J-S16023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

LARRY SHOWALTER,

                        Appellant                 No. 1049 WDA 2016


      Appeal from the Judgment of Sentence entered June 22, 2016,
            in the Court of Common Pleas of Bedford County,
          Criminal Division, at No(s): CP-05-CR-0000132-2013.


BEFORE: MOULTON, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J.:                    FILED SEPTEMBER 08, 2017

     Appellant Larry Showalter appeals from the judgment of sentence

imposed on June 22, 2016. We affirm.

     The pertinent facts and procedural history, as gleaned from our review

of the certified record are as follows. The multiple charges brought against

Appellant stem from allegations made by his biological daughter that he

raped her on multiple occasions when she was between the ages of 8 and

11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a

child, two counts of involuntary deviate sexual intercourse (IDSI), two

counts of aggravated indecent assault, two counts of incest, endangering the




*Retired Senior Judge assigned to the Superior Court.
J-S16023-17



welfare children, corruption of minors, and three counts of indecent

exposure.1 Appellant was found not guilty of an additional fourteen charges.

After an evidentiary hearing on September 24, 2014, the trial court

designated Appellant a sexually violent predator and sentenced him to an

aggregate term of 60-120 years of imprisonment.

       Appellant filed a timely appeal to this Court in which he asserted trial

court error in its admission of hearsay statements made by the victim, as

well as a challenge to the discretionary aspects of his sentence. Although

we concluded that the trial court erred in admitting the statements as an

excited utterance, we found the error harmless because the victim had

already made the same statements in her own testimony at trial. We then

raised sua sponte the issue of whether Appellant’s sentence, which included

the application of mandatory minimums, was illegal in light of the United

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013), and subsequent Pennsylvania cases applying the Alleyne

holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014).      Because these cases concluded that the application of the

mandatory minimums were unconstitutional, we vacated and remanded for




____________________________________________


1
  18 Pa.C.S. §§ 3121(c), 3123(b),                3125(a)(7),   4302,   4304(a)(1),
6301(a)(i), and 3127(a), respectively.




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resentencing.      See Commonwealth v. Showalter, 145 A.3d 770 (Pa.

Super. 2016 (unpublished memorandum).

       Upon remand, Appellant was resentenced on June 22, 2016, to an

aggregate term of 56-120 years. The trial court denied Appellant’s timely-

filed motion for reconsideration of sentence.         This appeal follows. 2   Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

       Appellant raises the following issue:

       I.     WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
              DISCRETION IN SENTENCING APPELLANT CONSECUTIVELY
              ON SEVERAL COUNTS OUTSIDE THE GUIDELINES,
              FAILING TO PROPERLY CONSIDER MITIGATING FACTORS,
              AND IMPOSING AN OVERALL EXCESSIVE SENTENCE?

Appellant’s Brief at 6.

       A challenge to the discretionary aspects of a sentence is not

appealable as of right.        Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

A.2d 1254, 1257 (Pa. Super. 2004).               When an appellant challenges a

discretionary aspect of sentencing, we must conduct a four-part analysis

before we reach the merits of the appellant’s claim.          Commonwealth v.


____________________________________________


2
   In a prior memorandum, we remanded the case for the preparation and
filing of either a petition to withdraw and brief pursuant to Anders v.
California, 386 U.S. 738 (1967), or an advocate’s brief. Appellant’s counsel
has filed the latter, and the trial court has addressed the issue raised
therein. Thus, the appeal is ready for disposition.




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Martin, 611 A.2d 731, 735 (Pa. Super. 1992).        In this analysis, we must

determine: (1) whether the present appeal is timely; (2) whether the issue

raised on appeal was properly preserved; (3) whether Appellant has filed a

statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has

raised a substantial question that his sentence is not appropriate under the

Sentencing Code. Id.

      In the instant case, Appellant timely filed a notice of appeal and

properly preserved his claim in a post-sentence motion.           Additionally,

Appellant has complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 11.

We must therefore determine whether Appellant has raised a substantial

question for our review.

      A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Code or is contrary to the fundamental norms

underlying the sentencing process. Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citations omitted).     Here, Appellant argues

that the trial court erred in sentencing him consecutively on several counts,

including the statutory maximum on two counts of incest. See Appellant’s

Brief at 10. He also asserts that the trial court “did not properly consider

mitigating factors such as the fact that the victim did not report the assaults

until five years after it ceased and [he] had no legal troubles whatsoever

during those five years.” Id.     Additionally, Appellant claims that the trial

court failed to consider his “excellent institutional behavior as shown by the

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updated PSI.”    Id.   Finally, Appellant argues that his overall sentence is

excessive because it amounts to a life sentence for him. Id.

      This Court has held that a challenge to the imposition of consecutive

sentences as unduly excessive, together with a claim that the trial court

failed to consider a defendant’s rehabilitative needs when fashioning its

sentence presents a substantial question. Commonwealth v. Bonner, 135

A.3d 592 (Pa. Super. 2016). Thus, we will consider the merits of Appellant’s

claim.

      Sentencing is a matter vested in the sound discretion of the sentencing

court, and a sentence will not be disturbed on appeal absent a manifest

abuse of discretion, which in this context, 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. Shull, 148 A.3d 820

(Pa. Super. 2016).

      Before resentencing Appellant, the trial court noted for the record that

it had re-read the original sentencing transcript, which included the victim’s

statement, as well as an update on Appellant’s behavior while incarcerated.

The court then heard argument from counsel for both parties and granted

Appellant allocution. The trial court then stated the following:

      THE COURT:         Okay, All right. Well, I’ll note my view on the
      sentencing. It really hasn’t changed in any way in the case. I’ll
      still give the same reasons I gave at the prior sentencing.

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                                    ***

        And [the original sentence] I imposed - - although, I imposed
     it mainly due to mandatory minimums that were applicable at
     the last time at sentencing, I still think that’s an appropriate
     sentence given the circumstances here.

        For those reasons being: The age of the victim. [] I know
     the Rape of a Child takes that into consideration that she’s under
     the age of 13. In this case the victim was very, very young at
     the time of the offense. She was in third grade. She was eight-
     years-of-age [sic]. There was also testimony regarding that at
     various points she complained [to Appellant] that the acts that
     were committed on her caused her pain. And nonetheless
     [Appellant] continued to do it.

        Also, also [sic] the big point: None of these, the Rape of a
     Child, and the IDSI, do not take into consideration the
     relationship between [Appellant] and the victim which was a big
     part of the reason for the reasons [sic] for my lengthy sentence
     at the time. [Appellant] not only broke down the barriers of an
     adult male and a female child, but also the very strong barrier
     that one, that a person should have in a civilized society of not
     molesting your own children.

        The other aspect [is] that we found [Appellant] to be a
     Sexually Violent Predator. That standing has not been disturbed
     by the Appellate Courts. So, there’s a finding here that he not
     only suffers from a mental abnormality, but [Appellant’s] likely
     to [re]offend in our opinion, and also the opinion of the Sex
     Offender’s Assessment Board.

N.T., 6/22/16, at 13-14.

     The trial court also expounded on Appellant’s lack of remorse:

     And the other reason that I think I may be touched on, in
     general his lack of remorse. I’ll stress that a little bit stronger
     today because while it’s completely [Appellant’s] Constitutional
     right to take to, to take the matter to trial, I’m not going to
     punish him, or sentence him in any way based on that.

     But I have a hard time believing as I said I think at the last
     sentencing proceeding just a complete denial of anything when
     especially one of the statements on the tapes made was that his

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     discussion with his own daughter that when she wanted to
     question him about the allegations. And [Appellant’s] statement
     was that he didn’t stick it all the way up inside of her.

     I have a hard time rectifying that there’s no grasp of any
     remorse, or anything like that. Like I said: I’ll stress that more
     today because apparently [Appellant] to date here wants to talk
     about things that are completely extraneous even to this case.
     [Appellant] wants to take about things such as accepting value
     for other things, and doesn’t even want to discuss the case.

     So, I find there’s even more, a complete lack of remorse, and
     even a grasp of the seriousness of what he did in this case. So,
     I think essentially the same sentence is appropriate in this case.

                                    ***

     THE COURT: Again, I’m not sentencing in accordance [with]
     what the mandatory minimums were, but given the effect on the
     victim, the relationship to the actions that [Appellant] did, and
     all of those things wrapped up into the protection of the public,
     the gravity of the offense, and then [Appellant’s] rehabilitative
     needs.

N.T., 6/22/16, at 13-16.

     The trial court then imposed its new sentence on all of the counts and

made the following additional comments:

     The sentence is a standard-range sentence on all of the other
     counts except for Incest. And my reasons for that are that the
     Incest Counts do not take into account - - they take into account
     [Appellant’s] relationship with the victim. But, as I stated at the
     prior sentencing hearing, they do not take into account the
     victim’s age.

     So in other words [Appellant] could have been convicted of
     [incest] even if the victim was 21, and it was consensual. So,
     that Guideline range does not take that into account. And given
     the victim’s very young age in this case, and that she couldn’t
     consent, I think that warrants a departure from the Guidelines
     on, on that offense from [sic]. It’s a standard range Guideline
     sentence in all other respects.



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     It is the intended aggregate sentence of the Court to be fifty-six
     (56) years to one-hundred twenty (120) years.

     And my reason for the overall sentencing structure of that is,
     again, the very young age of the victim which is not necessarily
     taken into account on the Guideline ranges for the Rape, the
     IDSI, and the Aggravated Indecent Assault. It does take into
     account she’s under 13. But, again, she was eight–years-of age
     [sic]. [Appellant] is a Sexually Violent Predator.

     Again, there were circumstances that she testified to that caused
     her pain. And nonetheless [Appellant] still continued in this
     course of conduct, his lack of remorse here today, and the fact
     that the Rape of a child, the IDSI, and the Aggravated Indecent
     Assault, don’t take into accounts [sic] that this was his own
     daughter.

     As far as the overall sentencing structure, the fifty-six (56) to
     one-hundred twenty [(120)] years that I’ve run a lot of these
     consecutive to one another. I feel that I’m just giving a force
     and effect to the jury’s verdict in the case on several accounts
     that the jury found him not guilty [sic].

     I think given her testimony in the case, but there was clear
     testimony each one of the counts that they did convict him on
     were separate instances. In fact [the victim] testified to about
     [sic] separate counts of the Aggravated Indecent Assault, the
     Rape of a Child, and IDSI.

     So, I think just to give effect to the length [of time] that the
     molestation took, took place in, and given her age, I think this is
     an appropriate sentence. And, again, in consideration with the
     protection of the public, [Appellant’s] rehabilitative needs, and
     the gravity of the offenses.

     So, the intended aggregate sentence is fifty-six (56) to one-
     hundred-twenty (120). The remaining counts of the information
     are nolle prossed. Bail is revoked.

N.T., 6/22/16, 20-22.

     Given these lengthy comments, the trial court provided ample reasons

for its sentencing choice. Our review of the sentencing transcript confirms



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the trial court’s finding regarding the lack of remorse. When addressing the

court, Appellant, rather than discussing the case and the effect of his crimes

on his daughter, he stated that that he would “accept for value any offers

that are presented to me,” and then he “formally request[ed] that [the trial

court] specify to him on the record exactly what statute, or statutes,

authorize you to impose the sentence you are imposing at this time.” Id. at

11.

      Moreover, as the trial court noted, except for the incest convictions,

the sentence imposed fell within the standard range. When the trial court

has the benefit of a PSI, “it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed.”           See

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(discussing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)).

      Finally, the instant case is not one in which the imposition of

consecutive sentences results in an overall excessive sentence.        “[T]he

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Austin, 66 A.3d 798,

808 (Pa. Super. 2013) (citation omitted). No such extreme circumstances

are present here. Indeed, the trial court ran several counts concurrent to

those it imposed consecutively.   See N.T., 6/22/16, at 18-19.      The court

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also provided its reasons for departing from the guideline ranges for the

incest convictions.

      In sum, given consideration of the trial court’s reasons for imposing

the new sentence upon Appellant, we discern no abuse of discretion and

affirm his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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