J-S40028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DANIEL B. EDDINGER,                        :
                                               :
                       Appellant               :   No. 2736 EDA 2016

              Appeal from the Judgment of Sentence July 25, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005414-2015

BEFORE:        OTT, DUBOW, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                  FILED AUGUST 31, 2017

        Appellant, Daniel B. Eddinger, appeals from the Judgment of Sentence

entered July 25, 2016 in the Court of Common Pleas of Lehigh County

sentencing him to two and a half to five years’ incarceration following his

open guilty plea to Corruption of Minors and Indecent Assault of a Person

Less than 16 Years of Age.1                On appeal, Appellant challenges the

discretionary aspects of his sentence. After careful review, we affirm.

        A   detailed   recitation   of   the   factual   and   procedural   history   is

unnecessary to our disposition. On April 8, 2016, Appellant entered an open

guilty plea to Corruption of Minors and Indecent Assault for events that

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6301(a)(1)(i) and 18 Pa.C.S. § 3126(a)(8), respectively.
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occurred fifteen years earlier when Appellant, who at the time was a 22-

year-old basketball coach and math tutor, sexually assaulted one of his 13-

year-old students on numerous occasions over a period of approximately

one year.    On July 25, 2016, the trial court sentenced Appellant to the

statutory maximum of two and a half to five years’ incarceration on the

Corruption of Minors charge followed by two years of probation, to run

consecutively, on the Indecent Assault charge. On July 27, 2016, Appellant

filed a Post-Sentence Motion for Reconsideration of Sentence, which the trial

court denied. Appellant timely appealed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. [] Appellant has satisfied the technical requirements for
         discretionary review under Pa.R.A.P. 2119(f) and presented a
         plausible claim that the sentencing judge abused her
         discretion by imposing an unreasonable sentence outside the
         sentencing guideline range. Should the Court review this
         appeal on its merits?

      2. Appellant Daniel Eddinger is a first-time non-violent offender
         with a stable job and in a long-term marriage with two young
         children. He adopted a non-adversarial stance toward the
         police investigation, promptly accepted responsibility for his
         misconduct years earlier, and repeatedly expressed his
         genuine remorse.      Did the sentencing judge abuse her
         discretion by nevertheless imposing a statutory maximum
         sentence multiple times the guideline range?

      3. Should the Court vacate this unreasonable sentence and
         remand this matter to the sentencing judge with instructions
         under § 9781(c)(3)?

Appellant’s Brief at 4.


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      Initially, we note Appellant’s claim that the trial court abused its

discretion by imposing an unreasonable sentence outside of the sentencing

guideline range represents a challenge to the discretionary aspects of

sentencing.    See Commonwealth v. Sheller, 961 A.2d 187, 189 (Pa.

Super. 2008) (stating a claim that the court imposed an unreasonable

sentence beyond the aggravated range of the sentencing guidelines

represented a challenge to the discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentence are not appealable

as of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by satisfying a four-part test: “(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.[] § 9781(b).”     Id.

(citation omitted).

      Here, Appellant complied with the first three requirements above.

Next, we must determine whether Appellant has presented any substantial

questions in his Pa.R.A.P. 2119(f) Statement.        An appellant raises a

“substantial question” when he “sets forth a plausible argument that the


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sentence violates a provision of the [S]entencing [C]ode or is contrary to the

fundamental norms of the sentencing process.”           Commonwealth v.

Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation omitted).

      In his Pa.R.A.P. 2119(f) Statement, Appellant submits that the trial

court imposed an unreasonable and excessive sentence that was outside of

the sentencing guideline range when the trial court concentrated solely on

the gravity of the offense rather than the record as a whole, including

Appellant’s remorse, lack of a prior criminal record, and rehabilitation. We

conclude that Appellant’s claim raises a “substantial question” for our

review.    See Commonwealth v. Guth, 735 A.2d 709, 711 (Pa. Super.

1999) (finding a claim that the sentence imposed was outside the guidelines

and unreasonable raised a “substantial question”); Commonwealth v.

Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (determining that defendant

raised “substantial question” where defendant claimed that sentencing court

imposed an excessive and unreasonable sentence after it focused solely on

the serious nature of the offenses rather than the record as a whole,

including defendant’s expressions of remorse and lack of prior criminal

record).

      Accordingly, we will address the merits of Appellant’s sentencing

claims, mindful of our standard of review. This Court has repeatedly stated:

“[s]entencing is a matter vested in the sound discretion of the sentencing

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


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abuse of discretion.”    Commonwealth v. Mouzon, 828 A.2d 1126, 1128

(Pa. Super. 2003).      An abuse of discretion is more than a simple error of

judgment.     Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

Moreover, “[a]n 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.”        Id. (citation and

quotation omitted).

      Appellant concedes that the imposed sentence did not exceed the

statutory limit on either charge, but claims that the sentence was

unreasonable and excessive because the trial court deviated above the

guideline sentencing recommendation of restorative sanctions to nine

months’ incarceration for the Corruption Charge, and instead imposed “a

statutory maximum sentence more than 6 times the upper end of the

standard range on the [C]orruption charge.”       Appellant’s Brief at 21; see

Basic Sentencing Matrix (5th ed.), 204 Pa.Code § 303.16(a). Appellant also

avers that the trial court deviated from the standard guideline range on the

Indecent Assault charge by imposing the statutory maximum probation

sentence. Appellant’s Brief at 21. Appellant further argues that in imposing

this excessive sentence, the trial court improperly emphasized the gravity of

the offense while minimizing “the lack of threat posed by [Appellant], and

his rehabilitative needs.” Id. at 30.


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      Our Supreme Court has repeatedly held that that the Sentencing

Guidelines are purely advisory in nature. Commonwealth v. Yuhasz, 923

A.2d 1111, 1118 (Pa. 2007). “The guidelines are merely one factor among

many that the court must consider in imposing a sentence.” Id. (citation

omitted). The trial courts retain broad discretion in sentencing matters, and

“the only line that a sentence may not cross is the statutory maximum

sentence.” Id. (citation omitted).

      While a court has discretion to deviate from the guidelines, when the

court does deviate “it is important that the court reflect a consideration of

the sentencing guidelines, the background and character of the defendant,

the circumstances of the crime, and impose a sentence that is consistent

with the protection of the public and the rehabilitative needs of the

defendant.” Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super. Ct.

2007); see 42 Pa.C.S.A. § 9721 (setting for the general standards

applicable to sentencing).

      Where the trial court deviates above the guidelines, this Court may

only vacate and remand a case for resentencing if we first conclude that “the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.”      42 Pa.C.S. § 9781(c)(3).       Although the

Sentencing Code does not define the term “unreasonable,” our Supreme

Court has made clear that “rejection of a sentencing court’s imposition of

sentence on unreasonableness grounds [should] occur infrequently, whether


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the sentence is above or below the guideline ranges, especially when the

unreasonableness inquiry is conducted using the proper standard of review.”

Walls, supra at 964; see Commonwealth v. Rossetti, 863 A.2d 1185,

1194-95 (Pa. Super. 2004) (affirming a statutory maximum sentence

imposed after the trial court considered and balanced all of the relevant

mitigating and aggravating facts).      When reviewing the record, this Court

should have regard for: (1) the nature and circumstances of the offense and

the history and characteristics of the Appellant; (2) the opportunity of the

sentencing court to observe the Appellant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4)

the guidelines promulgated by the commission. 42 Pa.C.S. §9781(d).

     Importantly, our Supreme Court “has determined that where the trial

court is informed by a pre-sentence report, 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.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.

2009) (citation omitted).

     In   the   instant   case,   the   trial   court   reviewed   a   Presentence

Investigation Report before imposing the sentence. Thus, we presume that

the trial court was aware of all appropriate sentencing factors and

considerations at the time of sentencing.        Additionally, the record reflects

that the trial court did take into consideration the mitigating factors of


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Appellant’s remorse, cooperation with authorities, lack of a criminal record,

and progress in therapy.    Trial Court Opinion, filed 8/2/16, at 1 n.1; N.T.

Sentencing, 7/25/16, at 33-34.        Nevertheless, the trial court decided to

deviate above the aggravated sentencing recommendation after relying on

the following persuasive factors:     (1) the serious nature of the crime; (2)

that the crime involved a course of ongoing conduct for a period of

approximately one year; (3) that Appellant was in a position of trust with the

victim and the victim’s family; (4) the age of the victim, who was thirteen

years old at the time of the offense; (5) the long-term impact on the victim

who will have “scars forever[;]” and (6) the potential threat to the public.

Trial Court Opinion, filed 8/2/16, at 1 n.1; Trial Court Opinion, dated

9/22/16, at 2-3; N.T. Sentencing, 7/25/16, at 33-37.

      After careful review of Appellant’s arguments and the certified record,

we conclude that the trial court did not ignore or misapply the law, and did

not exercise its judgment for reasons of partiality, prejudice, bias or ill-will,

or arrive at a manifestly unreasonable decision.      See Rossetti, supra at

1194-95. Accordingly, the trial court did not abuse its discretion in imposing

Appellant’s aggregate sentence of two and a half to five years’ incarceration

followed by two years of probation.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2017




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