J-S05016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN KARPINSKI                           :
                                               :
                       Appellant               :     No. 750 WDA 2017

              Appeal from the Judgment of Sentence March 6, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009329-2016


BEFORE:      OLSON, J., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                         FILED JUNE 5, 2018

        Steven Karpinski appeals from the judgment of sentence imposed March

6, 2017, in the Allegheny County Court of Common Pleas. The trial court

sentenced Karpinski to a term of 45 to 120 months’ imprisonment following

his guilty plea to one count of possession of child pornography. 1 On appeal,

Karpinski challenges the discretionary aspects of his sentence.             For the

reasons below, we affirm.

        The facts underlying Karpinski’s guilty plea are summarized in the

affidavit of probable cause as follows.2           After Karpinski was released from
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S. § 6312(d).

2  During the plea hearing, Karpinski waived a reading of the facts and
stipulated to those recounted in the affidavit of probable cause. See N.T.,
12/12/2016, at 9.
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prison for a previous conviction of possession of child pornography, and while

he was still on probation for that offense, he moved in with Darrell and

Rebecca Bigrigg. In March of 2016, after Karpinski left the residence, Darrell

was moving an old chest freezer when a laptop and several DVD’s and CD’s

fell out of the motor and wiring compartment.         Rebecca recognized the

computer as belonging to Karpinski, and also recognized his handwriting on

the DVD’s and CD’s. Knowing Karpinski was not permitted to possess these

items as a condition of his probation, Rebecca turned the materials over to

the police. After obtaining a search warrant, the Pennsylvania State Police

viewed the DVD’s, and found they contained videos and images of child

pornography. The police also identified Karpinski’s latent prints on several of

the DVD’s. They subsequently interviewed Karpinski, who admitted hiding the

materials in the motor compartment of the freezer, and viewing the images

while he lived with the Bigriggs. See Criminal Complaint, 7/14/2016, Affidavit

of Probable Cause at 2-5.

       Karpinski was arrested and charged with one count of possession of child

pornography. On December 12, 2016, he entered a guilty plea, in exchange

for which the Commonwealth agreed to not seek a mandatory minimum

sentence.3    That same day, Karpinski also pled guilty to charges of sexual


____________________________________________


3See 42 Pa.C.S. § 9718.2(a)(1) (providing for mandatory minimum 25 years
sentence when a defendant is convicted of a second sexual offense).




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abuse of children, possession of child pornography, and indecent assault 4 for

an unrelated incident at Docket No. 2016-218.

        On March 6, 2017, Karpinski appeared for sentencing on the present

conviction, the conviction at Docket No. 2016-218, and the probation violation

for his previous conviction at Docket No. 2014-10642. As noted above, on

the charge of possession of child pornography at issue herein, the trial court

sentenced Karpinski to a term of 45 to 120 months’ imprisonment. Although

the minimum sentence fell within the standard guidelines range, the court

imposed the statutory maximum sentence permissible.5 On March 16, 2017,

Karpinski filed a timely post-sentence motion seeking modification of his

sentence only in the present case. The trial court denied the motion on April

24, 2017, and this timely appeal followed.6

        Karpinski’s sole issue on appeal is a challenge to the discretionary

aspects of his sentence. When considering such a claim, we must bear in

mind:

____________________________________________


4   See 18 Pa.C.S. §§ 6312(d) and (d), and 3126(a)(7), respectively.

5On the probation violation case, the court imposed an aggregate consecutive
sentence of 10 to 20 months’ imprisonment, followed by five years’ probation.
At Docket No. 2016-218, the court sentenced Karpinski to an aggregate term
of five years’ probation, to run concurrent with the probation violation tail.
Karpinski did not appeal the sentences imposed on those two cases.

6On May 25, 2017, the trial court ordered Karpinski to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
requesting and being granted several extensions of time, Karpinski complied
with the court’s directive, and filed a concise statement on October 30, 2017.


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      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:

      [a] challenge to the discretionary aspects of sentencing is not
      automatically reviewable as a matter of right. Prior to reaching
      the merits of a discretionary sentencing issue:

           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.A. § 9781(b).

Commonwealth v. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some

citations omitted), appeal denied, 178 A.3d 106 (Pa. 2018).

      In    the   present   case,   Karpinski   complied   with   the   procedural

requirements for this appeal by filing a timely post-sentence motion for

modification of sentence and subsequent notice of appeal, and by including in

his appellate brief a statement of reasons relied upon for appeal pursuant to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.

2119(f). Therefore, we must determine whether he has raised a substantial

question justifying our review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

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provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Karpinski argues the sentence imposed by the trial

court, was “manifestly unreasonable” without adequate consideration of the

sentencing factors set forth in Section 9721(b) of the Sentencing Code.

Karpinski’s Brief at 9, citing 42 Pa.C.S. § 9721(b). In particular, he asserts

the court failed to consider his rehabilitative needs when it imposed the

statutory maximum sentence. See id. Moreover, Karpinski maintains the

trial court focused solely on “retribution and the seriousness of the crime when

these factors are already taken into consideration in the guidelines.” Id. at

10.

      An allegation that the trial court failed to consider the “relevant

sentencing criteria” set forth in Section 9721(b) raises a substantial question

for our review.   Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.

2012), appeal denied, 63 A.3d 776 (Pa. 2013). Similarly, “a claim the trial

court focused solely on the nature of the offense … presents a substantial

question.”   Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super.

2013), appeal denied, 85 A.3d 481 (Pa. 2014). Accordingly, we may proceed

to an examination of Karpinski’s argument on appeal.

      As noted above, Karpinski insists the sentence imposed by the trial court

was manifestly excessive. He notes that “[w]hile the minimum term is within


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the standard range the maximum term is the statutory maximum.”

Karpinski’s Brief at 12. Relying on Commonwealth v. Coulverson, 34 A.3d

135 (Pa. Super. 2011), Karpinski argues the comments by the trial court, at

sentencing, demonstrate the court placed an “intense focus on the nature of

the crime to the exclusion of any other sentencing factors,” and, in fact, made

“no mention of his psychological issues” or potential for rehabilitation. Id. at

16-17. Because the trial court failed to consider all the relevant sentencing

factors, Karpinski contends he is entitled to a remand for a new sentencing

hearing.

      Preliminarily, we note that when a sentence is imposed within the

guidelines range, this Court should vacate it only if we find “the case involves

circumstances where the application of the guidelines would be clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2). Furthermore, where, as here, the

trial court had the benefit of a pre-sentence investigation report, “we can

assume the [] court ‘was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.’” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010) (quotation omitted). Indeed, with regard to Karpinksi’s mental

health, defense counsel specifically argued Karpinski had struggled with

mental health issues since he was 12 years old, which was when his house

burned down, resulting in the death of his father and older brother. See N.T.,

3/6/2017, at 4. Counsel also emphasized Karpinski had family support, and


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accepted responsibility for his actions. See id. at 5. Therefore, the trial court

was well aware of these factors when imposing sentence.

      After hearing argument on all three cases, the court made the following

comments:

            Mr. Karpinski is both a convicted violator and a technical
      violator. The nature of his convicted violation is quite concerning,
      and the depth of his sexual deviance is also quite concerning.

             On the new attributable offense, [Docket No. 2016-9329], I
      will impose a sentence in the standard range but with a long tail
      given my concerns about his treatment needs in particular as well
      as the safety of the community and impose a sentence of 45 to
      120 months.

Id. at 8-9. The trial court elaborated on the reasons for its sentence in its

opinion:

             After his first offense, [Karpinski] was afforded the
      opportunity to be supervised in the community under charge
      specific special conditions that included, inter alia, a mental health
      treatment protocol designed for sex offenders and a restriction
      prohibiting him from using devices with internet access. His
      ongoing conduct in this case not only violated his probation in the
      earlier case, but also demonstrates [Karpinski] is not amenable to
      rehabilitation within the community. Even with the intensive
      supervision afforded to [Karpinski] through the Allegheny County
      Sex Offender specialty court, [Karpinski] continued to engage in
      the same conduct.

             At the sentencing hearing this Court considered the Pre-
      Sentence Report and sentencing factors listed in 42 Pa.C.S. §
      9721(b). While on probation with this Court for similar offenses,
      [Karpinski] hid his laptop along with DVDs and CDs containing
      images of child pornography inside the wiring of a freezer chest
      and these items were only discovered when the freezer was
      moved. This Court’s 45 to 120 month sentence starts in the
      standard range of the Sentencing Guidelines but contains a long
      tail indicative of this Court’s concern for both his need for
      treatment in a secure environment as well as the safety of the
      community.

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Trial Court Opinion, 11/1/2017, at 5.

      We detect no abuse of discretion on the part of the trial court. Contrary

to Karpinski’s claim, the court did not focus solely on the nature of the crime,

nor did it ignore his rehabilitative needs. Rather, the trial court recognized

Karpinski had been convicted of the same crime before, and, despite the

opportunity to serve his sentence in the community on probation, was unable

to conform his behavior under the law. Indeed, his current offense grew out

of his elaborate attempt to hide child pornography he continued to possess

and view while on probation for his prior offense. Accordingly, the court’s

imposition of a standard range minimum sentence was reasonable.

      Nor do we agree with Karpinski’s assertion that this Court’s decision in

Coulverson, supra, compels a different result. In that case, the defendant

entered an open guilty plea in four separate cases to 18 charges - including

rape, robbery, and burglary - for his participation in a two-day crime spree.

The trial court imposed an aggregate sentence of 18 to 90 years’

imprisonment. As here, the minimum sentences were imposed in the standard

range of the guidelines, but the maximum terms were the statutory maximum

available under the law, and ordered to run consecutively, which resulted in

the 90-year maximum term. See Coulverson, supra, 34 A.3d at 139.

      On appeal, a panel of this Court concluded the maximum sentence

imposed was “‘clearly unreasonable’ within the meaning of 42 Pa.C.S. §

9781(c).” Id. We emphasized the trial court provided “minimal” support for

its lengthy sentence, and appeared to rely primarily on the testimony of the

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rape victim and her family. See id. at 144. Further, when defense counsel

challenged the maximum sentence imposed during the bifurcated hearing, the

court replied, “You don’t like the statutory maximum; but shouldn’t you be

addressing that to the legislature?” Id. at 145. This Court explained:

     A sentence may still be excessive regardless of the
     commencement of terms of imprisonment in the standard
     guidelines range if the upper end of the sentence imposes a term
     unlikely to end during the defendant's natural life span or, as here,
     perpetually subject to the discretion of the Board of Probation and
     Parole. We remain mindful, as must our trial courts, that a
     maximum sentence is a sentence of confinement to be prorogued
     only as “a favor given by the state, as a matter of grace and
     mercy....” Mickens–Thomas v. Pa. Bd. of Prob. and
     Parole, 699 A.2d 792, 796 (Pa. Cmwlth. 1997). Issuance of
     parole may not be assumed and may not be treated as a tool of
     rehabilitation; presumably, a defendant’s rehabilitation has
     already been achieved if parole is granted. Consequently, parole,
     imposed as a byproduct of an outsize maximum sentence, is not
     a legitimate means of implementing the statutory goals of criminal
     sentencing.      Thus, the term of imprisonment must be
     individualized in its entirety as a sentence of confinement and not
     treated as a means to indefinite parole, or worse, as a means of
     private retribution or judicial policy-making.

            In this case, the trial court imposed a maximum sentence of
     confinement of 90 years …, which we regret to conclude, violated
     this precept in sentencing. The court’s discussion at argument on
     Coulverson’s post-sentence motion strongly suggests its
     determination that the defendant should spend as much of his life
     in prison as the court could order, notwithstanding the tragedy
     and dysfunction underlying Coulverson’s own life, his individual
     need for effective intervention, or any rehabilitation he might
     achieve.

Id. at 148.   Therefore, the Coulverson Court vacated the judgment of

sentence, and remanded for re-sentencing.




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      We find the facts of the present case distinguishable.       First, and

foremost, Karpinski’s maximum term of imprisonment is 10 years, as

compared to the 90-year prison term imposed in Coulverson. Karpinski did

not receive a virtual life sentence, nor was he condemned to a life served

perpetually on parole. Second, the trial court in the case sub judice provided

sufficient reasons for the sentence imposed, not the least of which was

Karpinski was on probation for the same crime when he committed the

offense herein. Indeed, Karpinski was given the opportunity to conform his

behavior outside of prison, but he was unable to do so.         The facts in

Coulverson were unique and extreme. As such, we disagree with Karpinski’s

claim that that decision compels relief here.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2018




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