J-S48037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 JAMES ANTHONY ELIA                      :
                                         :
                   Appellant             :      No. 2509 EDA 2017


           Appeal from the Judgment of Sentence March 20, 2017
            in the Court of Common Pleas of Montgomery County
                Criminal Division at No.: CP-XX-XXXXXXX-2010


BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                         FILED OCTOBER 02, 2018

      Appellant, James Anthony Elia, appeals from the judgment of sentence

imposed after his bench trial conviction of involuntary deviate sexual

intercourse involving a child less than sixteen years of age, and numerous

related sex crimes. Specifically, he challenges the new sentence imposed after

his original sentence was vacated.   Appellant argues that his resentencing

violated the constitutional protection against double jeopardy.      He also

maintains that his sentence was harsh and excessive because the sentencing

guidelines for statutory aggravated indecent assault and involuntary deviate

sexual intercourse are unreasonable and have no logical foundation.       We

affirm.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      This appeal has a long and convoluted procedural history but the

underlying facts of the case are not in substantial dispute. We summarize

only those which are most relevant to the issues on appeal.

      Appellant met the Victim through family connections. At the time, he

was dating the Victim’s aunt. When the relationship with the Victim began,

Appellant was twenty-five and she was fourteen. He knew she was fourteen.

(See Trial Court Opinion, 11/21/17, at 2-3).        In Pennsylvania, the age of

consent is sixteen, while the legality of sex with a thirteen, fourteen, or fifteen

year old depends on the age of the other party. See 18 Pa.C.S.A. § 3122.1

(statutory sexual assault).

      Soon after meeting, Appellant picked the Victim up after school and

drove her in his mother’s minivan to a ballpark where they parked the van

and had sexual relations. There followed multiple, separate episodes of sexual

activity, including vaginal intercourse, oral sex, manual stimulation, digital

penetration, and so forth. The Victim’s mother became suspicious about the

relationship and, with the help of police, obtained inculpatory admissions from

Appellant in a telephone conversation. A physician confirmed that the Victim

had contracted a sexually transmitted disease.

      On February 14, 2011, the Commonwealth filed an information accusing

Appellant of five counts of involuntary deviate sexual intercourse involving a

child less than sixteen years of age, 18 Pa.C.S.A. § 3123(a)(7); five counts of

statutory sexual assault, 18 Pa.C.S.A. § 3122.1; five counts of aggravated


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indecent assault involving a person less than sixteen years of age, 18

Pa.C.S.A. § 3125(a)(8); one count of corruption of minors, 18 Pa.C.S.A. §

6301(a)(1); five counts of indecent assault of a person less than sixteen years

of age, 18 Pa.C.S.A. § 3126(a)(8); and one count of unlawful contact or

communication with a minor, 18 Pa.C.S.A. § 6318(a)(1).

      On June 27, 2011, Appellant pleaded guilty to a negotiated single count

of involuntary deviate sexual intercourse involving a child less than 16 years

of age and one count of statutory sexual assault.          As part of the plea

agreement, the Commonwealth agreed to withdraw the remaining charges

and to forgo the imposition of a mandatory ten-year prison sentence under 42

Pa.C.S.A. § 9718(a).     Sentencing was deferred pending an evaluation of

Appellant by the Sexual Offenders Assessment Board.

      However, on September 26, 2011, Appellant filed pro se motions to

withdraw the guilty plea and for a change of appointed counsel. At a hearing

on October 13, 2011, the court granted withdrawal, concluding that

Appellant’s motion was knowing, voluntary, and intelligent.

      On November 30, 2011, then-defense counsel filed a motion for

continuance to file a motion to withdraw from further representation, citing

Appellant’s assertion of ineffective assistance as a conflict of interest. After a

hearing, the court granted counsel’s oral motion to withdraw in an order dated

and filed December 6, 2011. (See Order, 12/06/11). The court appointed




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Francis P. Walsh, Esq., to represent Appellant.1 (See Order, dated 12/07/11,

and filed 12/08/11).

        On January 17, 2012, prior to the start of Appellant’s scheduled trial,

Attorney Walsh made an oral motion to withdraw the prior motion to

withdraw the guilty plea. Counsel argued that the plea should not have been

withdrawn because Appellant had not expressly asserted his innocence. He

also argued that the hearing on the motion to withdraw the guilty plea should

not have occurred because Appellant had asserted that plea counsel had been

ineffective. The court denied the oral motion, and the matter proceeded to a

bench trial.

        At the conclusion of the trial, the court found Appellant guilty of IDSI,

statutory sexual assault, aggravated indecent assault, corruption of minors,

indecent assault, and unlawful contact with a minor. On March 19, 2012, the

Commonwealth filed a notice of its renewed intent to pursue the ten-year

mandatory minimum sentence applicable to Appellant’s IDSI conviction,

pursuant to 42 Pa.C.S.A. § 9718(a).2 (See Commonwealth’s Notice of Intent

to Seek Mandatory Ten Year Sentences, 3/19/12; see also Commonwealth



____________________________________________


1   Attorney Walsh continues to represent Appellant in this appeal.

2 At the time, in pertinent part, section 9718 provided that a person convicted
of 18 Pa.C.S.A. § 3123 (involuntary deviate sexual intercourse) was subject
to a mandatory term of ten years’ imprisonment.             See 42 Pa.C.S.A.
§ 9718(a)(1).


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v. Elia, 83 A.3d 254, 260 (Pa. Super. 2013), appeal denied, 94 A.3d 1007

(Pa. 2014)).

        On April 25, 2012, at the sentencing hearing, defense counsel asserted

that the application of a mandatory minimum sentence pursuant to section

9718(a)(1) constituted cruel and unusual punishment. The court disagreed

and sentenced Appellant to a term of not less than ten nor more than twenty

years of incarceration.        (See N.T. Motions/Gagnon Hearing/Sentencing,

4/25/12, at 54).3

        Appellant timely filed a post-sentence motion. He asserted (1) the court

erred in allowing the withdrawal of the guilty plea because he had not asserted

his innocence, (2) plea counsel had been ineffective, (3) the evidence at trial

did not prove that he had committed involuntary deviate sexual intercourse in

Montgomery County and (4) the mandatory minimum sentence for involuntary

deviate sexual intercourse is unconstitutional. The court issued an order dated

May 17, 2012, denying the post-sentence motion.

        On May 25, 2012, Appellant timely appealed from the judgment of

sentence and subsequently filed a concise statement of errors pursuant to

Pa.R.A.P. 1925(b).       (See Trial Court Opinion, 7/1/12, at 1-3).   This Court

affirmed in an opinion filed December 24, 2013. (See Commonwealth v.




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3   Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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Elia, 83 A.3d 254, 260 (Pa. Super. 2013), appeal denied, 94 A.3d 1007 (Pa.

2014)).

       On August 15, 2014, Appellant filed a timely petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       Counsel

subsequently filed an amended petition, asserting that Appellant’s sentence

was illegal under Alleyne v. United States, 570 U.S. 99 (2013)4 and

Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), affirmed, 140

A.3d 651, 663 (Pa. 2016).5 The PCRA court agreed, and vacated sentence.

This Court affirmed. (See Commonwealth v. Elia, No. 3403 EDA 2015, 2016

WL 2908553, at *1 (Pa. Super. filed May 18, 2016) (unpublished

memorandum), appeal denied, 164 A.3d 454 (Pa. 2016)).

       On March 20, 2017, Appellant was re-sentenced, without any mandatory

minimum, to an aggregate term of not less than nine-and-one-half nor more

than twenty years of incarceration at a state correctional institution, six

months less than his original aggregate sentence of ten to twenty years’


____________________________________________


4 Alleyne held that that any fact that, by law, increases the penalty for a
crime is an “element” that must be submitted to the jury and found beyond a
reasonable doubt, including mandatory minimum sentences. See Alleyne,
supra at 103.

5  Wolfe held that section 9718 (mandatory sentences for, inter alia, sex
crimes when victim is less than sixteen years of age) is unconstitutional in
light of Alleyne; furthermore, section 9718 is irremediably unconstitutional
on its face, non-severable, and void. See Wolfe, supra at 663.




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imprisonment.      This timely appeal followed the denial of Appellant’s post-

sentence motion.6

       Appellant presents two questions for our review:

              I. Did the court err in re-sentencing the [A]ppellant on the
       charges of statutory aggravated indecent assault and statutory
       sexual assault where the court at the original sentencing hearing
       held that those charges merged with involuntary deviate sexual
       intercourse and the Commonwealth failed to appeal this decision;
       thus was the sentence final and the re-sentencing on these
       merged charges violate the double jeopardy provisions of the 5th
       and 14th [A]mendment to the United States Constitution and
       Article 1 Section 10 of the Pennsylvania constitution?

             II. Did the court impose a harsh and excessive sentence in
       this case, because the guidelines for statutory aggravated
       indecent assault and statutory involuntary deviate sexual
       intercourse are unreasonable and have no logical foundation?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).7

       In his first claim, Appellant argues that he cannot be resentenced

because at the first sentencing the court asserted that the offense of statutory

sexual assault and aggravated indecent assault merged with involuntary


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6Appellant filed a court-ordered statement of errors complained of on appeal.
The trial court filed an opinion on November 21, 20017. See Pa.R.A.P. 1925.

7 We note that counsel for Appellant has failed to comply with Pennsylvania
Rule of Appellate Procedure 2116, which mandates, in pertinent part, that:
“The statement of the questions involved must state concisely the issues to
be resolved, expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a) (emphasis added). Counsel also omits
a properly ordered formal statement of the standard of review and scope of
review for each of the issues raised. See Pa.R.A.P. 2111(a)(3).




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deviate sexual intercourse for purposes of sentencing. (See Appellant’s Brief,

at 4-12).8 Appellant maintains that resentencing him now would constitute

double jeopardy in violation of the United States and Pennsylvania

Constitutions.9 (See id. at 9). We disagree.

       An issue involving a constitutional right is a question of law for which

our standard of review is de novo, and our scope of review is plenary. See

Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).

       Appellant’s chief, if not only, argument for unconstitutionality is that re-

sentencing on the charges of statutory sexual assault and aggravated indecent

assault violated the prohibition against double jeopardy because the court said

at sentencing that the charges merged, and the Commonwealth did not

challenge or appeal from this statement, which the trial court now disclaims.

(See Appellant’s Brief, at 9-12).



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8 It is noteworthy that the sentencing court now considers that its initial
determination of merger was legally incorrect, and in any event was only
adopted to achieve a particular sentencing scheme. (See Trial Court Opinion,
11/21/17, at 7-8).

9 In pertinent part, the double jeopardy clause of the Fifth Amendment
provides that: “No person shall . . . be subject for the same offence to be
twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. The Fourteenth
Amendment provides, inter alia, the right to due process. See U.S. Const.
amend. XIV.

Section 10 of the First Article of the Pennsylvania Constitution provides, in
pertinent part: “No person shall, for the same offense, be twice put in
jeopardy of life or limb[.]” Pa. Const. art. I, § 10.


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       First, other than caselaw cited for general principles not at issue in this

appeal, Appellant fails to develop an argument supported by any pertinent

authority that the sentences do in fact merge, or that the Commonwealth had

some otherwise unspecified duty to appeal the trial court’s statement, let

alone to establish a violation of the constitutional prohibition.

       Appellant cites United States v. DiFrancesco, 449 U.S. 117, 132

(1980), but candidly concedes that the United States Supreme Court, in

applying a provision of the Organized Crime Control Act of 1970, decided that

the Government’s appeal of a defendant’s sentence pursuant to that statute

did not offend double jeopardy principles.         See id. at 132; (see also

Appellant’s Brief, at 10-11).10

       Accordingly, Appellant’s constitutional claim is waived. See Pa.R.A.P.

2119(a), (b); see also Commc'ns Network Int'l, Ltd. v. Mullineaux, 187



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10 Additionally, Appellant cites Commonwealth v. Nickens, 923 A.2d 469
(Pa. Super. 2007). (See Appellant’s Brief, at 11). Nickens is a criminal
procedure case, which chiefly addresses Pa.R.Crim.P. 721(B)(1)
(Commonwealth motion for modification of sentence shall be filed no later
than 10 days after imposition of sentence). See id. at 472. It has nothing to
do with constitutional claims, or the merger of offenses. Appellant also cites
Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007). (See
Appellant’s Brief, at 11). Williams held as a matter of law that separate
sentences for weapons offenses did not merge. See Williams, supra at 891.
Appellant cites a third case, Commonwealth v. Jones, 912 A.2d 815, 816
(Pa. 2006). (See Appellant’s Brief, at 12). Jones, a plurality decision, has
since been abrogated. See Commonwealth v. Baldwin, 985 A.2d 830,
834 (Pa. 2009); see also Commonwealth v. Raven, 97 A.3d 1244, 1249–
50 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (recognizing
abrogation of Jones by Baldwin).

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A.3d 951, 965 (Pa. Super. 2018) (claim waived when appellant offers no

controlling authority in support).

      Moreover, it would not merit relief.    Under Pennsylvania law, double

jeopardy does not preclude resentencing, even if the sentencing scheme is

revised or, unlike here, enhanced. See Commonwealth v. Bartrug, 732

A.2d 1287, 1289 (Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999)

(citing Pennsylvania v. Goldhammer, 474 U.S. 28 (1985)); see also

Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (“We agree

with the Commonwealth that Appellee had no legitimate expectation of finality

in his sentence after he has filed an appeal therefrom.”); Commonwealth v.

Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986), cert. denied, 480 U.S. 950

(1987) (“We hold therefore, that where a defendant appeals a judgment of

sentence, he accepts the risk that the Commonwealth may seek a remand for

resentencing thereon if the disposition in the appellate court upsets the

original sentencing scheme of the trial court.”).

      When the original sentence was vacated, the sentence was
      rendered a legal nullity and there is no controlling authority
      precluding the Commonwealth from presenting sentence
      enhancement evidence on remand. This is true regardless of the
      fact that the punishment was imposed upon a single count of
      delivery of a controlled substance and arises instead from the
      procedural posture of the case at bar, i.e., a vacation of sentence
      and a remand for a new sentencing hearing.

Wilson, supra at 1196 (emphasis added).

      Additionally,




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                Whether Appellant’s convictions merge for sentencing
         is a question implicating the legality of Appellant’s sentence.
         Consequently, our standard of review is de novo and the
         scope of our review is plenary.

      [ ] Baldwin, [supra at] 833 [ ] (case citations and internal
      quotation marks omitted).

               Section 9765 of the Judicial Code provides that:

            No crimes shall merge for sentencing purposes unless the
      crimes arise from a single criminal act and all of the statutory
      elements of one offense are included in the statutory
      elements of the other offense.       Where crimes merge for
      sentencing purposes, the court may sentence the defendant only
      on the higher graded offense.

      42 Pa.C.S.A. § 9765.

            Our Supreme Court in Baldwin concluded that:

           A plain language interpretation of Section 9765 reveals the
      General Assembly’s intent to preclude the courts of this
      Commonwealth from merging sentences for two offenses that are
      based on a single criminal act unless all of the statutory
      elements of one of the offenses are included in the statutory
      elements of the other.

      Baldwin, supra at 837 (footnote omitted).

Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012), appeal

denied, 67 A.3d 793 (Pa. 2013) (emphases added; footnote omitted).

      Here, furthermore, it is important to recognize that Appellant’s crimes

are not based on a single act. (See Trial Ct. Op., at 7 n.15). To the contrary,

they are based on multiple acts, which Appellant fails to differentiate.

Separate crimes of acts committed on separate occasions do not implicate




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double jeopardy. See Commonwealth v. Adams, 442 A.2d 277, 280 (Pa.

Super. 1982). Appellant’s claim does not merit relief.

        Moreover, this Court has held that when an illegal sentence has been

imposed, the sentence must be corrected. Resentencing to correct an illegal

sentence does not implicate double jeopardy.            See Commonwealth v.

Kratzer, 660 A.2d 102, 104-05 (Pa. Super. 1995), appeal denied, 670 A.2d

643 (Pa. 1996) (no double jeopardy violation implicated where, as here,

aggregate sentence on resentencing did not exceed original aggregate

sentence).

        It is well settled that if a trial court errs in its sentence on one count in

a multi-count case, then all sentences for all counts will be vacated so that

the     court   can   restructure   its   entire   sentencing    scheme.        See

Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990).

        This has been held true even where Appellant specifically limits his

appeal to one particular illegal sentence based upon one bill of information

and does not appeal sentences based upon other bills of information, where

those    sentences    are   part of a common sentencing            scheme.      See

Commonwealth v. Sutton, 583 A.2d 500, 502 (Pa. Super. 1990), appeal

denied, 596 A.2d 156 (Pa. 1991). Appellant’s first claim is waived and does

not merit relief.




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      Appellant’s second claim challenges the discretionary aspects of his

sentence. (See Appellant’s Brief, at 13-17). We conclude that Appellant has

failed to present a substantial question.

      Chiefly citing Commonwealth v. Miller, 835 A.2d 377 (Pa. Super.

2003), Appellant correctly observes that:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, whose judgment will not be disturbed absent
      an abuse of discretion. Where an appellant challenges the
      discretionary aspects of a sentence, there is no automatic right to
      appeal and an appellant’s appeal should be considered a petition
      for allowance of appeal. Before a challenge to a judgment of
      sentence will be heard on the merits, an appellant first must set
      forth in his or her brief a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of his or her sentence. [S]ee . . . Pa.R.A.P. 2119(f). . . .

            In addition, an appellant must show that there is a
      substantial question as to whether the imposed sentence was
      inappropriate under the Sentencing Code. See . . . 42 Pa.C.S.A.
      § 9781(b). Whether an issue raises a substantial question is a
      determination that must be made on a case-by-case basis;
      however, in order to establish a substantial question, the appellant
      generally must establish that the sentencing court’s actions either
      were inconsistent with a specific provision of the Sentencing Code
      or contrary to the fundamental norms which underlie the
      sentencing process.

Id. at 380 (case citations omitted).

      Here, in his Rule 2119(f) statement, Appellant contends that the

Sentencing Guidelines are “illogical.” (Appellant’s Brief, at 13). This claim

fails to raise a substantial question that the sentence imposed is inconsistent

with either a specific provision of the Sentencing Code or a fundamental norm

of the sentencing process.


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     Instead, through selected comparisons of guideline sentences, Appellant

argues, in effect, that the Sentencing Guidelines provide more severe

punishment for certain sex offenses committed with a minor under the age of

sixteen than for comparable acts with older teenagers or adults. He posits

that the IDSI statute makes no distinction between “forcible sex and statutory

sex.” (Id.). Therefore, he concludes, the sentence imposed “has no logical

foundation.” (Id.). We disagree.

     In his previous direct appeal, Appellant made a similar argument that

disparate sentences made his sentence unconstitutional.            However, our

Supreme Court has rejected this species of claim, employing a rational basis

test: “[U]nder a rational basis analysis, the government need not have

articulated the purpose or rationale supporting its action; it is enough that

some rationale may conceivably . . . have been the purpose and policy of the

relevant government decision[-]maker.”        Commonwealth v. Albert, 758

A.2d 1149, 1152 (Pa. 2000) (citations and internal quotation marks omitted).

     Here, Appellant’s assertion overlooks the obvious distinction that our

Legislature has elected to protect minor children by establishing enhanced

punishment for those who commit sex offenses against them, irrespective of

whether the child consented. Our Supreme Court has explained:

            We agree with the Commonwealth that the subject
     legislation serves a legitimate state interest, i.e., to protect minors
     younger than 16 years of age from older teenage and adult sexual
     aggressors. Such an interest recognizes that older, more mature
     individuals are in a position that would allow them to take
     advantage of the immaturity and poor judgment of very young

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     minors. Moreover, we believe that the subject legislation is
     reasonably related to accomplishing such interest. The legislation
     is specifically tailored to prevent older teens and adults from
     preying upon very young minor victims, while recognizing that
     persons closer in age may be involved in lawful social and sexual
     relationships. Thus, the legislation meets the rational basis test.

Id. at 1154.

     Accordingly, Appellant’s challenge to the discretionary aspects of his

sentence fails in its fundamental premise. The variations in sentencing noted

by Appellant do have an obvious logical foundation, the protection of minor

children. Furthermore, our predecessor panel observed:

           First, the fact that discrepancies exist within the Crimes
     Code and the Code’s sentencing provisions does not render a
     particular mandatory minimum sentence unconstitutional. The
     fact that the General Assembly has not enacted a mandatory
     minimum sentence for one particular crime, one which Elia feels
     is more severe, does not, ipso facto, mean that the mandatory
     minimum sentence for IDSI is constitutionally infirm. Second, the
     absence of force or coercion does not render the mandatory
     minimum statute unconstitutionally disproportionate to Elia’s
     conduct. The Commonwealth has a legitimate state interest in
     protecting minors younger than sixteen years old from adult
     sexual aggressors. Commonwealth v. Albert, [supra at] 1154
     [ ]. To that end, the General Assembly has chosen to punish those
     offenders uniformly with a mandatory minimum sentence,
     regardless of whether the victim consented or was coerced
     into the sexual contact. The absence of consent in one
     particular case does not vitiate the General Assembly’s reasonable
     punitive goal. Moreover, the absence of consent or coercion
     does not, by itself, give rise to a reasonable inference that
     the sentence was grossly disproportionate.

           Elia engaged in oral sex with a fourteen-year-old girl when
     he was twenty-five years-old. Whether forced or not, this was the
     type of conduct that the General Assembly chose to criminalize
     and sought to deter and punish through the enactment of 42
     Pa.C.S. § 9718(a).          The punishment is not grossly
     disproportionate to that crime merely because Elia did not force

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       the victim to engage in oral sex. It is the oral sex itself, however
       it occurs, that the General Assembly intended to punish. Such a
       determination is evinced by the fact that lack of consent is not an
       element of, and has no bearing upon, IDSI with a child under the
       age of sixteen. See 18 Pa.C.S. §§ 3213(a)(7), 3101.

                                       *       *    *

       The crime committed remains severe. A lengthy sentence is a
       constitutional means to punish and deter offenders. The increase
       in the length of the sentence does not, by itself, induce us to
       conclude that the sentence raises meaningful constitutional
       concerns. . . . Elia has failed to establish a reasonable inference
       that the statute is grossly disproportionate[.]

(Elia, supra at 83 A.3d at 269–70 (emphases added)).

       Appellant has failed to present a substantial question about the

discretionary aspects of his sentence.11

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/18




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11Accordingly, it is unnecessary for us to review Appellant’s argument that his
sentence is excessive, and we decline to do so.

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