J-S52012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT WAYNE BROWN, :
:
Appellant : No. 2047 MDA 2016
Appeal from the Judgment of Sentence November 16, 2016
in the Court of Common Pleas of Cumberland County,
Criminal Division, No(s): CP-21-CR-0000029-2011;
CP-21-CR-0003516-2010
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2017
Robert Wayne Brown (“Brown”) appeals from the judgment of
sentence imposed following his conviction of 41 counts of various sexual
offenses committed against his four minor step-grandchildren over the
course of several years. We affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 2/13/17, at 1-4 (unnumbered).
On appeal, Brown raises the following issue for our review: “Did the
sentencing court abuse its discretion by failing to justify on the record the
imposition of aggravated range and consecutive sentences?”1 Brief for
Appellant at 6 (capitalization omitted).
1
The trial court sentenced Brown to an aggregate term of 40 to 120 years in
prison.
J-S52012-17
Brown 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,
[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).
When an appellant challenges the discretionary aspects of his
sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Tuladziecki,
522 A.2d 17, 18
(Pa. 1987); 42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Yanoff,
690 A.2d 260, 267 (Pa. Super. 1997).
In the instant case, Brown filed a timely Notice of Appeal, and included
in his appellate brief a separate Rule 2119(f) Statement. However, our
review of the record reflects that Brown failed to preserve his claim either at
resentencing or in a timely post-sentence motion. See Commonwealth v.
Mann,
820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the
discretionary aspects of sentence are generally waived if they are not raised
-2-
J-S52012-17
at the sentencing hearing or in a motion to modify the sentence imposed at
that hearing). Thus, we are unable to address his issue on appeal.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2017
2
Even if Brown had preserved his issue for our review, we would have found
that it lacked merit, given that the trial court, at the time of resentencing,
had the benefit of a pre-sentence investigation report (“PSI”). See
Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by a PSI, “it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”). Moreover, “[t]he sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on the record
by indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.”
Id. (citation omitted); see
also N.T., 11/15/16, at 3.
-3-
Circulated 08/10/2017 11:55 AM
COMMONWEAL TH
v.
133 S. Ct. 2151 (2013), held that "facts that increase the
mandatory minimum sentences must be submitted to the jury" and must be found
3
beyond a reasonable doubt.
Id. at 2162.
The remand from the Superior Court was stayed while the Commonwealth
appealed the matter to the Supreme Court of Pennsylvania, which denied the allowance
of appeal in August 2016. Defendant was re-sentenced on November 15, 2016.
Thereafter, counsel filed an appeal of the new sentence on December 14, 2016, which
alleged the trial court abused its discretion at sentencing by failing to state any reasons
on the record for imposing a sentence above the aggregated range of the sentencing
guidelines. This Opinion is in support of the sentences imposed.
FACTS FROM SENTENCINGS
1. At the November 2016 re-sentencing, the trial court amended the Sentencing
Order of April 4, 2013 to reflect the sentences imposed were not mandatory
sentences.4
2. The April. 4, 2013 Sentence specifically provided. the "aggregate sentence is for
40 to 120 years, which reflects one ten year mandatory minimum sentence with
a full maximum term for each victim."
3
The verdict slips for each count where age was a factor in sentencing were specifically presented
to the jury for them to make findings of fact that would be applicable at sentencing. The trial court's
use of the verdict slip for findings of fact at sentencing did not prospectively cure the improper
sentence. As cited by the Superior Court, the case of Commonwealth v. Wolfe 106 A.3rd. 800, 806
(2016) makes it clear that the "proof at sentence" provision contained in 42 Pa.C.S. §9718 is not
separable from the section's other provision in the entire statute is facially void.
4
Order of Court 15 November 2016.
5
Order of Court 4 April 2013 page 24. It is noted now the aggregate sentence intended should have
,4- 2
CP-21-CR-3516-2010
CP-21-CR-0029-2011
3. In each sentence it was specifically stated that any lesser sentence would
minimize the damage done to one or more of the victims and would not reflect
the full extent of the harm caused by the Defendant, thereby depreciating the
seriousness of the individual sentences.
I .
4. The sentencing amendment was done pursuant to established County
II
precedent, see Commonwealth v. Hippensteel,CR-2715-2013, Order of
Court 23 September 2014 (President Judge Kevin A. Hess).
5. At sentencing the impact on the victims was presented in the victim impact
statements both orally and in writing.
6. Defendant, at sentencing, cast aspersions on the victims and their families
indicating that they had lied on the witness stand at the preliminary hearing and
again at trial."
7. At docket CR-0029-2011, the counts that had mandatory sentences associated
with them are Count 1, Rape of a Child; Count 2, Involuntary Deviate Sexual
lhtercourse: Count 3, Involuntary Deviate Sexual Intercourse with a Child;
I
I
Count 4, Aggravated Indecent Assault of a Child; and Count 9, Aggravated
1hdecentAssault.
!
8. At docket CR-3516-2010, the counts that had mandatory sentences associated
With them are Count 1, Involuntary Deviate Sexual Intercourse and Count 2,
Involuntary Sexual Intercourse with a Child.
9. It was noted at the April 2013 sentencing that the guidelines and report
provided indicated a prior record score of zero (0), but the trial court's review of
been 40-160 years.
6
Note of testimony April 4, 2012 (sic], SVP at sentencing proceedings, at page 32 Line 17 thru page
33 Line 10.
,4-3
CP-21-CR-3516-2010
CP-21-CR-0029-2011
the report and sentencing guidelines indicated that there are applicable
historically old convictions for burglary, theft and embezzlement."
10. At a minimum, these historical crimes would reflect a prior record· score of two
(~) for purposes of guidelines.8
I
11. The offense gravity score (OGS) for Rape of a Child (2 counts total) and
Involuntary Deviate Sexual Intercourse with a Child (4 counts total) is a
fourteen (14) and the standard range sentencing matrix for an OGS of 14 is the
statutory limit (SL), for each of these six (6) counts, which is two-hundred and
forty (240) months.9
12. The gross aggregate sentence for all the charges to which Defendant was
fbund guilty by the jury is 309 years to 618 years.
I ..
DISCUSSION
Statement of Law: Courts have "broad discretion to choose a penalty from
sentencing alternatives· and the range of permissible confinements, provided the
choices are consistent with the protection of the public, the gravity of the offense, and
the rehabilitative needs of the defendant." Commonwealth v. Devers,
546 A.2d 12, 13
(Pa. 198~).
I We emphatically reject, therefore, interpretations of our law in this area
wHich call for separate, written opinions embodying exegetical thought. Where
pre-sentence reports exist, we shall continue to 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
7
Id at page 12 Line 14 through 19
6
It is noted that the prior record score could be higher; however, because the presentence investigation
did not note the equivalent grade of the charge in Pennsylvania by default, a point would be given for
the felony charge and a point for the sum of the two misdemeanor charges.
9
205 Pa.Icade Section 303.16.
I
j
CP-21-CR-3516-2010
CP-21-CR-0029-2011
any lingering doubt as to our intention of 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.
Id. 546 A.2d at 18.
Through the Sentencing Code, the General Assembly has enacted a process by
which defendants are to be sentenced. 42-Pa.C.S. § 9701 et seq. The guidelines must
be considered and a court must explain its reasons for departure from them.
Commonwealth v. Mouzon,
812 A.2d 617, 621 (Pa. 2002). The Sentencing Code
sets forth the requirements of review for whether a sentence is "unreasonable." 42
Pa.C.S. § 9781(c).
(1) the sentencing court purported to sentence within the sentencing guidelines
but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case
involves circumstances where the application of the guidelines would be
clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.
Id.
I
"In: every case where the court imposes a sentence or resentence outside the
'
guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall
provide a contemporaneous written statement of the reason or reasons for the deviation
from the guidelines to the commission .... Failure to comply shall be grounds for
vacating the sentence or resentence and resentencing the defendant." 42 Pa.C.S. §
9721.
A- s
CP-21-CR-3516-2010
CP-21-CR-0029-2011
Application of Law to Facts: Perspective is necessary to comprehend that this
sentence is and always was within the sentencing guidelines. In Defendant's myopic
perspective this is a death sentence.10 In view of Alleyne, the mandatory sentence
requested by the Commonwealth no longer restricts the court to a lower end of the
standard guideline range for the six OGS 14 counts, and which would now result in a
sentence of 240 months to 480 months for each victim or an aggregate total of 80 to
160 years, which is within the standard guideline range. Everywhere but Texas, a
maximum possible sentence of 309 years to 618 years would seem draconian. In the
totality of the circumstances vision of the trial court, the imposition of a completely
applicable higher sentence would be punitive upon this type of procedural remand and
not in step with established Cumberland County precedent.
The initial sentence, with the mandatory language removed by the amended
sentence, calls for one ten year minimum sentence with a full maximum term for each
victim to be run consecutively, which recognized that any lesser sentence would
minimize the damage done to one or more of the victims that would not reflect the full
extent of the harm caused by the Defendant.11 This is a top count sentence, where the
Defendant was sentenced consecutively at the top count for each victim to 1 O to 40
years, with the other 37 counts imposed concurrently to that top count. The top count
for each victim was at an OGS of 14 that would allow the standard guideline range to go
10
Defendant's terminal medical condition, which makes this sentence, indeed any sentence, a life
sentence, Is not grounds for the modification of the statutorily mandated and correct sentence. When
Defendant's medical condition actually reaches a terminal state he may then apply for a temporary
deferral of the service of this sentence as provided for by statute 42 Pa.C.S. §9777. Motion to Modify
Sentence, Order of Court 14 June 2013.
11
It is again noted that the correct maximum calculation should have been 160 years, not the stated
120 years.
11- 6
'CP-21-CR-3516-2010
CP-21-CR-0029-2011
up to 240 months, for which 120 months is clearly within and no further explanation from
the trial court is necessary as there is no departure from the guidelines.
To the extent that the trial court needs to explain its reasons for departure from
the sentencing guidelines, the concise language of both sentences contained
justification for the aggregate sentence that would apply to any consideration that the
i .
sentencewas outside of the guidelines. Specifically, the trial court had reviewed the
' .
guidelines as demonstrated by the trial court's correction of the pre-sentence report for
the deficiency of the prior convictions. Further, the trial court noted the impact on the
victims and the harm to which Defendant continued to enact upon them directly in the
sentences. There is no need to go into a critical analysis of how Defendant took the
• ..
innocence and trust from these four child victims.
Unshackled from the mandatory sentence statute, this case upon remand does
not call for the trial court to act in reprisal; indeed, it is proper not to go above and
I
beyond t~e mandatory prior sentence, as the sentences, then and now, were clearly
'
within th~ standard guideline ranges and no justification statement is required. The
sentences are lawful and reasonable.
Distribution List:
Charles J. Volkert, Jr.
Chief Deputy District Attorney
Linda S. Hollinger
First-Assistant Public Defender
I
I