J-S01018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY NEIL VANSKIVER                       :
                                               :
                       Appellant               :   No. 1313 MDA 2018

        Appeal from the Judgment of Sentence Entered June 25, 2018
      In the Court of Common Pleas of Tioga County Criminal Division at
                       No(s): CP-59-CR-0000118-2017


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 04, 2019

       Terry Neil Vanskiver (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to rape of a child, aggravated indecent assault,

and endangering the welfare of a child.1 After careful review, we affirm.

       The charges in this case arise from Appellant’s rape and sexual abuse

of his then-girlfriend’s eight-year-old daughter. A criminal complaint against

Appellant was filed on February 17, 2017.          On March 16, 2018, Appellant

appeared before the trial court and pled guilty to the above crimes. That same

day, the trial court ordered a pre-sentence investigation.




____________________________________________




1   18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), and 4304(a)(1).



*Retired Senior Judge assigned to the Superior Court.
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       On June 25, 2018, Appellant was sentenced to 20 to 40 years of

incarceration for rape of a child.2            Appellant filed a timely post-sentence

motion, which the trial court denied.            Appellant filed this timely appeal on

August 9, 2018.        Both the trial court and Appellant have complied with

Pennsylvania Rule of Appellate Procedure 1925.

       Appellant presents one issue for our review:

            DID THE SENTENCING COURT ERR IN SENTENCING THE
       [APPELLANT] TO THE STATUTORY LIMIT FOR THE OFFENSE OF
       RAPE OF A CHILD, EVEN THOUGH THE STATUTORY LIMIT FOR
       THAT OFFENSE IS ALWAYS ENCOMPASSED WITHIN THE
       STANDARD SENTENCING GUIDELINE RANGE, WHEN THE
       [APPELLANT] (1) HAD A MINIMAL PRIOR CRIMINAL RECORD, (2)
       WAS OF GOOD BEHAVIOR DURING THE PENDENCY OF THE CASE,
       (3) DID NOT EXHIBIT UNUSUAL CRUELTY OR SADISTIC
       BEHAVIOR IN THE COMMISSION OF THE CRIME, AND (4) WAS
       NOT FOUND BY THE PENNSYLVANIA SEXUAL OFFENDERS
       ASSESSMENT BOARD (SOAB) TO BE A SEXUALLY VIOLENT
       PREDATOR IN PART BECAUSE THE FACTORS ANALYZED BY SOAB
       SUGGESTED A LOW LIKELIHOOD OF RE-OFFENDING?

Appellant’s Brief at 4.

       In his sole issue, Appellant challenges the discretionary aspects of his

sentence, averring that:

       [t]he sentence herein at the statutory limit of [] twenty (20) to
       forty (40) years for [Appellant] with a minimal prior record, who
       was of good behavior during the pendency of the case, who was
       noted by SOAB to have exhibited no unusual cruelty or sadistic
       behavior during the commission of the crime, and who was
       determined not [to] be a Sexually Violent Predator in part because
       of a low likelihood of reoffending, is manifestly unreasonable and
       should not be allowed to stand.
____________________________________________


2 For the purposes of sentencing, the remaining two counts merged with
Appellant’s rape of a child conviction.

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Appellant’s Brief at 10.

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted), appeal denied,

91 A.3d 161 (Pa. 2014).

      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claims in a timely post-sentence motion, filing a

timely notice of appeal, and including in his brief a Rule 2119(f) concise



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statement.   See Appellant’s Brief at 8-9.     Therefore, we examine whether

Appellant presents a substantial question for review.

      Appellant argues that the trial court imposed an excessive sentence

where it failed to consider Appellant’s criminal history, good behavior during

the pendency of his case, and the findings of the Pennsylvania Sexual

Offenders Assessment Board. Appellant’s Brief at 10. This argument presents

a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 340

(Pa. Super. 2015) (“This Court has also held that an excessive sentence claim-

-in conjunction with an assertion that the court failed to consider mitigating

factors--raises a substantial question.”) (citations omitted). We thus review

Appellant’s sentencing claim mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:




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      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed
      should call for confinement that is 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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      This Court has also held, “[w]hen a sentencing court has reviewed a

pre[-]sentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006)). Additionally:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (some citations omitted).

      At the June 25, 2018 hearing, the trial court acknowledged that it was

in receipt of, and considered, the pre-sentence investigation report completed

in anticipation of Appellant’s sentencing.   N.T., 6/25/18, at 1, 19.     Before

imposing Appellant’s sentence, the trial court commented:


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             [I]t is my responsibility and my duty to fashion and impose
     sentences; and [Defense Counsel] has advanced, I think, the best
     and most logical arguments that one might advance on behalf of
     your circumstance. And as he notes, it is the responsibility of us,
     as professionals, to reflect upon the individual cases and to be
     governed by reason, by the law, and not necessarily by passion -
     certainly not by passion or some sense of vengeance. There are
     a couple of things that I would say to you at the outset. Obviously,
     this is - this is behavior which is not acceptable; it’s a crime - and
     it is a very, very serious crime. And it is, I think, as life goes on
     and time advances, we appreciate more and more just what a
     serious crime this is. The impact - the lingering impact or trauma
     and the consequences that will be borne by this young lady
     throughout the course of her life.

            This - there are - well, as [Defense Counsel] noted, there
     are certainly some circumstances regarding your ability to
     function, and an argument to be made that you have some, some
     recognition of the harm that you caused and recognized, and
     didn’t go out of your way to inflict pain. We do have to
     understand, and the Court has to take into consideration, that this
     is an - this was an eight-year-old child. This is an eight-year-old
     child, whether she was either, nine, ten, twelve, she was a child,
     a young child, who was entrusted to you by, by a parent who was
     faced with a terrible crisis involving her other child. And this
     young lady, the victim, obviously, had some sort of relationship
     with you, viewed you favorably; I presume knew you, trusted you.
     Her mother trusted you, obviously, or the conditions that led to
     this would have never occurred or arisen. And that trust, the trust
     that this young lady has, and apparently everyone around her, is
     now shattered, and the effort to put that back together will be
     arduous for her and for all of those around her.

           And while it is my responsibility to take into account
     information regarding your likelihood to recidivate and to
     contemplate, and reflect on your criminal history, which is taken
     into the guidelines, you nonetheless do have it.       And it is my
     responsibility to also hold you accountable. And as [Defense
     Counsel] referenced, and I said earlier, these are all individual
     cases. They are individual, unique, and specific. They are fact
     driven. And frankly, this is a - this is a circumstance where I
     believe the accountability requires and is such that a sentence
     should be imposed that’s going to incarcerate you in the State
     Correctional System for a very significant period of time. And I’m

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     going to stay in the standard range, but the reality is, this will not
     be at the bottom end of the standard range, but rather will be at
     the upper end. The standard range is the presumptive range, and
     in your case, and in the circumstances that you bring to the table,
     and that this case brings to the table, in fact, the maximum
     sentence allowed by law, is within the standard range, and that is
     what I believe is appropriate in this case.

Id. at 16-18.

     In its opinion, the trial court further explained:

           In [Appellant’s] case he pled guilty to one count of [r]ape of
     a [c]hild, along with other charges that merged for sentencing
     purpose[s] under a negotiated plea. The charge stemmed from
     [Appellant’s] rape, and additional sexual abuse, of his then
     paramour’s eight year old daughter. The abuse began after the
     victim’s brother was diagnosed with cancer. The victim’s mother
     had to travel to Geisinger Medical Center in Danville for extended
     periods of time so her brother could receive the cancer treatment
     he needed. During mother’s absence, [Appellant] was entrusted
     with the care of the victim. Instead of caring for her he sexually
     abused and raped her.

           Prior to imposing sentence, the court, on the record, went
     over the sentencing guidelines with [Appellant] as prepared by the
     Tioga County Probation Department as part of its [p]re-[s]entence
     [i]nvestigation. [Appellant] had a prior record score of a two (2)
     for sentencing purposes and the charge of [r]ape of a [c]hild has
     an offense gravity score of fourteen (14). This resulted in
     standard range guidelines of ninety-six (96) months to two
     hundred forty (240) months. The mitigated range is eight[y]-four
     (84) months and there is no aggravated range as the statutory
     maximum sentence is encapsulated in the standard range.
     Neither the Defense nor the Commonwealth objected to these
     calculations.

            After the court went over the sentencing guidelines, the
     Commonwealth called the victim’s mother to the stand. She
     testified how the victim changed after the abuse. The victim went
     from an outgoing and loving child to one who is scared, untrusting,
     and depressed. The Assistant District Attorney also read a letter
     from the victim where she describes the abuse, specifically two
     occurrences where the [Appellant] raped her. The letter also

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     stated the [Appellant] threatened the victim that if she told
     anyone he would come back and kill her. The Commonwealth also
     submitted a letter from the victim’s counselor.

            The Defense argued for a sentence at the lower level of the
     sentencing guidelines range. In making this argument, [Defense
     Counsel] noted factors in [Appellant’s] favor. These factors
     included [Appellant’s] good behavior while released on bail in this
     case, the fact his prior record score is solely the result of a juvenile
     adjudication, [Appellant’s] low risk of recidivism (as determined
     through the SOAB evaluation), [Appellant] taking responsibility
     for his crimes by pleading guilty, along with other reasons.
     [Appellant] also gave a brief statement saying he loved the victim
     and her brother, cared for them when the victim’s brother was
     sick, and parented the children when their mother worked or was
     unavailable.

           In handing down it[s] sentence[,] the court obviously
     considered the sentencing guidelines as it went over them on the
     record and noted the sentence was within the standard range of
     the guidelines. The court also considered [Defense Counsel’s]
     arguments that [Appellant] deserved a sentence in the lower
     range of the guidelines. The court then noted, however, the victim
     was eight years old at the time of the rape and abuse, the victim’s
     mother entrusted [Appellant] with caring for the victim during a
     time of family crisis, and the victim herself had a close relationship
     and trusted [Appellant]. The court took all of these factors into
     consideration in arriving at the sentence imposed on [Appellant].
     The court looked at the individual circumstances of [Appellant]
     and the facts of the specific case in handing down its sentence and
     did not merely reflexively sentence [Appellant] to the statutory
     maximum sentence. In addition, the sentence imposed by the
     court is “consistent with the protection of the public, the gravity
     of the events as it relates to the impact on the life of the victim
     and on the community, and the rehabilitative needs of the
     [Appellant].” 42 Pa.C.S.[A.] § 9721(b). As such, the sentence
     should be upheld.

Trial Court Opinion, 9/17/18, at unnumbered 3-5 (citations to notes of

testimony omitted).




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      Based on our review of the record, particularly the notes of testimony

from the sentencing hearing, we conclude that the trial court properly

considered all relevant factors when imposing Appellant’s sentence.          In

addition to reviewing Appellant’s pre-sentence investigation report, the trial

court considered all potential mitigating factors raised by Appellant. See N.T.,

6/25/18, at 16 (“[Defense Counsel] has advanced, I think, the best and most

logical arguments that one might advance on behalf of your circumstance.”).

Ultimately, and in its discretion, the trial court determined that Appellant’s

crimes necessitated a period of 20 to 40 years of incarceration. Accordingly,

we discern no abuse of discretion by the trial court.

      For the foregoing reasons, Appellant’s sole issue is without merit, and

we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2019




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