J-S56007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THOMAS DAVID GREMS,

                            Appellant                  No. 221 MDA 2016


      Appeal from the Judgment of Sentence Entered December 15, 2015
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001058-2015


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 16, 2016

        Appellant, Thomas David Grems, appeals from the judgment of

sentence of an aggregate term of 13½ to 27 years’ incarceration, imposed

after he pled guilty to statutory sexual assault (SSA), 18 Pa.C.S. § 3122.1,

and endangering welfare of children (EWOC), 18 Pa.C.S. § 4304(a)(1).

Appellant raises two issues on appeal, both of which challenge discretionary

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

        In April of 2015, Appellant was arrested and charged with numerous

sexual offenses stemming

        from an April 16, 2015, incident in which a Scranton Police
        Officer working in a local high school was called to the school’s
        main office to see a male student and his parents. The male
        student told the officer that he took [the phone of] his 14 year
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*
    Former Justice specially assigned to the Superior Court.
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       old girlfriend[], … the victim, and saw improper text messages
       from the victim’s father. The text messages were from “Daddy”
       and the phone number matched the number the school had on
       file for the victim’s father, [Appellant]. The messages, dated
       April 7, 2015, showed “Daddy” asking the victim for naked
       pictures and to lick her toes and anus.          The victim was
       interviewed at Children’s Advocacy Center on the same date and
       disclosed that her father, [Appellant], had been sexually
       assaulting her for two years, since she was 12 years old. The
       victim disclosed that in the past[, Appellant] had attempt[ed] to
       penetrate her vaginal and anal areas, had masturbated in front
       of her, and [had] ejaculated on her. The victim further disclosed
       that about three weeks prior, [Appellant had] held her down and
       performed oral sex on her.

            On September 1, 2015, [Appellant] pled guilty to Count 3 -
       [SSA] … in violation of 18 Pa.C.S.A. § 3122.1(b), and Count 8 -
       [EWOC] … in violation of 18 Pa.C.S.A. § 4304(a)(1) and the
       remaining charges were Nolle Prossed.

             On December 15, 2015, following a SORNA[1] hearing,
       [Appellant] was determined to be a sexually violent predator
       (SVP) requiring lifetime, quarterly registration. On the same
       day, [the trial] [c]ourt sentenced [Appellant] to an aggregate
       term of [13½] to [27 years’] incarceration and no contact with
       the victim or any other minors. [Appellant] was specifically
       sentenced to [12] to [20 years’] imprisonment on Count 3, and
       [3½] to [7 years’] imprisonment [on Count 8], consecutive.

            On December 23, 2015, [Appellant] filed a Motion for
       Reconsideration of Sentences, which [the trial] [c]ourt denied on
       January 5, 2016.        [Appellant] timely appealed to the
       Pennsylvania Superior Court.

Trial Court Opinion (TCO), 3/29/16, at 2-3 (citations to the record and

certain emphasis omitted).




____________________________________________


1
  Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§
9791-9799.14.



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      Appellant timely complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the trial

court filed a responsive opinion on March 29, 2016. Herein, Appellant raises

two issues for our review:

      A. Whether the sentences imposed were inappropriately harsh
      and excessive and an abuse of discretion?

      B. Whether the lower court erred and committed an abuse of
      discretion when it failed to impose concurrent sentences?

Appellant’s Brief at 4.

      While Appellant divides his argument into two separate issues, they

are interrelated and, therefore, we will address them together. Appellant’s

issues both challenge discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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.A. § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the                 sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

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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.” Sierra, supra at 912–13.

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

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

       Here, several claims set forth by Appellant in the argument portion of

his brief do not meet the four-part test for invoking this Court’s jurisdiction

to review discretionary-aspects-of-sentencing claims. Specifically, Appellant

contends that in fashioning his sentence, the court improperly relied on

certain factors, such as the age difference between him and the victim, 2 the

fact that he is the victim’s father,3 and his prior criminal history, which was

used to calculate his prior record score.        See Appellant’s Brief at 14.

Appellant also avers that the court should not have imposed consecutive

sentences because “the crimes to which he pled guilty involved one



____________________________________________


2
  Appellant claims that the age disparity was already considered in the
grading of his offense as a felony of the first-degree. See 18 Pa.C.S. §
3122.1(b) (making SSA a felony of the first degree where the victim is under
the age of 16 and the perpetrator is 11 or more years older than the victim).
3
  Appellant claims that his relationship to the victim was already accounted
for in convicting him of EWOC. See 18 Pa.C.S. § 4304(a)(1) (defining
EWOC as involving a parent or guardian’s endangerment of the welfare of a
child).



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continuous course of conduct[,]” and that “the [SSA charge] formed the

basis of the [EWOC] charge.” Id. at 16.

      Appellant did not raise these specific arguments at the sentencing

hearing, in his written post-sentence motion, or in his Rule 2119(f)

statement; therefore, he has not satisfied the prerequisites for obtaining

review of these claims. See Evans, 901 A.2d at 533; see also Mann, 820

A.2d at 794 (finding the appellant’s specific sentencing claim waived where it

was not explicitly set forth in his post-sentence motion or raised during the

sentencing hearing) (citations omitted).     Additionally, Appellant failed to

present the above-stated arguments in his Rule 1925(b) statement.

Consequently, the trial court did not address them in its Rule 1925(a)

opinion. Accordingly, Appellant has waived these issues for this reason, as

well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).

      From our review of the record, the sentencing claims that Appellant

preserved below are those set forth, as follows, in his Rule 2119(f)

statement:

      Appellant argues that since his aggregate sentence is 13½ to 27
      years, it is “so manifestly excessive as to constitute too severe a
      punishment.” See Commonwealth v. Mouzon, [812 A.2d
      617,] 624 [(Pa. 2002)]. [] Appellant asserts that not only were
      the individual sentences harsh and unreasonable, but also that
      the aggregate sentence amounted to a life sentence since he is
      55 years old. He submits that given the length of the sentences,
      the fact[] that the sentencing court imposed maximum
      sentences on both charges, that they were inappropriately harsh

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      and excessive and that this Court should conduct a review of his
      sentences.

Appellant’s Brief at 10-11. Given that Appellant cited the court’s imposition

of two consecutive, statutory maximum sentences, and he argued that the

aggregate term of imprisonment is effectively a life sentence because of his

age, we conclude that he has set forth a “plausible argument that the

sentence is prima facie excessive” so as to warrant this Court’s review.

Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013).

      In assessing the merits of Appellant’s arguments, we are mindful that,

      [t]he proper standard of review when considering whether to
      affirm the sentencing court's determination is an abuse of
      discretion. ... [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will. In more expansive terms, our
      Court recently offered: An abuse of discretion may not be found
      merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.

      The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010)

(citation omitted).

      Essentially, Appellant contends that his aggregate sentence is harsh

and excessive because the court imposed consecutive, statutory maximum

terms that result in what is effectively a life sentence. Appellant’s argument


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fails to demonstrate an abuse of discretion by the sentencing court.        Our

review of the record reveals that, prior to imposing Appellant’s sentence, the

court reviewed a presentence report. See N.T. Sentencing, 12/15/15, at 36.

Thus, we “presume[] that [the court] was aware of the relevant information

regarding [Appellant’s] character and weighed those considerations along

with mitigating statutory factors.”   Commonwealth v. Fowler, 893 A.2d

758, 767-68 (Pa. Super. 2006) (citation omitted). The court also considered

a victim impact statement, the arguments of the Commonwealth and

defense counsel, a statement on Appellant’s behalf by a family member, and

Appellant’s own statement to the court. See N.T. Sentencing at 29-36, 39.

      Additionally, the court stated various reasons for imposing statutory

maximum, consecutive sentences in this case, including: the need to protect

the public (especially children) from Appellant; the length of time over which

Appellant sexually abused the victim; the fact that the victim was Appellant’s

biological daughter; the significant age difference between Appellant and the

victim; Appellant’s exhibiting “a complete lack of regard for the seriousness

of the offense, [and] the physical and psychological harm [he] caused to the

victim[;]” Appellant’s unwillingness to accept any responsibility for his

“heinous act[s]” and his total “lack of remorse[;]” Appellant’s prior criminal

history, including a sexual assault against another child “in a similar

situation” as the present; Appellant’s failure to rehabilitate himself following

that previous offense; and Appellant’s prior offenses of failing to register as

a sex offender, which demonstrated to the court that Appellant has a

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“complete disregard for the law….” Id. at 36-39. For all of these reasons,

the court felt “it appropriate that the maximum sentence … be imposed” for

each of Appellant’s offenses, and it determined that those sentences should

run consecutively. Id. at 39.

      Due to the ample reasons provided by the court for fashioning

Appellant’s sentence, all of which are supported by the record, Appellant’s

argument fails to demonstrate that the court abused its discretion.      The

main thrust of Appellant’s argument is that he received what is essentially a

life sentence.   However, we reject Appellant’s suggestion that he should

have received a lesser sentence simply because of his age at the time of the

sentencing hearing, where Appellant committed heinous sexual offenses

against his own child over the course of two years, and he had previously

committed similar abuse of another child victim. Given the seriousness of

Appellant’s offenses, along with the totality of other factors cited by the

court, Appellant’s sentence is not manifestly excessive.




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     Judgment of sentence affirmed.

     Judge Panella joins this memorandum.

     President Judge Emeritus Stevens concurs in the result of this

memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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