Com. v. Delgros, E.

J-S66040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EVERETT R. DELGROS,
Appellant No. 656 WDA 2017
Appeal from the Judgment of Sentence March 30, 2017
in the Court of Common Pleas of Mercer County
Criminal Division at No.: CP-43-CR-0000863-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 21, 2017
Appellant, Everett R. Delgros, appeals from the judgment of sentence
imposed following his negotiated, open guilty plea to one count of statutory
sexual assault. Specifically, Appellant challenges the discretionary aspects
of his sentence. We affirm.
We derive the underlying facts of the case from the trial court’s
opinion and our independent review of the record. The facts are not in
dispute. In April of 2016, Appellant, then twenty-nine years of age, engaged
in sexual intercourse on two occasions with a minor female, then fifteen
years of age (the Victim) in the back of a car. Appellant and the Victim met
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*
Retired Senior Judge assigned to the Superior Court.
J-S66040-17
at the church which they both attended at the time. Appellant held various
roles in the church, including youth leader.
On November 14, 2016, Appellant entered into a negotiated open plea
of guilty to one count of statutory sexual assault in violation of 18 Pa.C.S.A.
§ 3122.1(b), a felony of the first degree.1 In return, the Commonwealth nol
prossed the remaining charges, including charges relating to the second
sexual assault. The sentencing court ordered a pre-sentence investigation
report (PSI).
On March 30, 2017, the court sentenced Appellant to a term of not
less than twenty-four months nor more than one hundred twenty months of
incarceration in a state correctional institution. The sentencing court
considered, inter alia, the PSI, victim impact testimony and character
witness testimony in support of Appellant. Appellant had a Prior Record
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1
In pertinent part, section § 3122.1(b) provides as follows:
(b) Felony of the first degree.−A person commits a
felony of the first degree when that person engages in sexual
intercourse with a complainant under the age of 16 years and
that person is 11 or more years older than the complainant and
the complainant and the person are not married to each other.
18 Pa.C.S.A. § 3122.1(b).
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Score of zero and the charge, an Offense Gravity Score of nine. The
sentence is on the high end of the standard range.2
The sentencing court noted, inter alia, the substantial disparity in the
ages of Appellant and the Victim, and Appellant’s use of his church
leadership position to exploit the vulnerabilities of the Victim. (See N.T.
Sentencing, 3/30/17, at 20-21).
Appellant moved to modify sentence to a maximum county sentence
with work release, so that he could continue to work at Hackett Tree
Services, a family business. (See Motion to Modify Sentence, 4/07/17).
The trial court denied the motion the same day. (See Order, 4/07/17).
Appellant timely appealed on April 28, 2017, and filed a court-ordered
concise statement of errors on May 23, 2017. The trial court filed an opinion
on June 22, 2017. See Pa.R.A.P. 1925.
Appellant raises one question on appeal.
[Is] the sentence of the [trial c]ourt [ ] manifestly
excessive in length, because it is not specifically tailored to the
nature of the offense, the ends of justice and society, and the
rehabilitative needs of [Appellant?]
(Appellant’s Brief, at 5).
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2
The court determined Appellant not to be a sexually violent predator.
Appellant was not RRRI eligible.
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A claim that a sentence was manifestly excessive challenges the
discretionary aspects of sentence. See Commonwealth v. Hoag, 665 A.2d
1212, 1213 (Pa. Super. 1995).
Our review of discretionary aspects of sentencing claims
implicates the following principles:
[T]he proper standard of review when considering
whether to affirm the sentencing court’s determination is
an abuse of discretion. . . . [A]n abuse of discretion is
more than a mere error of judgment; thus, a sentencing
court will not have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill-will. In more expansive terms, our Court recently
offered: An 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.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to
determine the proper penalty for a particular offense based
upon an evaluation of the individual circumstances before
it.
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right. An
appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test:
[W]e conduct 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, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question
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that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.
The determination of what constitutes a substantial
question must be evaluated 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.
As to what constitutes a substantial question, this
Court does not accept bald assertions of sentencing errors.
An appellant must articulate the reasons the sentencing
court’s actions violated the sentencing code.
Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010) (case
citations omitted).
Here, we conclude that Appellant has failed to raise and properly
preserve his excessive sentence claim. Pennsylvania Rule of Appellate
Procedure 302 provides that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Appellant failed to raise this excessiveness claim either at sentencing
or in a post-sentence motion. Instead, Appellant asked for a county
sentence as an accommodation to enable him to return to the family
business on work release. (See Motion to Modify Sentence, 4/07/17). In
his Rule 1925(b) statement of errors, Appellant presented a boilerplate claim
that his sentence was “manifestly excessive and contrary to the fundamental
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norms which underlie the sentencing process.” (Statement of Errors
Complained of on Appeal, 5/23/17).
Issues challenging the discretionary aspects of sentencing must be
raised in a post-sentence motion or by raising the claim during the
sentencing proceedings. “Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Mann,
820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa.
2003) (citation omitted).
Furthermore, “[a] party cannot rectify the failure to preserve an issue
by proffering it in response to a Rule 1925(b) order.” Commonwealth v.
Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (citation omitted).
Accordingly, Appellant’s challenge to the discretionary aspects of his
sentence is waived.
Moreover, it would not merit relief. If we were to review the merits of
Appellant’s claim, we would conclude that Appellant has failed to raise a
substantial question that his sentence is not appropriate under the
Sentencing Code. The trial court imposed a standard range sentence within
the guidelines after reviewing a PSI. Where the sentencing court issues a
standard range sentence after reviewing a PSI, this Court will not find a
sentence excessive. See Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010). Furthermore, this Court has held that a claim of an
excessive sentence when a standard range sentence is imposed fails to raise
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a substantial question. See Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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