J-S06012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER D. YINGLING
Appellant No. 834 MDA 2015
Appeal from the Judgment of Sentence May 29, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001282-2012
CP-06-CR-0003136-2012
CP-06-CR-0004750-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER D. YINGLING
Appellant No. 835 MDA 2015
Appeal from the Judgment of Sentence May 29, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001282-2012
CP-06-CR-0003136-2012
CP-06-CR-0004750-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER D. YINGLING
J-S06012-16
Appellant No. 836 MDA 2015
Appeal from the Judgment of Sentence May 29, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001282-2012
CP-06-CR-0003136-2012
CP-06-CR-0004750-2012
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED MARCH 23, 2016
In these consolidated appeals,1 Appellant, Christopher D. Yingling,
appeals from the judgment of sentence entered by the Honorable Thomas G.
Parisi, Berks County Court of Common Pleas. We affirm.
The relevant facts and procedural history are as follows. Yingling was
charged in three separate criminal informations. He subsequently entered
“open” guilty pleas2 to a number of charges. At number 4750-2012, Yingling
pled guilty to one count of sexual assault, stemming from his admission that
he sexually abused a fourteen-year-old female, K.R., who was living at his
house and was under his care at the time. At number 1282-2012, Yingling
pled guilty to one count of attempt to commit first-degree murder, stemming
from his admission that he shot K.R.’s father several times at close range
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
We consolidated these appeals sua sponte.
2
An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
-2-
J-S06012-16
with a shotgun. At number 3136-2012, Yingling pled guilty to two counts of
solicitation to commit first-degree murder, stemming from his admission
that while incarcerated in Berks County prison, he attempted to hire another
inmate to murder K.R. and her father.
After Yingling pled guilty to the above-mentioned charges, the trial
court, the Honorable Thomas G. Parisi, imposed an aggregate term of 27 to
70 years’ imprisonment, consisting of 5 to 10 years for sexual assault, 14 to
40 years of consecutive imprisonment for two counts of solicitation to
commit first-degree murder, and 8 to 20 years of consecutive imprisonment
for attempt to commit first-degree murder.
The trial court denied Yingling’s post-sentence motions. This court
quashed Yingling’s first direct appeal as untimely. Yingling subsequently filed
a pro se PCRA appeal. Thereafter, counsel was appointed, and a counseled
Amended PCRA was filed. A PCRA hearing was held on May 4, 2015.
However, on May 5, 2015, this Court granted Yingling leave to appeal nunc
pro tunc. This appeal followed.
On appeal, Yingling raises three issues challenging the discretionary
aspects of his sentence.3 In his first and second issue, regarding the
____________________________________________
3
In Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005), we
observed that
while a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his or her
sentence other than to argue that the sentence is illegal or that
(Footnote Continued Next Page)
-3-
J-S06012-16
sentences imposed at numbers 1282-2012 and 3136-2012 respectively,
Yingling argues that the trial court erred because the sentences were
“unduly punitive and unreasonable and lacked sufficient basis in reasons
placed on the record.” Appellant’s Brief, at 4. In his third issue, regarding
the sentence imposed at 4750-2012, Yingling argues that the trial court
erred because “the sentence was unduly punitive and unreasonable … where
the sentence was beyond the standard guideline ranges, … [and] sufficient
aggravating factors were not placed on the record warranting an aggravated
sentence range ….” Id.
We start our analysis by noting that “issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274
(Pa. Super. 2006) (citation omitted). Without such efforts, an objection to a
discretionary aspect of a sentence is waived. See id., at 1274.
Here, Yingling timely filed a post-sentence motion for reconsideration;
however, he failed to include the specific arguments asserted in his first and
_______________________
(Footnote Continued)
the sentencing court did not have jurisdiction, open plea
agreements are an exception in which a defendant will not be
precluded from appealing the discretionary aspects of the
sentence.
Id., at 365 n.5 (emphasis and citations omitted).
-4-
J-S06012-16
second issue on appeal. Because Yingling also failed to raise these specific
arguments during his sentencing hearing, his first two issues on appeal are
waived. See id. Nevertheless, Yingling properly raised the arguments
asserted in his third issue on appeal in his post-sentence motion; thus, we
will proceed to address these arguments.
In considering Yingling’s challenge to the discretionary aspects of his
sentence, we note the following.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Two requirements must be
met before we will review this challenge on its merits. First,
[pursuant to Pa.R.A.P. 2119(f)], an appellant must set forth in
his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. Second, the appellant must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. The determination of
whether a particular issue raises a substantial question is to be
evaluated on a case-by-case basis. In order to establish a
substantial question, the appellant must show actions by the trial
court inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted).
In his Rule 2119(f) statement, Yingling alleges that the five to ten year
sentence imposed for his sexual assault conviction was “issued without
sufficient reasons being placed on the record and is so disproportionate as to
implicate the fundamental norms that underlie the sentencing process.”
Appellant’s Brief, at 9. Specifically, Yingling claims that the sentence
imposed was excessive and unreasonable because it was beyond the
-5-
J-S06012-16
standard statutory guidelines, and the trial court failed to place sufficient
reasons on record for imposing an aggravated range sentence.4 See id., at
10. This claim raises a substantial question.5 See Commonwealth v.
Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008). We now proceed to the
merits of his challenge.
Our standard of review for a challenge to the discretionary aspect of
sentencing 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
____________________________________________
4
Although Yingling’s brief includes a Rule 2119(f) statement, he failed to
assert the specific arguments raised in his third issue on appeal in the
statement. However, because the Commonwealth did not raise an objection,
and a substantial question is obvious from Yingling’s brief, we will review his
claim. See Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super.
2010).
5
In his brief, Yingling raises several other arguments that do not present
substantial questions. For instance, he argues that the trial court failed to
implement an individualized sentence because it did not adequately consider
his rehabilitative needs in fashioning the sentence. This contention does not
constitute a substantial question subject to our review. See
Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994).
Moreover, Yingling argues that the sentence was unreasonable and unduly
punitive considering the fact that he was a first-time offender, took
responsibility for his actions, pled guilty, and expressed remorse. Essentially,
Yingling is arguing that the trial court did not adequately consider the
aforementioned factors as mitigating factors. This assertion also does not
constitute a substantial question subject to our review. See Tirado, 870
A.2d at 366 n. 6.
-6-
J-S06012-16
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. Lewis, 45 A.3d 405, 411 (Pa. Super. 2012) (citation
omitted).
In imposing a sentence, the sentencing court must consider relevant
statutory factors, including “the protection of the public, gravity of offense in
relation to impact on victim and community, and rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721(b). A sentencing court has broad discretion
in fashioning its sentence. See Commonwealth v. Walls, 926 A.2d 957,
962-963 (Pa. 2007). A sentencing court is required to consider the sentence
ranges set forth in the sentencing guidelines, but it is not bound by them.
See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
Moreover, “[a] sentencing court may consider any legal factor in determining
that a sentence in the aggravated range should be imposed.”
Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)
(citation omitted). When imposing a sentence in the aggravated range, a
sentencing court must state its reasons on the record. See 204 Pa.Code §
303.13(c).
In the instant case, Yingling was convicted of one count of sexual
assault,6 which is a felony of the second degree with an offense gravity score
____________________________________________
6
18 Pa.C.S.A. § 3124.1.
-7-
J-S06012-16
of eleven. See 204 Pa.Code § 303.16(a). Because Yingling had a prior
record score of zero, the guidelines recommended a standard range
sentence of 36 to 54 months. See id. If aggravated circumstances are
present in a sexual assault case, the guidelines permit a court to impose a
sentence that is up to twelve months longer than the upper limit of the
standard range. See 204 Pa.Code §§ 303.13(a)(1), 303.16(a). The
aggravated range is thus 48 to 66 months.
We find that the trial court acted well within its discretion in sentencing
Yingling to the statutory maximum of five to ten years’ imprisonment, a
sentence within the aggravated range.7 Given that K.R. was only fourteen
years old and was under Yingling’s care when the sexual assault took place,
a sentence in the aggravated guideline range was reasonable. See Shugars,
895 A.2d at 1278. Moreover, we find that the trial court placed sufficient
reasons on the record regarding its decision to impose an aggravated range
sentence. Importantly, the trial court noted the need to protect the victim
and her family from Yingling due to his “sociopathic obsession” with them.
N.T., Guilty Plea and Sentencing Hearing, 5/29/13, at 50. In fashioning the
sentence, the trial court considered defense counsel’s arguments on
____________________________________________
7
Adding 12 months to the 54-month upper limit of the applicable standard
range would result in an aggravated minimum of 66 months. However,
because the maximum penalty for Yingling’s sexual assault conviction is ten
years, or 120 months, the aggravated minimum cannot exceed one-half of
the statutory maximum. See 42 Pa.C.S.A. § 9756(b)(1).
-8-
J-S06012-16
Yingling’s behalf, the Commonwealth’s arguments, the victim’s and the
victim’s family members’ statements, and Yingling’s own pre-sentence
statements. See id., at 49.
We conclude that the trial court fashioned an individualized sentence
and did not abuse its discretion in imposing the maximum sentence for
Yingling’s sexual assault conviction. Accordingly, Yingling’s challenge to the
discretionary aspects of his sentence is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
-9-