Com. v. Lellock, R.

• Court: Superior Court of Pennsylvania
• Decided: August 16, 2017
• Docket: Com. v. Lellock, R. No. 1269 WDA 2016
• Status: Unpublished

Opinion

J-S49008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT LELLOCK, : : Appellant : No. 1269 WDA 2016

Appeal from the Judgment of Sentence July 21, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003936-2013, CP-02-CR-0013778-2012

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.: FILED AUGUST 16, 2017

Appellant, Robert Lellock, appeals from the Judgment of Sentence

entered July 21, 2016, in the Court of Common Pleas of Allegheny County.

After careful review, we conclude that the trial court did not abuse its

discretion or impose an unreasonable sentence where Appellant used his

position of authority as a School Police Officer and threats of violence to

sexually abuse his four minor victims.1 We, therefore, affirm.

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* Former Justice specially assigned to the Superior Court. 1 We remind the parties that the four men who testified against Appellant were minors when Appellant sexually abused them, and their anonymity should be protected in future filings before this Court. See 42 Pa.C.S. § 5988(a). J-S49008-17

The relevant facts, as summarized by this Court in a prior appeal, are

as follows:

The evidence presented at trial established that Arthur Rooney Middle School, located on the North Side of the City of Pittsburgh, opened for the 1998-1999 school year. At that time Appellant, a Pittsburgh School Police Officer, would patrol the school and assist with various disciplinary matters. Appellant was observed by several teachers frequently taking male students out of class, including the four (4) victims herein: [S.L. (“Victim 1”), J.W. (“Victim 2”), C.O. (“Victim 3”), and D.J. (“Victim 4”)]. Upon taking the boys out of class, Appellant would take them to a janitor's closet where he would touch their nipples and penises through and underneath their clothing. Particularly with regard to [Victim 1], Appellant would masturbate the boy's penis until he ejaculated and make the boy do the same to him. On several occasions, Appellant made him “kiss” the head of his penis, and when the child did so, he would force his penis into his mouth. In order to ensure [Victim 1’s] silence, he threatened the child with violence against him and his family and also threatened criminal prosecution for stolen credit cards [Victim 1] had in his possession the first time they met.

Commonwealth v. Lellock, No. 2021 WDA 2013, unpublished

memorandum at 2-3 (Pa. Super. filed April 23, 2015).

On November 21, 2012, the Commonwealth charged Appellant, by

criminal information, with numerous offenses arising from his sexual abuse

of the four victims, although many of the charges were withdrawn or

dismissed prior to trial. At the time of trial, Appellant was facing thirteen

charges broken down as follow:

 At CP-02-CR-0013778-2012, for the sexual abuse of Victim 1: Involuntary Deviate Sexual Intercourse (“IDSI”), victim under 16;

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Endangering the Welfare of a Child; Corruption of a Minor; and Indecent Assault, victim under 16.2

 At CP-02-CR-0013778-2012, for the sexual abuse of Victim 2: Endangering the Welfare of a Child; and Corruption of a Minor.3

 At CP-02-CR-0013778-2012, for the sexual abuse of Victim 3: Endangering the Welfare of a Child; Corruption of a Minor, and Indecent Assault, victim under 16.4

 At CP-02-CR- 0003936-2013, for the sexual abuse of Victim 4: Criminal Solicitation of IDSI, victim Endangering the Welfare of a Child; Corruption of a Minor, and Indecent Assault.5

See Criminal Information, CP-02-CR-0013778-2012, filed 11/21/12;

Criminal Information, CP-02-CR- 0003936-2013, filed 3/13/13.

On July 29, 2013, the jury convicted Appellant on all counts. On

October 22, 2013, the trial court held a Sexually Violent Predator (“SVP”)

hearing, at which the court deemed Appellant to be an SVP. Immediately

thereafter, the trial court sentenced Appellant to an aggregate term of 32 to

64 years of incarceration. Included in that sentence were two then-

applicable mandatory minimum sentences of 10 to 20 years of incarceration

2 18 Pa.C.S. §§ 3123(a)(7), 4304(a), 6301(a)(1), and 3126(a)(8), respectively. 3 18 Pa.C.S. §§ 4304(a) and 6301(a)(1), respectively. 4 18 Pa.C.S. §§ 4304(a), 6301(a)(1), and 3126(a)(8), respectively. 5 18 Pa.C.S. §§ 902(a), 4304(a), 6301(a)(1), and 3126(a)(8), respectively.

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for the charges of IDSI and Criminal Solicitation of IDSI.6 See Order of

Sentence, CP-02-CR-0013778-2012, dated 10/22/13; Order of Sentence,

CP-02-CR- 0003936-2013, dated 10/22/13.

Appellant filed a timely appeal challenging, inter alia, the discretionary

aspects of his sentence. While his appeal was pending, this Court struck

down the mandatory scheme under which the trial court had sentenced

Appellant. See Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super.

2014) (finding 42 Pa.C.S. § 9718 facially void). Therefore, this Court

vacated Appellant’s Judgment of Sentence and remanded for resentencing

on the two IDSI counts, without considering Appellant’s challenge to the

discretionary aspects of his sentence. Lellock, supra at 11-12.

On July 21, 2016, the trial court held a resentencing hearing on

remand. The trial court acknowledged that it had reviewed a Sentencing

Memorandum, a Supplemental Sentencing Memorandum, letters and

certifications in support of Appellant, a Pre-Sentence Investigation (“PSI”)

Report, and the Sentencing Guidelines. N.T., 7/21/16, at 2. The trial court

emphasized that it was not imposing mandatory minimum sentences. N.T.,

7/21/16, at 8. Then, although no longer bound by any applicable mandatory

minimum sentence, the trial court re-sentenced Appellant to an aggregate

6 See 42 Pa.C.S. § 9718.

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term of 32-64 years of imprisonment.7 The trial court made limited remarks

at resentencing, but incorporated by reference the remarks made when

imposing Appellant’s original sentence.

Appellant filed a Post-Sentence Motion alleging that his sentence,

which included multiple statutory maximum sentences consecutive to one

another, was manifestly unfair and unreasonable. On July 28, 2016, the

trial court denied Appellant’s Post-Sentence Motion.

Appellant filed a timely Notice of Appeal on August 25, 2016. The trial

court and Appellant both complied with Pa.R.A.P. 1925.

On appeal, Appellant purports to raise a single issue, which we have

separated into its component parts for ease of disposition.8

[1.] Is the imposition of an aggregate sentence of 32 to 64 years’ incarceration manifestly excessive, unreasonable, and an abuse of the sentencing court’s discretion in that the sentence, which includes the maximum sentence possible on the six counts on which sentence was imposed, all sentences well above the aggravated range, and all served consecutively, is not supported by reasons on the record for imposing the maximum sentence and wholly disregards the guideline ranges for these offenses?

7 This included two consecutive terms of 10 to 20 years of imprisonment for IDSI and Criminal Solicitation of IDSI. 8 Although we find Appellant’s Brief to be otherwise well-organized and well- written, Appellant poses two distinct challenges to the discretionary aspects of his sentence as a single issue. Moreover, the argument portion of his Brief fails to clearly delineate the two claims. We remind Appellant of his obligation to clearly divide the argument portion of his Brief, with a separate section addressed to each question raised. Pa.R.A.P. 2119(a).

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[2.] Also, was the aggregate sentence imposed an abuse of discretion in that the 48-year-old Appellant, with a prior record score of zero, is now serving a de facto life sentence? In other words, did the court fail to consider, as it must, Appellant’s need for rehabilitation, instead focusing solely upon the seriousness of the crime, and imposing a manifestly excessive, irrational, and unreasonable sentence which does not comport with principles of individualized sentencing?

Appellant’s Brief at 9 (paragraph break and numbering inserted for clarity).

Appellant’s claims both challenge the discretionary aspects of his

sentence. A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. See Commonwealth v. Hill,

66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant

has preserved the sentencing challenge for appellate review by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

include in his brief “a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a

sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code.” Id. at 363-64.

In the instant case, Appellant filed a timely Notice of Appeal and a

timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)

Statement in his Brief. Appellant’s Brief at 16-24. Finally, both of

Appellant’s claims—that the trial court failed to state the reasons for the

sentence imposed, and that the trial court imposed an unreasonable

sentence while ignoring the sentencing guidelines and relevant sentencing

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criteria—present a substantial question for our review. See

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (holding

that an “[a]ppellant’s contention that the sentencing court exceeded the

recommended range in the Sentencing Guidelines without an adequate basis

raises a substantial question for this Court to review.”). See also

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (finding a

substantial question exists where appellant claims “that the trial court failed

to consider relevant sentencing criteria, including the protection of the

public, the gravity of the underlying offense and the rehabilitative needs of

Appellant, as 42 Pa.C.S.A. § 9721(b) requires, and instead focused on the

injuries suffered by the complaining victims.”).

Accordingly, we address the merits of Appellant’s claims, mindful of

our standard of review:

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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

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Statement of Reasons for Sentence Imposed

Appellant avers that the trial court failed to adequately state on the

record its reasons for the sentence imposed. Appellant’s Brief at 28-31, 39-

40.

Where a trial court imposes a sentence outside of the sentencing

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open

court, a “contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To

satisfy the requirements of Section 9721(b), the trial court must:

demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.

Id. (brackets and citation omitted).

The on-the-record disclosure requirement does not require the trial

court to make “a detailed, highly technical statement.” Commonwealth v.

Hunter, 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has

the benefit of a PSI Report, our Supreme Court has held that “it is presumed

that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,

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1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d

12, 18-19 (Pa. 1988)). Where the trial court has reviewed the PSI, it may

properly “satisfy the requirement that reasons for imposing sentence be

placed on the record by indicating that he or she has been informed by the

[PSI]; thus properly considering and weighing all relevant factors.” Id.

At Appellant’s resentencing, the trial court acknowledged that it had

received and reviewed (i) a Sentencing Memorandum; (ii) a Supplemental

Sentencing Memorandum, which included “letters and certifications” in

support of Appellant; (iii) the sentencing guidelines; and (iv) a PSI Report.

N.T., 7/21/16, at 2. In addition, Appellant’s counsel addressed the

sentencing court, highlighting Appellant’s military service, academic

achievements, prior good deeds caring for family members, and potential to

successfully re-enter society under close supervision later in life. Id. at 3-6.

Finally, prior to imposing sentence, the court incorporated its prior remarks

from Appellant’s initial sentencing, namely:

Mr. Lellock, I guess I could say that you certainly define the term terribly heinous crime. You violated a position of authority. You chose young men that you thought were vulnerable. One had just moved here. One had been in trouble. There was some indication that you gave them marijuana. You pulled the kids out of school over and over and over and over and you violated them over and over and over. These children have an impact that affects their lives even today. You thought that they were weak children that you could take advantage of, but, Mr. Lellock, you are wrong. They are strong children and they came to court and they stood up to you, and they are a lot stronger than you have ever been or ever will be.

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You have been classified as a sexually violent predator. I find [that] you are a danger to the community.

N.T., 10/22/13, at 28-29. See also N.T., 7/21/16, at 8 (“I’m going to

incorporate the reasons I gave from the original sentence into this

sentencing[.]”).

Appellant acknowledges these statements from the sentencing court,

but avers that a new sentencing proceeding is required because “[w]ithout

discussion on the record of the defendant’s personal circumstances, or

indeed anything on the record about the defendant’s history, [the Superior

Court] cannot determine whether the punishment imposed fits either the

crime or the defendant.” Appellant’s Brief at 39.

Appellant overlooks the well-settled principle that where the trial court

has reviewed the PSI Report, it may properly “satisfy the requirement that

reasons for imposing sentence be placed on the record by indicating that he

or she has been informed by the [PSI]; thus properly considering and

weighing all relevant factors.” Ventura, supra at 1135. Here, the trial

court acknowledged receiving and reviewing Appellant’s PSI Report, as well

as additional supporting information provided by Appellant in his Sentencing

Memorandum and Supplemental Sentencing Memorandum. The seven-page

Sentencing Memorandum, which is included in the certified record, includes

a detailed history of Appellant’s “law-abiding, family-focused life prior to

these convictions.” Sentencing Memorandum, filed 7/11/16, at 4.

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We, therefore, conclude that the trial court adequately stated its

reasons for imposing sentence, and Appellant is not entitled to relief on this

claim.

Manifest Excessiveness Claim

Appellant’s related claim—that the trial court imposed an unreasonable

sentence while ignoring the sentencing guidelines and relevant sentencing

criteria—also presents a substantial question for our review. See discussion

supra, at *6-7. Accordingly, we turn to the merits of this claim, mindful

that we review the sentence imposed for a manifest abuse of discretion.

See id. at *7.

Where the trial court deviates above the guidelines, this Court may

only vacate and remand a case for resentencing if we first conclude that “the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the

Sentencing Code does not define the term “unreasonable,” our Supreme

Court has made clear that “rejection of a sentencing court's imposition of

sentence on unreasonableness grounds [should] occur infrequently, whether

the sentence is above or below the guideline ranges[.]” Commonwealth v.

Walls, 926 A.2d 957, 964 (Pa. 2007). This is especially true “when the

unreasonableness inquiry is conducted using the proper standard of

review[,]” i.e., for a manifest abuse of discretion. Id.

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A trial court may deviate above the sentencing guidelines and impose

a statutory maximum sentence without necessarily committing a manifest

abuse of discretion. See Commonwealth v. Rossetti, 863 A.2d 1185,

1194-95 (Pa. Super. 2004) (affirming a statutory maximum sentence

imposed after the trial court considered and balanced all of the relevant

mitigating and aggravating facts). Similarly, trial courts are given wide

latitude on whether to impose multiple sentences concurrent or consecutive

to one another, even where the aggregate sentence imposed greatly

exceeds the sentence on any one count. See Commonwealth v. Austin,

66 A.3d 798, 809 (Pa. Super. 2013) (affirming the imposition of 47

consecutive sentences for child pornography, resulting in an aggregate

sentence of 35 to 70 years of imprisonment). Finally, it is axiomatic that a

defendant who committed multiple crimes is not entitled to a “volume

discount” simply because the trial court sentences him for his separate

offenses in a single proceeding. See Commonwealth v. Hoag, 665 A.2d

1212, 1214 (Pa. Super. 1995) (explaining that a defendant is not entitled to

a “volume discount” for his or her crimes).

In the instant case, the trial court sentenced Appellant to the statutory

maximum sentence on six counts, each consecutive to one another, and to

no further penalty on the remaining seven counts. Although these

sentences fell outside of the sentencing guidelines, we do not agree with

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Appellant that the trial court abused its discretion or otherwise erred in

imposing an aggregate sentence of 32 to 64 years of imprisonment.

The trial court took great care to emphasize for which victim it

imposed each sentence. We agree that separate sentences imposed for

each victim are worth noting in the instant analysis. As detailed supra,

Appellant’s aggregate sentence of 32 to 64 years of imprisonment is

comprised of a 10 to 20 year sentence for Victim 1, a 6 to 12 year aggregate

sentence for Victim 2, a 6 to 12 year aggregate sentence for Victim 3, and a

10 to 20 year sentence for Victim 4. Appellant is not entitled to a “volume

discount” just because when his crimes came to light years later, he was

tried and sentenced for these separate offenses in a single proceeding.

Although Appellant alleges the sentencing court failed to adequately

consider a myriad of sentencing factors, the record of events preceding the

court’s imposition of sentence belie Appellant’s claim. At each stage of

Appellant’s prosecution, the trial court heard testimony or argument

attesting to Appellant’s good deeds, prior achievements, and lack of criminal

record. However, the trial court also heard a myriad of testimony justifying

a deviation above the sentencing guidelines, including how Appellant used

his position of authority to sexually abuse four children and used threats of

physical violence and criminal prosecution to silence his victims.

Finally, while Appellant makes much of the fact that the trial court

imposed the statutory maximum sentence on those convictions where it did

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impose sentence, Appellant ignores the fact that the trial court declined to

impose punishment on over half of the counts of which the jury convicted

Appellant.

Although the sentences imposed on six of the thirteen convictions

exceeded the sentencing guidelines, the aggregate sentence was not

unreasonable in light of the number of victims, the especially heinous nature

of the offenses, and the fact that no further penalty was imposed on seven

additional convictions. We conclude that the trial court, having considered

all of the pertinent aggravating and mitigating information, did not abuse its

discretion in sentencing Appellant to consecutive statutory maximum terms

of imprisonment.

Judgment of Sentence affirmed.

Judge Solano joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/2017

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