Opinion
J. A03007/16 No. 1004 EDA 2015
03-31-2016
COMMONWEALTH OF PENNSYLVANIA v. BASEM K. SHLEWIET, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 9, 2015
In the Court of Common Pleas of Bucks County
Criminal Division No(s).: CP-09-CR-0001645-2014 CP-09-CR-0001646-2014 BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Basem K. Shlewiet, appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County, following his jury trial convictions for Unlawful Contact with a Minor - Sexual Offenses, Corruption of Minors, seven counts of Indecent Assault by Forcible Compulsion, and seven counts of Indecent Assault Without the Complainant's Consent. We affirm.
Appellant is a psychiatrist who molested seven of his female patients, including one minor, during treatment sessions. The trial court prepared a detailed and accurate statement of facts and procedural history, which we will incorporate by reference. See Trial Ct. Op., dated 6/26/2015, at 1-14.
Appellant raises the following issues on appeal:
a. Was the evidence sufficient to prove beyond a reasonable doubt that the Appellant was guilty of Indecent Assault with respect to the elements of forcible compulsion and/or without the consent of the victims?Appellant's Brief at 3.
b. Was the sentence imposed by the trial court excessive, unreasonable and based upon improper considerations?
Appellant first challenges the sufficiency of the evidence. Our Supreme Court has set forth the appropriate standard of review: "[w]hen reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt." Commonwealth v. Weiss , 776 A.2d 958, 963 (Pa. 2001) (citation omitted).
We have thoroughly reviewed the certified record, the briefs of the parties, the applicable law, and the well-reasoned Trial Court Opinion. We conclude that Appellant's first issue merits no relief. The comprehensive Trial Court Opinion properly disposes of the issue and we affirm on the basis of that Opinion. See Trial Ct. Op., dated 1/26/15, at 15-27.
Appellant next challenges the discretionary aspects of the sentence imposed by the trial court, which was also the sentencing court. The trial court sentenced Appellant to an aggregate term of 7 to 17 years' incarceration. For one count of Unlawful Contact with a Minor, the trial court sentenced Appellant to a term of 2 ½ to 5 years' incarceration, a sentence in the aggravated range. The trial court also sentenced Appellant to a term of 9 to 24 months' incarceration for each of six counts of Indecent Contact - Forcible Compulsion. The trial court ordered Appellant to serve all sentences consecutive to one another and did not impose a sentence on the remaining counts.
Our standard of review applicable to sentencing challenges is well settled:
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. Rodda , 723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (internal quotations and citations omitted).
Appellant does not have an automatic right to appeal the discretionary aspects of a sentence. Rather, we must first determine whether Appellant has met the following four elements before we will review the discretionary aspect of a sentence:
(1) whether the appellant has filed a timely notice of appeal;Commonwealth v. Williams , 787 A.2d 1085, 1087-88 (Pa. Super. 2001) (internal citations omitted).
(2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence,
(3) whether the appellant's brief has a fatal defect, and
(4) whether there is a substantial question that the sentence appealed from is inappropriate under the Sentencing Code.
Here, Appellant met the first three elements by filing a timely Notice of Appeal, properly preserving the issues, and including in his brief a Statement of Reasons relied upon for allowance of appeal, pursuant to Pa.R.A.P. 2119(f). Accordingly, we next determine whether Appellant's claims present a "substantial question" for review.
It is well established that a "substantial question" about a sentence is one in which the trial court violated the sentencing scheme or a fundamental norm underlying the sentencing process. Commonwealth v. Mouzon , 812 A.2d 617, 627 (Pa. 2002).
Appellant argues that the following issues are "substantial questions" that merit this Court's review of the sentence: (1) the trial court committed a constitutional error when it considered the Appellant's failure to accept responsibility and failure to exhibit remorse as an aggravating factor in determining the sentence to be imposed; (2) the trial court incorrectly considered the victim's age and the fact that there were multiple victims when sentencing for Unlawful Contact with a Minor; and (3) the sentence was excessive and unreasonable. Appellant's Brief at 7-10, 30-36.
We agree that Appellant has raised a "substantial question" and will review the merits of Appellant's claims. See , e.g., Commonwealth v. Bowen , 975 A.2d 1120, 1122 (Pa. Super. 2009) (noting a claim that an aggravated-range sentence was based on an unconstitutional factor does raise a "substantial question" for review) and Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006) (concluding that when trial court actions are inconsistent with the Sentencing Code, there is a "substantial question" for review).
Appellant first states that the trial court "improperly considered the fact that [he] refused to accept responsibility for these crimes" and "it would appear from the statements of the sentencing court that it considered [his] failure to express remorse as an aggravating factor in determining the sentence to be imposed." Appellant's Brief at 30. Although the brief is inartfully drafted, we deduce from Appellant's case citations that he is averring that such consideration violated his right to remain silent. Appellant's Brief at 30.
We first note that it is not an abuse of discretion for the trial court to consider a defendant's lack of remorse as one of many factors used to determine a sentence, "provided that it is specifically considered in relation to protection of the public, the gravity of the offense, and the defendant's rehabilitative needs." Bowen , 975 A.2d at 1125.
Appellant, relying on Bowen , argues that the trial court impermissibly equated Appellant's silence at sentencing with his failure to take responsibility. See id. at 1121.
We disagree with Appellant's analogy. In the instant case, unlike Bowen , Appellant allocuted during the sentencing hearing, acknowledging only that the victims had felt uncomfortable during his medical examinations and he should have had someone else in the room. See N.T. Sentencing, 2/9/15, at 25-34. After Appellant's allocution, the trial court stated, "there's no doubt in my mind that you haven't accepted responsibility for this. You continue to deny it. Your remorse is for you and your family and not for these young women that you have manipulated and assaulted." Id. at 54. In addition, the trial court considered numerous other sentencing factors aside from lack of remorse and lack of responsibility including, but not limited to, the impact on the victims, the types of crimes, the fact that Appellant exploited his position as a treating psychiatrist, the sentencing guidelines, and the impact on the community. Id. at 48-60.
Accordingly, we find that the trial court relied on Appellant's allocution, not Appellant's silence, to determine that Appellant lacked remorse and failed to take responsibility for his crimes. We also find that the trial considered Appellant's lack of remorse and failure to take responsibility, along with a myriad of other sentencing factors, in fashioning an aggravated-range sentence. Therefore, the trial court did not abuse its discretion. See Bowen , 975 A.2d at 1221.
Appellant next argues that the trial court engaged in impermissible double counting when it (1) considered the victim's age; and (2) observed that there had been multiple victims, while sentencing for Unlawful Contact with a Minor.
The court considered several factors, including the age of the victim, in sentencing Appellant in the aggravated range:
[O]n Criminal Information 1645 of 2014, Count Number 1, that's the unlawful contact with a minor - I might add that the sentence in this case is an aggravated sentence because I believe the victim's age is a factor. I don't believe the guidelines ever took into account a doctor-patient relationship, nor do they take into account the multiple victims in the case.N.T. Sentencing at 59-60. As stated above, the trial court went on to name numerous other sentencing factors. Id. at 48-60.
This Court has held that, while it is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing a sentence to the aggravated range, sentencing courts may consider "other factors already included in the guidelines if, they are used to supplement other extraneous sentencing information." Commonwealth v. Simpson , 829 A.2d 334, 339 (Pa. Super. 2003). Here, as stated above, the trial court considered numerous other sentencing factors and age was not the sole factor in fashioning the aggravated sentence. N.T. Sentencing, 2/9/15, at 48-60. We, thus, conclude the court did not abuse its discretion when considering age as one of many factors when sentencing Appellant for Unlawful Contact with a Minor.
Further, it was not an abuse of discretion for the trial court to take into consideration the multiple victims in the case when imposing a sentence for Unlawful Contact with a Minor. Appellant argues that:
[T]he fact that there were multiple victims in the case should have had no bearing on the sentence to be imposed as to the complainant named in Count 1. As already noted, the lower court did proceed to impose a consecutive term of imprisonment for each of the six other complainants in this case. Therefore, the fact that there were 'multiple victims in the case' was already factored into the lower court's aggregate terms of imprisonment.Appellant's Brief at 35.
We disagree. Sentencing a defendant to consecutive sentences for each victim is not tantamount to double counting an aggravating factor where defendant committed a host of crimes with multiple victims. Commonwealth v. Dodge , 77 A.3d 1263, 1277 (Pa. Super. 2013). Therefore, this challenge lacks merit.
Appellant last argues that the sentence was excessive and unreasonable. We have thoroughly reviewed the certified record, the briefs of the parties, the applicable law, and the well-reasoned Trial Court Opinion. The comprehensive Trial Court Opinion properly disposes of this issue, and we affirm on the basis of that Opinion. See Trial Ct. Op., dated 1/26/15, at 27-32.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/31/2016
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