NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. BURT PHILIP LUDIN, Appellant : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : No EDA 2013 Appeal from the Judgment of Sentence Entered April 1, 2013, In the Court of Common Pleas of Montgomery County, Criminal Division, at No. CP-46-CR BEFORE: BENDER, P.J., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J.: FILED MARCH 26, 2014 Appellant, Burt Philip Ludin, appeals from the judgment of sentence entered on April 1, 2013, in the Montgomery County Court of Common Pleas. We affirm. The trial court set forth the relevant facts and procedural history of this case as follows: On February 3, 2012, the Commonwealth filed bills of information charging [Appellant] with multiple counts of involuntary deviate sexual intercourse with a child who was under the age of thirteen 1, dissemination of obscene materials to minors 2, and related offenses Pa.C.S.A. 3123(b)[.] 2 18 Pa.C.S.A. 5903(c)(1)[.] On October 31, 2012, [Appellant] represented by James A. Funt, Esquire appeared before the undersigned and entered an open guilty plea to three counts of involuntary *Former Justice specially assigned to the Superior Court.

2 deviate sexual intercourse with a child who was under the age of thirteen, and one count of dissemination of obscene materials to minors. In exchange for [Appellant s] plea, the Commonwealth agreed not to pursue applicable mandatory sentences and to nolle pros the remaining seventy-six charges pending against [Appellant] at the time of sentencing. [Appellant] was informed that there was no further agreement as to the sentence that would ultimately be imposed, and [Appellant] was further specifically informed that the sentences for each of the offenses to which he was pleading guilty could be run consecutively (N.T., October 31, 2012, p. 11, pp , p. 17). In entering his guilty plea, [Appellant] admitted to committing involuntary deviate sexual intercourse with three different boys, and to disseminating obscene materials to a fourth juvenile. The victims were three of [Appellant s] nephews and a close friend of one of one of the boys (N.T., October 31, 2012, pp ). [Appellant] was evaluated by the Sexual Offenders Assessment Board and appeared before the undersigned for sentencing on April 1, As the undersigned stated on the record, prior to imposing sentence, the court carefully considered, inter alia: the in-court testimony of three of [Appellant s] victims offered at [Appellant s] sentencing hearing; the report of the Sexual Offenders Assessment Board; the presentence investigation report 3 ; victim impact statements; [Appellant s] own statement during allocution; the arguments of counsel; and a sentencing memorandum submitted by the defense, which included a report by a psychologist who interviewed both [Appellant] and [Appellant s] brother (N.T., April 1, 2013, pp ). 3 We note that the PSI report states that [Appellant] respectfully declined to participate in the presentence investigation, and that a criminogenic needs assessment was unable to be completed. Stated in a nutshell, counsel for [Appellant] argued that the court should impose a mitigated range sentence because of, inter alia: [Appellant s] age (52 at the time of sentencing); his health problems (including diabetes and macular degeneration); [Appellant s] own difficult upbringing (including sexual abuse he -2-

3 had allegedly suffered himself); and [Appellant s] statements of remorse. The Commonwealth argued in favor of standard range sentences, to be served consecutively, because of the extreme impact upon the victims in this case and the need to protect society. Upon review, the undersigned accepted the opinion offered by the Sexual Offenders Assessment Board and determined that [Appellant] was, indeed, a violent sexual predator under the relevant statutory criteria 4. For all of the reasons stated on the record (N.T., April 1, 2013, pp ), the undersigned further determined that standard range sentences were called for and that several of these sentences would be served consecutively. Accordingly, the court imposed sentence as follows: On Count 1, involuntary deviate sexual intercourse with a child under the age of thirteen (13), a standard range sentence of not less than six (6) nor more than twelve (12) years imprisonment. On Count 6, involuntary deviate sexual intercourse with a child under the age of thirteen (13), an identical standard range sentence of not less than six (6) nor more than twelve (12) years imprisonment, to run consecutively to the sentence imposed on Count 1. On Count 10, involuntary deviate sexual intercourse with a child under the age of thirteen (13), a standard range sentence of not less than five (5) nor more than ten (10) years imprisonment, to run consecutively to the sentence imposed on Count 6. Finally, on Count 41, disseminating obscene materials to minors, a standard range sentence of not less than one (1) nor more than two (2) years imprisonment, to run concurrently with the sentence imposed on Count 10. The aggregate sentence imposed by the court was thus not less than seventeen (17) nor more than thirty-four (34) years imprisonment. 4 [Appellant] did not contest this determination. On April 8, 2013, [Appellant] filed a timely motion for reconsideration of sentence. Following review of the record, the undersigned denied this motion by order dated April 24, On April 26, 2013, [Appellant] filed a timely notice of appeal to the Superior Court of Pennsylvania. By order entered that same date, the undersigned directed [Appellant] to file a statement of the errors complained of on appeal, pursuant to Pennsylvania -3-

4 Rule of Appellate Procedure 1925(b). On May 29, 2013, [Appellant] filed both an untimely Rule 1925(b) statement and a request for an extension of time in which to file a Rule 1925(b) statement. By order dated May 30, 2013, the undersigned granted [Appellant s] request for an extension and accepted [Appellant s] May 29, 2013, Rule 1925(b) statement as though timely filed. Trial Court Opinion, 6/11/13, at 1-4. On appeal, Appellant raises the following issue for this Court s consideration: I. Did The Lower Court Abuse Its Discretion in Sentencing Appellant To A De Facto Life Sentence For His Convictions Where The Record Discloses That The Court Focused Solely On The Seriousness Of The Crimes And Their Impact On Appellant s Victims While Failing To Consider All Other Relevant Sentencing Factors? Appellant s Brief at 2 (bold typeface omitted). Appellant s issue is a challenge to the discretionary aspects of his sentence. 1 Where an appellant challenges the discretionary aspects of a sentence there is no automatic right to appeal, and an appellant s appeal should be deemed a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): 1 A defendant who has pled guilty may challenge the discretionary aspects of his sentence as long as the defendant did not agree to a negotiated sentence as part of a plea agreement. Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000). As noted above, as part of Appellant s plea agreement, the Commonwealth agreed not to seek the mandatory minimum sentences but made no further agreement regarding duration of sentence. Therefore, we conclude that Appellant may challenge the discretionary aspects of his sentence. -4-

5 [a]n appellant challenging the discretionary aspects of his sentence must invoke this Court s jurisdiction by satisfying a four-part test: [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). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-bycase basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). Here, the first three requirements of the four-part test are met because Appellant filed a timely appeal, filed a timely motion for modification of sentence, and included a statement pursuant to Rule 2119(f) in his brief. Moury, 992 A.2d at 170. Therefore, we address whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the sentencing court. Allowance of appeal will be permitted only when the appellate court determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. Commonwealth v. Hartle,

6 A.2d 800, 805 (Pa. Super. 2006). A substantial question exists where an appellant sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Id. This Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court s actions violated the Sentencing Code. Id. Indeed, our Supreme Court has clearly instructed that: only where the Appellant s Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the sentencing code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of a sentence. Commonwealth v. Mouzon, 571 Pa. 419, 434, 812 A.2d 617, 627 (2002). In the instant case, Appellant claims that the trial court erred and abused its discretion in focusing only on the seriousness of his crimes and without considering mitigating factors. Appellant s Brief at 5. Such a claim presents a substantial question for appellate review. Commonwealth v. Rhodes, 990 A.2d 732, 745 (Pa. Super. 2009) (citations omitted). However, we conclude that Appellant is entitled to no relief. We note that sentencing is a matter vested in the sound discretion of the trial court, and a sentence will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. -6-

7 Super. 2008) (citation omitted). An abuse of discretion is not just an error in judgment, and on appeal, the trial court will not be found to 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. Id. Moreover, the sentence imposed should call for confinement that is 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). When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it [is] not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118 (2007) ( It is well established that the Sentencing Guidelines are purely advisory in nature. ); Commonwealth v. Walls, 926 A.2d 957, 965 [(Pa. 2007)] (referring to the Sentencing Guidelines as advisory guideposts which recommend... rather than require a particular sentence ). The court may deviate from the recommended guidelines; they are merely one factor among many that the court must consider in imposing a sentence. Yuhasz, 923 A.2d at A court may depart 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. Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). When a court chooses to depart from the guidelines however, it must demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines. Eby, 784 A.2d at 206. Further, the court must provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. 42 Pa.C.S.A. 9721(b). Sheller, 961 A.2d at

8 As set forth above, Appellant pled guilty to three counts of involuntary deviate sexual intercourse ( IDSI ) with children who were under the age of thirteen, and one count of dissemination of obscene materials to minors. In his brief, Appellant challenges only the sentencing scheme for the IDSI convictions. Appellant s Brief at 6. Therefore, we will not address the sentence imposed for dissemination of obscene materials to minors. See Commonwealth v. Kunkle, 79 A.3d 1173, 1176 (Pa. Super. 2013) (stating that any issues that are not developed and supported by argument are waived). IDSI with a child under the age of thirteen is a felony of the first degree. 18 Pa.C.S.A. 3123(b). Appellant concedes that he had a prior record score of two. Appellant s Brief at 6. With a prior record score of two, the Pennsylvania Sentencing Guidelines provide a standard-range minimum sentence of sixty to seventy-eight months for the IDSI convictions. 204 Pa.Code As stated earlier, Appellant received two minimum sentences of seventy-two months and one minimum sentence of sixty months, which are all within the standard sixty to seventy-eight month range. Additionally, while the trial court did explain its concern as to the serious nature of the crimes charged (N.T., 4/1/13, at 44-53), that was not its only focus. The court did not impose statutory maximum sentences nor did it impose sentences in the aggravated range. We point out that where -8-

9 the sentencing judge had the benefit of a pre-sentence investigation report, it is presumed that he was aware of all relevant information regarding the defendant s character and weighed those considerations along with any mitigating factors. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). Here, the sentencing court had the benefit of a pre-sentence investigation report, stated on the record that it reviewed the report, and specifically considered Appellant s health, age, and his claims that he was abused as a child. Trial Court Opinion, 6/11/13, at 2-3; N.T., 4/1/13, at Moreover, the record reveals that the trial court considered factors beyond the heinous nature of the crimes. The trial court explained its rationale for the standard range sentences as follows: In the instant case, by contrast, the undersigned directed that [Appellant s] standard range sentences for three serious crimes (involuntary deviate sexual intercourse with a child under the age of thirteen) be served consecutively. In doing so, the undersigned did not as [Appellant] insists focus solely on the seriousness of these offenses. The undersigned, rather, directed that the sentences be served consecutively to reflect the fact that each of these crimes was perpetrated against a different victim. The undersigned was further guided by the devastating impact that [Appellant s] crimes specifically had upon each of these victims and the long-term nature of both the abuse and its impact, as reflected by the victims own in-court testimony and the victim impact statements. The young men victimized by [Appellant] testified to, inter alia, ongoing trust issues, fear of intimacy, flashbacks of molestation, and suicidal thoughts (N.T., April 1, 2013, pp. 8-21). One of the victims testified specifically that he felt he was not the person I was meant to be because of [Appellant s] abuse (N.T., April 1, 2013, -9-

10 p. 19). In imposing sentence, this court was also extremely concerned with the serious risk of recidivism posed by [Appellant], as reflected in the report of the Sexual Offenders Assessment Board. We state again that, in reaching our determination that concurrent sentences were not appropriate, this court did not as [Appellant] asserts simply ignore factors favorable to the defense. As we stated on the record, the court balanced all relevant factors and determined that the aggregate sentence ultimately imposed was called for. Specifically, the undersigned read and considered [Appellant s] sentencing memorandum and its accompanying report by a psychologist engaged by the defense (N.T., April 1, 2013, pp ). We further considered [Appellant s] statement of remorse during his allocution, although, as we stated on the record, we doubted its genuineness (N.T., April 1, 2013, pp , pp ). At the end of the day, we simply determined that any factors favorable to [Appellant] were outweighed by the factors supporting the imposition of consecutive sentences. We thus believe that our determination that [Appellant s] sentences for involuntary deviate sexual intercourse be served consecutively in no way constitutes an abuse of discretion... Clearly, [Appellant] is disappointed with the sentence he received. It is well-settled, however, that the law does not require that a defendant be pleased with the outcome of his guilty plea, and [Appellant s] dissatisfaction does not entitle him to appellate relief. See, e.g., Commonwealth v. Edwards, 612 A.2d 1077 (Pa. Super. 1992), appeal denied, 533 Pa. 656, 625 A.2d 1191 (1992). Trial Court Opinion, 6/11/13, at 6-8. We conclude that there was no abuse of discretion. The trial court imposed standard range sentences on all three convictions pursuant to the Sentencing Guidelines, and the Sentencing Guidelines were devised having already taken into account the seriousness of the crimes. See -10-

11 Commonwealth v. Vega, 850 A.2d 1277, 1282 (Pa. Super. 2004) (stating that the general factors of the individual crimes were taken into account when the guidelines were fashioned). As the trial court opted not to increase the standard-range sentences recommended by the Sentencing Guidelines, we conclude there is no merit to Appellant s claim. Moreover, Appellant s argument that his sentence is possibly a de facto life sentence does not alter our conclusion that the trial court was within its discretion in imposing standard-range, albeit consecutive sentences, 2 for the crimes to which he pled guilty. See Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (stating that a sentence of sixty-five to 280 years of incarceration for robbery and related offenses, where the appellant claimed 2 Despite the trial court, in an abundance of caution, addressing the consecutive nature of Appellant s sentences, we note that Appellant never raised or specifically argued this issue. Assuming, arguendo, that Appellant had specifically challenged the imposition of consecutive sentences, we note that a sentencing court has discretion to impose consecutive sentences. 42 Pa.C.S.A Generally speaking, the court s exercise of discretion in imposing consecutive as opposed to concurrent sentences is not viewed as raising a substantial question that would allow the granting of allowance of appeal. Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010). [T]he imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012). Pursuant to Lamonda and the rationale espoused by the trial court in its opinion, upon consideration of the nature of the crimes committed in the instant case, we would not conclude that the punishment was unduly harsh and, therefore, would conclude that a challenge to the consecutive nature of the sentences would not, in the instant case, present a substantial question. -11-

12 that it was a de facto life sentence, was not manifestly excessive or an abuse of discretion). For the reasons set forth above, we conclude that Appellant is entitled to no relief. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/26/