J-S01022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH LEROY WENZLER                       :
                                               :
                       Appellant               :   No. 1103 MDA 2018

       Appeal from the Judgment of Sentence Entered January 17, 2018
     In the Court of Common Pleas of Lebanon County Criminal Division at
                       No(s): CP-38-CR-0000554-2017


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 11, 2019

       Joseph Leroy Wenzler (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to numerous charges of involuntary

deviate sexual intercourse with a child, aggravated indecent assault,

endangering the welfare of a child, corruption of minors, indecent assault, and

intimidation, retaliation or obstruction in child abuse cases.1    After careful

review, we affirm.

       The trial court summarized the factual background as follows:

       On March 2, 2017[, Appellant] was charged with various sexual
       offenses involving his [w]ife’s granddaughter who had become
       their adoptive-daughter [(Victim)].    The criminal information
       alleged that between April 2008 and April 2015 [Appellant] did:
       cause his lips, mouth, and/or tongue to touch Victim’s genitals
       between the ages of six and twelve years old; digitally penetrate
____________________________________________


1   18 Pa.C.S.A. §§ 3123(b), 3125(a)(7), 4304(a)(1), 6301(a)(1)(ii),
3126(a)(7), and 4958(a)(2)(i).


*Retired Senior Judge assigned to the Superior Court.
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      the Victim’s genitals; engage in sexual contact and/or
      communication with the Victim through a course of conduct; touch
      the Victim’s genitals on nine separate occasions, and; told the
      Victim not to tell about the sexual abuse.

Trial Court Opinion, 5/29/18, at 2-3.

      On October 17, 2017, Appellant appeared before the trial court and pled

guilty to the above crimes. On January 17, 2018, the trial court sentenced

Appellant to an aggregate term of 22 to 47 years of incarceration. In doing

so, the trial court ordered that Appellant’s sentences at count one, involuntary

deviate sexual intercourse with a child, and count nine, endangering the

welfare of a child, be served consecutively.    All other sentences were run

concurrently with counts one and nine.

      Appellant filed a timely post-sentence motion, which the trial court

denied. Appellant filed this timely appeal on June 28, 2018. Both the trial

court and Appellant have complied with Pennsylvania Rule of Appellate

Procedure 1925.     Appellant presents a single, multi-issue question for our

review:

      1. Did the [s]entencing [c]ourt commit[] a manifest abuse of
      discretion by running count nine (9) consecutive to count one (1),
      and err by finding that counts eleven (11) through nineteen (19)
      did not merge for sentencing purposes?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.      “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”



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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted), appeal denied,

91 A.3d 161 (Pa. 2014).

      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claims in a timely post-sentence motion, filing a

timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement.    See Appellant’s Brief at 9.     Therefore, we examine whether

Appellant presents a substantial question for review.

      Appellant argues that the trial court abused its discretion in failing to

run his sentences at count one and count nine concurrently. Appellant’s Brief

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at 11. Specifically, Appellant alleges this resulted from the trial court’s failure

to give “greater consideration to the fact that [Appellant] was gainfully

employed as a welder for six and one half years prior to being incarcerated,

that he turned himself in on the charges, was cooperative with the detective,

was ashamed and remorseful for his crimes, and chose to plead guilty to all

charges.”    Id.    This argument presents a substantial question.              See

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This

Court has also held that an excessive sentence claim--in conjunction with an

assertion that the court failed to consider mitigating factors--raises a

substantial question.”) (citations omitted).       We thus review Appellant’s

sentencing claim mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:




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      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed
      should call for confinement that is consistent with the protection
      of the public, the gravity of the offense as it relates to the impact
      on the life of the victim and on the community, and the
      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      This Court has also held, “[w]hen a sentencing court has reviewed a

pre[-]sentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006)). Additionally:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors.

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004)) (some citations omitted).

      At the January 17, 2018 hearing, the trial court specifically stated on

the record that it considered Appellant’s pre-sentence investigation report,

applicable sentencing guidelines, the comments of the parties, and the victim




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impact statement. N.T., 1/17/18, at 7. Before imposing Appellant’s sentence,

the trial court commented:

            [Appellant], I know you’ve read the victim impact statement
     that was submitted by [Victim’s mother]. We’ve just had a chance
     to talk to [the Victim]. You probably read the [d]iscovery material
     and know what folks said in that. I don’t know that there is a
     whole lot more I need to say here.

           This is a situation where you know someone trusts you to
     take care of them. You didn’t do that. That will affect [the Victim]
     for the rest of her life. There is not a whole lot you can do to have
     any positive impact upon her, I suppose.

           She talked about healing. I respectfully suggest she will be
     going to counseling for a long time. She should be. That is a
     result of what you did.

           I asked [Defense Counsel] if he could point me to anything,
     you know, that maybe I missed as far as it relates to his request
     for a mitigated sentence. I did not see anything. I’m not
     convinced by anything that he has argued to me that while, I
     guess, what we expect people to do, to take ownership of what
     they’ve done, I don’t know that that mitigates what you did.

           I don’t know if this sentence will last your entire life. If you
     are paroled on this, you’ll be substantially older than you are now.
     I would hope you are not capable of ever doing anything like this
     again.

N.T., 1/17/18, at 6-7.

     In its opinion, the trial court further explained:

            [Appellant] asserts that the sentencing court should have
     gave greater consideration to the fact that he was gainfully
     employed as a welder for six and one half years prior to being
     incarcerated, that he turned himself in on the charges, was
     cooperative with the detective, was ashamed and remorseful for
     his crimes, and chose to plead guilty to all the charges.

          The Commonwealth responds that any contention that
     [Appellant’s] sentence was unduly harsh is absurd. [Appellant]

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     pleaded guilty to sexually abusing the victim, his step-daughter,
     consistently for approximately six (6) years. [Appellant] took
     advantage of her young age and vulnerabilities. She was told not
     to tell anyone on more than one occasion, he even went as far as
     to tell her that if she told she might be removed from the home.
     He was in a position of trust acting as a parent. Finally,
     [Appellant] had a substantial criminal history resulting in a prior
     record score of five (5).

           During sentencing, the [c]ourt asked [c]ounsel for
     [Appellant] to point out anything that would substantiate
     [Appellant’s] request for a mitigated-range sentence. In addition
     to what [Appellant] instantly argues he then also stated that he
     did not have any sexual abuse charges in his past.

           As the [c]ourt makes its review of [Appellant’s] sentence, it
     holds that it permissibly balanced any mitigating factors against
     the seriousness of the offenses and the impact on the community
     as a result of these offenses. The simple fact that [Appellant]
     disagrees with this [c]ourt’s conclusion regarding his rehabilitative
     potential does not render the sentence imposed an abuse of
     discretion. See Commonwealth v. Roden, 730 A.2d 995, 998
     (Pa. Super. 1999) (citing Commonwealth v. Gibson, 716 A.2d
     1275, 1279 (Pa. Super. 1998).

          Long standing precedent . . . recognizes that 42 Pa.C.S.A. §
     9721 affords the sentencing court discretion to impose its
     sentence concurrently or consecutively to other sentences being
     imposed at the same time or to sentences already imposed.
     Commonwealth v. Graham, 661 A.2d 1367, 1373 (Pa. 1995);
     see also Commonwealth v. Perry, 883 A.2d 599 (Pa. Super.
     2005), and the cases cited therein. . . .

           This [c]ourt ran two (2) of the twenty (20) counts against
     [Appellant] consecutive, and believes that such is reasonable after
     consideration of the pre[-]sentence investigation report, the
     guideline ranges, comments of the parties, and the impact
     statement as provided to the [c]ourt and read during sentencing.
     Importantly, the only [c]ount to be run consecutive to [c]ount 1
     was the [e]ndangering the [w]elfare of [c]hildren, a felony of the
     third degree. The [c]ourt’s decision was based upon all of the
     above, and [Appellant’s] admission that he violated a duty of care
     and protection to his daughter by engaging in the sexual abuse
     outlined above against her for approximately six years of her

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      young life, a course of conduct that does not in the [c]ourt’s
      discretion warrant the sentence to be run concurrent with [c]ount
      1.

Trial Court Opinion, 5/29/18, at 7-8 (some citations omitted).

      Based on our review of the record, including the above remarks by the

trial court, we conclude that the court considered the appropriate factors when

imposing Appellant’s sentence.      The trial court specifically discussed the

potentially mitigating factors Appellant advanced at sentencing, as well as the

severity of Appellant’s crimes and their impact on the Victim. Ultimately, and

in its discretion, the trial court determined that Appellant’s crimes necessitated

consecutive sentences at counts one and nine. See Commonwealth v.

Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“We have stated that the

imposition of consecutive rather than concurrent sentences lies within the

sound discretion of the sentencing court.”) (citations omitted).       Thus, the

record reflects that the trial court weighed the appropriate factors and

properly fashioned an individualized sentence for Appellant.        This claim is

therefore meritless.

      Appellant also “asserts that the [c]ourt erred by not merging the

[i]ndecent [a]ssault charges at counts eleven through nineteen.” Appellant’s

Brief at 11. We are mindful that, “[a] claim that the trial court imposed an

illegal sentence by failing to merge sentences is a question of law.

Accordingly, our standard of review is plenary.”           Commonwealth v.




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Williams, 958 A.2d 522, 527 (Pa. Super. 2008) (citing Commonwealth v.

Snyder, 870 A.2d 336, 349 (Pa. Super. 2005).

       Section 9765 provides:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the
       other offense. Where crimes merge for sentencing purposes, the
       court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S.A. § 9765. The merger doctrine “is essentially a rule of statutory

construction designed to determine whether the legislature intended for the

punishment of one offense to encompass that for another offense from the

same criminal act or transaction.”            Williams, 958 A.2d at 527 (citations

omitted). “The preliminary consideration is whether the facts on which both

offenses are charged constitute one solitary criminal act. If the offenses stem

from     two   different   criminal   acts,    merger   analysis   is   not   required.”

Commonwealth v. Healey, 836 A.2d 156, 157-158 (Pa. Super. 2003)

(citation omitted).

       Here, the trial court stated, “each count of indecent assault was for a

separate incident of abuse.”          Trial Court Opinion, 5/29/18, at 10.          The

Commonwealth agrees, stating that, “[a]ccording to the criminal information

each count of indecent assault was for a separate incident.” Commonwealth

Brief at 9. “The drafting of the information was very clear. Each count related

to a separate incident of abuse.” Id. at 11. Upon review of the record, we

agree.



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      Accordingly, an analysis under the merger doctrine is unnecessary

because each of Appellant’s indecent assault convictions originate from one of

nine distinct criminal acts.   As set forth in the criminal information, each

indecent assault conviction Appellant pled guilty to was charged as the result

of a separate, individual criminal act that occurred during the 6-year time

period Appellant sexually abused the Victim. See First Amended Information,

6/1/17, at unnumbered 2-3. See also Commonwealth v. Robinson, 931

A.2d 15 (Pa. Super. 2007) (en banc) (holding a defendant’s convictions on

three separate counts of corruption of minors did not merge where each count

arose from three distinct incidents separated by a year or more). Thus, the

trial court did not err in refusing to merge counts 11 through 19.       See

Commonwealth v. Davidson, 938 A.2d 198, 218 (Pa. 2007) (“There is

nothing in this Court’s merger case law which supports the contention that

only one sentence may be imposed for multiple criminal acts which result in

multiple convictions.”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/11/2019




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