J-S09028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLIFFORD WAYNE SCHALL                      :
                                               :
                       Appellant               :   No. 1068 WDA 2018

           Appeal from the Judgment of Sentence Entered May 8, 2018
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000685-2017


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 04, 2019

        Clifford Wayne Schall appeals from the judgment of sentence, entered

in the Court of Common Pleas of Venango County, after he entered a

negotiated guilty plea to one count each of sexual abuse of children—

photographing, videotaping, depicting on computer or filming sexual acts,1

and corruption of minors.2 Upon careful review, we affirm.

        The instant charges arose from Facebook communications between

Schall and the victim, a 13-year-old girl. During the course of their online

interaction, Schall requested, and the victim sent, nude images of herself, and

the two made plans to meet in order to have sex. Schall, who was aware that

the girl was just 13, also sent pictures of his genitals to the victim.

____________________________________________


1   18 Pa.C.S.A. § 6312(b)(1).

2   18 Pa.C.S.A. § 6301(a)(1)(i).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On February 20, 2018, Schall entered a negotiated guilty plea to the

above charges, pursuant to which the Commonwealth agreed to nolle pros

numerous other charges and agreed to a standard-range sentence. On May

8, 2018, the trial court sentenced Schall to a term of 16 to 120 months’

incarceration for sexual abuse of children, to run concurrently to a term of 3

to 60 months’ incarceration for corruption of minors. Those sentences were

imposed consecutively to another unrelated sentence imposed upon Schall

previously in Forest County.

       Schall filed post-sentence motions, requesting reconsideration of his

sentence and admission into evidence of a psychological evaluation, presented

to the Commonwealth and the trial court at sentencing, which placed Schall

in the “extremely low range of intellectual functioning.” 3 Brief of Appellant, at

5.   On June 19, 2018, the trial court denied reconsideration of Schall’s

sentence but, by order dated June 21, 2018, granted admission of the

psychological report. Schall filed a timely notice of appeal on July 18, 2018,

followed by a court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

       Schall raises the following claims for our review:

       1. Whether the sentenc[ing] court erred or abused its discretion
       in imposing a sentence without giving consideration to all the
       relevant factors under 42 Pa.C.S. [s]ection 9721(b), including
       . . . Schall’s character, gravity of the offense, his rehabilitative

____________________________________________


3 The court was in possession of the psychological evaluation at the time of
sentencing, but counsel did not seek its admission into evidence.

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      needs, and, specifically, his substantial intellectual disabilities,
      which include a full-scale IQ of 69?

      2. Whether the sentenc[ing] court erred and/or abused its
      discretion in structuring a sentence that was manifestly and
      unreasonably excessive in nature in that it imposed a top-end
      standard[-]range minimum to a statutory maximum sentence to
      run consecutive[ly] to his ARD revocation sentence out of Forest
      County under circumstances which called for mitigation in view of
      Schall’s intellectual disabilities?

Brief of Appellant, at 4.

       Schall’s appellate claims implicate the discretionary aspects of his

sentence. Such a challenge is not appealable as of right. Rather, an appellant

must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781.

Commonwealth v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

      Before we reach the merits of this issue, we must engage in a
      four[-]part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of sentence; and (4) whether the concise statement raises
      a substantial question that the sentence is appropriate under the
      sentencing code. . . . [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Id. at 1042-43, quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.

Super. 2013).

      Here, Schall filed a post-sentence motion for reconsideration of his

sentence, followed by a timely notice of appeal. In addition, he has included

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

Pa.R.A.P. 2119(f). Accordingly, we must now determine whether Schall has

raised a substantial question for our review.

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      In his Rule 2119(f) statement, Schall asserts that “the sentence imposed

was unreasonably harsh and manifestly excessive” and that the court did not

consider his rehabilitative needs or mitigating circumstances—namely, his low

IQ. This Court has held that an excessive sentence claim—in conjunction with

an assertion that the court failed to consider mitigating factors—raises a

substantial question. Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014), citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.

Super. 2005). Accordingly, we will consider the merits of Schall’s claim.

      Our standard of review of the discretionary aspects of a sentence 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
      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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

      First, we note that Schall’s plea agreement provided that his sentences

would be within the standard range of the guidelines. Thus, Schall’s sentence

is not inconsistent with a specific provision of the Sentencing Code or contrary

to the fundamental norms which underlie the sentencing process.             See

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012)

(“[W]here a sentence is within the standard range of the guidelines,




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Pennsylvania law views the sentence as appropriate under the Sentencing

Code.”).

      Second, the court had in its possession at the time of sentencing a pre-

sentence investigation (PSI) report. Accordingly, “we presume that the court

was aware of relevant information regarding the defendant’s character and

weighed    those    considerations    along   with   any    mitigating   factors.”

Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014).

      Moreover, at sentencing, defense counsel emphasized Schall’s prior

record score of zero, his significant cognitive disabilities, and his lack of prior

misconduct in jail. Schall himself apologized to the court and indicated that

he was “ready to do [his] time and get on with [his] life.” N.T. Sentencing, at

18.

      Conversely, counsel for the Commonwealth noted the predatory nature

of Schall’s behavior in actively pursuing sexual communication and contact

with a 13-year-old girl. Counsel noted that Schall was well aware of the child’s

age, as “they even referenced their respective ages in the messages

themselves.” Id. at 15. Counsel further noted the exchange of explicit images

and concluded by requesting a “low[-]end state sentence.” Id. at 16.

      The trial court noted that it considered Schall’s character and

rehabilitative needs in making its sentencing determination. See Trial Court

Opinion, 8/16/18, at 4. In addition, the court reviewed and considered not

only the PSI, but also the psychological assessment submitted by Schall’s

counsel prior to sentencing. See id.

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       In light of the foregoing, we cannot conclude that the trial court failed

to consider Schall’s intellectual challenges or his rehabilitative needs or

imposed an unduly harsh sentence.

       To the extent that Schall’s excessive-sentence claim rests on the court’s

imposition of his sentence consecutively to his sentence in Forest County,

“[l]ong[-]standing precedent of this Court recognizes that 42 Pa.C.S. [§] 9721

affords the sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time or to

sentences already imposed.” Commonwealth v. Gonzalez–Dejusus, 994

A.2d   595,   598   (Pa.   Super.   2010)   (citation   omitted).    See   also

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995)

(explaining that defendant is not entitled to “volume discount” for his or her

crimes).

       Finally, Schall argues that he should have received a lighter sentence

due to the “distance and sense of removal and anonymity the nature of the

crime entailed.” Brief of Appellant, at 11. However, this argument is utterly

unavailing in an age where sexual predators actively exploit the anonymity

provided by the internet to find, groom, and ultimately abuse young victims.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2019




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