J-S39043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
DUSTIN WILLIAM SIPES,                      :
                                           :
                  Appellant                :     No. 1988 MDA 2015

         Appeal from the Judgment of Sentence September 30, 2015
              in the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0001180-2013

BEFORE:     STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 08, 2016

      Dustin William Sipes (Appellant) appeals from the judgment of

sentence entered following his conviction for simple assault. We affirm.

      On August 12, 2015, following a jury trial, Appellant was found guilty

of the aforementioned offense based on the physical abuse of his former

girlfriend’s infant son.   He was sentenced to a term of incarceration of 24

months to 60 months.         Appellant filed a post-sentence motion to modify

sentence, which was denied. This appeal followed.

      Appellant presents two issues for our consideration:

      1. Did the sentencing court abuse its discretion in sentencing
         [Appellant] when the sentence is outside the sentencing
         guidelines and is manifestly excessive and unreasonable
         because the court failed to adequately consider the specific
         and unique circumstances of the case and [Appellant’s]
         background in relation to the requirements of 42 [Pa.C.]S.
         § 9721(b) and 42 [Pa.C.]S. § 9781(d)?


*Retired Senior Judges assigned to the Superior Court.
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     2. Did the sentencing court abuse its discretion in sentencing
        [Appellant] when it placed substantial consideration on
        impermissible or inappropriate factors including [Appellant’s]
        lack of remorse and failure to take responsibility for a crime
        he maintained he did not commit and the age of the victim,
        which was already accounted for in the grading of the
        offense?

Appellant’s Brief at 4-5 (suggested answers and emphasis omitted).

     Appellant’s issues challenge the discretionary aspects of his sentence.

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court’s jurisdiction by satisfying a four-part test:

        We conduct 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, 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).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

     Instantly, Appellant timely filed a notice of appeal, presented his claim

in a post-sentence motion, and included a statement pursuant to Rule

2119(f) in his brief.   Thus, we now consider whether he has raised a

substantial question worthy of appellate review.




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     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin, 65 A.3d at 935 (citation and internal quotation

marks omitted).

     In his Rule 2119(f) statement, Appellant argues that his sentence was

manifestly excessive and unreasonable because it

     was 400 percent greater than the top end of the aggravated
     guideline range. In sentencing [Appellant], the court failed to
     adequately consider factors including the jury’s verdict acquitting
     [him] of the offense of aggravated assault, the characteristics of
     [Appellant] showing that he is a peaceful and law-abiding
     individual, the findings and recommendation of the pre-sentence
     report, and testimony regarding the impact on the victim,
     particularly as these factors relate to the considerations required
     by 42 [Pa.C.]S. § 9721(b) and 42 [Pa.C.]S. § 9781(d). Instead,
     the court focused almost solely on the age and number of
     injuries of the victim. The facts and circumstances noted by the
     sentencing court do not justify such an extreme departure from
     the guidelines. …

           Additionally, the sentencing court abused its discretion by
     relying significantly on impermissible or inappropriate factors in
     imposing an excessive sentence when it considered [Appellant’s]
     alleged lack of remorse and failure to accept responsibility as a
     basis for its determination of sentence and when it relied
     primarily on the victim’s age for determining sentence despite
     the age of the victim already being considered by the grading of
     the offense.



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Appellant’s Brief at 12-13.

      To the extent Appellant argues that the sentencing court failed to

consider adequately mitigating factors or challenges the weight given to

certain factors, he has failed to raise a substantial question for our review.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his

Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”) (quoting Commonwealth v. Downing, 990 A.2d 788, 794

(Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014) (“[W]e have held that a claim that a court did not weigh the

factors as an appellant wishes does not raise a substantial question.”).1

      To the extent Appellant argues that the sentencing court failed to state

adequate reasons on the record and considered impermissible factors in

imposing sentence, such claims do raise a substantial question.             See

Commonwealth v. Galletta, 864 A.2d 532, 534 (Pa. Super. 2004)

(concluding that claim “that the trial court ‘failed to state on the record

adequate reasons for imposing a sentence in excess of the aggravated



1
   Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (PSI). “Where the sentencing court had the benefit of a
[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.’” Griffin, 65 A.3d at
937 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).


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range’ as set forth in the sentencing guidelines” raises a substantial

question); Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009)

(“This Court has recognized that a claim that a sentence is excessive

because the trial court relied on an impermissible factor raises a substantial

question.”). Thus, we address the merits of Appellant’s latter claims.

      If this Court grants appeal and reviews the sentence, the
      standard of review is clear: sentencing is vested in the discretion
      of the trial court, and will not be disturbed absent a manifest
      abuse of that discretion. An abuse of discretion involves a
      sentence which was manifestly unreasonable, or which resulted
      from partiality, prejudice, bias or ill will. It is more than just an
      error in judgment. …

         When reviewing a sentence outside of the guideline range,
         the essential question is whether the sentence imposed
         was reasonable. An appellate court must vacate and
         remand a case where it finds that “the sentencing court
         sentenced outside the sentencing guidelines and the
         sentence is unreasonable.” 42 Pa.C.S.[] § 9781(c)(3). In
         making a reasonableness determination, a court should
         consider four factors:

            (1) The nature and circumstances of the offense
            and the history and characteristics of the defendant.

            (2) The opportunity of the sentencing court to
            observe the defendant, including any presentence
            investigation.

            (3) The findings upon which the sentence was
            based.

            (4) The     guidelines       promulgated      by     the
            commission.

         42 Pa.C.S.[] § 9781(d). A sentence may be found
         unreasonable if it fails to properly account for these four



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         statutory factors. A sentence may also be found
         unreasonable if the “sentence was imposed without
         express or implicit consideration by the sentencing court of
         the general standards applicable to sentencing.” These
         general standards mandate that a sentencing court impose
         a sentence “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.” 42 Pa.C.S.[]
         § 9721(b).

Crork, 966 A.2d at 590-91 (some citations omitted).

     At the sentencing hearing, the court provided the following reasons for

Appellant’s sentence:

           All right. Well, certainly, I did preside over the trial in this
     case and heard the evidence in detail. I spent considerable time
     reviewing my notes of the testimony, so that it would be fresh in
     my mind today, so that I could impose sentence thoughtfully and
     carefully.

           Certainly the jury found [Appellant] guilty of simple
     assault, a misdemeanor of the first degree. And … the grading
     [of a] misdemeanor of the first degree certainly does take into
     consideration the fact that this was a child.      The statute
     discusses a child less than twelve. Certainly, in this case, we
     have an infant, very different than a child less than twelve,
     potentially.

           What I also recall was Dr. Crowell’s testimony regarding
     the level of force necessary in order to inflict the 18 or 19 broken
     bones in the arm fractures, leg fractures, rib fractures.

           I recall the testimony of Trooper [C]achara and Trooper
     Rush detailing the statements given by [Appellant] repeatedly
     accepting responsibility for causing harm to [the victim] in
     various ways.

              I recall testimony regarding biting in order to hold the child
     still.



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            I recall the taped statements that were played for the
     jury’s consideration.

           I recall that [Appellant] was placed in a level of trust and
     had a role of caretaker.

           I recall that these injuries were alleged to have occurred
     over a span of dates, not just on one occasion.

          I also recall [Appellant’s] testimony contesting that he
     was, in fact, responsible for these injuries and providing his
     reasoning, which I didn’t find to be credible.

            Now, I’ll contrast that evidence with what I reviewed in the
     pre-sentence report about [Appellant].         Multiple letters of
     reference from individuals that have known [Appellant] over the
     span of his life. A prior record score of zero. No criminal
     history. He was only 21 years old at the time of this offense, a
     relatively young man. He’s certainly still a young man.

            So given all of that information that the court has to
     weigh, certainly the sentence guidelines calling for a standard
     range of RS or restorative sanctions to three months, an
     aggravated range of six months, I have concluded that a
     sentence of 24 months to 60 months in the state correctional
     institution is appropriate in this case.

           There’s no remorse.           There’s no acceptance of
     responsibility, which I know comes hand-in-hand with your
     denial of responsibility for this case, and you’ve asserted that
     you’re innocent. The jury found otherwise, and I found the
     evidence to be credible and overwhelming in this case.

            You’ve demonstrated to me a complete lack of disregard
     [sic] for [the victim’s] care and well-being, and you violated the
     trust that was placed in you in caring for this little boy.

          The extreme pain that this child must have suffered over
     the course of months that these injuries were inflicted is
     unconscionable to me, and I believe all of these things justify a




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      sentence not only in excess of the aggravated range, but clearly
      outside of the guidelines.

           I know I will have to justify this sentence again, and I ‘m
      prepared to do so. I believe it is appropriate.

                                      ***

            I failed to mention, and I should have, I have also
      considered the success that you’ve had complying with pre-trial
      supervision and I take that into account.

            I have no concern that you’ll be successful with respect to
      following the terms and conditions of your sentence. But in
      order to address the needs of the victim, the needs of the
      community, and your needs, the sentence is appropriate.

N.T., 9/30/2015, at 11-15 (unnecessary capitalization omitted).

      Appellant claims that the sentencing court improperly considered his

lack of remorse and failure to accept responsibility as significant factors in

imposing sentence, relying upon Commonwealth v. Bowen, 975 A.2d

1120 (Pa. Super. 2009). Therein, Bowen chose to remain silent at trial and

during sentencing.     Id. at 1121.         In justifying its aggravated-range

sentence, the trial court cited, inter alia, Bowen’s failure to show remorse for

his crimes or to take responsibility for them, even after the jury’s verdict.

Id. at 1121-1122. On appeal, this Court observed that “it is undoubtedly

appropriate for a trial court to consider a defendant’s lack of remorse as a

factor at sentencing, provided that it is specifically considered in relation to

protection of the public, the gravity of the offense, and the defendant’s

rehabilitative needs.” Id. at 1125. Nevertheless, it held that “a court may



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not consider a defendant’s silence at sentencing as indicative of his failure to

take responsibility for the crimes of which he was convicted” and “silence at

sentencing may not be the sole factor in determining a defendant’s lack of

remorse.” Id. at 1121, 1127.

      Here, unlike Bowen, Appellant allocuted at sentencing:

             All that I would say is if I had done this, I would be
      remorseful about it. I’m sorry that all the injuries that happened
      [sic] to him.

             Also I do have one semester of college to finish, which I’m
      so close to getting that done. All I have to do is enroll or re-
      enroll, and it’s only about four or five classes to take. And I’d
      like to continue my career of what I’ve been studying, I already
      completed three-and-a-half years.

N.T.,9/30/2015, at 7-8.

      Additionally, Appellant testified at trial, over which the sentencing

court also presided.   Thus, the court did not rely on Appellant’s silence to

determine that he lacked remorse and failed to take responsibility for his

crimes. A review of the court’s comments at sentencing indicate that, after

observing Appellant at trial and sentencing, it considered his lack of remorse

and failure to accept responsibility “in relation to protection of the public, the

gravity of the offense, and [his] rehabilitative needs.” Bowen, 975 A.2d at

1125. Moreover, the sentencing court considered numerous other factors in

imposing sentence, such as the nature an circumstances of the offense, the

age of the victim, and Appellant’s role as caretaker for the child. Thus, we




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discern no abuse of discretion on this basis. See Bowen, 975 A.2d at 1127-

28 (concluding that, because the trial court relied upon several other

legitimate aggravating factors in imposing sentencing, Bowen was not

entitled to relief on his discretionary-aspects-of-sentence claim).

      We now turn to Appellant’s contention that the sentencing court

improperly relied on the victim’s age as a significant factor in imposing

sentence.   Appellant argues that, “while the specific age of a victim is a

factor that may be considered by a sentencing court, the grading of this

offense as a first degree misdemeanor is already based on the victim’s age

and contemplates increased penalty at sentencing,” as “[t]he offense of

simple assault becomes a first degree misdemeanor when the victim is less

than twelve years of age.” Appellant’s Brief at 21-22.

      In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), Walls pled

guilty to rape of a victim less than thirteen years old, involuntary deviate

sexual intercourse (“IDSI”) with a victim less than thirteen years old, and

incest based upon the repeated sexual abuse of his seven-year-old

granddaughter. Id. at 959. Walls received the statutory maximum for the

rape and IDSI convictions.    Id. at 960. One of the reasons cited by the

sentencing court for Walls’s sentence included “the tender and young age of

the victim.”   Id.   In vacating Walls’s judgment of sentence, this Court

reasoned that the tender age of the victim did not justify the imposition of




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the maximum sentence permitted by law, as “the crime itself made a

distinction with respect to certain classes of victims, such as minors and the

elderly, and thus, the sentencing guidelines reflect the Crimes Code’s

provision of greater punishment of certain crimes committed against certain

victims.”   Id. at 960-61. Our Supreme Court, however, disagreed:

      Contrary to the Superior Court, we find that the sentencing court
      was permitted to rely on [inter alia, the victim’s age] to justify
      Walls’ sentence. As noted by the Commonwealth and the
      Superior Court, the precise age of the victim, i.e., the fact that
      the victim was only seven-years-old at the time of the sexual
      abuse, was not an element of rape or IDSI of a victim less than
      thirteen years old and could justify an above-guideline sentence.
      While the Superior Court found that this factor could not justify
      the sentence in this case, in light of the deferential standard of
      review, we disagree. Additionally, we agree with the
      Commonwealth that Walls has offered no legitimate basis to
      presume that these factors, the victim being entrusted to Walls’
      care and was his granddaughter, are subsumed within the
      sentencing guidelines. Thus, we conclude that the findings upon
      which Walls’ sentence was based were legally permissible.

Id. at 967.

      With respect to the offense at issue herein, the Crimes Code provides

that “[s]imple assault is a misdemeanor of the second degree unless

committed[] against a child under 12 years of age by a person 18 years of

age or older, in which case it is a misdemeanor of the first degree.”      18

Pa.C.S. § 2701(b)(2).   In sentencing Appellant, the court understood that

“the grading misdemeanor of the first degree certainly does take into

consideration the fact that this was a child.   The statute discusses a child




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less than twelve.” N.T., 9/30/2015, at 11. However, the court went on to

note that “in this case, we have an infant, very different than a child less

than twelve, potentially.” Id. As the trial court was permitted to consider

the victim’s infancy in imposing sentence, Appellant is not entitled to relief.2

      Appellant has failed to demonstrate that the trial court abused its

discretion in imposing sentence.     Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016



2
  To the extent Appellant presents any argument with respect to the trial
court’s failure to state adequate reasons for its sentence, he only does so in
the context of his challenge to the trial court’s inadequate consideration of
mitigating factors and weighing of other factors. See Appellant’s Brief at 15
(“Upon appropriate consideration of the guidelines and these factors, it is
evident that a sentence of 24-60 months [of] incarceration is not consistent
with the protection of the public, the gravity of the offense, and the
rehabilitative needs of the defendant, and the court did not state sufficient
reasons for exceeding the sentencing guidelines in relation to these
considerations. Instead, the court focused almost solely on the age and
number of injuries to the victim.”). As demonstrated above, the record
belies Appellant’s bald claim; the court thoroughly stated its reasons and
explained why it deemed Appellant’s sentence appropriate under the
circumstances. See N.T., 9/30/2015, at 11-15.


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