Opinion
J-S41045-17 No. 1670 MDA 2016
07-24-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL C. WORK, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 23, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005372-2010 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Daniel C. Work, Jr., appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas, following his jury trial convictions of one count of rape of a child, two counts of involuntary deviate sexual intercourse with a child ("IDSI"), and one count of corruption of minors. We affirm.
18 Pa.C.S.A. §§ 3121(c), 3123(b), and 6301(a)(1), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises one issue for our review:
WHETHER THE [TRIAL] COURT'S SENTENCE OF NOT LESS THAN TEN NOR MORE THAN 20 YEARS WAS AN ABUSE OF DISCRETION IN VIEW OF [APPELLANT'S] LACK OF SIGNIFICANT PRIOR CRIMINAL RECORD AND HIS OUTSTANDING ADJUSTMENT TO STATE PRISON?(Appellant's Brief at 4).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspects of sentencing issue:
[W]e 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 sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). 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 913.
Instantly, Appellant properly preserved his claim for review. Nevertheless, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Dennis E. Reinaker, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed November 22, 2016, at 3-7) (finding: court did not impose manifestly excessive sentence, in view of circumstances of crime and history and character of Appellant; court was fully informed by pre-sentence investigative ("PSI") report and relied on report in reaching its sentence; Appellant received standard range sentence; court's review of PSI report in conjunction with standard range sentence demonstrates Appellant's sentence was not manifestly excessive; moreover, Appellant committed multiple sex acts upon 6-year-old male victim on multiple occasions; court imposed all sentences concurrently; sentence is consistent with protection of public as Appellant's total confinement will prevent him from having further sexual encounters with children; Victim's adoptive mother testified that offenses seriously impaired Victim's childhood; Victim can no longer enjoy common activities such as sleepovers and/or overnight camping trips; Victim now requires specialized bathroom policies at school due to his sexual experiences; court heard multitude of testimony regarding devastating impact of Appellant's acts on Victim and sentence imposed was consistent with that impact; sentence is consistent with Appellant's rehabilitative needs; Appellant states he has had "outstanding adjustment to prison," has been free of misconduct during his incarceration, and has participated in various programs; sentence imposed is addressing Appellant's rehabilitative needs; even if Appellant's claim that court did not consider Appellant's "good behavior" while in prison raised substantial question for appellate review, there is no evidentiary support that court failed to consider Appellant's conduct in prison; court heard Appellant's testimony regarding his improved conduct in prison and imposed sentence within guideline range; court did not abuse its discretion). Accordingly, we affirm on the basis of the trial court opinion.
Appellant claims he is not arguing the court failed to consider, or was unaware of, Appellant's positive adjustment in prison when the court re-sentenced Appellant. ( See Appellant's Brief at 19). Rather, Appellant argues the court abused its discretion when it imposed an identical sentence in light of Appellant's good behavior while in prison. See id. Appellant cites no relevant legal authority to support this position. Therefore, Appellant waived this sentencing issue. See Commonwealth v. Johnson , 604 Pa. 176, 985 A.2d 915 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (explaining appellant waives issue on appeal where he fails to present claim with citations to relevant authority or develop issue in meaningful fashion capable of review). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/24/2017
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