J.S43035/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
DWAYNE EDWARD MAURER,                       :
                                            :
                          Appellant         :     No. 565 EDA 2014


            Appeal from the Judgment of Sentence January 17, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division No(s).: CP-46-CR-0008967-2010

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 29, 2014

        Appellant, Dwayne Edward Maurer, appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas after he

entered an open guilty plea to two counts of criminal solicitation to

intimidate a witness.1       He challenges the discretionary aspect of his

sentence.      Appellant claims the trial court failed to consider substantial

mitigating factors and manifestly abused its discretion in imposing the

sentence in the instant case to run consecutively to the sentence he was

serving in the underlying case. We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
 18 Pa.C.S. §§ 902(a) (“Criminal Solicitation”), 4952(a)(2) (“Intimidation of
Witnesses or Victims”).
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      The trial court summarized the facts and procedural history of this

case as follows:

             On June 7, 2011, [Appellant] appeared in this court
         with counsel and entered an open guilty plea to two counts
         of Criminal Solicitation to intimidate a witness . . . .
         [Appellant] admitted to soliciting Trooper Paul Carr, who
         posed undercover as someone else, to take witnesses in
         another case out of the area so they could not testify
         against [him]. These witnesses were [M.L.] and Connie
         Maurer, and it was a possibility that they were going to
         offer testimony against [Appellant] in case number CP-46-
         CR-0001986-2010. Maurer is [Appellant’s] wife and he
         ultimately plead guilty to twice performing oral sex on
         [M.L.], his stepdaughter who was less than 13 years of
         age.

            At the plea hearing in the instant case, [Appellant] was
         made aware that it was an open plea and thus there was
         no     agreement    between     the    defense   and    the
         Commonwealth. Additionally, he was made aware that the
         standard range of sentencing was 36-54 months.
         Thereafter, the court sentenced him on October 5, 2011,
         to 41/2 to 9 years for both counts concurrently. The court
         also imposed this sentence to run consecutively to case
         number 1986-2010, in which he received a sentence of 10-
         20 years for Involuntary Deviate Sexual Intercourse with a
         child [and 10 years’ consecutive probation].

             [Appellant] did not take a direct appeal from the
         Judgment of Sentence. On October 5, 2012, [Appellant]
         filed a pro se Post-Conviction Collateral Relief Act
         [(“PCRA”)] Petition. [Counsel] was appointed to represent
         [Appellant]. PCRA counsel filed an Amended PCRA Petition
         on behalf of [Appellant] on January 25, 2013. At the time
         the PCRA hearing was scheduled, the Commonwealth
         indicated they discovered trial counsel actually recited the
         wrong sentencing guidelines during the initial sentencing
         hearing. After a conference, both parties agree[d] that the
         correct sentencing guideline for the instant crimes is
         actually 22-36 months. Thus, defense counsel filed a
         Second Amended PCRA Petition on April 15, 2013,
         requesting allowance to file a Petition for Reconsideration


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         of Sentence Nunc Pro Tunc,            and   reinstatement   of
         [Appellant’s] direct appeal rights.

             A brief hearing was held on June 20, 2013, and
         reflected by an order dated August 23, 2013, [Appellant’s]
         relief was granted in that the Commonwealth and defense
         agreed to vacate [his] sentence and remand it for
         resentencing by this court. Thereafter, on January 17,
         2014, [Appellant] was resentenced to 3-9 years on both
         counts concurrently, and again consecutive to his sentence
         on case number 1986-2010.

Trial Ct. Op., 4/10/14, at 1-2 (citations and footnote omitted).       Appellant

filed a post sentence motion which was denied. This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review:

         I. Did the learned trial court manifestly abuse its discretion
         when it ordered [Appellant’s] sentence of three to nine
         years on the instant matter to run consecutive to [his] ten
         to twenty year sentence that he was serving on Docket No.
         1986-[20]10 despite the wishes of one of the victims,
         thereby resulting in an aggregate sentence of thirteen to
         twenty-nine years.

Appellant’s Brief at 3.

      Appellant challenges the discretionary aspect of his sentence.

            Initially, we must determine whether Petitioner has the
         right to seek permission to appeal the sentencing court’s
         exercise of its discretion. Where a defendant pleads guilty
         without any agreement as to sentence, the defendant
         retains the right to petition this Court for allowance of
         appeal with respect to the discretionary aspects of
         sentencing. . . .




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Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)

(citation omitted). Instantly, there was no agreement as to sentencing; thus

Appellant has the right to seek permission to appeal. See id.

      This Court has stated,

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to appellate review as of
            right. Prior to reaching the merits of a discretionary
            sentencing issue:

               [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 that
               the sentence appealed from is not appropriate
               under the Sentencing Code, 42 Pa.C.S.A. §
               9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations and punctuation omitted).

      Instantly, Appellant timely appealed, preserved his issue in his post

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

See id.    Accordingly, we ascertain whether Appellant has presented a

substantial question. Id.

      Appellant contends that in imposing the consecutive sentence the trial

court failed to consider all mitigating factors, viz., his accomplishments while




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incarcerated and the letter from his wife.2 He avers that he has obtained his

high school diploma and has been baptized.            Appellant’s Brief at 13.

Appellant claims the court erred in ignoring the letter from his wife in which

she requested the sentence in the instant case run concurrently to the

sentence he was serving in the underlying case.        Appellant’s Brief at 14.

Appellant contends the court “continued to make the sentences consecutive

despite the wishes of the victims and, therefore, the [c]ourt manifestly

abused its discretion.” Id. at 15.

        Generally, where the sentence is in the standard range, as in the case

sub judice, “a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.”3 See Commonwealth v.

Disalvo,     70   A.3d   900,   903   (Pa.   Super.   2013).     However,    in

Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014), this Court stated that in Commonwealth

v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005), “this Court found that an


2
    See Appellant’s Mot. Recons. of Sentence, 1/23/14, D-1.
3
  We note that where a defendant claims “that the court erred by imposing
an aggravated range sentence without consideration of mitigating
circumstances[,]” a substantial question is raised. Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). In Commonwealth v.
Raven, 97 A.3d 1244 (Pa. Super. 2014), the defendant contended the court
failed to consider mitigating factors and that his consecutive sentence was
manifestly excessive. Id. at 1253. This Court opined: “It is well-established
that a sentencing court’s failure to consider mitigating factors raises a
substantial question. See [Felmlee, 828 A.2d at 1107.]” Id.




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excessive sentence claim, in conjunction with an assertion that the

court    did    not   consider    mitigating   factors,   raised   a    substantial

question.”4 Dodge, 77 A.3d at 1272 (emphasis added); see also Raven,

___ A.3d at ___, 2014 WL 3907103 at *6, (citing Perry with approval).

        We find that Appellant’s Rule 2119(f) statement presents a substantial

question.      See Dodge, 77 A.3d at 1272.        Therefore, we will review the

merits of Appellant’s challenge to the discretionary aspects of his sentence.

          Our standard of review 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. An abuse of discretion is more than just
               an error in judgment and, on appeal, the trial court
               will not be found to 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.

          More specifically, 42 Pa.C.S.A. § 9721(b) offers the
          following guidance to the trial court’s sentencing
          determination:

               [T]he 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.

          42 Pa.C.S.A. § 9721(b).

4
   This Court in Dodge noted “that it is apparent that this Court’s
determination of whether an appellant has presented a substantial question
in various cases has been less than a model of clarity and consistency, even
in matters not involving excessive sentence claims.” Dodge, 77 A.3d at
1272 n.8.



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        Furthermore,

           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. § 9781(c). Under 42
           Pa.C.S. § 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.
           § 9721(b) is exclusively for the sentencing court,
           and an appellate court could 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. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some citations omitted).

     Our Supreme Court has stated:

        Where pre-sentence reports exist, we shall continue to
        presume that the sentencing judge was aware of relevant
        information regarding the defendant’s character and
        weighed those considerations along with mitigating
        statutory factors. A pre-sentence report constitutes the
        record and speaks for itself.      In order to dispel any
        lingering doubt as to our intention of engaging in an effort
        of legal purification, we state clearly that sentencers are
        under no compulsion to employ checklists or any extended
        or systematic definitions of their punishment procedure.
        Having been fully informed by the pre-sentence


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         report, the sentencing court’s discretion should not
         be disturbed. This is particularly true, we repeat, in
         those circumstances where it can be demonstrated that
         the judge had any degree of awareness of the sentencing
         considerations, and there we will presume also that the
         weighing process took place in a meaningful fashion. . . .

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).

      “Long standing precedent of this Court recognizes that 42 Pa.C.S.A.

section 9721 affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed.”         Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).

      Instantly, at re-sentencing, the court stated that it incorporated the

remarks it made at the October 5, 2011 sentencing hearing. At the October

5th hearing, the court stated, inter alia, as follows:

            The [c]ourt has to put certain reasons for sentencing on
         the record. Obviously, this [c]ourt has had the time to
         consider     the    presentence       investigation[5]    of
         [Appellant] in that it was considered at the time of the
         original sentencing on March 18th of 2011. And all of the
         information contained therein would not have changed in
         that he has been incarcerated continuously on the
         underlying case at 1986 of 2010 since March 5th of 2010.

N.T., 10/5/11, at 16.


5
  The court noted at the outset of the sentencing hearing that “a previous
presentence investigation dated January 28th of 2011 had been done on
[Appellant] in order to aid this [c]ourt in sentencing for a previous case in
which he was sentenced on two counts of [involuntary deviate sexual
intercourse] IDSI . . . . Following this open plea, there was no further
presentence investigation done.” N.T., 10/5/11, at 3, 4.



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     At the resentencing hearing, the trial court opined:

        . . . This is an unusual resentencing in that the original
        crime [ ] which initiated the course of events that led to
        the [instant] charges . . . ─the original crime which was at
        1986 of ‘10─was a horrific, horrible, destruction of a child’s
        childhood. . . .

           I do incorporate because it will have some purpose as
        to my sentencing, . . . and note that 1986 of ’10 was an
        open plea; however, there was an agreement as to the
        sentencing for which he has been sentenced for that
        behavior of 10 to 20 years. I note that the 10 years
        consecutive probation is also in place.

           But, again, this all initiated with a horrific rape
        perpetrated by [Appellant] upon someone that was in his
        trust and care and obviously the daughter of someone
        who’s now written a letter to this Court and has been part
        of the testimony as to how to deal with a case that arose
        from it.

            Now, what is important, and it is important to this
        [c]ourt’s sentencing, is that he pled guilty to two counts of
        criminal solicitation. And on this particular case there was
        no agreed sentence. There was just guidelines that came
        in.    And this [c]ourt has utilized those guidelines,
        specifically noted on the record I used the guidelines to
        sentence [Appellant].

           But I do recognize that the two counts that he entered
        his plea to [in the instant case] involved the solicitation of
        others to intimidate the child who is now an adult . . . .

            And the second count was the solicitation of someone to
        intimidate Connie Maurer all for the specific purposes of
        preventing them from testifying in [the underlying case]
        which ultimately ended up in the guilty plea, and again I’m
        referring to 1986.

                                 *    *    *

           [Appellant] became incarcerated and began, like many,
        to begin to change, to transition into a person of a spiritual


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       connection. And that’s important. And I am going to have
       to take that into account because we did discuss it. I am
       resentencing a man today who has put testimony on that
       he claims he is different than he was when he perpetrated
       the crime and also these intimidations.

                                *     *      *

          Now, you have, [Counsel for Appellant], made very
       compelling arguments regarding Connie Maurer, his wife,
       who has clearly forgiven him, it appears, for what he did to
       her daughter and is involved with him in ministry and the
       same spiritual connections that [Appellant] is making to try
       to better his life for the long prison sentence that he is
       serving for the rape of ML.

          And he is to be credited with that and the [c]ourt has to
       recognize that I am sentencing him for that, but I do note
       that she can clearly speak on behalf of herself. At this
       stage she is not authorized to speak on behalf of ML. And
       that’s an important distinction in this case.

          And I think appropriately you made your notes as to
       Connie Maurer, and clearly we don’t have a letter from ML
       or what her present status is and, you know, what this
       trauma has done in her life and what treatment she’s in
       and what she wants. Clearly she’s of age now that can─so
       I don’t have that voice here in this courtroom today.

          And besides being the victim of the rape, she was a
       victim of a separate solicitation. And that’s an important
       distinction, that Ms. Maurer does not get to speak for her
       daughter in that regard.

           So I do recognize . . . that since [Appellant] has entered
       into prison he has no prison record that would indicate that
       he is doing anything other than trying to change his life,
       follow a spiritual course . . . . And that is important, so I
       will tend to give credit to those changes that he has made
       in his life since the original sentencing by this Court.

          Nonetheless, this was a severe, horrific, life-changing
       rape of this child. And then the attempt to intimidate
       witnesses is an egregious crime in its own right.


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N.T., 1/17/14, at 30-31, 32, 33-34.

     Appellant’s argument that the trial court ignored all mitigating factors

and his accomplishments while incarcerated is belied by the record. See id.

The court considered mitigating factors in imposing the consecutive

sentence. See id. Similarly, the claim that the court ignored the wishes of

the victim, viz., Connie Maurer, is unsupported by the record.       See id.

Furthermore, the court considered the presentence report.          See id.;

Devers, 546 A.2d at       18.   Accordingly, after examining the record as a

whole, we find that the trial court’s sentence was not manifestly excessive.

We discern no abuse of discretion. See Bricker, 41 A.3d at 875-76.

     Judgment of sentence affirmed.

     Judge Allen joins the memorandum.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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