J-S52012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
            v.                             :
                                           :
ROBERT WAYNE BROWN,                        :
                                           :
                  Appellant                :         No. 2047 MDA 2016

         Appeal from the Judgment of Sentence November 16, 2016
           in the Court of Common Pleas of Cumberland County,
            Criminal Division, No(s): CP-21-CR-0000029-2011;
                          CP-21-CR-0003516-2010

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 23, 2017

      Robert Wayne Brown (“Brown”) appeals from the judgment of

sentence imposed following his conviction of 41 counts of various sexual

offenses committed against his four minor step-grandchildren over the

course of several years. We affirm.

      In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 2/13/17, at 1-4 (unnumbered).

      On appeal, Brown raises the following issue for our review: “Did the

sentencing court abuse its discretion by failing to justify on the record the

imposition of aggravated range and consecutive sentences?”1         Brief for

Appellant at 6 (capitalization omitted).



1
 The trial court sentenced Brown to an aggregate term of 40 to 120 years in
prison.
J-S52012-17


      Brown   challenges    the   discretionary   aspects   of   his   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four-part analysis to determine: (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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      When an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for

permission to appeal.   Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b); see also Commonwealth v. Yanoff,

690 A.2d 260, 267 (Pa. Super. 1997).

      In the instant case, Brown filed a timely Notice of Appeal, and included

in his appellate brief a separate Rule 2119(f) Statement.        However, our

review of the record reflects that Brown failed to preserve his claim either at

resentencing or in a timely post-sentence motion. See Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the

discretionary aspects of sentence are generally waived if they are not raised



                                  -2-
J-S52012-17


at the sentencing hearing or in a motion to modify the sentence imposed at

that hearing). Thus, we are unable to address his issue on appeal.2

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2017




2
 Even if Brown had preserved his issue for our review, we would have found
that it lacked merit, given that the trial court, at the time of resentencing,
had the benefit of a pre-sentence investigation report (“PSI”).           See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(holding that, where a sentencing court is informed by 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.”). Moreover, “[t]he sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on the record
by indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” Id. (citation omitted); see
also N.T., 11/15/16, at 3.


                                 -3-
                                                                                     Circulated 08/10/2017 11:55 AM




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                                                           IN THE COURT OF COMMON PLEAS
                                                           OF THE NINTH JUDICIAL DISTRICT

                                                                      CP-21-CR-3516-2010
ROBERT WAYNE BROWN                                                    CP-21-CR-0029-2011

                     IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a)

PLACEY, C.P.J. - 13 February 2017

                                      PROCEDURAL HISTORY

        Defendant was charged in December 2012 with forty-one counts of various

sexual offenses committed upon his four minor step-grandchildren over the course of

several years.1 Defendant was convicted on all counts in August 2012, found to be a

Sexually Violent Predator (SVP) and sentenced in April 2013. Defendant was

sentenced to an aggregate sentence of forty to one-hundred-twenty years in a State

Correctional Institute. Defendant, through newly assigned counsel, filed an appeal on

July 31, 2014, which was ultimately decided by the Superior Court in December 2015.2


    At docket 3516-2010 the charges are: 2 counts-Involuntary Deviate Sexual Intercourse (F1 ).
    2 counts-Involuntary Deviate Sexual Intercourse with a Child (F1 ). 2 counts-Unlawful Contact with
    Minor (F1 ). 2 counts- Sexual Assault (F2), 2 counts-Indecent Assault (M1 ). 2 counts-Corruption of
    Minors (M1 ), and 2 counts Indecent Assault (M2). At docket 0029-2011 the charges are: 2 counts-
    Rape of a Child (F1 ); 2 counts-Involuntary Deviate Sexual Intercourse (F1 ). 2 counts-Involuntary
    Deviate Sexual Intercourse with a Child (F1 ), 2 counts-Aggravated Indecent Assault of a Child (F1 ).
    2 counts-Unlawful Contact with a Minor (F1 ). 1 count-Criminal Solicitation to IDSI with a Child (F1 ).
    2 counts-Criminal Solicitation to Incest (F2), 2 counts- Aggravated Indecent Assault (F2), 2 counts-
    Aggravated Indecent Assault (F2), 2 counts-Aggravated Indecent Assault (F2), 2 counts-Indecent
    Assault (M 1), 2 counts-Indecent Assault (M2), 2 counts-Corruption of Minors (M1 ), and 2 counts-
    Indecent Assault (M2).
2
    Multiple extensions on appeal were granted to new counsel to allow full knowledge of the record.

                                              /1-:J-
    CP-21-CR-3516-2010
    CP-21-CR-0029-2011



    Our Superior Court's independent review of the trial record found a clearly meritorious

    issue on appeal, specifically that the United States Supreme Court's decision in Alleyne

    v United States,_         U.S._,      133 S.Ct. 2151 (2013), held that "facts that increase the

    mandatory minimum sentences must be submitted to the jury" and must be found
                                                     3
beyond a reasonable doubt. Id. at 2162.

            The remand from the Superior Court was stayed while the Commonwealth

appealed the matter to the Supreme Court of Pennsylvania, which denied the allowance

of appeal in August 2016. Defendant was re-sentenced on November 15, 2016.

Thereafter, counsel filed an appeal of the new sentence on December 14, 2016, which

alleged the trial court abused its discretion at sentencing by failing to state any reasons

on the record for imposing a sentence above the aggregated range of the sentencing

guidelines. This Opinion is in support of the sentences imposed.

                                       FACTS FROM SENTENCINGS

       1.    At the November 2016 re-sentencing, the trial court amended the Sentencing

             Order of April 4, 2013 to reflect the sentences imposed were not mandatory

             sentences.4

      2.     The April. 4, 2013 Sentence specifically provided. the "aggregate sentence is for

             40 to 120 years, which reflects one ten year mandatory minimum sentence with

             a full maximum term for each victim."



3
      The verdict slips for each count where age was a factor in sentencing were specifically presented
      to the jury for them to make findings of fact that would be applicable at sentencing. The trial court's
      use of the verdict slip for findings of fact at sentencing did not prospectively cure the improper
      sentence. As cited by the Superior Court, the case of Commonwealth v. Wolfe 106 A.3rd. 800, 806
      (2016) makes it clear that the "proof at sentence" provision contained in 42 Pa.C.S. §9718 is not
      separable from the section's other provision in the entire statute is facially void.
4
     Order of Court 15 November 2016.
5
     Order of Court 4 April 2013 page 24. It is noted now the aggregate sentence intended should have

                                                  ,4-    2
CP-21-CR-3516-2010
CP-21-CR-0029-2011



    3.    In each sentence it was specifically stated that any lesser sentence would

          minimize the damage done to one or more of the victims and would not reflect

          the full extent of the harm caused by the Defendant, thereby depreciating the

          seriousness of the individual sentences.
           I                          .
    4.    The sentencing amendment was done pursuant to established County
           II
          precedent, see Commonwealth v. Hippensteel,CR-2715-2013, Order of

          Court 23 September 2014 (President Judge Kevin A. Hess).

    5.    At sentencing the impact on the victims was presented in the victim impact

          statements both orally and in writing.

    6.    Defendant, at sentencing, cast aspersions on the victims and their families

          indicating that they had lied on the witness stand at the preliminary hearing and

          again at trial."

    7.    At docket CR-0029-2011, the counts that had mandatory sentences associated

          with them are Count 1, Rape of a Child; Count 2, Involuntary Deviate Sexual

           lhtercourse: Count 3, Involuntary Deviate Sexual Intercourse with a Child;
               I

               I
           Count 4, Aggravated Indecent Assault of a Child; and Count 9, Aggravated

           1hdecentAssault.
               !

    8.    At docket CR-3516-2010, the counts that had mandatory sentences associated

          With them are Count 1, Involuntary Deviate Sexual Intercourse and Count 2,

           Involuntary Sexual Intercourse with a Child.

    9.     It was noted at the April 2013 sentencing that the guidelines and report

           provided indicated a prior record score of zero (0), but the trial court's review of

    been 40-160 years.
6
    Note of testimony April 4, 2012 (sic], SVP at sentencing proceedings, at page 32 Line 17 thru page
    33 Line 10.

                                               ,4-3
CP-21-CR-3516-2010
CP-21-CR-0029-2011



           the report and sentencing guidelines indicated that there are applicable

           historically old convictions for burglary, theft and embezzlement."

    10.    At a minimum, these historical crimes would reflect a prior record· score of two

           (~) for purposes of guidelines.8
            I
    11.    The offense gravity score (OGS) for Rape of a Child (2 counts total) and

           Involuntary Deviate Sexual Intercourse with a Child (4 counts total) is a

           fourteen (14) and the standard range sentencing matrix for an OGS of 14 is the

           statutory limit (SL), for each of these six (6) counts, which is two-hundred and

           forty (240) months.9

    12. The gross aggregate sentence for all the charges to which Defendant was

           fbund guilty by the jury is 309 years to 618 years.
            I                                      ..
                                             DISCUSSION

          Statement of Law: Courts have "broad discretion to choose a penalty from

sentencing alternatives· and the range of permissible confinements, provided the

choices are consistent with the protection of the public, the gravity of the offense, and

the rehabilitative needs of the defendant." Commonwealth v. Devers, 546 A.2d 12, 13

(Pa. 198~).

             I  We emphatically reject, therefore, interpretations of our law in this area
          wHich call for separate, written opinions embodying exegetical thought. Where
          pre-sentence reports exist, we shall continue to presume that the sentencing
          judge was aware of relevant information regarding the defendant's character and
          weighed those considerations along with mitigating statutory factors. A pre-
          sentence report constitutes the record and speaks for itself. In order to dispel

7
    Id at page 12 Line 14 through 19
6
    It is noted that the prior record score could be higher; however, because the presentence investigation
    did not note the equivalent grade of the charge in Pennsylvania by default, a point would be given for
    the felony charge and a point for the sum of the two misdemeanor charges.
9
    205 Pa.Icade Section 303.16.

                I
                j
CP-21-CR-3516-2010
CP-21-CR-0029-2011



        any lingering doubt as to our intention of engaging in an effort of legal
        purification, we state clearly that sentencers are under no compulsion to employ
        checklists or any extended or systematic definitions of their punishment
        procedure. Having been fully informed by the pre-sentence report, the
        sentencing court's discretion should not be disturbed. This is particularly true, we
        repeat, in those circumstances where it can be demonstrated that the judge had
        any degree of awareness of the sentencing considerations, and there we will
        presume also that the weighing process took place in a meaningful fashion.

        Id. 546 A.2d at 18.

        Through the Sentencing Code, the General Assembly has enacted a process by

which defendants are to be sentenced. 42-Pa.C.S. § 9701 et seq. The guidelines must

be considered and a court must explain its reasons for departure from them.

Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). The Sentencing Code

sets forth the requirements of review for whether a sentence is "unreasonable." 42

Pa.C.S. § 9781(c).

        (1) the sentencing court purported to sentence within the sentencing guidelines
            but applied the guidelines erroneously;
        (2) the sentencing court sentenced within the sentencing guidelines but the case
             involves circumstances where the application of the guidelines would be
             clearly unreasonable; or
        (3) the sentencing court sentenced outside the sentencing guidelines and the
             sentence is unreasonable.

        Id.
          I
        "In: every case where the court imposes a sentence or resentence outside the
          '
guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall

provide   a contemporaneous written statement of the reason or reasons for the deviation
from the guidelines to the commission .... Failure to comply shall be grounds for

vacating the sentence or resentence and resentencing the defendant." 42 Pa.C.S. §

9721.




                                          A- s
CP-21-CR-3516-2010
CP-21-CR-0029-2011



        Application of Law to Facts: Perspective is necessary to comprehend that this

sentence is and always was within the sentencing guidelines. In Defendant's myopic

perspective this is a death sentence.10 In view of Alleyne, the mandatory sentence

requested by the Commonwealth no longer restricts the court to a lower end of the

standard guideline range for the six OGS 14 counts, and which would now result in a

sentence of 240 months to 480 months for each victim or an aggregate total of 80 to

160 years, which is within the standard guideline range. Everywhere but Texas, a

maximum possible sentence of 309 years to 618 years would seem draconian. In the

totality of the circumstances vision of the trial court, the imposition of a completely

applicable higher sentence would be punitive upon this type of procedural remand and

not in step with established Cumberland County precedent.

        The initial sentence, with the mandatory language removed by the amended

sentence, calls for one ten year minimum sentence with a full maximum term for each

victim to be run consecutively, which recognized that any lesser sentence would

minimize the damage done to one or more of the victims that would not reflect the full

extent of the harm caused by the Defendant.11 This is a top count sentence, where the

Defendant was sentenced consecutively at the top count for each victim to 1 O to 40

years, with the other 37 counts imposed concurrently to that top count. The top count

for each victim was at an OGS of 14 that would allow the standard guideline range to go




10
     Defendant's terminal medical condition, which makes this sentence, indeed any sentence, a life
     sentence, Is not grounds for the modification of the statutorily mandated and correct sentence. When
     Defendant's medical condition actually reaches a terminal state he may then apply for a temporary
     deferral of the service of this sentence as provided for by statute 42 Pa.C.S. §9777. Motion to Modify
     Sentence, Order of Court 14 June 2013.
11
     It is again noted that the correct maximum calculation should have been 160 years, not the stated
     120 years.

                                                11-   6
         'CP-21-CR-3516-2010
          CP-21-CR-0029-2011


         up to 240 months, for which 120 months is clearly within and no further explanation from

         the trial court is necessary as there is no departure from the guidelines.

                To the extent that the trial court needs to explain its reasons for departure from

         the sentencing guidelines, the concise language of both sentences contained

         justification for the aggregate sentence that would apply to any consideration that the
                  i                                .
         sentencewas outside of the guidelines. Specifically, the trial court had reviewed the
                   '                         .
         guidelines as demonstrated by the trial court's correction of the pre-sentence report for

         the deficiency of the prior convictions. Further, the trial court noted the impact on the

         victims and the harm to which Defendant continued to enact upon them directly in the

         sentences. There is no need to go into a critical analysis of how Defendant took the
•   ..
         innocence and trust from these four child victims.

                Unshackled from the mandatory sentence statute, this case upon remand does

         not call for the trial court to act in reprisal; indeed, it is proper not to go above and
                       I

         beyond t~e mandatory prior sentence, as the sentences, then and now, were clearly
                       '

         within th~ standard guideline ranges and no justification statement is required. The

         sentences are lawful and reasonable.




         Distribution List:
         Charles J. Volkert, Jr.
         Chief Deputy District Attorney

         Linda S. Hollinger
         First-Assistant Public Defender
                           I
                           I
