J-S68026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    IVAN KLIMEK VONLUNEN                       :
                                               :
                       Appellant               :   No. 413 WDA 2018

            Appeal from the Judgment of Sentence January 23, 2018
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000189-2017

BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 31, 2018

       Appellant, Ivan Klimek VonLunen, appeals from the January 23, 2018

Judgment of Sentence entered in the Crawford County Court of Common Pleas

following his guilty plea to two counts of Sexual Abuse of Children

(Dissemination of Photos/Film), one count of Sexual Abuse of Children

(Possession of Child Pornography), and one count of Possession of

Instruments of Crime.1        On appeal, Appellant challenges the discretionary

aspects of his sentence. After careful review, we affirm.

       The relevant facts and procedural history are as follows. On August 28,

2017, Appellant entered a guilty plea to the above charges, arising from




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1 18 Pa.C.S § 6312(c); 18 Pa.C.S § 6312(d); and 18 Pa.C.S. § 907(a),
respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant’s possession and transmittal of child pornography.2 The lower court

ordered the preparation of a Pre-Sentence Investigation (“PSI”) Report and a

Sexually Violent Predator (“SVP”) assessment.3

        On January 23, 2018, the court sentenced Appellant to an aggregate

term of incarceration of 3½ to 15 years’ incarceration, consisting of three

consecutive 14- to 60-month terms of incarceration for his Sexual Abuse of

Children convictions and a concurrent term of 1 to 12 months’ incarceration

for his Possession of Instrument of Crime conviction.4     At the sentencing

hearing, the court explained in detail why it sentenced Appellant as it did,

including why it imposed an aggravated range sentence for Appellant’s

Possession of Child Pornography conviction. See N.T. Sentencing, 1/23/18,

at 14-18, 20.5



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2 Police retrieved more than 100 movies and 1500 still images of child
pornography from Appellant’s computer. See N.T. Sentencing, 1/23/18, at 5.
3   The assessor concluded that Appellant is not a SVP.

4 The court imposed standard range sentences for Appellant’s convictions of
Dissemination of Child Pornography, but imposed an aggravated range
sentence for his conviction of Possession of Child Pornography. It also
imposed a standard range sentence for his conviction of Possession of
Instruments of Crime.
5 The sentencing court’s stated reasons included: (1) that Appellant would
otherwise be subject to federal prosecution if not for the plea agreement; (2)
the impact Appellant’s crimes had had on the victim; (3) the extraordinary
amount of pornography in Appellant’s possession; and (4) that it sentenced
Appellant to a concurrent sentence for his Possession of Instruments of Crime
conviction. See N.T. at 20. See also Trial Ct. Op., 4/12/18, at 3.

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       On February 1, 2018, Appellant filed a Post-Sentence Motion asking the

court to modify his sentence based on mitigating factors. Motion, 2/1/18, at

¶ 7. The trial court denied Appellant’s Motion on February 14, 2018.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant’s raises the following issue on appeal:

       Whether [A]ppellant’s sentence is manifestly excessive, clearly
       unreasonable[,] and inconsistent with the objectives of the
       Sentencing Code?

Appellant’s Brief at 5.

       Appellant’s issue challenges the discretionary aspects of his sentence.

In particular, Appellant argues in his Brief that the sentencing court abused

its discretion in imposing consecutive sentences—one of which was in the

aggravated range—and by failing to consider mitigating factors. Id. at 8-10.6

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa. Super. 2000).

       Prior to reaching the merits of a discretionary sentencing issue, we must

determine whether: (1) appellant has filed a timely notice of appeal; (2) the

issue was properly preserved at sentencing or in a motion to reconsider and

modify sentence; (3) appellant’s brief has a fatal defect; and (4) there is a
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6  In his Post-Sentence Motion, Appellant did not challenge the court’s
imposition of consecutive sentences per se or allege that the court abused its
discretion in imposing an aggravated range sentence for his Possession of
Child Pornography conviction.

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substantial question that the sentence is not appropriate under the Sentencing

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

      Here, Appellant filed a timely Notice of Appeal. Our review of Appellant’s

Post-Sentence Motion indicates that he preserved his claim that the court

abused its discretion in failing to consider mitigating factors. Appellant has

also included a separate Pa.R.A.P. 2119(f) Statement in his Brief to this Court.

We, thus, consider whether the issue Appellant preserved raises a substantial

question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa. Super. 2003) (citation omitted). 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.” Sierra, supra at 912-13 (citation

and quotation omitted).

      Appellant avers that the trial court erred in failing to consider mitigating

factors. Appellant’s Brief at 8, 10. He asserts that his sentence is inconsistent

with the objectives of the Sentencing Code, but he fails to indicate which

provision of the Sentencing Code the court violated and in what way. Id. at

7. See also Sierra, supra at 913. Rather, Appellant claims his sentence is

excessive because it includes consecutive sentences without regard to his




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acceptance of responsibility, his remorse, his age, and the fact that he has no

prior criminal record. Appellant’s Brief at 8.

      Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question.      See Commonwealth

v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors   does   not   raise   a   substantial   question   for   our   review.”);

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.”).

      It is also well-settled that a bare challenge that the trial court erred in

imposing consecutive sentences does not raise a substantial question. See

Zirkle, 107 A.3d at 133; Commonwealth v. Moury, 992 A.2d 162, 171-72

(Pa. Super. 2010) (“The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”).

      Based on our review of the above precedential case law, the nature of

the crimes at issue, and the length of imprisonment, we conclude that

Appellant has failed to present a substantial question in challenging the




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discretionary aspects of his sentence. We, thus, decline to review the merits

of the issue raised.7

       Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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7 To the extent that Appellant purports to challenge the imposition of an
aggravated-range sentence for his Possession of Child Pornography
conviction, we note that he has failed to develop the claim in his Brief beyond
the mere acknowledgement that the sentence is in the aggravated-range. We,
thus, find this claim waived. See Commonwealth v. Johnson, 985 A.2d
915, 924–25 (Pa. 2009) (claims not developed in appellate brief are waived;
“we will not develop Appellant's arguments for him”).


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