Com. v. Hawchar, R.

• Court: Superior Court of Pennsylvania
• Decided: July 6, 2017
• Docket: Com. v. Hawchar, R. No. 334 WDA 2016
• Status: Unpublished

Opinion

J-S39001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RABIH HAIDAR HAWCHAR,

Appellant No. 334 WDA 2016

Appeal from the Judgment of Sentence Entered February 3, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0007016-2015

BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 06, 2017

Appellant, Rabih Haidar Hawchar, appeals from the judgment of

sentence of an aggregate term of 20 to 40 years’ incarceration, imposed

after a jury convicted him of various sexual offenses committed against a

minor victim. On appeal, Appellant solely challenges the discretionary

aspects of his sentence. We affirm.

Briefly, the evidence presented at Appellant’s jury trial demonstrated

that he sexually assaulted his stepson over the course of several years,

beginning when the child was nine and ending just before the child turned

thirteen. During these years, Appellant would abuse the victim three to four

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* Retired Senior Judge assigned to the Superior Court. J-S39001-17

times a week, including raping the child and forcing the child to perform oral

sex on him. The child finally admitted the abuse to his mother.

Appellant was arrested and charged with numerous sexual offenses.

Following a jury trial from November 13-17, 2015, the jury convicted

Appellant of two counts each of rape of a child (18 Pa.C.S. § 3121(c)),

involuntary deviate sexual intercourse with a child, (18 Pa.C.S. § 3123(b)),

and indecent assault of a child less than 13 years of age (18 Pa.C.S. §

3126(a)(7)). Appellant was also convicted of single counts of unlawful

contact with a minor (18 Pa.C.S. § 6318(1)), sexual assault (18 Pa.C.S. §

3124.1), and endangering the welfare of a child (18 Pa.C.S. § 4304(a)(1)).

On February 3, 2016, Appellant was sentenced to consecutive terms of

10 to 20 years’ incarceration for his rape convictions, as well as concurrent

terms of 10 to 20 years’ incarceration for each of the two counts of

involuntary deviate sexual intercourse. The court also directed that

Appellant adhere to a lifetime registration requirement under the Sexual

Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41.

No further penalty was imposed for Appellant’s remaining convictions.

Appellant did not file a post-sentence motion. Instead, on March 2,

2016, he filed a timely notice of appeal.1 The court ordered Appellant to file ____________________________________________

1 Curiously, in July of 2016, while Appellant’s appeal was pending, the trial court conducted a sexually violent predator (SVP) hearing, and ultimately determined that Appellant is an SVP. Appellant does not raise any challenge to the court’s belated SVP determination herein.

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a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

and after granting him several extensions of time to file that statement, he

timely did so on February 24, 2017. The trial court issued its Rule 1925(a)

opinion on March 7, 2017.

On appeal, Appellant presents one issue for our review:

I. Was the sentence imposed manifestly excessive, unreasonable, and an abuse of discretion where the court imposed an aggregate sentence of total confinement of 20 to 40 years and by stating that [the court] needed to protect the children of Lebanon without giving due consideration to the other statutory factors?

Appellant’s Brief at 5.

Appellant’s issue challenges the 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, Appellant has not satisfied the second requirement for obtaining

review of his discretionary-aspects-of-sentencing claim, as he did not file a

post-sentence motion raising this claim, and he also fails to point to where in

the record of the sentencing hearing he preserved it for our review.

Therefore, his sentencing issue is waived. See Griffin, supra; see also

Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004) (“It is

well settled that an [a]ppellant’s challenge to the discretionary aspects of his

sentence is waived if the [a]ppellant has not filed a post-sentence motion

challenging the discretionary aspects with the sentencing court.”).

Nevertheless, even if Appellant had preserved this issue, we would

deem it meritless. Preliminarily, in Appellant’s Rule 2119(f) statement, he

contends that the trial court fashioned a manifestly excessive sentence by

imposing “consecutive terms of maximum sentences….” Appellant’s Brief at

13. He also claims the court focused “on the seriousness of the offenses

alone, without taking into account evidence of other relevant sentencing

criteria[,]” such as his rehabilitative needs. Id. We would consider

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Appellant’s argument as constituting a substantial question for our review.

See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(finding that a challenge to the imposition of consecutive sentences as being

excessive, together with a claim that the court failed to consider the

appellant’s rehabilitative needs, constitutes a substantial question for our

review).

Nevertheless, we would reject Appellant’s arguments on the merits.

It is well settled that the proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. An 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. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion.

Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011) (internal citations

and quotation marks omitted).

In this case, Appellant contends that the trial court erred by imposing

“the maximum allowable terms for each” of his rape convictions, and for

imposing those terms to run consecutively. Appellant’s Brief at 23. He

maintains that in fashioning this sentence, the court focused only on the

seriousness of his offenses, and did not consider his “rehabilitative needs

and his ability to contribute to society as a productive, law-abiding member.”

Id. at 18. Appellant also stresses that he has “consistently maintained his

innocence” throughout the proceedings, a fact which he claims the court

improperly ignored. Id. at 23. Further, Appellant takes issue with the

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court’s statement that if it did not impose a lengthy sentence, Appellant “will

likely be deported, and [he] will likely remain a danger to the children of

Lebanon[,]” his country of citizenship. N.T. Sentencing, 2/3/16, at 51.

Appellant argues that it was improper for the court to rely on “an unknown

threat of [his] hurting children in Lebanon” in deciding on a lengthier term of

imprisonment. Appellant’s Brief at 18.

We would find Appellant’s arguments unconvincing, even had he

preserved them for our review. First, Appellant is incorrect that he received

a ‘maximum’ sentence for his convictions of rape of a child. See Appellant’s

Brief at 23. In support, Appellant cites 18 Pa.C.S. § 1103(c), which directs

that the maximum sentence for a felony of the first-degree is 20 years’

incarceration. However, Appellant ignores the following sentencing provision

of section 3121, the statute defining the crime of rape of a child:

(e) Sentences.--Notwithstanding the provisions of section 1103 (relating to sentence of imprisonment for felony), a person convicted of an offense under:

(1) Subsection (c) [rape of a child] shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

18 Pa.C.S. § 3121(e)(1) (emphasis added). Thus, Appellant faced a

maximum sentence of 40 years’ incarceration for each of his rape

convictions, yet the court imposed a maximum term of only 20 years for

those offenses.

Moreover, as the Commonwealth points out, the Sentencing Guidelines

applicable to Appellant’s case called for a standard range, minimum

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sentence of 72 to 240 months (or 6 to 20 years). Again, Appellant received

minimum terms of 10 years (or 120 months) for each rape offense, which

were well-within the standard guideline range. Additionally, the trial court

had the benefit of a presentence report, see N.T. Sentencing, 2/3/16, at 3,

and, thus, we presume that it properly weighed the mitigating factors in

Appellant’s case. See Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.

Super. 2006). Moreover, while Appellant repeatedly states that the court

failed to consider his rehabilitative needs, he at no point specifies what those

needs are, nor identifies where in the record of the sentencing hearing he

alerted the court to his unspecified, rehabilitative issues.

Additionally, contrary to Appellant’s argument, the trial court was

required to consider the seriousness of his offenses in fashioning his

sentence, and the court did not focus on that factor alone. Instead, the

court also considered the protection of the public, noting the danger that

Appellant will pose to children in Lebanon, the country to which he will likely

be deported upon his release. See 42 Pa.C.S. § 9721(b). We see nothing

unreasonable about the court’s consideration of this fact. Section 9721(b)

requires the sentencing court to take into account the protection of the

public; it does not, by its explicit terms, limit that consideration to citizens of

this Commonwealth or nation, and Appellant cites no legal authority to

support such a narrow view of the statute. Thus, it was not improper for the

court to take into account the safety of children in Lebanon.

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Finally, while Appellant argues that the court should have recognized

(and favorably weighed) the fact that he has maintained his innocence

throughout the proceedings, the Commonwealth argued at the sentencing

hearing that this fact instead shows that Appellant “refuses to accept any

responsibility for his actions” and that “he continues to … blame everyone

around him.” N.T. Sentencing at 50. This argument was supported by

Appellant’s lengthy statement to the court at sentencing, during which he

attacked the credibility of the victim and the victim’s mother, and blamed

them for his arrest and conviction. See id. at 9-31. Therefore, it was

reasonable for the trial court to disregard Appellant’s assertions of innocence

in fashioning his sentence.

In light of this record, we would not conclude that Appellant’s standard

range sentence was ‘clearly unreasonable’ or an abuse of the court’s

discretion. See 42 Pa.C.S. § 9781(c)(1) (stating that this Court shall vacate

a standard range sentence where “the case involves circumstances where

the application of the guidelines would be clearly unreasonable”). The court

was permitted to place more weight on the egregiousness of Appellant’s

offenses and the danger he poses to society, rather than on Appellant’s

unspecified rehabilitative needs and his assertions of innocence. Therefore,

even had Appellant preserved his sentencing challenge for our review, we

would deem it meritless.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/6/2017

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