J-S15004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY DEAN KRAUSE                        :
                                               :
                       Appellant               :   No. 931 WDA 2019

          Appeal from the Judgment of Sentence Entered April 26, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                        No(s): CP-17-CR-0000769-2018


BEFORE:       BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED APRIL 07, 2020

        Appellant, Timothy Dean Krause, appeals from the judgment of

sentence of an aggregate term of 7 to 40 years’ incarceration, imposed after

he pled guilty to 22 counts of misdemeanor and summary offenses, including

endangering the welfare of a child, simple assault, terroristic threats, and

recklessly endangering another person.             Appellant solely challenges the

discretionary aspects of his sentence. We affirm.

        The trial court summarized the facts and procedural history of this case,

as follows:

              The case at bar involves the pervasive and severe abuse by
        [Appellant] … against his six adopted children (LAK - sixteen years
        old; JLK - fifteen years old; MPK - fourteen years old; IDK -
        fourteen years old; RSK - thirteen years old; MJK - twelve years
        old) (“children”).1 The abuse occurred between 2011 and 2018.
        No trial was held, but [Appellant] entered an open plea of guilt
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     and accepted all the facts in the affidavit of probable cause as set
     forth below. [Appellant] and his wife regularly referred to their
     children as “niggers.” [Appellant] and his wife beat their children
     with paddles, a walking stick, a board and back scratchers. The
     paddle would be used to beat the children upon the buttocks until
     they bled through their underwear. The walking stick was used to
     beat the children on their heads, leaving lumps and knots. The
     board was used to beat their hands until their knuckles would
     bleed. The backscratcher was used by [Appellant] to abuse one
     child so severely he had black and blue marks that had to be
     treated with lotion for weeks. The children would be forced to do
     ‘Halfways,’ which involved standing against the wall with their
     knees bent for extensive periods of time. The children were
     malnourished and deprived of food for lengthy periods of time as
     punishment. A few of the children were fed only eggs and water
     for weeks as punishment. [Appellant] and his wife used the family
     dogs to bite the children as they were being punished, and many
     of the children still have scars from said abuse as the wounds went
     untreated. The children had their heads thrown into the wall. The
     children were additionally threatened with axes and guns. All six
     children slept in the same room, two of which had to sleep on the
     floor on one [half-]inch thick mattress. All of the children were
     homeschooled, and when examined at Geisinger Medical Center,
     it was determined that they were lacking in academics and [were]
     at least 1 [to] 2 years behind.
        1 This [c]ourt notes that this is a companion case to that of
        Barbara Jean Krause, CP-17-CR-770-2018. [Mrs. Krause
        also filed an appeal from her judgment of sentence, which
        is docketed at 933 WDA 2019.]

           On April 22, 2019, [Appellant] entered an Open Plea of Guilt,
     which provided the [s]entencing [c]ourt full discretion in
     determining sentencing, to one [c]ount of Endangering the
     Welfare of Children (Misdemeanor of the First Degree), one
     [c]ount of Conspiracy to Endanger the Welfare of Children
     (Misdemeanor of the First Degree), two counts of Simple Assault
     (Misdemeanor of the First Degree), two [c]ounts of Terroristic
     Threats (Misdemeanor of the First Degree), four counts of Simple
     Assault (Misdemeanor of the Second Degree), six count[s] of
     Recklessly Endangering Another Person (Misdemeanor of the
     Second Degree), and six counts of Harassment (Summary
     Offense). The standard [sentencing guideline] range for
     Endangering the Welfare of a Child and Conspiracy to Endanger


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     the Welfare of a Child is Restorative Sanctions [to] nine months[’
     incarceration]. The aggravated range is nine … [to] twelve
     months[’ incarceration]. The Probation [O]ffice recommended
     twelve … [to] forty-eight months[’ incarceration], consecutive for
     each charge. This [c]ourt agreed with the Probation [O]ffice’s
     recommendation. The standard [sentencing guideline] range for
     Simple Assault (Misdemeanor of the First Degree) is Restorative
     Sanctions [to] three months[’ incarceration]. The aggravated
     range is three … [to] six months[’ incarceration]. The Probation
     [O]ffice recommended six … [to] forty-eight months[’
     incarceration], consecutive.      This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Terroristic Threats (Misdemeanor of the First
     Degree) is Restorative Sanctions [to] one month [incarceration].
     The aggravated range is one … [to] four months[’ incarceration].
     The Probation [O]ffice recommended four … [to] twenty-four
     months[’ incarceration], consecutive. This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Simple Assault (Misdemeanor of the Second
     Degree) is Restorative Sanctions [to] one month [incarceration].
     The aggravated range is one … [to] four months[’ incarceration].
     The Probation [O]ffice recommended four … [to] twenty-four
     months[’ incarceration], consecutive. This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The standard [sentencing
     guideline] range for Recklessly Endangering Another Person is
     Restorative Sanctions to one month [incarceration].           The
     aggravated range is one … [to] four months[’ incarceration]. The
     Probation [O]ffice recommended four … [to] twenty-four months[’
     incarceration], consecutive.      This [c]ourt agreed with the
     Probation [O]ffice’s recommendation. The Harassment charge is
     a summary offense[,] so a $1.00 fine was imposed.

            At the original sentencing hearing, it was determined that
     [Appellant] had a prior record score of [zero]. Defense [c]ounsel
     argued that the [c]ourt should ignore the [Probation Office’s]
     recommendation and instead sentence [Appellant] within the
     standard range. To support this request, [d]efense [c]ounsel
     stated that there were previously aggravated charges, and those
     were dropped in negotiations during the guilty plea arrangement.
     The [c]ourt took this testimony under advisement, and
     subsequently [Appellant] was sentenced in accordance with what
     is enumerated above. In making its determination, this [c]ourt
     listed the violation of the parent/child trust, the severity and



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      nature of the charges, and the young ages of the victims as
      reasons for the imposition of the aggravated sentencing range.

            On May 2[1], 2019, a Post[-]Sentence Motion to Modify
      Sentence was heard before the [c]ourt. At that hearing, [d]efense
      [c]ounsel argued the [sentences] were not individualized, not
      necessary to protect the public, did not address the rehabilitative
      needs of [Appellant], [were] not proportionate to [the] reasons
      stated for [sentencing in the] aggravated range, [constituted]
      essentially a life-term, and … that the reasons cited [by the court
      for imposing the sentences were already] incorporated in the
      sentencing guidelines.     The Commonwealth argued that the
      sentence was within the [guideline] range. Additionally, the
      Commonwealth argued that the actions by [Appellant] were a
      course of conduct that lasted seven years and targeted six
      children. The Assistant District Attorney (“ADA”) noted that this
      was not an isolated incident, and that the children had numerous
      scars from [Appellant’s] consistent conduct. The ADA further
      argued that due to the nature of the relationship between
      [Appellant] and the victims, as that of a father and his children,
      this case involved the betrayal of trust. Finally, the ADA argued
      that Simple Assault could be proven with far less than [what]
      occurred in this case. Slapping a child in the face once would
      support a Simple Assault charge, but beating children until they
      bleed makes the nature and severity of these charges warrant the
      aggravated range in this case. Upon consideration of all the
      testimony and evidence, the Motion for Modification was denied.

Trial Court Opinion (TCO), 8/14/19, at 1-4.

      Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court filed its Rule 1925(a) opinion

on August 14, 2019.

      Herein, Appellant states two issues for our review:

      1. Whether the trial court failed to adequately consider the
      sentencing guidelines when fashioning the sentence imposed.




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      2. Whether the trial court imposed a sentence that is unreasonable
      and excessive under the circumstances of the case and the
      fundamental norms of sentencing.

Appellant’s Brief at 7.

      Appellant’s issues are interrelated and, thus, we will address them

together.   Both of his claims implicate the discretionary aspects of his

sentence. We have explained:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] 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 [the]
         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.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 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. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). 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.”
      Sierra, supra at 912–13.



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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Here, Appellant has satisfied the procedural prerequisites for raising and

preserving his discretionary-aspects-of-sentencing claims. In his Rule 2119(f)

statement, he contends that the court’s sentence is excessive in light of the

fact that he pled guilty to only misdemeanor charges, and he has no prior

record. He also claims that “the trial court applied the sentencing guidelines

in a formulistic manner by sentencing to the maximum of the aggravated

range of the sentencing guidelines on each and every count.” Appellant’s Brief

at 14.   Appellant insists that “[t]he combination of excessive consecutive

sentencing and merely formulistic consideration of the sentencing guidelines

should be found to raise a substantial question.” Id.

      We consider Appellant’s claims as constituting substantial questions for

our review.   See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.

Super. 2003) (en banc) (“[The a]ppellant’s claim that the court erred by

imposing an aggravated range sentence without consideration of mitigating

circumstances raises a substantial question.”). However, Appellant has not

demonstrated an abuse of discretion by the sentencing court. See Moury,

992 A.2d at 169 (“[T]he proper standard of review when considering whether

to affirm the sentencing court’s determination is an abuse of discretion.”)

(citation omitted). As this Court explained in Moury:

      [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

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      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.

Id. at 169-70 (citations omitted).

      Here, in explaining its rationale for imposing aggravated range,

consecutive sentence, the trial court explained:

      [T]his [c]ourt looked at the sentencing guidelines for the standard
      range, and did not deem it appropriate for this individual case.
      The severity and nature of the abuse laid on these children
      weighed towards granting a sentence in the aggravated range.
      [Appellant] chose to adopt these six children and provide a home
      for [them].      With that choice[] comes responsibility, and
      [Appellant] abused that responsibility. He not only refused to
      adequately feed and educate his children, but he subjected them
      to incredible punishment and abuse.         These children were
      threatened with deadly weapons, beaten until they bled, and
      [Appellant] did not even take them to have their wounds treated
      once the harm occurred. Additionally, these children were at
      impressionable and vulnerable ages. The youngest of the children
      was twelve years old. Based on these considerations, this [c]ourt
      made its determination regarding sentencing, and [Appellant] has
      not met his burden of proving this [c]ourt abused its discretion.

                                       ***

      A. The sentences were individualized[.]

           It appears to this [c]ourt that the argument that the
      sentencing was not individualized results from an assumption that
      because [Appellant] and his wife both received the same




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       sentences, they could not have been individualized.[1] That is not
       the case. Here, a husband and wife, the parents of the six victim
       children, were charged with the same crimes. [Appellant] and his
       wife acted together to create the conditions and impose the
       punishments that ultimately resulted in their appearance before
       this [c]ourt. Additionally, when arguments were presented by
       defense counsel for [Appellant] and his wife, defense counsel
       referred to each other and incorporated each other’s statements
       into each[ other’s] own argument before this [c]ourt. This
       exemplifies how inter-connected these two [d]efendants are in
       this case. It naturally follows that the sentence[s] would reflect
       that. This [c]ourt individually examined and heard from each
       [d]efendant’s counsel, and based on that information, this [c]ourt
       chose to sentence [Appellant] and [his wife] with the same
       sentences. Therefore, while the [Appellant’s] sentence was the
       same as his wife’s, this [c]ourt came to that decision after
       individual analysis of the facts before it and did not abuse its
       discretion.

       B. The sentence was necessary to protect the public[.]

              The nature and severity of these crimes shocked the
       conscience of this [c]ourt. These six children were brutalized. The
       crimes were violent and persisted for seven years. This [c]ourt
       determined that the aggravated sentences were appropriate to
       protect the public from these violent criminals and did not abuse
       its discretion.

____________________________________________


1 We note that Appellant now argues on appeal that his sentences were not
individualized because at each count, the court imposed the guidelines’
maximum, aggravated-range term. This claim was not explicitly raised in
Appellant’s Rule 1925(b) statement, and the trial court did not address it in
its opinion. Therefore, we deem this specific argument waived. Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). We
also deem waived Appellant’s claim, raised for the first time in his Argument
section, that the court improperly “considered the gravity of the more serious,
felony allegations which were withdrawn.” Appellant’s Brief at 17. This claim
was not raised in his post-sentence motion, Rule 1925(b) statement, or Rule
2119(f) statement. Therefore, it is waived.




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     C. The sentence considered the rehabilitative needs of [Appellant.]

            There was minimal testimony provided to persuade this
     [c]ourt that [Appellant] would be able to rehabilitate himself.
     [Appellant] submitted to the [c]ourt one statement acknowledging
     his love of his children and a brief apology. This [c]ourt did not
     find that [Appellant] exhibited remorse for his actions, and the
     fact that not only would [Appellant] beat his children, but he would
     threaten them with deadly weapons, and refuse to seek treatment
     for their injuries, established to this [c]ourt that [Appellant] would
     need a significant amount of time incarcerated in order to be
     rehabilitated. Based on these factors, and the lack of any
     mitigating argument provided by defense counsel, this [c]ourt did
     not abuse its discretion.

     D. The sentence imposed was proportional to the charges, and the
     reasons cited are not incorporated into the guidelines[.]

           It is impermissible for a court to consider factors already
     included within the sentencing guidelines as the sole reason for
     increasing or decreasing a sentence to the aggravated or
     mitigated range. Commonwealth v. Simpson, 829 A.2d 334[,
     339] ([Pa. Super.] 2003) [(citation omitted)]. However, this
     [c]ourt is permitted to use factors already included in the
     guidelines if they are used to supplement other extraneous
     sentencing information. [Id.] at 340 [(citation omitted)]. Here,
     the young ages [of the victims], betrayal of parent/child trust, and
     nature and severity [of the offenses] are not considered in the
     sentencing guidelines, and therefore, this [c]ourt did not use
     factors already included. Even if the nature and severity were
     included [in the guidelines], the young ages and betrayal of
     parent/child trust are extraneous sentencing information that
     would supplement the factors already included in the guidelines.
     Therefore, this [c]ourt has not abused its discretion.

     E. The sentence is not essentially a life-term, and if it was, the
     violent nature of the crimes warranted the sentence.

           [Appellant] is fifty-three years old. He was sentenced to
     seven [to] forty years of incarceration for his crimes. This would
     give [Appellant] the opportunity to be released on parole after
     seven years. Being released at sixty years old is hardly a life
     sentence.

            Even if it is determined that this was essentially a life term,
     this [c]ourt has made clear that the nature and severity of these

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      violent crimes warrants a lengthy sentence behind bars. While it
      is possible that [Appellant] could die behind bars, his age alone is
      not a significant factor to warrant a lessened sentence. In
      [Commonwealth v. Dodge, 957 A.2d 1198 (Pa. 2008)], the
      Court held that imposition of a life sentence for nonviolent
      offenses with limited financial impact was clearly unreasonable.
      However, that is not the nature of this case. The crimes were
      violent and [were committed] against multiple victims. The
      sentences are additionally within the sentencing guidelines.
      Therefore, this [c]ourt did not abuse its discretion.

TCO at 5-9 (some citations omitted).

      Based on the court’s discussion, we discern no abuse of discretion in

Appellant’s sentence.     The court offered multiple reasons for imposing

consecutive,   aggravated-range       sentences   for   each   of   Appellant’s

misdemeanor offenses, and it clearly considered the requisite statutory

factors, the particular circumstances of this case, and the mitigating factors

of Appellant’s age and lack of a prior criminal record. The court determined

that a lengthy term of incarceration was warranted due to the gravity of

Appellant’s crimes, the need to protect the public from his violent criminal

propensities, and to best serve Appellant’s rehabilitative needs. We do not

agree with Appellant that his sentence of 7 to 40 years’ incarceration for his

7 years of violent abuse towards his six adopted children is excessive. The

court did not abuse its discretion.

      Judgment of sentence affirmed.




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J-S15004-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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