J-S41045-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA, :             IN THE SUPERIOR COURT OF
                                  :                   PENNSYLVANIA
                 Appellee         :
                                  :
            v.                    :
                                  :
    DANIEL R. HOSTETLER,          :
                                  :
                 Appellant        :             No. 80 MDA 2019

      Appeal from the Judgment of Sentence Entered November 29, 2018
              in the Court of Common Pleas of Huntingdon County
             Criminal Division at No(s): CP-31-CR-0000108-2018

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED SEPTEMBER 13, 2019

       Daniel R. Hostetler (Appellant) appeals from the judgment of sentence

entered November 29, 2018, after he pleaded guilty to one count of indecent

assault without consent and two counts of indecent assault with a person less

than 16 years of age.       We affirm.

       In   early   2018,    Appellant   was   charged   with,   inter   alia,   the

aforementioned offenses committed against his biological daughter, M.P.,

which occurred between October 21, 2002, and October 20, 2006, when M.P.

was a minor.1       On August 2, 2018, Appellant entered a guilty plea to the


1
  There is no guilty plea transcript in the certified record before us, which
presumably sets forth a summary of the facts in this case. However, the
certified record does include the affidavit of probable cause, which contained,
inter alia, the following facts gathered by police to support the charges filed.

       At the time of the assaults [M.P.] was between the ages of [13
       and 16] years of age. Currently, [M.P.] is an adult. [M.P.] related


* Retired Senior Judge assigned to the Superior Court
J-S41045-19

aforesaid offenses.     Sentencing was deferred to a later date pending the

completion of a pre-sentence investigation (PSI) report.

        On November 29, 2018, Appellant appeared before the trial court for

sentencing. At the outset, the trial court determined that the two counts of

indecent assault with a person less than 16 years of age merged for sentencing

purposes. The trial court then sentenced Appellant to 6 to 12 months’ at the

remaining two counts respectively, and ordered the sentences to run

consecutively to one another.

        On December 6, 2018, Appellant timely filed a post-sentence motion to

modify sentence, which the trial court denied the next day.            See Post-

Sentence Motion, 12/6/2018; Order, 12/7/2018.           This timely-filed appeal

followed,2 wherein Appellant presents the following issue for our review.

        1. Did the [trial] court err in sentencing [Appellant] to the top of
           the aggrav[ated] range on two counts of [indecent] assault
           where the court did not provide appropriate reasons for
           sentencing in the aggravated range of the guidelines?




        [that] between those ages[, Appellant, her father,] touched her
        inappropriately on many occasions. [Appellant] touched her
        breasts and vagina above her clothes. The touching started as
        hugging from behind and slow[ly] running his hands across her
        breasts.

Affidavit of Probable Cause, 2/7/2018. After speaking to M.P., a trooper with
the Pennsylvania State Police made contact with Appellant, who admitted to
touching M.P.’s breasts and vagina, and stated that the touching was for his
sexual arousal. Id.
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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Appellant’s Brief 6 (suggested answer and unnecessary capitalization

omitted).

      Appellant’s sole issue on appeal challenges the discretionary aspects of

his sentence.3 Accordingly, we bear in mind the following.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      The record reflects that Appellant timely filed a notice of appeal and that

Appellant preserved the issue by timely filing a post-sentence motion.

Moreover, Appellant has included in his brief a statement pursuant to Pa.R.A.P

2119(f).    We now turn to consider whether Appellant has presented

substantial questions for our review.




3
 Because Appellant entered an open guilty plea as to the sentence imposed,
he is not precluded from appealing the discretionary aspects of his sentence.
See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).


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

(citation and quotation marks omitted).

      In his 2119(f) statement, Appellant contends the trial court erred in

imposing sentences in the aggravated range,4 without setting forth “legally

sufficient grounds for [] imposing such an excessive sentence.” Appellant’s

Brief at 11.   Such a claim raises a substantial question for our review. See

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (“In his

final issue [Wellor] claims the lower court failed to state on the record

adequate reasons for imposing sentences in the aggravated range. This Court

has held that such a challenge to the sentence raises a substantial question.”).

We address the merits of this claim mindful of the following.

           Since Appellant was sentenced within the guidelines, we
      may reverse only if application of the guidelines is clearly
      unreasonable. The [Commonwealth v.] Walls[, 926 A.2d 957

4At sentencing, it was determined that with Appellant’s prior record score of
zero and an offense gravity score of four for both indecent assault without
consent and indecent assault with a person under 16, the standard-range
sentence for both crimes is restorative sanctions to three months, with an
aggravated range of three to six months’ incarceration.



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      (Pa. 2007)] Court noted that the term “unreasonable,” while not
      defined in the Sentencing Code, generally means a decision that
      is either irrational or not guided by sound judgment. The Court
      continued that the context of the term’s use in section 9781
      indicates    that    the   legislature  intended  the   concept
      of unreasonableness to be inherently a circumstance-dependent
      concept that is flexible in understanding and lacking precise
      definition.

            The Supreme Court held that a sentence can be deemed
      unreasonable after review of the four elements contained in
      section 9781(d) or if the sentencing court failed to take into
      account the factors outlined in 42 Pa.C.S. § 9721(b). [Subs]ection
      9721(b) states in pertinent part:

            [T]he court shall follow the general principle that
            the sentence imposed should call for confinement that
            is consistent with the protection of the public, the
            gravity of the offense as it relates to the impact on the
            life of the victim and on the community, and the
            rehabilitative needs of the defendant. The court shall
            also consider any guidelines for sentencing adopted
            by the Pennsylvania Commission on Sentencing[.]

            In conclusion, our Supreme Court in Walls stated that when
      the proper standard of review is utilized, rejection of
      a sentencing court’s imposition of sentence on unreasonableness
      grounds [should] occur infrequently, whether the sentence is
      above or below the guidelines ranges.

Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (some

citations and quotation marks omitted). In reviewing the record on appeal,

this Court considers:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.



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      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Here, Appellant contends that the trial court abused its discretion by

relying on the familial relationship that existed between Appellant and M.P.

when sentencing Appellant, which Appellant avers was an “improper” factor.

Appellant’s Brief at 15.

      Despite Appellant’s show of remorsefulness, his cooperation with
      law enforcement, and his lack of subsequent offense, the [trial
      c]ourt chose to sentence Appellant to a sentence which had a
      minimum which was the top of the aggravated range and a
      maximum which was the statutory maximum for each offense.
      The [trial] court’s reasoning that the guidelines did not adequately
      take into account the familial relationship between Appellant and
      the victim was not an appropriate reason to impose a sentence in
      the aggravated range.

Id.

      In this case, prior to sentencing, the trial court set forth the guideline

ranges for each of the crimes Appellant was convicted. N.T., 11/29/2018, at

3. Furthermore, the trial court noted that it was in receipt of the PSI report

and had reviewed letters it received from M.P. and “people supporting”

Appellant. Id. at 1, 3. Moreover, the trial court heard statements made by

the Commonwealth, defense counsel and Appellant, as well as listened to

M.P.’s victim impact statement. Id. at 4-17. The trial court then stated the

following.

            I’ve considered the sentencing guidelines and I've
      considered the statements of your supporters, sir. I’ve considered
      your statement and I've considered the victim’s letters and the
      words today. This is difficult because you have to look at this from


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      two perspectives. You need to look at this from someone who has
      confessed to this years ago[5] and then you have to look at this
      from the victim’s perspective and when you consider the
      protection of the public and the gravity of this offense and the life
      of the victim and the community and your rehabilitative needs, it
      becomes more difficult.

              I don’t think that the law or the sentencing guidelines
      adequately consider[] these offenses because this is an indecent
      assault case. An indecent assault case is a touching which can be
      over the clothes and that’s what we have here. But what the
      sentencing guidelines don’t consider is the fact that this was your
      child and we all see a young lady here, an adult, but it’s difficult
      attempting to get into her head when she was a child, a young
      girl, looking for someone to protect her and that’s why I think the
      sentencing guidelines are inadequate here because the sentencing
      guidelines consider indecent assault from the perspective, I think,
      of an adult assaulting maybe a child, maybe another adult but
      don’t consider that child’s only protection being the person who
      did this to her.

           So I’m going to sentence in the aggravated range of
      sentence in this case.

Id. at 18-19.

      Upon review, we find that the trial court took into account all necessary

considerations, including but not limited to, the nature of the offenses, PSI

report,6 M.P.’s victim impact statement, Appellant’s allocution, and letters it

received from Appellant’s supporters.       Based upon the foregoing, for the



5
  More than a decade before police began its investigation into the abuse of
M.P., Appellant “confessed” to the abuse “in front of his church” and “asked
for forgiveness.” N.T., 11/29/2018, at 4-5.
6
 “[W]here the sentencing judge had the benefit of a [PSI] report, it will be
presumed that he or she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.
Super. 2016).


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reasons it cited on the record, the trial court concluded that the imposition of

aggravated-range sentences was appropriate. We see no abuse of discretion

in this determination.   See Commonwealth v. Mouzon, 828 A.2d 1126,

1128 (Pa. Super. 2003) (An “appellate court must give great weight to the

sentencing court’s discretion, as he or she is in the best position to measure

factors such as the nature of the crime, the defendant’s character, and the

defendant’s display of remorse, defiance, or indifference.”).        See also

Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017) (“To be clear,

while the court must consider the guidelines, the court is also afforded broad

discretion in sentencing matters, as it is in the best position to evaluate the

individual circumstances before it.”).

      Moreover, Appellant fails to make a cognizable argument, or cite any

authority to support his contention that the individual nature of the crime,

such as the familial relationship shared between Appellant and M.P., was an

improper factor to consider because it was already incorporated as a factor in

the guidelines. See Walls, 926 A.2d at 967 (holding that factors of victim’s

precise age and victim being entrusted to defendant’s care were not subsumed

within sentencing guidelines and thus could justify an above-guideline

sentence).   See also Commonwealth v. Shugars, 895 A.2d 1270, 1275

(Pa. Super. 2006) (holding a sentencing court “has wide discretion

in sentencing and can, on the appropriate record and for the appropriate




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reasons,    consider    any    legal   factor    in   imposing     a sentence in

the aggravated range.” ).

      For the foregoing reasons, we conclude that Appellant has failed to

demonstrate 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.

Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)).           Accordingly, we affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2019




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