J-S06012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

CHRISTOPHER D. YINGLING

                     Appellant                No. 834 MDA 2015


         Appeal from the Judgment of Sentence May 29, 2013
            In the Court of Common Pleas of Berks County
         Criminal Division at No(s): CP-06-CR-0001282-2012
                                     CP-06-CR-0003136-2012
                                     CP-06-CR-0004750-2012


COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

CHRISTOPHER D. YINGLING

                     Appellant                No. 835 MDA 2015


         Appeal from the Judgment of Sentence May 29, 2013
            In the Court of Common Pleas of Berks County
         Criminal Division at No(s): CP-06-CR-0001282-2012
                                     CP-06-CR-0003136-2012
                                     CP-06-CR-0004750-2012


COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

CHRISTOPHER D. YINGLING
J-S06012-16


                            Appellant                  No. 836 MDA 2015


              Appeal from the Judgment of Sentence May 29, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001282-2012
                                          CP-06-CR-0003136-2012
                                          CP-06-CR-0004750-2012

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                             FILED MARCH 23, 2016

        In these consolidated appeals,1 Appellant, Christopher D. Yingling,

appeals from the judgment of sentence entered by the Honorable Thomas G.

Parisi, Berks County Court of Common Pleas. We affirm.

        The relevant facts and procedural history are as follows. Yingling was

charged in three separate criminal informations. He subsequently entered

“open” guilty pleas2 to a number of charges. At number 4750-2012, Yingling

pled guilty to one count of sexual assault, stemming from his admission that

he sexually abused a fourteen-year-old female, K.R., who was living at his

house and was under his care at the time. At number 1282-2012, Yingling

pled guilty to one count of attempt to commit first-degree murder, stemming

from his admission that he shot K.R.’s father several times at close range


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    We consolidated these appeals sua sponte.
2
 An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).




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J-S06012-16



with a shotgun. At number 3136-2012, Yingling pled guilty to two counts of

solicitation to commit first-degree murder, stemming from his admission

that while incarcerated in Berks County prison, he attempted to hire another

inmate to murder K.R. and her father.

       After Yingling pled guilty to the above-mentioned charges, the trial

court, the Honorable Thomas G. Parisi, imposed an aggregate term of 27 to

70 years’ imprisonment, consisting of 5 to 10 years for sexual assault, 14 to

40 years of consecutive imprisonment for two counts of solicitation to

commit first-degree murder, and 8 to 20 years of consecutive imprisonment

for attempt to commit first-degree murder.

       The trial court denied Yingling’s post-sentence motions. This court

quashed Yingling’s first direct appeal as untimely. Yingling subsequently filed

a pro se PCRA appeal. Thereafter, counsel was appointed, and a counseled

Amended PCRA was filed. A PCRA hearing was held on May 4, 2015.

However, on May 5, 2015, this Court granted Yingling leave to appeal nunc

pro tunc. This appeal followed.

       On appeal, Yingling raises three issues challenging the discretionary

aspects of his sentence.3 In his first and second issue, regarding the
____________________________________________


3
  In Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005), we
observed that

       while a guilty plea which includes sentence negotiation ordinarily
       precludes a defendant from contesting the validity of his or her
       sentence other than to argue that the sentence is illegal or that
(Footnote Continued Next Page)


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J-S06012-16



sentences imposed at numbers 1282-2012 and 3136-2012 respectively,

Yingling argues that the trial court erred because the sentences were

“unduly punitive and unreasonable and lacked sufficient basis in reasons

placed on the record.” Appellant’s Brief, at 4. In his third issue, regarding

the sentence imposed at 4750-2012, Yingling argues that the trial court

erred because “the sentence was unduly punitive and unreasonable … where

the sentence was beyond the standard guideline ranges, … [and] sufficient

aggravating factors were not placed on the record warranting an aggravated

sentence range ….” Id.

      We    start   our     analysis    by   noting   that   “issues   challenging   the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274

(Pa. Super. 2006) (citation omitted). Without such efforts, an objection to a

discretionary aspect of a sentence is waived. See id., at 1274.

      Here, Yingling timely filed a post-sentence motion for reconsideration;

however, he failed to include the specific arguments asserted in his first and

                       _______________________
(Footnote Continued)

      the sentencing court did not have jurisdiction, open plea
      agreements are an exception in which a defendant will not be
      precluded from appealing the discretionary aspects of the
      sentence.

Id., at 365 n.5 (emphasis and citations omitted).




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second issue on appeal. Because Yingling also failed to raise these specific

arguments during his sentencing hearing, his first two issues on appeal are

waived. See id. Nevertheless, Yingling properly raised the arguments

asserted in his third issue on appeal in his post-sentence motion; thus, we

will proceed to address these arguments.

      In considering Yingling’s challenge to the discretionary aspects of his

sentence, we note the following.

      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 this challenge on its merits. First,
      [pursuant to Pa.R.A.P. 2119(f)], an appellant must set forth in
      his brief a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of a
      sentence. 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. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted).

      In his Rule 2119(f) statement, Yingling alleges that the five to ten year

sentence imposed for his sexual assault conviction was “issued without

sufficient reasons being placed on the record and is so disproportionate as to

implicate the fundamental norms that underlie the sentencing process.”

Appellant’s Brief, at 9. Specifically, Yingling claims that the sentence

imposed was excessive and unreasonable because it was beyond the

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standard statutory guidelines, and the trial court failed to place sufficient

reasons on record for imposing an aggravated range sentence.4 See id., at

10. This claim raises a substantial question.5 See Commonwealth v.

Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008). We now proceed to the

merits of his challenge.

       Our standard of review for a challenge to the discretionary aspect of

sentencing is as follows.

       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. In this context, an abuse
____________________________________________


4
  Although Yingling’s brief includes a Rule 2119(f) statement, he failed to
assert the specific arguments raised in his third issue on appeal in the
statement. However, because the Commonwealth did not raise an objection,
and a substantial question is obvious from Yingling’s brief, we will review his
claim. See Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super.
2010).
5
  In his brief, Yingling raises several other arguments that do not present
substantial questions. For instance, he argues that the trial court failed to
implement an individualized sentence because it did not adequately consider
his rehabilitative needs in fashioning the sentence. This contention does not
constitute a substantial question subject to our review. See
Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994).

Moreover, Yingling argues that the sentence was unreasonable and unduly
punitive considering the fact that he was a first-time offender, took
responsibility for his actions, pled guilty, and expressed remorse. Essentially,
Yingling is arguing that the trial court did not adequately consider the
aforementioned factors as mitigating factors. This assertion also does not
constitute a substantial question subject to our review. See Tirado, 870
A.2d at 366 n. 6.




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J-S06012-16


        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.

Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa. Super. 2012) (citation

omitted).

        In imposing a sentence, the sentencing court must consider relevant

statutory factors, including “the protection of the public, gravity of offense in

relation to impact on victim and community, and rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b). A sentencing court has broad discretion

in fashioning its sentence. See Commonwealth v. Walls, 926 A.2d 957,

962-963 (Pa. 2007). A sentencing court is required to consider the sentence

ranges set forth in the sentencing guidelines, but it is not bound by them.

See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

Moreover, “[a] sentencing court may consider any legal factor in determining

that    a   sentence     in   the    aggravated   range   should   be   imposed.”

Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)

(citation omitted). When imposing a sentence in the aggravated range, a

sentencing court must state its reasons on the record. See 204 Pa.Code §

303.13(c).

        In the instant case, Yingling was convicted of one count of sexual

assault,6 which is a felony of the second degree with an offense gravity score
____________________________________________


6
    18 Pa.C.S.A. § 3124.1.



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J-S06012-16



of eleven. See 204 Pa.Code § 303.16(a). Because Yingling had a prior

record score of zero, the guidelines recommended a standard range

sentence of 36 to 54 months. See id. If aggravated circumstances are

present in a sexual assault case, the guidelines permit a court to impose a

sentence that is up to twelve months longer than the upper limit of the

standard range. See 204 Pa.Code §§ 303.13(a)(1), 303.16(a). The

aggravated range is thus 48 to 66 months.

       We find that the trial court acted well within its discretion in sentencing

Yingling to the statutory maximum of five to ten years’ imprisonment, a

sentence within the aggravated range.7 Given that K.R. was only fourteen

years old and was under Yingling’s care when the sexual assault took place,

a sentence in the aggravated guideline range was reasonable. See Shugars,

895 A.2d at 1278. Moreover, we find that the trial court placed sufficient

reasons on the record regarding its decision to impose an aggravated range

sentence. Importantly, the trial court noted the need to protect the victim

and her family from Yingling due to his “sociopathic obsession” with them.

N.T., Guilty Plea and Sentencing Hearing, 5/29/13, at 50. In fashioning the

sentence, the trial court considered defense counsel’s arguments on


____________________________________________


7
  Adding 12 months to the 54-month upper limit of the applicable standard
range would result in an aggravated minimum of 66 months. However,
because the maximum penalty for Yingling’s sexual assault conviction is ten
years, or 120 months, the aggravated minimum cannot exceed one-half of
the statutory maximum. See 42 Pa.C.S.A. § 9756(b)(1).



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Yingling’s behalf, the Commonwealth’s arguments, the victim’s and the

victim’s family members’ statements, and Yingling’s own pre-sentence

statements. See id., at 49.

      We conclude that the trial court fashioned an individualized sentence

and did not abuse its discretion in imposing the maximum sentence for

Yingling’s sexual assault conviction. Accordingly, Yingling’s challenge to the

discretionary aspects of his sentence is without merit.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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