Com. v. Henry, J.

J-S35032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN F. HENRY :
:
Appellant : No. 400 MDA 2022
Appeal from the Judgment of Sentence Entered December 29, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005280-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 21, 2022
Appellant John F. Henry appeals from the judgment of sentence entered
after Appellant pled guilty to Rape of a Child, Aggravated Indecent Assault of
a Child, Incest, Photographing Child Pornography, Disseminating Child
Pornography and related crimes. Appellant challenges the discretionary
aspects of his sentence. We affirm.
On September 14, 2021, Appellant pled guilty to multiple criminal
offenses in relation to his repeated sexual assaults of his five-year old
daughter as well as his recording and dissemination of child pornography. On
December 29, 2021, after reviewing a pre-sentence investigation report (PSI),
the trial court held a sentencing hearing, at which the trial court determined
the prosecution had proven Appellant was a Sexually Violent Predator (SVP).
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S35032-22
Thereafter, the trial court imposed the following individual sentences:
Count 1: Rape of a Child (F1)
10-20 years’ incarceration at a State Correctional Institute
(SCI);
Count 2: Sexual Assault (F2)
Merged with Count 1;
Count 3: Indecent Assault, person less than 13 (F3)
1½ - 3 years’ incarceration at SCI, concurrent to Count 1;
Count 4: Aggravated Indecent Assault of a Child (F1)
10-20 years’ incarceration at SCI, consecutive to Count 1;
Count 5: Indecent Exposure (M1)
1-2 years’ incarceration at SCI, concurrent to Count 1;
Count 6: Incest of Minor, victim under 13 (F2)
4-8 years’ incarceration at SCI, consecutive to Count 4;
Count 7: Corruption of Minors (F3)
1½ - 3 years’ incarceration at SCI, consecutive to Count 6;
Count 8: Unlawful Contact with a Minor – Sexual Offenses (F1)
10-20 years’ incarceration at SCI, concurrent to Count 1;
Count 9: Unlawful Contact with a Minor – Sexual Abuse (F1)
4-8 years’ incarceration at SCI, concurrent to Count 1;
Count 10: Photographing Child Pornography (F1)
6-12 years’ incarceration at SCI, consecutive to Count 7;
Count 11: Disseminating Child Pornography (F2)
5-10 years’ incarceration at SCI, consecutive to Count 10;
Count 12: Possession of Child Pornography (F2)
Merges with Count 10;
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Count 13: Criminal Use of Communication Facility (F3)
1-3 years’ incarceration at SCI, consecutive to Count 11.
Trial Court Opinion (T.C.O.), 4/8/22, at 1-2. As a result, Appellant received an
aggregate sentence of 37½ - 76 years’ imprisonment.
Appellant filed a timely post-sentence motion, which the trial court
subsequently denied on February 2, 2022. This appeal followed.
Appellant raises one issue for our review:
Was an aggregate sentence of thirty-seven and one half to
seventy-six years’ incarceration manifestly excessive under the
circumstances and an abuse of the trial court’s discretion?
Appellant’s Brief, at 12.
Appellant claims his sentence is manifestly excessive based on the trial
court’s decision to run several of his sentences consecutively instead of
concurrently. Although Appellant admits that each of the individual sentences
fall within the standard range of the sentencing guidelines, Appellant argues
that the sentence is unreasonable and essentially a life sentence “because it
does not offer [Appellant] a meaningful chance at rehabilitation and return to
the community.” Appellant’s Brief, at 21.
In addition, Appellant argues that the trial court did not into account his
mitigating circumstances. While Appellant admits he has a prior criminal
record, Appellant argues that the fact that he does not have any prior
convictions for a sexual offense shows he is amenable to rehabilitation.
Appellant also notes that the trial court did not consider that Appellant has a
history of life trauma and intellectual disability.
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Both challenges implicate the discretionary aspects of sentencing. In
reviewing such challenges, we are mindful that:
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 (1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence; and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or
sentencing norms. Id. An appellant must satisfy all four
requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
Commonwealth v. Miller, 275 A.3d 530, 534 (Pa.Super. 2022).
In this case, Appellant filed a timely notice of appeal, preserved his
sentencing claims in a timely post-sentence motion, and his brief does not
contain any fatal defects. Assuming arguendo that both claims raise
substantial questions for review and all of these requirements have been met,
we conclude Appellant’s sentencing issues are meritless.
Our standard of review of a sentencing claim is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).
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The Sentencing Code sets forth general standards to guide the trial
court’s sentencing determination, requiring the sentence imposed to be
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.” 42 Pa.C.S.A. § 9721(b). In addition,
“[w]hen imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant. In
considering these factors, the court should refer to the defendant's prior
criminal record, age, personal characteristics and potential for rehabilitation.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citations
omitted).
Although these principles promote individualized sentencing, the trial
court “is not required to impose the minimum possible confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (citation
and internal quotation marks omitted). Section 9721(a) of the Sentencing
Code gives the trial court discretion to impose its sentences consecutively or
concurrently to other sentences being imposed at the same time or to
sentences already imposed. See 42 Pa.C.S.A. § 9721(a); Commonwealth v.
Taylor, 277 A.3d 577, 593 (Pa.Super. 2022) (quoting Commonwealth v.
Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003) (establishing that “in
imposing a sentence, the trial [court] may determine whether, given the facts
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of a particular case, a sentence should run consecutive to or concurrent with
another sentence being imposed”).
In reviewing whether a sentence should be vacated:
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the
sentencing court applied the guidelines erroneously; (2) the
sentence falls within the guidelines, but is “clearly unreasonable”
based on the circumstances of the case; and (3) the sentence falls
outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A. §
9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts must
review the record and consider the nature and circumstances of
the offense, the sentencing court's observations of the defendant,
the findings that formed the basis of the sentence, and the
sentencing guidelines. The weighing of factors under 42 Pa.C.S.A.
§ 9721(b) is exclusively for the sentencing court, and an appellate
court may not substitute its own weighing of those factors. The
primary consideration, therefore, is whether the court imposed an
individualized sentence, and whether the sentence was
nonetheless unreasonable for sentences falling outside the
guidelines, or clearly unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).
Taylor, 277 A.3d at 593 (quoting Commonwealth v. Bricker, 41 A.3d 872,
875-76 (Pa.Super. 2012) (citations omitted)).
In this case, as Appellant concedes that the trial court correctly applied
the guidelines and that all of his individual sentences fell within guideline
ranges, this Court may only vacate his sentence if it is “clearly unreasonable.”
Taylor, supra. In addition, we note that the trial court had the benefit of a
presentence investigation report (PSI). This Court has held that when the trial
court imposes a standard range sentence after reviewing a PSI report, the
sentence cannot be considered excessive or unreasonable absent some indicia
clearly evidencing the contrary. See id.
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Upon reviewing the record, we find that the sentence imposed was not
“clearly unreasonable.” At the sentencing hearing, the trial court noted that it
had reviewed the PSI report, the Sexual Offenders Assessment Board (SOAB)
evaluation, the counts for which Appellant was convicted, the applicable
mandatory sentences, and the sentencing guidelines. Notes of Testimony
(N.T.), 12/29/21, at 2-5, 26, 29.
In imposing the sentence in this case, the trial court gave great weight
to the gravity of the crimes committed, which the trial court characterized as
“heinous,” and their impact of Appellant’s crimes on the life of the victim. Id.
at 30. The trial court was appalled that Appellant repeatedly raped his five-
year old daughter, video-recorded the sexual assaults, and disseminated the
footage as child pornography. Id. at 30-31. The trial court highlighted that
Appellant had “betrayed the duty of care, protection, and support to [his]
daughter.” Id. at 31.
The trial court emphasized Appellant’s lack of remorse and
accountability for his crimes as the SVP Assessment indicated that Appellant
first denied the sexual contact and then subsequently blamed the five-year-
old victim for “coming on” to him as he suggested she enjoyed the contact.
Id. at 15; Trial Court Opinion (T.C.O.), 4/8/22, 8.
The trial court was concerned that Appellant exhibited a pedophilic
disorder as reported by the SVP assessment given the sexual deviance and
predatory nature of his brutal rape of a young, vulnerable child. T.C.O. at 8.
The trial court found that Appellant’s memorialization of the assault on video
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was a further aggravating factor “indicative of sustained sexual interest in
children and a desire to relive or fantasize about the rape of one’s own child.”
T.C.O. at 8-9.
While Appellant pointed to the fact that he has never been convicted of
a sexual offense, the trial court found there was little evidence to show that
Appellant was amenable to treatment or rehabilitation. N.T. at 30; T.C.O. at
8. As noted by the trial court, Appellant already had an extensive history of
serious crime including convictions in 2007 for aggravated assault (F2),
resisting arrest, and obstruction of justice, a convictions in 2009 and 2012 for
DUI, and convictions in 2017 for burglary (F2), conspiracy, and theft.
With respect to Appellant’s claim that the trial court did not consider
relevant mitigating factors, the record clearly shows otherwise. Where the trial
court has the benefit of reviewing a PSI report, we may assume that the trial
court “was aware of the relevant information regarding Appellant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (internal
quotation marks and citation omitted).
Moreover, the trial court expressly indicated that it had considered
Appellant’s family history and mental health limitations, in which Appellant
had been diagnosed with mild mental retardation as well as depression and
anxiety. N.T. at 26. The trial court recognized Appellant had required special
education all his life and only finished his education to the tenth grade. Id. at
29. The trial court also recognized that Appellant had a history of substance
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abuse from the age of sixteen and had sought treatment for drug and alcohol
abuse when charged with criminal offenses. Id. at 27.
Nevertheless, the trial court found nothing in the record to show a “lack
of intellectual ability that would prevent [Appellant] from understanding the
difference between right and wrong.” N.T. at 30; T.C.O. at 7-8. The trial court
also noted that as a thirty-seven year old male, Appellant was at an “age of
[] maturity to understand the significance of [his acts].” N.T. at 29. For all of
the foregoing reasons, the trial court found that Appellant was a “danger to
society,” noted that a lesser sentence would depreciate the seriousness of
Appellant’s crimes, and expressed concern of an undue risk that Appellant
would reoffend upon release. N.T. at 32; T.C.O. at 9.
Accordingly, our review of the record, briefs, trial court opinion, and
relevant authority uncovers no reason to disturb the trial court's discretion in
imposing Appellant’s sentence. See Shugars, supra (“[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 abuse of discretion”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2022
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