Com. v. Henry, J.

• Court: Superior Court of Pennsylvania
• Decided: November 21, 2022
• Docket: 400 MDA 2022
• Status: Unpublished

Opinion

J-S35032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN F. HENRY : : Appellant : No. 400 MDA 2022

Appeal from the Judgment of Sentence Entered December 29, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005280-2020

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

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 21, 2022

Appellant John F. Henry appeals from the judgment of sentence entered

after Appellant pled guilty to Rape of a Child, Aggravated Indecent Assault of

a Child, Incest, Photographing Child Pornography, Disseminating Child

Pornography and related crimes. Appellant challenges the discretionary

aspects of his sentence. We affirm.

On September 14, 2021, Appellant pled guilty to multiple criminal

offenses in relation to his repeated sexual assaults of his five-year old

daughter as well as his recording and dissemination of child pornography. On

December 29, 2021, after reviewing a pre-sentence investigation report (PSI),

the trial court held a sentencing hearing, at which the trial court determined

the prosecution had proven Appellant was a Sexually Violent Predator (SVP).

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* Former Justice specially assigned to the Superior Court. J-S35032-22

Thereafter, the trial court imposed the following individual sentences:

Count 1: Rape of a Child (F1)

10-20 years’ incarceration at a State Correctional Institute (SCI);

Count 2: Sexual Assault (F2)

Merged with Count 1;

Count 3: Indecent Assault, person less than 13 (F3)

1½ - 3 years’ incarceration at SCI, concurrent to Count 1;

Count 4: Aggravated Indecent Assault of a Child (F1)

10-20 years’ incarceration at SCI, consecutive to Count 1;

Count 5: Indecent Exposure (M1)

1-2 years’ incarceration at SCI, concurrent to Count 1;

Count 6: Incest of Minor, victim under 13 (F2)

4-8 years’ incarceration at SCI, consecutive to Count 4;

Count 7: Corruption of Minors (F3)

1½ - 3 years’ incarceration at SCI, consecutive to Count 6;

Count 8: Unlawful Contact with a Minor – Sexual Offenses (F1)

10-20 years’ incarceration at SCI, concurrent to Count 1;

Count 9: Unlawful Contact with a Minor – Sexual Abuse (F1)

4-8 years’ incarceration at SCI, concurrent to Count 1;

Count 10: Photographing Child Pornography (F1)

6-12 years’ incarceration at SCI, consecutive to Count 7;

Count 11: Disseminating Child Pornography (F2)

5-10 years’ incarceration at SCI, consecutive to Count 10;

Count 12: Possession of Child Pornography (F2)

Merges with Count 10;

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Count 13: Criminal Use of Communication Facility (F3)

1-3 years’ incarceration at SCI, consecutive to Count 11.

Trial Court Opinion (T.C.O.), 4/8/22, at 1-2. As a result, Appellant received an

aggregate sentence of 37½ - 76 years’ imprisonment.

Appellant filed a timely post-sentence motion, which the trial court

subsequently denied on February 2, 2022. This appeal followed.

Appellant raises one issue for our review:

Was an aggregate sentence of thirty-seven and one half to seventy-six years’ incarceration manifestly excessive under the circumstances and an abuse of the trial court’s discretion?

Appellant’s Brief, at 12.

Appellant claims his sentence is manifestly excessive based on the trial

court’s decision to run several of his sentences consecutively instead of

concurrently. Although Appellant admits that each of the individual sentences

fall within the standard range of the sentencing guidelines, Appellant argues

that the sentence is unreasonable and essentially a life sentence “because it

does not offer [Appellant] a meaningful chance at rehabilitation and return to

the community.” Appellant’s Brief, at 21.

In addition, Appellant argues that the trial court did not into account his

mitigating circumstances. While Appellant admits he has a prior criminal

record, Appellant argues that the fact that he does not have any prior

convictions for a sexual offense shows he is amenable to rehabilitation.

Appellant also notes that the trial court did not consider that Appellant has a

history of life trauma and intellectual disability.

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Both challenges implicate the discretionary aspects of sentencing. In

reviewing such challenges, we are mindful that:

Challenges to the discretionary aspects of sentence are not appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). Rather, an appellant challenging the sentencing court's discretion must invoke this Court's jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence; and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or sentencing norms. Id. An appellant must satisfy all four requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

Commonwealth v. Miller, 275 A.3d 530, 534 (Pa.Super. 2022).

In this case, Appellant filed a timely notice of appeal, preserved his

sentencing claims in a timely post-sentence motion, and his brief does not

contain any fatal defects. Assuming arguendo that both claims raise

substantial questions for review and all of these requirements have been met,

we conclude Appellant’s sentencing issues are meritless.

Our standard of review of a sentencing claim 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).

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The Sentencing Code sets forth general standards to guide the trial

court’s sentencing determination, requiring the sentence imposed to be

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.” 42 Pa.C.S.A. § 9721(b). In addition,

“[w]hen imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant. In

considering these factors, the court should refer to the defendant's prior

criminal record, age, personal characteristics and potential for rehabilitation.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citations

omitted).

Although these principles promote individualized sentencing, the trial

court “is not required to impose the minimum possible confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (citation

and internal quotation marks omitted). Section 9721(a) of the Sentencing

Code gives the trial court discretion to impose its sentences consecutively or

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

sentences already imposed. See 42 Pa.C.S.A. § 9721(a); Commonwealth v.

Taylor, 277 A.3d 577, 593 (Pa.Super. 2022) (quoting Commonwealth v.

Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003) (establishing that “in

imposing a sentence, the trial [court] may determine whether, given the facts

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of a particular case, a sentence should run consecutive to or concurrent with

another sentence being imposed”).

In reviewing whether a sentence should be vacated:

Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is “clearly unreasonable” based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The weighing of factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the sentencing court, and an appellate court may not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).

Taylor, 277 A.3d at 593 (quoting Commonwealth v. Bricker, 41 A.3d 872,

875-76 (Pa.Super. 2012) (citations omitted)).

In this case, as Appellant concedes that the trial court correctly applied

the guidelines and that all of his individual sentences fell within guideline

ranges, this Court may only vacate his sentence if it is “clearly unreasonable.”

Taylor, supra. In addition, we note that the trial court had the benefit of a

presentence investigation report (PSI). This Court has held that when the trial

court imposes a standard range sentence after reviewing a PSI report, the

sentence cannot be considered excessive or unreasonable absent some indicia

clearly evidencing the contrary. See id.

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Upon reviewing the record, we find that the sentence imposed was not

“clearly unreasonable.” At the sentencing hearing, the trial court noted that it

had reviewed the PSI report, the Sexual Offenders Assessment Board (SOAB)

evaluation, the counts for which Appellant was convicted, the applicable

mandatory sentences, and the sentencing guidelines. Notes of Testimony

(N.T.), 12/29/21, at 2-5, 26, 29.

In imposing the sentence in this case, the trial court gave great weight

to the gravity of the crimes committed, which the trial court characterized as

“heinous,” and their impact of Appellant’s crimes on the life of the victim. Id.

at 30. The trial court was appalled that Appellant repeatedly raped his five-

year old daughter, video-recorded the sexual assaults, and disseminated the

footage as child pornography. Id. at 30-31. The trial court highlighted that

Appellant had “betrayed the duty of care, protection, and support to [his]

daughter.” Id. at 31.

The trial court emphasized Appellant’s lack of remorse and

accountability for his crimes as the SVP Assessment indicated that Appellant

first denied the sexual contact and then subsequently blamed the five-year-

old victim for “coming on” to him as he suggested she enjoyed the contact.

Id. at 15; Trial Court Opinion (T.C.O.), 4/8/22, 8.

The trial court was concerned that Appellant exhibited a pedophilic

disorder as reported by the SVP assessment given the sexual deviance and

predatory nature of his brutal rape of a young, vulnerable child. T.C.O. at 8.

The trial court found that Appellant’s memorialization of the assault on video

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was a further aggravating factor “indicative of sustained sexual interest in

children and a desire to relive or fantasize about the rape of one’s own child.”

T.C.O. at 8-9.

While Appellant pointed to the fact that he has never been convicted of

a sexual offense, the trial court found there was little evidence to show that

Appellant was amenable to treatment or rehabilitation. N.T. at 30; T.C.O. at

8. As noted by the trial court, Appellant already had an extensive history of

serious crime including convictions in 2007 for aggravated assault (F2),

resisting arrest, and obstruction of justice, a convictions in 2009 and 2012 for

DUI, and convictions in 2017 for burglary (F2), conspiracy, and theft.

With respect to Appellant’s claim that the trial court did not consider

relevant mitigating factors, the record clearly shows otherwise. Where the trial

court has the benefit of reviewing a PSI report, we may assume that the trial

court “was aware of the relevant information regarding Appellant’s character

and weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (internal

quotation marks and citation omitted).

Moreover, the trial court expressly indicated that it had considered

Appellant’s family history and mental health limitations, in which Appellant

had been diagnosed with mild mental retardation as well as depression and

anxiety. N.T. at 26. The trial court recognized Appellant had required special

education all his life and only finished his education to the tenth grade. Id. at

29. The trial court also recognized that Appellant had a history of substance

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abuse from the age of sixteen and had sought treatment for drug and alcohol

abuse when charged with criminal offenses. Id. at 27.

Nevertheless, the trial court found nothing in the record to show a “lack

of intellectual ability that would prevent [Appellant] from understanding the

difference between right and wrong.” N.T. at 30; T.C.O. at 7-8. The trial court

also noted that as a thirty-seven year old male, Appellant was at an “age of

[] maturity to understand the significance of [his acts].” N.T. at 29. For all of

the foregoing reasons, the trial court found that Appellant was a “danger to

society,” noted that a lesser sentence would depreciate the seriousness of

Appellant’s crimes, and expressed concern of an undue risk that Appellant

would reoffend upon release. N.T. at 32; T.C.O. at 9.

Accordingly, our review of the record, briefs, trial court opinion, and

relevant authority uncovers no reason to disturb the trial court's discretion in

imposing Appellant’s sentence. See Shugars, supra (“[s]entencing 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”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/21/2022

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