Com. v. Granberry, T.

J-S11034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TAIWAN GRANBERRY, :
:
Appellant : No. 645 MDA 2014
Appeal from the Judgment of Sentence entered on March 17, 2014
in the Court of Common Pleas of York County,
Criminal Division, No. CP-67-CR-0008864-2012
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2015
Taiwan Granberry (“Granberry”) appeals from the judgment of
sentence entered following his plea of nolo contendere to two counts each of
aggravated indecent assault and corruption of minors.1 Additionally,
Granberry’s counsel, Jennilee M. Kemling, Esquire (“Attorney Kemling”), has
filed a Petition to Withdraw as counsel and an accompanying brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967). We grant Attorney
Kemling’s Petition to Withdraw, and affirm the judgment of sentence.
The trial court set forth the relevant facts and procedural history
underlying this appeal in its Opinion, which we adopt and incorporate herein
1
See 18 Pa.C.S.A. §§ 3125(a)(8), 6301(a)(1)(ii).
J-S11034-15
by reference. See Trial Court Opinion, 8/27/14, at 2-3.2
After filing the Pa.R.A.P. 1925(b) Concise Statement of Errors
Complained of on Appeal on Granberry’s behalf, Attorney Kemling filed with
this Court an Anders Brief and Petition to Withdraw as counsel, opining that
all of the issues that Granberry wished to raise on appeal are wholly
frivolous and there are no other meritorious issues to be presented.3
Before addressing Granberry’s claims, we must determine whether
Attorney Kemling has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. Pursuant to Anders, when
counsel believes that an appeal is frivolous and wishes to withdraw from
representation, she must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief must
2
In his post-sentence Motion, Granberry argued that the sentencing court
imposed an excessive aggregate sentence and failed to consider his
rehabilitative needs.
3
Granberry did not retain alternate counsel for this appeal, nor did he file a
response to the Petition to Withdraw.
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(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “Once
counsel has satisfied the Anders requirements, it is then this Court’s duty to
conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)
(citation and brackets omitted).
Our review of Attorney Kemling’s Anders Brief and Petition to
Withdraw reveals that she has complied with the requirements of
Anders/Santiago. Additionally, Attorney Kemling has properly (1) provided
Granberry with a copy of both the Anders Brief and the Petition to
Withdraw; and (2) appended to the Petition to Withdraw a copy of the letter
that she sent to Granberry advising him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
Court’s attention. Accordingly, we next examine the record to make an
independent determination of whether Granberry’s appeal is, in fact, wholly
frivolous.
In the Anders Brief, Attorney Kemling states that Granberry wishes to
raise the following issues for our review:
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I. Whether [Granberry’s] plea was voluntarily entered?
II. Whether the trial court had jurisdiction to hear the
case?
III. Whether the trial court issued a legal sentence?
IV. Whether the trial court abused its discretion in
sentencing [Granberry] to an aggregate sentence of five
(5) to eleven (11) years in a state correctional
institution?
Anders Brief at 5 (capitalization omitted).
Granberry first argues that the trial court erred by accepting his plea
of nolo contendere because he did not enter it voluntarily. See id. at 10-11.
The trial court concisely addressed this claim in its Opinion, set forth
the applicable law, and correctly determined that Granberry entered his plea
knowingly and voluntarily, crediting the oral and written plea colloquies
completed by Granberry. See Trial Court Opinion, 8/27/14, at 4-5; see
also Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012)
(stating that a defendant is bound by statements made during a plea
colloquy). The record and the law support the trial court’s rationale and
determination, and we therefore affirm on this basis with regard to
Granberry’s first issue. See Trial Court Opinion, 8/27/14, at 4-5.
Next, Granberry contends that the trial court lacked jurisdiction to
hear his case. Anders Brief at 11.
This Court has set forth the following governing standards pertaining
to a trial court’s subject matter jurisdiction in a criminal case:
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Subject matter jurisdiction speaks to the competency of a
court to hear and adjudicate the type of controversy presented.
Jurisdiction is purely a question of law; the appellate standard of
review is de novo and the scope of review is plenary.
Controversies stemming from violations of the Crimes Code are
entrusted to the original jurisdiction of the courts of common
pleas for resolution. 18 Pa.C.S. § 102. All jurists within that tier
of the unified judicial system are competent to hear and resolve
a matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5
(establishing the jurisdiction of the courts of common pleas
within the unified judicial system); 42 Pa.C.S. § 931(a) (defining
the unlimited original jurisdiction of the courts of common
pleas).
***
The law is clear that the locus of a crime is always in issue,
for the court has no jurisdiction over the offense unless it
occurred within the county of trial, or unless, by some statute, it
need not. For a county to take jurisdiction over a criminal case,
some overt act involved in that crime must have occurred within
that county.
Commonwealth v. Elia, 83 A.3d 254, 265 (Pa. Super. 2013) (citations to
case law and brackets omitted).
Here, Granberry never disputed that the sexual assaults occurred in
York County. The charging documents, filed by an officer of the Northern
York County Regional Police Department, alleged that the incidents occurred
in Dover, York County. See Criminal Complaint, 10/9/12; Affidavit of
Probable Cause, 10/15/12. Moreover, as part of his oral plea colloquy,
Granberry conceded that the Commonwealth would be able to prove the
allegations beyond a reasonable doubt. See N.T., 12/6/14, at 5.
Accordingly, Granberry’s instant claim that the York County Court of
Common Pleas lacked jurisdiction is wholly frivolous. See Elia, 83 A.3d at
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265-66 (holding that the trial court had subject matter jurisdiction where the
evidence established that the defendant had committed the sexual assaults
in the county in which he was tried and convicted).
In his third issue, Granberry argues that the sentencing court imposed
an illegal sentence. Anders Brief at 8, 12-13. “The determination as to
whether the trial court imposed an illegal sentence is a question of law; our
standard of review in cases dealing with questions of law is plenary.”
Commonwealth v. Veon, 2015 Pa. Super. 26, *31 (Pa. Super. 2015)
(citation and brackets omitted).
Attorney Kemling maintains that Granberry’s sentence was legal, and
within the standard sentencing guideline range, stating as follows:
[T]he trial court gave [Granberry] a sentence of [one] to two
years in a state correctional institution on … each [of his two
convictions of aggravated indecent assault]. [Granberry’s]
minimum sentence range under the sentencing guidelines for
[each of these convictions] was 6 to 16 months. The trial court
also gave [Granberry] a sentence of 4 to 9 years on … each [of
his two convictions of corruption of minors]. [Granberry’s]
minimum sentence range under the sentencing guidelines for
[each of these convictions] was 3½ to 4½ years. The trial
court’s sentence was within the guidelines[;] thus[,] it was not
an illegal sentence.
Anders Brief at 8; see also Trial Court Opinion, 8/27/14, at 7 (determining
that Granberry’s sentence is legal). Our review confirms that Attorney
Kemling’s analysis is supported by the record, and we likewise conclude that
Granberry’s sentence, which was below the statutory maximum, is lawful.
Finally, Granberry asserts that the sentencing court abused its
discretion by imposing an excessive sentence and failing to consider his
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rehabilitative needs. Anders Brief at 13-14; see also Post-Sentence
Motion, 3/26/14, at 3 (unnumbered).4
Granberry’s claim raises a challenge to the discretionary aspects of his
sentence, from which there is no absolute right to appeal. See
Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather,
where, as here, the appellant has preserved the discretionary sentencing
claim for appellate review by raising it in a timely post-sentence motion, the
appellant must (1) include in his brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code. Hill, 66 A.3d at 363-64.
Here, the Anders brief does not contain a Rule 2119(f) Statement,
and the Commonwealth has objected to this defect. See Commonwealth’s
brief at 11. Accordingly, this issue is waived. See Commonwealth v.
Robinson, 931 A.2d 15, 19, 22 (Pa. Super. 2007) (en banc) (finding waiver
of the appellant’s discretionary aspects of sentencing claim because he had
failed to include a Rule 2119(f) statement in his brief and the
Commonwealth objected to this defect).
4
Because Granberry’s plea did not include an agreement as to the sentence
to be imposed by the court, his challenge to the discretionary aspects of his
sentence is properly before us. See Commonwealth v. Dalberto, 648
A.2d 16, 20 (Pa. Super. 1994) (explaining that, where there have been no
sentencing restrictions in the plea agreement, the entry of a guilty plea will
not preclude a challenge to the discretionary aspects of sentencing).
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J-S11034-15
Even if we did not find waiver, pursuant to our independent review of
Granberry’s sentencing challenge required by Anders, we would determine
that it lacks merit based upon the reasoning advanced by the trial court in
its Opinion. See Trial Court Opinion, 8/27/14, at 6-7 (stating, inter alia,
that the sentencing court did, in fact, consider Granberry’s rehabilitative
needs and observing that the sentence imposed was within the standard
range of the sentencing guidelines); see also Commonwealth v. Moury,
992 A.2d 162, 171 (Pa. Super. 2010) (stating that “where a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”).
Accordingly, we conclude that all of Granberry’s issues lack merit, and
our independent review discloses no non-frivolous issues that he could
present on appeal. Thus, we grant Attorney Kemling permission to withdraw
under the precepts of Anders/Santiago, and affirm the judgment of
sentence.
Petition to Withdraw as counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
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IN THE cotiiif 8~ ~ljM~ON PLEA~ HF YORK COUNTY,
PENNSYL VANIA CRIMINAL DIVISION
Commonwealth of Pennsylvania CP-67-CR-0008864-2012
vs. Super. Ct. No. 653 MDA 2014
Taiwan Granberry
OPINION PURSUANT TO RULE 1925(a) OF PENNSYLVANIA RULES OF
APPELLATE PROCEDURE
On December 6,2013, the Appellant, Taiwan Granberry, entered a plea of nolo
contendere to two counts of Aggravated Indecent Assaultl and two counts of
Corruption of Minors.2 On March 17,2014, the Appellant was sentenced to 12 to 24
months imprisonment on each count of Corruption of Minors, which would run
concurrently with one another. He was furthered sentenced to 48 to 108 months
imprisonment on each count of Aggravated Indecent Assault, which would run
concurrently with each other, but consecutively with the sentence for the Corruption
of Minors counts. Thus, the Appellant was sentenced to an aggregate sentence of no
less than 60 months and no more than 132 months. Post sentence motions were filed
on March 26,2014, and denied on March 31,2014. The Appellant filed a timely
Notice of Appeal on April 10, 2014.
This court directed the Appellant to file a Concise Statement of the Matters
Complained on April 14,2014. The Appellant asked for an extension, which we
granted on May 8,2014. The Appellant filed his statement on May 28,2014. In his
1 . '
18 Pa. C.S.A. § 1325(a)(8).
218 Pa. C.S.A. § 6301(a)(1)(ii).
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appeal the Appellant questions (1) whether the Appellant's plea was voluntarily
entered; (2) whether the Trial Court had jurisdiction to hear the case; and (3) whether
the Trial Court issued a legal sentence, and/or abused its discretion in sentencing the
Appellant to an aggregate sentence of no less than 60 months and no more than 132
months imprisonment. The entry of the Appellant's nolo contendere plea can be
found in the original record at Notes of Testimony of 12/6/2013. The imposition of
the Appellant's sentence can be found in tJ;1.e original record at Notes of Testimony
3/17/2014. Pursuantto Pennsylvania Rule 1925(a) of Appellate Procedure, the
following is our opinion addressing the Appellant's issues.
Factual and Procedural History:
According to the Affidavit for Probable Cause, on July 10,2012, Jana
Schaeffer called the police to report that her daughter M.M., who was thirteen years
old at the time, had been sexually assaulted at a friend's house. This friend, thirteen
year old A.C., is the daughter of the Appellant's fiancee .. M.M. was spending the
night at A.C.'s house, when, while she was asleep, an unknown man came in and
began touching her vagina. M.M. pretended she was sleeping. Approximately twenty
minutes later, the Appellant came into the bedroom asking ifM.M. was okay. In the
morning, M.M. told A.C. what had happened and A.C. began to cry. She admitted
that it had happened to her before, and that she knew who had come in the bedroom
that night. She told M.M. it was Taiwan Granberry, the Appellant.
On December 6,2013, the Appellant entered a plea of nolo contendere. The
Appellant stated that he had been drinking on the night of July 9,2012, and did not
know ifhe had sexually assaulted M.M or A.C., but conceded that there was sufficient
evidence to convict him. ,(N.T. 12/6/2013 at 4). This court accepted the Appellant's
plea. (Id. at 5). The Appellant was sentenced on March 17,2014. The sentence was
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not part of a plea agreement. For the two counts of Corruption of Minors, the
Appellant was sentenced to 12 to 24 months on each count, which were to run
concurrently with one another. (N.T. 3117/2014 at 3). On the two counts of
Aggravated Indecent Assault, the Appellant was sentenced to 48 to 108 months for
each count. (Id.). These sentences were to run concurrent with one another, but
consecutive to the sentence on the counts of Corruption of Minors. (Id.). Therefore,
the Appellant was sentenced to an aggregate sentence of no less than 60 months and
no more than 132 months imprisonment. (Id. at 4).
The Appellant filed Post-Sentence Motions on March 26, 2014, which we
denied on March 31,2014. The Appellant timely appealed on April 10, 2014, and
also included a Petition to Withdraw as Counsel. On April 14, 2014, we directed the
Appellant to file a Concise Statement of the Matters Complained. On Apri115, 2014,
we granted the Appellant's Petition to Withdraw as Counsel. On May 5, 2014, the
court received a Motion for Extension of Time to File 1925(b) Statement from
Appellant's new counsel. The extension was granted on May 8,2014, and he filed his
1925(b) Statement on May 28,2014.
Issues:
1. Was the Appellant's plea voluntarily entered?
II. Did the Trial Court have jurisdiction to hear this case?
III. Was the sentenced imposed by the Trial Court legal, and did the Trial Court
abuse its discretion when sentencing the Appellant to an aggregate of no
less than 60 months and no more 132 months?
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·
~.
Discussion:
The effect of a nolo contendere plea is the same as a guilty plea.
Commonwealth v. Lewis, 791 A.2d 1227, 1230 (Pa. Super. Ct. 2002). A plea of nolo
contendere can only be entered with the consent of the judge. Id. at 1231 (citing PA.
R. CRIM. P. 590).
Was the Appellant's plea voluntarily entered?
In order to determine whether a plea has been entered voluntarily, the trial
judge is to inquire into the following:
(1) Does the defendant understand the nature of the charges to which he
or she is pleading guilty or nolo contendere? (2) Is there a factual basis
for the plea? (3) Does the defendant understand that he or she has the
right to trial by jury? (4) Does the defendant understand that he or she is
presumed innocent until found guilty? (5) Is the defendant aware of the
permissible range of sentences and/or fines for the offenses charged? (6)
Is the defendant aware that the judge is not bound by the terms of any
plea agreement tendered unless the judge accepts such agreement?
Lewis, 791 A.2d at 1231 (citing PA. R. CRIM. P. 590).
In the present case, prior to his plea hearing, the Appellant met with his
attorney and filled out a written plea colloquy. This colloquy was filled out in the
Appellant's own handwriting, contained his initials on every page, and was signed by
the Appellant. His attorney also swore that he informed the Appellant of the
implications of pleading nolo contendere. Further, at his plea hearing on December 6,
2013, the Appellant was asked, among other things, if he had enough time to consult
with his attorney, if he understood what a nolo contendere plea was, and if he had any
questions. (N.T. 12/6/2013 at 2-3). The Appellant indicated that he had enough time
to consult with his attorney, that he understood what was going on, and that he did not
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have any questions for the court. (Id.). The Appellant was asked ifhe agreed that the
Commonwealth would be able to prove beyond a reasonable doubt all of the charges·
to which he was pleading; again, the Appellant stated he agreed. (Id. at 3-4). Lastly,
the Appellant was asked if he was stating that the events alleged did not happen or if
he did not know if the events occurred because of his intoxicated state. (Id. at 5). The
Appellant clarified that he did not remember if the events took place. (Id.).
Therefore, because the Appellant indicated at all stages that he was aware of
the implications of pleading nolo contendere, we believe the Appellant entered his
plea knowingly and voluntarily.
Did the Trial Court have jurisdiction to hear this case?
Courts of Common Pleas are conferred with broad jurisdiction. The
Pennsylvania Constitution states that the courts of Common Pleas are vested with
"unlimited original jurisdiction in all cases except as provided by law." PA. CONST.
ART. 5, § 5(b). Statutory law similarly grants this court with jurisdiction over all
matters except those that are vested in another court in the Commonwealth. 42 Pa.
C.S.A. § 931(a). Lastly, "[c]ontroversies arising out of violations of the Crimes Code
are entrusted to the original jurisdiction of the courts of common pleas for resolution."
Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003).
In the present case, the Appellant was charged with two counts of Aggravated
Indecent Assault and two counts of Corruption of Minors. Therefore, because the
Appellant's controversy is one arising under the Crimes Code, this court had
~ jurisdiction to hear the case.
~.
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Sentence: Legality and Abuse of Discretion
The Appellant asks (1) whether the Trial Court issued a legal sentence, and (2)
whether the Trial Court abused its discretion in sentencing the Appellant to an
aggregate sentence of 60 to 132 months imprisonment. .
An Appellant does not have an "absolute right to appellate review of the
discretionary aspects of sentencing." Commonwealth v. Mouzon, 812 A.2d 617,621
(Pa. 2002). An appellate court will review the discretionary aspects of sentencing if
the Appellant raises a substantial question. Id. A substantial question may exist if the
Appellant can show that "the actions by the sentencing court [are] inconsistent with
the Sentencing Code or [are] contrary to the fundamental norms underlying the
sentencing process." Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. Ct.
1999). The Appellant is required to file a brief, which must include a "concise
statement of the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of the sentence." Pa. R.A.P. 21l9(f). This statement should
include where the sentence falls in relation to the sentencing guidelines, the
fundamental norm the sentence imposed violates, and the manner in which the
sentenced imposed violates that norm .. Commonwealth v. Goggins, 748 A.2d 721,
727 (Pa. Super. Ct. 2000). Well established law clearly states that it is within the
discretion of the sentencing judge to decide whether multiple sentences should run
concurrently or consecutively. Commonwealth v. Rickabaugh, 706 A.2d 826,847
(Pa. Super. Ct. 1997).
In the present case, the Appellant was sentenced to 12 to 24 months
imprisonment on each count of Corruption of Minors. (N.T. 3117/2014 at 3). These
sentences were to run concurrent with each other. (Id.). On the two Aggravated
Indecent .Assault counts, the Appellant was sentenced to 48 to 108 months
.
imprisonment. (Id.). These sentences were to run concurrent with one another, but
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consecutively with the sentence on the Corruption of Minors counts. (Id.). Thus, the
aggregate sentence imposed was no less than 60 months and no more than 132 months.
imprisonment. CId. at 4). On March 26,2014, the Appellant filed a Post-Sentence
Motion arguing that the sentenced imposed by this court was excessive and warranted
a downward modification. (Def. 's Post-Sent. Mot. 3/26/14). The Appellant also
argued that the sentence did not adequately take into account the Appellant's
rehabilitative needs. CId.). We denied the motion on March 31,2014.
When imposing the sentence, we tookmany factors into account, including,
among other things, the sentencing guidelines, the fact that the offenses involved two
different individuals over a period of time, and the recominendation by the Probation
Department. (N.T. 3/17/2014 at 2-3). We further took into account the Appellant's
need for rehabilitation, and we noted that the sentence we imposed was less than the
sentenced recommended by the Probation Department. CId. at 3-4). Lastly, we noted
that the Appellant entered a ho10 contendere plea, which did alleviate any further
suffering of the victims that might have come from testifying at trial. CId. at 4).
Assuming there is a substantial question warranting review on appeal, we
believe that we adequately took into account the factors listed in 42 Pa. C.S.A. §
9721 (b), and the discretionary aspects of our sentence should be upheld. Further, as
previously stated, the decision as to whether sentences on multiple offenses are to run
concurrently or consecutively lies in the discretion of the judge. Commonwealth v.
Rickabaugh, 706 A.2d 826, 847 (Pa. Super. Ct. 1997). Therefore, we believe the
Appellant's sentence is legal, and we further believe we did not abuse our discretion
in sentencing the Appellant to an aggregate of no less than 60 months and no more
than 132 months imprisonment.
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Conclusion:
The Appellant's written plea colloquy and the official record of the plea
hearing both indicate that the Appellant was fully aware of the effect entering a nolo
contendere plea would have on his case. Therefore, we believe his plea was
knowingly and voluntarily entered. Further, because this was a criminal case, we
clearly had jurisdiction to hear it under the Pennsylvania Constitution. Lastly, the
sentence imposed by this court was legal. Likewise, we took all relevant factors into
consideration when imposing the sentence. Specifically, we noted the sentencing
guidelines, the Appellant's need for rehabilitation, and the fact that the Appellant
entered a plea in order to alleviate any furthering suffering of his victims. Therefore,
we respectfully suggest that the issues advanced by the Appellant are without merit,
and that the rulings of this Court were not in error.
Date:
Richard K. Renn, Judge
8