J-S26006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ALAN MCELHENY                         :
                                               :
                       Appellant               :   No. 836 WDA 2019

          Appeal from the Judgment of Sentence Entered May 14, 2019
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                            CP-07-CR-0001684-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 21, 2020

        Mark Alan McElheny (Appellant) appeals from the judgment of sentence

imposed after the trial court granted his motion for reconsideration of

sentence. We affirm.

        On September 13, 2018, Appellant pled guilty to aggravated assault of

a victim less than 6 years old, simple assault, and two counts of endangering

the welfare of a child, stemming from the physical abuse of two minor children

in Appellant’s care.1 Affidavit of Probable Cause, 7/19/17, at 1. One victim,

a 6-year-old, reported that Appellant struck her and forcefully pulled her hair.

Id. Following an investigation, the Commonwealth determined that Appellant

subjected a 14-month-old victim to hair pulling and other physical abuse. Id.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(8), 2701(a)(1), and 4304(a)(1).
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As a result, the younger victim suffered subgaleal hematomas and a torn

frenulum. Id. at 1-2.

       After Appellant entered his plea, the trial court deferring sentencing for

the preparation of a pre-sentence investigation (PSI) report. On December

20, 2018, the court sentenced Appellant to an aggregate 6 to 13 years of

incarceration. On December 26, 2018, Appellant filed a post-sentence motion

for reconsideration of sentence. Following a hearing on May 14, 2019, the

court granted Appellant’s request and reduced the aggregate sentence to 5 to

11 years.2

       Appellant filed this timely appeal. Both Appellant and the trial court

have complied with Pennsylvania Rule of Appellate Procedure 1925.             On

appeal, Appellant presents a single question:

       Did the trial court manifestly abuse the discretion afforded to it
       where it imposed a sentence considerably above the standard and
       aggravated ranges to an extent that said sentence was contrary
       to the fundamental norms underlying our established plea and
       sentencing process, and in relying on duplicative or non-existent
       factors?

Appellant’s Brief at 5 (numbering omitted).

       Appellant challenges the discretionary aspects of his sentence.      “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).

____________________________________________


2The court reduced Appellant’s sentence for aggravated assault from 4 to 8
years of incarceration to 3 to 6 years of incarceration.

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“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). “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).

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

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

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

statement. See Appellant’s Brief at 12-13. Therefore, we examine whether

Appellant presents a substantial question.

      Appellant presents three claims of error. Appellant first argues that the

trial court abused its discretion in formulating his sentence for aggravated

assault. Appellant “avers that the [trial] court erred in imposing an excessive

sentence, an upward departure from the recommended standard and



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aggravated sentencing range, without proper justification.” Appellant’s Brief

at 12.   This claim raises a substantial question.     See Commonwealth v.

Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (An appellant’s “contention

that the sentencing court exceeded the recommended range in the Sentencing

Guidelines without an adequate basis raises a substantial question for this

Court to review.”) (citations omitted). Secondly, Appellant argues that the

trial court imposed an excessive sentence for aggravated assault where the

court considered impermissible factors. Appellant’s Brief at 12. This claim

also raises a substantial question. See Commonwealth v. Allen, 24 A.3d

1058, 1064-65 (Pa. Super. 2011) (“A claim that a sentence is excessive

because the trial court relied on an impermissible factor raises a substantial

question.”). Finally, Appellant claims the court “abused its discretion in failing

to consider the mitigating factors that were presented at and before

sentencing [when imposing his sentence in the aggregate].” Appellant’s Brief

at 12. This claim also raises 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).

      Preliminarily, we recognize:

      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

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      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:

      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.

      Additionally:

      In 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.

Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)).

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       Here, the trial court sentenced Appellant to 3 to 6 years of incarceration

for aggravated assault.        Order, 5/14/19.   This sentence is outside of the

Sentencing Guidelines, but below the statutory maximum sentence.3 See 18

Pa.C.S.A. § 1103(2) (stating the statutory maximum sentence for a second-

degree felony is 10 years). We have explained:

       When imposing a sentence, the sentencing court is required to
       consider the sentence ranges set forth in the Sentencing
       Guidelines, but it [is] not bound by the Sentencing Guidelines.
       The court may deviate from the recommended guidelines; they
       are merely one factor among many that the court must consider
       in imposing a sentence. A court may depart from the guidelines
       if necessary, to fashion a sentence which takes into account the
       protection of the public, the rehabilitative needs of the defendant,
       and the gravity of the particular offense as it relates to the impact
       on the life of the victim and the community. When a court chooses
       to depart from the guidelines, however, it must demonstrate on
       the record, as a proper starting point, his [or her] awareness of
       the sentencing guidelines. Further, the court must “provide a
       contemporaneous written statement of the reason or reasons for
       the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).

       When reviewing a sentence outside the guideline range, the
       essential question is whether the sentence imposed was
       reasonable. An appellate court must vacate and remand a case
       where it finds that “the sentencing court sentenced outside the
       sentencing guidelines and the sentence is unreasonable.” 42
       Pa.C.S.A. § 9781(c)(3).         In making a reasonableness
       determination, a court should consider four factors:

              (1) The nature and circumstances of the offense and
              the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to observe
              the    defendant,    including    any     presentence
              investigation.
____________________________________________


3 The sentences Appellant received at his other three convictions were within
the Sentencing Guideline recommended ranges.

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           (3) The findings upon which the sentence was based.

           (4) The guidelines promulgated by the commission.

     42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable
     if it fails to properly account for these four factors. A sentence
     may also be found unreasonable if the sentence was imposed
     without express or implicit consideration by the sentencing court
     of the general standards applicable to sentencing [set forth in 42
     Pa.C.S.A. § 9721(b)].

Sheller, 961 A.2d at 190-91 (some citations omitted).

     At sentencing on December 20, 2018, the trial court stated:

     . . . The [c]ourt notes that it stayed within the standard range
     sentencing guidelines, except for Count 1, Aggravated Assault.
     The reasons for which the [c]ourt went outside the guidelines are
     as follows:

           A. The age of the victims. The [c]ourt recognizes that the
           crime itself encompasses and considers the age of the
           victims and that was not a defining nor controlling factor but
           is important to note.

           B. There were multiple victims.

           C. The actions of [Appellant], even though he provided the
           [c]ourt with a drug-related excuse, were deliberate.

           D. The continuing action or the pattern of abuse imposed by
           the [Appellant] upon the children.

           E. The lasting impact upon the victims.

           F. The physical pain inflicted upon the victims.

           G. The emotional pain inflicted upon the victims.

           H. The degree of suffering, both from the professional
           opinions proffered but more so from the photos proffered
           ([Commonwealth] Exhibit 1) of the victims.


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See Order, 12/20/18, at 7-8; N.T., 12/20/18, at 22.

     At Appellant’s re-sentencing, the trial court explained:

     I want to say to [Appellant’s] family that came, I do listen to you.
     When I come into these things, I usually have a range of what I’m
     going to do. I don’t want to have my mind made up before I come
     in or listening to you would have no impact and I don’t think that
     would be fair to you, so, I do pay attention to what you have to
     say. I don’t want to, nor can I undo what occurred. I would tell
     you that when I reviewed this yesterday and I spent much more
     time on this than I normally would. I spent about two hours
     preparing for this, which is a lot of time for me on something like
     this. I did notice [Appellant] that you had walked out of two
     inpatient drug and alcohol treatments, that when you then had a
     chance for outpatient, you walked away. So, while I recognize --
     and I have a lot of respect for [your attorney]. . . . the fact of the
     matter is that every effort was made to provide you with what
     could be done to address your drug and alcohol treatment -- your
     drug and alcohol condition and three different times, you rejected
     that help. When I read my order and went back into the file, I
     saw it on the criminal complaint but the criminal complaint is often
     not sufficient to act on and it was whether or not it was -- I want
     you to know the two things I looked at; was there a pattern of
     abuse, was it more than an isolated incident? I believed and found
     that it was more than -- it was not an isolated incident, that it
     occurred more than once and that there was a pattern. If
     somehow that would be wrong, then that would have given way
     to me making some changes. The enduring consequences to the
     victims and their ages were substantial factors in how I arrived at
     that original sentence. I’m going to provide you with some relief
     but it’s going to not be substantial. It’s going to be -- when I did
     my review of the aggravated assault charge, that is the highest
     sentence I’ve ever provided in that range. I’ve been on the bench
     17 years, you know, it’s near -- I have never given anyone with 0
     prior record score -- although when you read the Pre-Sentence,
     [Appellant] might have a prior 0 record but he did have a lot of
     run-ins, I mean, he had a lot of different run-ins with the law,
     albeit, they don’t create a score for you. . . .

N.T., 5/14/19, at 17-18.

     The court subsequently opined:


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            The court, in its sentencing order dated December 20, 2018
      (pages 7-8), put forth its reasons for that sentencing and for going
      outside the aggravated range on the charge of aggravated assault
      (against a child less than 6 years old).

             [Appellant] filed a timely motion for reconsideration which
      was granted and the court conducted a subsequent hearing on
      May 14, 2019. At that hearing, the court resentenced [Appellant],
      lowering his sentence at count one, aggravated assault[,]
      lowering the minimum of six years to five years. Therefore[,
      Appellant’s] sentence was reduced to a period of not less [than]
      five years nor more than eleven years. In all other ways, the
      original sentence of December 20, 2018 remained in full force and
      effect. Once again, the court laid out its reasons for its sentencing
      that day and the transcript of both hearings contained that
      discussion. This court notes the photos of the children, which
      were put into evidence, are indicative of the degree of injuries
      which [Appellant] imposed upon these very young children. The
      December 20, 2018 sentencing hearing transcript, pages 13-20,
      discusses the impact on the victims. This court spent substantial
      time, and heard from all parties involved and weighed its
      consideration.

            Finally, the court did upon the review, reduce [Appellant’s]
      minimum sentence by one year. The statement of matters
      complained of filed by [Appellant] all goes to the discretion of the
      court’s sentence, alleging an abuse of discretion. The court did
      consider the Sentencing Guidelines and followed them except for
      count one, aggravated assault, in which the court believed that
      going outside the aggravated range was appropriate. The court
      considered the general standard set forth under 42 Pa.[C.S.A.]
      §[]9721(b), however placed more weight as it relates to the
      impact on the life of the victims. The rehabilitative needs of
      [Appellant] would have been provided more consideration had
      [Appellant] not left both inpatient and outpatient drug
      rehabilitation []voluntarily and against orders.

Trial Court Opinion, 9/26/19, at 2-3.

      Upon review, we discern no error. At Appellant’s original sentencing

hearing, while acknowledging the Sentencing Guidelines, the trial court



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imposed a sentence outside the Guidelines for aggravated assault.         Order,

12/20/18, at 7. In open court, the trial court dictated the reasons for deviating

from the Guidelines. Order, 12/20/18, at 7-8; N.T., 12/20/18, at 22. Further,

the court had multiple opportunities to observe Appellant and was aided by a

PSI report. Appellant’s sentence of 3 to 6 years of incarceration is therefore

reasonable.

      Appellant further argues the trial court abused its discretion by

considering impermissible factors.     Appellant’s Brief at 12.     Specifically,

Appellant argues the trial court impermissibly considered its finding that

Appellant engaged in a pattern of abuse, as well as the victim’s age, as

reasons for imposing a sentence above the Guidelines. See Appellant’s Brief

at 15-21.

      As to impermissible sentencing factors:

      A sentence is invalid if the record discloses that the sentencing
      court may have relied in whole or in part upon an impermissible
      consideration.     This is so because the court violates the
      defendant’s right to due process if, in deciding upon the sentence,
      it considers unreliable information, or information affecting the
      court’s impartiality, or information that it is otherwise unfair to
      hold against the defendant.

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010). We are

only required to vacate the sentence if we conclude the court relied upon

impermissible factors when imposing its sentence.

      In deciding whether a trial judge considered only permissible
      factors in sentencing a defendant, an appellate court must, of
      necessity, review all of the judge’s comments. Moreover, in
      making this determination it is not necessary that an appellate

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       court be convinced that the trial judge in fact relied upon an
       erroneous consideration; it is sufficient to render a sentence
       invalid if it reasonably appears from the record that the trial court
       relied in whole or in part upon such a factor.

Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004).

       Here, the trial court listed the “continuing action or the pattern of abuse

imposed by the [Appellant] upon the children” as a factor in sentencing

Appellant outside the Sentencing Guidelines for aggravated assault. Order,

12/20/18, at 8. Upon review, there is ample evidence that Appellant’s abuse

of the 14-month-old victim was ongoing.

       For example, the emergency room physician who examined the 14-

month-old victim is quoted as stating her “injuries occurred over a course of

time and were in various stages of healing.” PSI Report, 12/6/18, at 2 (citing

Affidavit of Probable Cause, 7/19/17, at 1).4 The report further states that

“[w]itnesses at the daycare center and interviews compiled throughout [the]

investigation do indicate evidence of hair loss over a period of one month.”

Id. (citing Affidavit of Probable Cause, 7/19/17, at 1). Thus, the trial court

had an evidentiary basis to conclude that Appellant’s abuse of the 14-month-

old victim was not isolated, and properly cited the ongoing nature of the abuse

as a reason for departing from the Guidelines.




____________________________________________


4 Appellant did not object to the contents of the PSI report and does not
challenge the report on appeal.

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      In examining the court’s consideration of the 14-month-old victim’s age

as an aggravating factor in sentencing Appellant outside the Sentencing

Guidelines, see Order, 12/20/18, at 8, we recognize that the victim’s age is

an element of the section of the aggravated assault statute. 18 Pa.C.S.A. §

2702(a)(8) (“A person is guilty of aggravated assault if he . . . attempts to

cause or intentionally, knowingly or recklessly causes bodily injury to a child

less than six years of age, by a person 18 years of age or older.”).

      However, “[e]ven if a sentencing court relies on a factor that should

have not been considered, there is no abuse of discretion when the sentencing

court has significant other support for its departure from the [S]entencing

[G]uidelines.” Sheller, 961 A.2d at 192 (citations omitted). Here, the trial

court recited proper factors it considered in fashioning Appellant’s sentence,

including the deliberate nature of Appellant’s actions, the pattern of abuse,

the physical and emotional impact on the victim, and the degree of suffering

the victim endured. See id. We discern no error.

      Finally, Appellant claims that the trial court imposed an excessive

sentence by failing to consider mitigating factors.       However, “[w]here the

sentencing court imposed a standard-range sentence with the benefit of a pre-

sentence   report,   we   will   not     consider   the   sentence   excessive.”

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those

circumstances, we can assume the sentencing court was aware of relevant




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information      regarding   the   defendant’s    character   and      weighed   those

considerations along with mitigating statutory factors.” Id.

      Here, in addition to referencing the PSI report, the court addressed

Appellant’s rehabilitative needs, his voluntary departure from several

rehabilitation    programs,    the   statements     of   Appellant’s    witnesses   at

resentencing, the impact of the crimes on the victims, and the severity of the

victims’ injuries.

      Ultimately, and in its discretion, the trial court determined that

Appellant’s crimes necessitated consecutive sentences. See Commonwealth

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“We have stated that the

imposition of consecutive rather than concurrent sentences lies within the

sound discretion of the sentencing court.”) (citations omitted). In sum, the

record reflects that the trial court weighed the appropriate factors and

properly fashioned an individualized sentence.

      For the foregoing reasons, Appellant’s sentencing claim lacks merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020

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