Com. v. Eddinger, D.

J-S40028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL B. EDDINGER, :
:
Appellant : No. 2736 EDA 2016
Appeal from the Judgment of Sentence July 25, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005414-2015
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED AUGUST 31, 2017
Appellant, Daniel B. Eddinger, appeals from the Judgment of Sentence
entered July 25, 2016 in the Court of Common Pleas of Lehigh County
sentencing him to two and a half to five years’ incarceration following his
open guilty plea to Corruption of Minors and Indecent Assault of a Person
Less than 16 Years of Age.1 On appeal, Appellant challenges the
discretionary aspects of his sentence. After careful review, we affirm.
A detailed recitation of the factual and procedural history is
unnecessary to our disposition. On April 8, 2016, Appellant entered an open
guilty plea to Corruption of Minors and Indecent Assault for events that
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6301(a)(1)(i) and 18 Pa.C.S. § 3126(a)(8), respectively.
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occurred fifteen years earlier when Appellant, who at the time was a 22-
year-old basketball coach and math tutor, sexually assaulted one of his 13-
year-old students on numerous occasions over a period of approximately
one year. On July 25, 2016, the trial court sentenced Appellant to the
statutory maximum of two and a half to five years’ incarceration on the
Corruption of Minors charge followed by two years of probation, to run
consecutively, on the Indecent Assault charge. On July 27, 2016, Appellant
filed a Post-Sentence Motion for Reconsideration of Sentence, which the trial
court denied. Appellant timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. [] Appellant has satisfied the technical requirements for
discretionary review under Pa.R.A.P. 2119(f) and presented a
plausible claim that the sentencing judge abused her
discretion by imposing an unreasonable sentence outside the
sentencing guideline range. Should the Court review this
appeal on its merits?
2. Appellant Daniel Eddinger is a first-time non-violent offender
with a stable job and in a long-term marriage with two young
children. He adopted a non-adversarial stance toward the
police investigation, promptly accepted responsibility for his
misconduct years earlier, and repeatedly expressed his
genuine remorse. Did the sentencing judge abuse her
discretion by nevertheless imposing a statutory maximum
sentence multiple times the guideline range?
3. Should the Court vacate this unreasonable sentence and
remand this matter to the sentencing judge with instructions
under § 9781(c)(3)?
Appellant’s Brief at 4.
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Initially, we note Appellant’s claim that the trial court abused its
discretion by imposing an unreasonable sentence outside of the sentencing
guideline range represents a challenge to the discretionary aspects of
sentencing. See Commonwealth v. Sheller, 961 A.2d 187, 189 (Pa.
Super. 2008) (stating a claim that the court imposed an unreasonable
sentence beyond the aggravated range of the sentencing guidelines
represented a challenge to the discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by satisfying a 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.[] § 9781(b).” Id.
(citation omitted).
Here, Appellant complied with the first three requirements above.
Next, we must determine whether Appellant has presented any substantial
questions in his Pa.R.A.P. 2119(f) Statement. An appellant raises a
“substantial question” when he “sets forth a plausible argument that the
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sentence violates a provision of the [S]entencing [C]ode or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation omitted).
In his Pa.R.A.P. 2119(f) Statement, Appellant submits that the trial
court imposed an unreasonable and excessive sentence that was outside of
the sentencing guideline range when the trial court concentrated solely on
the gravity of the offense rather than the record as a whole, including
Appellant’s remorse, lack of a prior criminal record, and rehabilitation. We
conclude that Appellant’s claim raises a “substantial question” for our
review. See Commonwealth v. Guth, 735 A.2d 709, 711 (Pa. Super.
1999) (finding a claim that the sentence imposed was outside the guidelines
and unreasonable raised a “substantial question”); Commonwealth v.
Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (determining that defendant
raised “substantial question” where defendant claimed that sentencing court
imposed an excessive and unreasonable sentence after it focused solely on
the serious nature of the offenses rather than the record as a whole,
including defendant’s expressions of remorse and lack of prior criminal
record).
Accordingly, we will address the merits of Appellant’s sentencing
claims, mindful of our standard of review. This Court has repeatedly stated:
“[s]entencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
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abuse of discretion.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128
(Pa. Super. 2003). An abuse of discretion is more than a simple error of
judgment. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).
Moreover, “[a]n abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Id. (citation and
quotation omitted).
Appellant concedes that the imposed sentence did not exceed the
statutory limit on either charge, but claims that the sentence was
unreasonable and excessive because the trial court deviated above the
guideline sentencing recommendation of restorative sanctions to nine
months’ incarceration for the Corruption Charge, and instead imposed “a
statutory maximum sentence more than 6 times the upper end of the
standard range on the [C]orruption charge.” Appellant’s Brief at 21; see
Basic Sentencing Matrix (5th ed.), 204 Pa.Code § 303.16(a). Appellant also
avers that the trial court deviated from the standard guideline range on the
Indecent Assault charge by imposing the statutory maximum probation
sentence. Appellant’s Brief at 21. Appellant further argues that in imposing
this excessive sentence, the trial court improperly emphasized the gravity of
the offense while minimizing “the lack of threat posed by [Appellant], and
his rehabilitative needs.” Id. at 30.
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Our Supreme Court has repeatedly held that that the Sentencing
Guidelines are purely advisory in nature. Commonwealth v. Yuhasz, 923
A.2d 1111, 1118 (Pa. 2007). “The guidelines are merely one factor among
many that the court must consider in imposing a sentence.” Id. (citation
omitted). The trial courts retain broad discretion in sentencing matters, and
“the only line that a sentence may not cross is the statutory maximum
sentence.” Id. (citation omitted).
While a court has discretion to deviate from the guidelines, when the
court does deviate “it is important that the court reflect a consideration of
the sentencing guidelines, the background and character of the defendant,
the circumstances of the crime, and impose a sentence that is consistent
with the protection of the public and the rehabilitative needs of the
defendant.” Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. Ct.
2007); see 42 Pa.C.S.A. § 9721 (setting for the general standards
applicable to sentencing).
Where the trial court deviates above the guidelines, this Court may
only vacate and remand a case for resentencing if we first conclude that “the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the
Sentencing Code does not define the term “unreasonable,” our Supreme
Court has made clear that “rejection of a sentencing court’s imposition of
sentence on unreasonableness grounds [should] occur infrequently, whether
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the sentence is above or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard of review.”
Walls, supra at 964; see Commonwealth v. Rossetti, 863 A.2d 1185,
1194-95 (Pa. Super. 2004) (affirming a statutory maximum sentence
imposed after the trial court considered and balanced all of the relevant
mitigating and aggravating facts). When reviewing the record, this Court
should have regard for: (1) the nature and circumstances of the offense and
the history and characteristics of the Appellant; (2) the opportunity of the
sentencing court to observe the Appellant, including any presentence
investigation; (3) the findings upon which the sentence was based; and (4)
the guidelines promulgated by the commission. 42 Pa.C.S. §9781(d).
Importantly, our Supreme Court “has determined that where the trial
court is informed by a pre-sentence report, 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.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted).
In the instant case, the trial court reviewed a Presentence
Investigation Report before imposing the sentence. Thus, we presume that
the trial court was aware of all appropriate sentencing factors and
considerations at the time of sentencing. Additionally, the record reflects
that the trial court did take into consideration the mitigating factors of
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Appellant’s remorse, cooperation with authorities, lack of a criminal record,
and progress in therapy. Trial Court Opinion, filed 8/2/16, at 1 n.1; N.T.
Sentencing, 7/25/16, at 33-34. Nevertheless, the trial court decided to
deviate above the aggravated sentencing recommendation after relying on
the following persuasive factors: (1) the serious nature of the crime; (2)
that the crime involved a course of ongoing conduct for a period of
approximately one year; (3) that Appellant was in a position of trust with the
victim and the victim’s family; (4) the age of the victim, who was thirteen
years old at the time of the offense; (5) the long-term impact on the victim
who will have “scars forever[;]” and (6) the potential threat to the public.
Trial Court Opinion, filed 8/2/16, at 1 n.1; Trial Court Opinion, dated
9/22/16, at 2-3; N.T. Sentencing, 7/25/16, at 33-37.
After careful review of Appellant’s arguments and the certified record,
we conclude that the trial court did not ignore or misapply the law, and did
not exercise its judgment for reasons of partiality, prejudice, bias or ill-will,
or arrive at a manifestly unreasonable decision. See Rossetti, supra at
1194-95. Accordingly, the trial court did not abuse its discretion in imposing
Appellant’s aggregate sentence of two and a half to five years’ incarceration
followed by two years of probation.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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