J-S63023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID ARTHUR WYNN

                            Appellant                   No. 735 MDA 2014
                                                          754 MDA 2014
           Appeal from the Judgment of Sentence November 25, 2013
                In the Court of Common Pleas of Clinton County
               Criminal Division at No(s): CP-18-0000116-2013
                                          CP-18-0000131-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                         FILED NOVEMBER 13, 2014

        Appellant, David Arthur Wynn, appeals from the judgment of sentence

entered on November 25, 2013, in the Court of Common Pleas of Clinton

County. After careful review, we affirm.

        On July 11, 2013, Wynn entered a negotiated guilty plea at docket

number CP-18-CR-0000131-2013 to three counts of rape of a child and one

count of aggravated indecent assault in connection with his sexual assault of

his    nine-year-old    step-granddaughter,    J.M.W.   Wynn   also   entered   a

negotiated guilty plea at docket number CP-18-0000116-2013 to one count

of corruption of minors for groping his eight-year-old step-granddaughter,

____________________________________________



    Retired Senior Judge assigned to the Superior Court.
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G.B.K. Following a review of a pre-sentence investigation report (“PSI”), the

trial court sentenced Wynn to an aggregate term of 35½ to 85 years’

imprisonment. Wynn subsequently filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

      On appeal, Wynn raises the following issue for our review:

      1. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
         SENTENCED THE DEFENDANT TO SERVE WHAT AMOUNTS TO
         LIFETIME INCARCERATION DESPITE THE TOTALITY OF THE
         CIRCUMSTANCES.

Appellant’s Brief, at 4. Specifically, Wynn argues that the trial court abused

its discretion when it imposed sentences at the statutory limit and ordered

the sentences to run consecutively, resulting in an excessive aggregate

sentence. See id. at 9. Wynn further asserts that the trial court failed to

adequately consider the following mitigating factors: (1) his age; (2) his full

cooperation in the investigation; (3) his guilty plea to spare the victims the

emotional trauma of testifying; (4) his stipulation to the finding that he was

a sexually violent predator (SVP); (5) his lack of a prior criminal record; (6)

his employment and family relationships; and (7) his honorable discharge

from the military. See id. at 10.

      Initially, we note that while a guilty plea that includes sentence

negotiations ordinarily precludes a defendant from contesting his or her

sentence other than to argue that the sentence is illegal or that the

sentencing court lacked jurisdiction, open plea agreements are an exception

in which a defendant may appeal the discretionary aspects of the sentence.


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See Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super. 1999).

Here, the plea agreement did not contain a negotiated sentence and,

therefore, does not preclude appellate review of Wynn’s discretionary

aspects of sentencing challenge. See Commonwealth v. Johnson, 961

A.2d 877, 879 (Pa. Super. 2008).

        Furthermore,

        [a] challenge to the discretionary aspects of a sentence must be
        considered a petition for permission to appeal, as the right to
        pursue such a claim is not absolute. Two requirements must be
        met before we will review the challenge on its merits. First, an
        appellant must set forth in his brief a concise statement of the
        reasons relief upon for allowance of appeal with respect to the
        discretionary aspects of a sentence.[1] Second, the appellant
        must show that there is a substantial question that the sentence
        imposed is not appropriate under the Sentencing Code. The
        determination of whether a particular issue raises a substantial
        question is to be evaluated on a case-by-case basis. In order to
        establish a substantial question, the appellant must show actions
        by the trial court inconsistent with the Sentencing Code or
        contrary to the fundamental norms underlying the sentencing
        process.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (internal

citations omitted). Moreover, we note that when determining whether an

appellant has set forth a substantial question “[o]ur inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the




____________________________________________


1
    See Pa.R.A.P. 2119(f).



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merits.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)

(emphasis in original).

      In the present case, Wynn’s appellate brief contains the requisite Rule

2119(f) concise statement and, as such, is in technical compliance with the

requirements to challenge the discretionary aspects of a sentence.        See

Appellant’s Brief, at 9-10. Therefore, we proceed to determine whether

Wynn has presented a substantial question that the sentence appealed from

is not appropriate under the Sentencing Code.

      In his Rule 2119(f) statement, Wynn asserts that the trial court

abused its discretion when it imposed a manifestly excessive sentence by

running each sentence at the statutory limit consecutive to the others.

Appellant’s Brief, at 10. This is simply a bald excessive sentence claim. “[A]

bald claim of excessiveness due to the consecutive nature of a sentence will

not raise a substantial question.”    Commonwealth v. Dodge, 77 A.3d

1263, 1270 (Pa. Super. 2013).

      In any event, we agree with the trial court’s assessment that the

nature of Wynn’s criminal conduct—sexually assaulting two minor children,

with whom he shared a familial relationship—warrants the sentence

imposed. Had Wynn raised a substantial question we would agree with the

trial court that the aggregate sentence is not unduly harsh. The trial court’s

rationale is sound:

      The [c]ourt’s [sic] reviewed the Victim/Impact Statements. I
      think the statements clearly indicate the severity of the crime
      and its effect on the victims. [Wynn] is before the [c]ourt to be

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      sentenced on three counts of rape of a nine-year old child,
      aggravated indecent assault, again on the same child, and the
      corruption of minors on an eight-year old child.

                                       …

      The [c]ourt believes that the following sentence is appropriate. It
      certainly will keep [Wynn] away from these children and other
      children for a period of time. Any lesser sentence would
      depreciate the nature of the charges against [Wynn].

N.T., Sentencing, 11/25/13, at 8-9.

      Wynn additionally argues that the trial court failed to adequately

consider mitigating factors when it fashioned his judgment of sentence. This

does not raise a substantial question for our review. See Dodge, 77 A.3d at

1272 n.8.

      We remind Wynn that where “the sentencing court had the benefit of a

pre-sentence investigation report (“PSI”), we can assume the sentencing

court was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Moury, 992 A.2d at 171 (internal citations omitted). See also N.T.

Sentencing, 11/25/13, at 12. The record actually belies Wynn’s claim. At

the time of sentencing, the trial court acknowledged Wynn’s background and

mitigating factors. Id. Accordingly, this claim is without merit.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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