of the law
and then further placed blame on the minor victim[,] stating that
“I never once pressured, coerced, or manipulated, or used any
types of threats on the young lady to lead it to where it had
progressed. I just didn’t stop it.” [Otey] continued his statement
by focusing on the detriment these charges have caused to himself
rather than the harm to the minor victim. For these reasons, the
age of the victim, the time span over which [Otey] engaged in this
conduct with the victim[,] and [Otey’s] overall failure to
appreciate the wrongfulness of his actions, this [c]ourt deviates
from the standard guidelines in imposing its sentence.
Sentencing Statement, 1/21/23.
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Mr. Otey has a right to appeal and should appeal if he deems it
necessary. I am going to incorporate all of the statements made
on behalf of the Defendant and on behalf of the Commonwealth
that were at the sentencing previously. The appellate rights get
restarted, Mr. Otey. So I expect—and it is completely your right
to file an appeal [and] since this has been remanded, they will
have to be filed and appealed again. But you do have 30 days
from today to file that appeal to the Pennsylvania Superior
Court and 10 days from today to file post-sentencing
motions.
N.T. Resentencing Hearing, 1/31/23, at 3, 8-9 (emphasis added).
Otey did not file a post-sentence motion. See Pa.R.Crim.P. 720(A)(1).
He filed a timely notice of appeal, followed by a court-ordered Rule 1925(b)
statement. On appeal, Otey raises the following issues:
1. Whether the sentencing court abused its discretion, erred,
and/or infringed on Otey’s rights when it entered both
individual and consecutive sentences (resulting in an
aggregate sentence of 12 ½ to 25 years) that were
manifestly excessive to constitute too severe a punishment.
2. Whether the sentencing court abused its discretion, erred,
and/or infringed on Otey’s rights when it entered a sentence
in violation of the Pennsylvania Sentencing Code, 42
Pa.C.S.A. §9701 et seq., requiring that [the court] must
“follow the general principle that the sentence imposed
should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.”
Id. at § 9721(b).
3. Whether the sentencing court abused its discretion, erred,
and/or infringed on Otey’s rights when it deviated from the
sentencing guidelines in a manner that presents a
substantial question of excessiveness warranting the
Superior Court’s review.
4. Whether the sentencing court abused its discretion, erred,
and/or infringed on Otey’s rights when it entered a sentence
that “raises doubts that the trial court did not properly
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consider [the] general guidelines provided by the
legislature.” See, e.g., Commonwealth v. Koehler, 737
A.2d 225, 244 (Pa. 1999).
5. Whether the sentencing court abused its discretion and/or
erred when it entered a sentence that substantially
exceeded the aggravated range, but was within the
statutory limits, where the court failed to place in the
sentencing order or otherwise in the record its reasons for
such deviations.
Appellant’s Brief, at 7-8.
Upon review, we conclude that Otey has failed to preserve review of his
first four claims, all of which challenge the discretionary aspects of his
sentence. In order to invoke this Court’s jurisdiction to review discretionary
aspects of sentence, Otey must satisfy the following four-part test:
(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 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) (internal
citations omitted) (emphasis added). See also Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010). Objections to the discretionary aspects
of a sentence are generally waived if they are not raised at the sentencing
hearing or in a post-sentence motion. Commonwealth v. Mann, 820 A.2d
788, 794 (Pa. Super. 2003).
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Here, Otey did not object at sentencing or file a post-sentence motion.
We agree with the Commonwealth’s argument: “[a]bsent such efforts an
objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. super. 2015) (internal
citations omitted) (emphasis in original). Further, the fact that Otey filed a
Rule 1925(b) statement and the trial court issued an opinion does not alter
our determination. See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa.
Super. 2015) (“As Tejada preserved none of the arguments in support of his
discretionary aspects of sentence claim at sentencing or in his post-sentence
motion, they are not subject to our review.”); see also Commonwealth v.
Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc)
(“[A] party cannot rectify the failure to preserve an issue by proffering it in
response to a Rule 1925(b) order.”).
With respect to Otey’s final claim, we find no error. In accordance with
section 9721(b) of the Sentencing Code, the sentencing court provided a
statement of its reasons for imposing the sentence it did, and in particular, its
reasons for deviating from the guidelines. See Sentencing Statement,
1/31/23, supra at n.4; see also Commonwealth v. Devers, 546 A.2d 12(Pa. 1988) (sentencing judge can satisfy disclosure requirement by indicating
he has been informed by PSI); 204 Pa. Code § 303.1(d). Accordingly, we
affirm Otey’s judgment of sentence.
Judgment of sentence affirmed.
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DATE: 12/8/2023
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