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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DUSTIN WILLIAM SIPES, :
:
Appellant : No. 1988 MDA 2015
Appeal from the Judgment of Sentence September 30, 2015
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001180-2013
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 08, 2016
Dustin William Sipes (Appellant) appeals from the judgment of
sentence entered following his conviction for simple assault. We affirm.
On August 12, 2015, following a jury trial, Appellant was found guilty
of the aforementioned offense based on the physical abuse of his former
girlfriend’s infant son. He was sentenced to a term of incarceration of 24
months to 60 months. Appellant filed a post-sentence motion to modify
sentence, which was denied. This appeal followed.
Appellant presents two issues for our consideration:
1. Did the sentencing court abuse its discretion in sentencing
[Appellant] when the sentence is outside the sentencing
guidelines and is manifestly excessive and unreasonable
because the court failed to adequately consider the specific
and unique circumstances of the case and [Appellant’s]
background in relation to the requirements of 42 [Pa.C.]S.
§ 9721(b) and 42 [Pa.C.]S. § 9781(d)?
*Retired Senior Judges assigned to the Superior Court.
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2. Did the sentencing court abuse its discretion in sentencing
[Appellant] when it placed substantial consideration on
impermissible or inappropriate factors including [Appellant’s]
lack of remorse and failure to take responsibility for a crime
he maintained he did not commit and the age of the victim,
which was already accounted for in the grading of the
offense?
Appellant’s Brief at 4-5 (suggested answers and emphasis omitted).
Appellant’s issues challenge the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We 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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)).
Instantly, Appellant timely filed a notice of appeal, presented his claim
in a post-sentence motion, and included a statement pursuant to Rule
2119(f) in his brief. Thus, we now consider whether he has raised a
substantial question worthy of appellate review.
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The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and internal quotation
marks omitted).
In his Rule 2119(f) statement, Appellant argues that his sentence was
manifestly excessive and unreasonable because it
was 400 percent greater than the top end of the aggravated
guideline range. In sentencing [Appellant], the court failed to
adequately consider factors including the jury’s verdict acquitting
[him] of the offense of aggravated assault, the characteristics of
[Appellant] showing that he is a peaceful and law-abiding
individual, the findings and recommendation of the pre-sentence
report, and testimony regarding the impact on the victim,
particularly as these factors relate to the considerations required
by 42 [Pa.C.]S. § 9721(b) and 42 [Pa.C.]S. § 9781(d). Instead,
the court focused almost solely on the age and number of
injuries of the victim. The facts and circumstances noted by the
sentencing court do not justify such an extreme departure from
the guidelines. …
Additionally, the sentencing court abused its discretion by
relying significantly on impermissible or inappropriate factors in
imposing an excessive sentence when it considered [Appellant’s]
alleged lack of remorse and failure to accept responsibility as a
basis for its determination of sentence and when it relied
primarily on the victim’s age for determining sentence despite
the age of the victim already being considered by the grading of
the offense.
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Appellant’s Brief at 12-13.
To the extent Appellant argues that the sentencing court failed to
consider adequately mitigating factors or challenges the weight given to
certain factors, he has failed to raise a substantial question for our review.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his
Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.”) (quoting Commonwealth v. Downing, 990 A.2d 788, 794
(Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
Super. 2014) (“[W]e have held that a claim that a court did not weigh the
factors as an appellant wishes does not raise a substantial question.”).1
To the extent Appellant argues that the sentencing court failed to state
adequate reasons on the record and considered impermissible factors in
imposing sentence, such claims do raise a substantial question. See
Commonwealth v. Galletta, 864 A.2d 532, 534 (Pa. Super. 2004)
(concluding that claim “that the trial court ‘failed to state on the record
adequate reasons for imposing a sentence in excess of the aggravated
1
Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (PSI). “Where the sentencing court had the benefit of a
[PSI], we can assume the sentencing court ‘was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Griffin, 65 A.3d at
937 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
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range’ as set forth in the sentencing guidelines” raises a substantial
question); Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009)
(“This Court has recognized that a claim that a sentence is excessive
because the trial court relied on an impermissible factor raises a substantial
question.”). Thus, we address the merits of Appellant’s latter claims.
If this Court grants appeal and reviews the sentence, the
standard of review is clear: sentencing is vested in the discretion
of the trial court, and will not be disturbed absent a manifest
abuse of that discretion. An abuse of discretion involves a
sentence which was manifestly unreasonable, or which resulted
from partiality, prejudice, bias or ill will. It is more than just an
error in judgment. …
When reviewing a sentence outside of the guideline range,
the essential question is whether the sentence imposed
was reasonable. An appellate court must vacate and
remand a case where it finds that “the sentencing court
sentenced outside the sentencing guidelines and the
sentence is unreasonable.” 42 Pa.C.S.[] § 9781(c)(3). In
making a reasonableness determination, a court should
consider four factors:
(1) The nature and circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was
based.
(4) The guidelines promulgated by the
commission.
42 Pa.C.S.[] § 9781(d). A sentence may be found
unreasonable if it fails to properly account for these four
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statutory factors. A sentence may also be found
unreasonable if the “sentence was imposed without
express or implicit consideration by the sentencing court of
the general standards applicable to sentencing.” These
general standards mandate that a sentencing court impose
a sentence “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.[]
§ 9721(b).
Crork, 966 A.2d at 590-91 (some citations omitted).
At the sentencing hearing, the court provided the following reasons for
Appellant’s sentence:
All right. Well, certainly, I did preside over the trial in this
case and heard the evidence in detail. I spent considerable time
reviewing my notes of the testimony, so that it would be fresh in
my mind today, so that I could impose sentence thoughtfully and
carefully.
Certainly the jury found [Appellant] guilty of simple
assault, a misdemeanor of the first degree. And … the grading
[of a] misdemeanor of the first degree certainly does take into
consideration the fact that this was a child. The statute
discusses a child less than twelve. Certainly, in this case, we
have an infant, very different than a child less than twelve,
potentially.
What I also recall was Dr. Crowell’s testimony regarding
the level of force necessary in order to inflict the 18 or 19 broken
bones in the arm fractures, leg fractures, rib fractures.
I recall the testimony of Trooper [C]achara and Trooper
Rush detailing the statements given by [Appellant] repeatedly
accepting responsibility for causing harm to [the victim] in
various ways.
I recall testimony regarding biting in order to hold the child
still.
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I recall the taped statements that were played for the
jury’s consideration.
I recall that [Appellant] was placed in a level of trust and
had a role of caretaker.
I recall that these injuries were alleged to have occurred
over a span of dates, not just on one occasion.
I also recall [Appellant’s] testimony contesting that he
was, in fact, responsible for these injuries and providing his
reasoning, which I didn’t find to be credible.
Now, I’ll contrast that evidence with what I reviewed in the
pre-sentence report about [Appellant]. Multiple letters of
reference from individuals that have known [Appellant] over the
span of his life. A prior record score of zero. No criminal
history. He was only 21 years old at the time of this offense, a
relatively young man. He’s certainly still a young man.
So given all of that information that the court has to
weigh, certainly the sentence guidelines calling for a standard
range of RS or restorative sanctions to three months, an
aggravated range of six months, I have concluded that a
sentence of 24 months to 60 months in the state correctional
institution is appropriate in this case.
There’s no remorse. There’s no acceptance of
responsibility, which I know comes hand-in-hand with your
denial of responsibility for this case, and you’ve asserted that
you’re innocent. The jury found otherwise, and I found the
evidence to be credible and overwhelming in this case.
You’ve demonstrated to me a complete lack of disregard
[sic] for [the victim’s] care and well-being, and you violated the
trust that was placed in you in caring for this little boy.
The extreme pain that this child must have suffered over
the course of months that these injuries were inflicted is
unconscionable to me, and I believe all of these things justify a
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sentence not only in excess of the aggravated range, but clearly
outside of the guidelines.
I know I will have to justify this sentence again, and I ‘m
prepared to do so. I believe it is appropriate.
***
I failed to mention, and I should have, I have also
considered the success that you’ve had complying with pre-trial
supervision and I take that into account.
I have no concern that you’ll be successful with respect to
following the terms and conditions of your sentence. But in
order to address the needs of the victim, the needs of the
community, and your needs, the sentence is appropriate.
N.T., 9/30/2015, at 11-15 (unnecessary capitalization omitted).
Appellant claims that the sentencing court improperly considered his
lack of remorse and failure to accept responsibility as significant factors in
imposing sentence, relying upon Commonwealth v. Bowen, 975 A.2d
1120 (Pa. Super. 2009). Therein, Bowen chose to remain silent at trial and
during sentencing. Id. at 1121. In justifying its aggravated-range
sentence, the trial court cited, inter alia, Bowen’s failure to show remorse for
his crimes or to take responsibility for them, even after the jury’s verdict.
Id. at 1121-1122. On appeal, this Court observed that “it is undoubtedly
appropriate for a trial court to consider a defendant’s lack of remorse as a
factor at sentencing, provided that it is specifically considered in relation to
protection of the public, the gravity of the offense, and the defendant’s
rehabilitative needs.” Id. at 1125. Nevertheless, it held that “a court may
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not consider a defendant’s silence at sentencing as indicative of his failure to
take responsibility for the crimes of which he was convicted” and “silence at
sentencing may not be the sole factor in determining a defendant’s lack of
remorse.” Id. at 1121, 1127.
Here, unlike Bowen, Appellant allocuted at sentencing:
All that I would say is if I had done this, I would be
remorseful about it. I’m sorry that all the injuries that happened
[sic] to him.
Also I do have one semester of college to finish, which I’m
so close to getting that done. All I have to do is enroll or re-
enroll, and it’s only about four or five classes to take. And I’d
like to continue my career of what I’ve been studying, I already
completed three-and-a-half years.
N.T.,9/30/2015, at 7-8.
Additionally, Appellant testified at trial, over which the sentencing
court also presided. Thus, the court did not rely on Appellant’s silence to
determine that he lacked remorse and failed to take responsibility for his
crimes. A review of the court’s comments at sentencing indicate that, after
observing Appellant at trial and sentencing, it considered his lack of remorse
and failure to accept responsibility “in relation to protection of the public, the
gravity of the offense, and [his] rehabilitative needs.” Bowen, 975 A.2d at
1125. Moreover, the sentencing court considered numerous other factors in
imposing sentence, such as the nature an circumstances of the offense, the
age of the victim, and Appellant’s role as caretaker for the child. Thus, we
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discern no abuse of discretion on this basis. See Bowen, 975 A.2d at 1127-
28 (concluding that, because the trial court relied upon several other
legitimate aggravating factors in imposing sentencing, Bowen was not
entitled to relief on his discretionary-aspects-of-sentence claim).
We now turn to Appellant’s contention that the sentencing court
improperly relied on the victim’s age as a significant factor in imposing
sentence. Appellant argues that, “while the specific age of a victim is a
factor that may be considered by a sentencing court, the grading of this
offense as a first degree misdemeanor is already based on the victim’s age
and contemplates increased penalty at sentencing,” as “[t]he offense of
simple assault becomes a first degree misdemeanor when the victim is less
than twelve years of age.” Appellant’s Brief at 21-22.
In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), Walls pled
guilty to rape of a victim less than thirteen years old, involuntary deviate
sexual intercourse (“IDSI”) with a victim less than thirteen years old, and
incest based upon the repeated sexual abuse of his seven-year-old
granddaughter. Id. at 959. Walls received the statutory maximum for the
rape and IDSI convictions. Id. at 960. One of the reasons cited by the
sentencing court for Walls’s sentence included “the tender and young age of
the victim.” Id. In vacating Walls’s judgment of sentence, this Court
reasoned that the tender age of the victim did not justify the imposition of
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the maximum sentence permitted by law, as “the crime itself made a
distinction with respect to certain classes of victims, such as minors and the
elderly, and thus, the sentencing guidelines reflect the Crimes Code’s
provision of greater punishment of certain crimes committed against certain
victims.” Id. at 960-61. Our Supreme Court, however, disagreed:
Contrary to the Superior Court, we find that the sentencing court
was permitted to rely on [inter alia, the victim’s age] to justify
Walls’ sentence. As noted by the Commonwealth and the
Superior Court, the precise age of the victim, i.e., the fact that
the victim was only seven-years-old at the time of the sexual
abuse, was not an element of rape or IDSI of a victim less than
thirteen years old and could justify an above-guideline sentence.
While the Superior Court found that this factor could not justify
the sentence in this case, in light of the deferential standard of
review, we disagree. Additionally, we agree with the
Commonwealth that Walls has offered no legitimate basis to
presume that these factors, the victim being entrusted to Walls’
care and was his granddaughter, are subsumed within the
sentencing guidelines. Thus, we conclude that the findings upon
which Walls’ sentence was based were legally permissible.
Id. at 967.
With respect to the offense at issue herein, the Crimes Code provides
that “[s]imple assault is a misdemeanor of the second degree unless
committed[] against a child under 12 years of age by a person 18 years of
age or older, in which case it is a misdemeanor of the first degree.” 18
Pa.C.S. § 2701(b)(2). In sentencing Appellant, the court understood that
“the grading misdemeanor of the first degree certainly does take into
consideration the fact that this was a child. The statute discusses a child
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less than twelve.” N.T., 9/30/2015, at 11. However, the court went on to
note that “in this case, we have an infant, very different than a child less
than twelve, potentially.” Id. As the trial court was permitted to consider
the victim’s infancy in imposing sentence, Appellant is not entitled to relief.2
Appellant has failed to demonstrate that the trial court abused its
discretion in imposing sentence. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
2
To the extent Appellant presents any argument with respect to the trial
court’s failure to state adequate reasons for its sentence, he only does so in
the context of his challenge to the trial court’s inadequate consideration of
mitigating factors and weighing of other factors. See Appellant’s Brief at 15
(“Upon appropriate consideration of the guidelines and these factors, it is
evident that a sentence of 24-60 months [of] incarceration is not consistent
with the protection of the public, the gravity of the offense, and the
rehabilitative needs of the defendant, and the court did not state sufficient
reasons for exceeding the sentencing guidelines in relation to these
considerations. Instead, the court focused almost solely on the age and
number of injuries to the victim.”). As demonstrated above, the record
belies Appellant’s bald claim; the court thoroughly stated its reasons and
explained why it deemed Appellant’s sentence appropriate under the
circumstances. See N.T., 9/30/2015, at 11-15.
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