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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS DAVID GREMS,
Appellant No. 221 MDA 2016
Appeal from the Judgment of Sentence Entered December 15, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001058-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
Appellant, Thomas David Grems, appeals from the judgment of
sentence of an aggregate term of 13½ to 27 years’ incarceration, imposed
after he pled guilty to statutory sexual assault (SSA), 18 Pa.C.S. § 3122.1,
and endangering welfare of children (EWOC), 18 Pa.C.S. § 4304(a)(1).
Appellant raises two issues on appeal, both of which challenge discretionary
aspects of his sentence. After careful review, we affirm.
In April of 2015, Appellant was arrested and charged with numerous
sexual offenses stemming
from an April 16, 2015, incident in which a Scranton Police
Officer working in a local high school was called to the school’s
main office to see a male student and his parents. The male
student told the officer that he took [the phone of] his 14 year
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*
Former Justice specially assigned to the Superior Court.
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old girlfriend[], … the victim, and saw improper text messages
from the victim’s father. The text messages were from “Daddy”
and the phone number matched the number the school had on
file for the victim’s father, [Appellant]. The messages, dated
April 7, 2015, showed “Daddy” asking the victim for naked
pictures and to lick her toes and anus. The victim was
interviewed at Children’s Advocacy Center on the same date and
disclosed that her father, [Appellant], had been sexually
assaulting her for two years, since she was 12 years old. The
victim disclosed that in the past[, Appellant] had attempt[ed] to
penetrate her vaginal and anal areas, had masturbated in front
of her, and [had] ejaculated on her. The victim further disclosed
that about three weeks prior, [Appellant had] held her down and
performed oral sex on her.
On September 1, 2015, [Appellant] pled guilty to Count 3 -
[SSA] … in violation of 18 Pa.C.S.A. § 3122.1(b), and Count 8 -
[EWOC] … in violation of 18 Pa.C.S.A. § 4304(a)(1) and the
remaining charges were Nolle Prossed.
On December 15, 2015, following a SORNA[1] hearing,
[Appellant] was determined to be a sexually violent predator
(SVP) requiring lifetime, quarterly registration. On the same
day, [the trial] [c]ourt sentenced [Appellant] to an aggregate
term of [13½] to [27 years’] incarceration and no contact with
the victim or any other minors. [Appellant] was specifically
sentenced to [12] to [20 years’] imprisonment on Count 3, and
[3½] to [7 years’] imprisonment [on Count 8], consecutive.
On December 23, 2015, [Appellant] filed a Motion for
Reconsideration of Sentences, which [the trial] [c]ourt denied on
January 5, 2016. [Appellant] timely appealed to the
Pennsylvania Superior Court.
Trial Court Opinion (TCO), 3/29/16, at 2-3 (citations to the record and
certain emphasis omitted).
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1
Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§
9791-9799.14.
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Appellant timely complied with the court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and the trial
court filed a responsive opinion on March 29, 2016. Herein, Appellant raises
two issues for our review:
A. Whether the sentences imposed were inappropriately harsh
and excessive and an abuse of discretion?
B. Whether the lower court erred and committed an abuse of
discretion when it failed to impose concurrent sentences?
Appellant’s Brief at 4.
While Appellant divides his argument into two separate issues, they
are interrelated and, therefore, we will address them together. Appellant’s
issues both challenge discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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.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 a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
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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.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, several claims set forth by Appellant in the argument portion of
his brief do not meet the four-part test for invoking this Court’s jurisdiction
to review discretionary-aspects-of-sentencing claims. Specifically, Appellant
contends that in fashioning his sentence, the court improperly relied on
certain factors, such as the age difference between him and the victim, 2 the
fact that he is the victim’s father,3 and his prior criminal history, which was
used to calculate his prior record score. See Appellant’s Brief at 14.
Appellant also avers that the court should not have imposed consecutive
sentences because “the crimes to which he pled guilty involved one
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2
Appellant claims that the age disparity was already considered in the
grading of his offense as a felony of the first-degree. See 18 Pa.C.S. §
3122.1(b) (making SSA a felony of the first degree where the victim is under
the age of 16 and the perpetrator is 11 or more years older than the victim).
3
Appellant claims that his relationship to the victim was already accounted
for in convicting him of EWOC. See 18 Pa.C.S. § 4304(a)(1) (defining
EWOC as involving a parent or guardian’s endangerment of the welfare of a
child).
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continuous course of conduct[,]” and that “the [SSA charge] formed the
basis of the [EWOC] charge.” Id. at 16.
Appellant did not raise these specific arguments at the sentencing
hearing, in his written post-sentence motion, or in his Rule 2119(f)
statement; therefore, he has not satisfied the prerequisites for obtaining
review of these claims. See Evans, 901 A.2d at 533; see also Mann, 820
A.2d at 794 (finding the appellant’s specific sentencing claim waived where it
was not explicitly set forth in his post-sentence motion or raised during the
sentencing hearing) (citations omitted). Additionally, Appellant failed to
present the above-stated arguments in his Rule 1925(b) statement.
Consequently, the trial court did not address them in its Rule 1925(a)
opinion. Accordingly, Appellant has waived these issues for this reason, as
well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”).
From our review of the record, the sentencing claims that Appellant
preserved below are those set forth, as follows, in his Rule 2119(f)
statement:
Appellant argues that since his aggregate sentence is 13½ to 27
years, it is “so manifestly excessive as to constitute too severe a
punishment.” See Commonwealth v. Mouzon, [812 A.2d
617,] 624 [(Pa. 2002)]. [] Appellant asserts that not only were
the individual sentences harsh and unreasonable, but also that
the aggregate sentence amounted to a life sentence since he is
55 years old. He submits that given the length of the sentences,
the fact[] that the sentencing court imposed maximum
sentences on both charges, that they were inappropriately harsh
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and excessive and that this Court should conduct a review of his
sentences.
Appellant’s Brief at 10-11. Given that Appellant cited the court’s imposition
of two consecutive, statutory maximum sentences, and he argued that the
aggregate term of imprisonment is effectively a life sentence because of his
age, we conclude that he has set forth a “plausible argument that the
sentence is prima facie excessive” so as to warrant this Court’s review.
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013).
In assessing the merits of Appellant’s arguments, we are mindful that,
[t]he proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of
discretion. ... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not 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. In more expansive terms, our
Court recently offered: An abuse of discretion may not be found
merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010)
(citation omitted).
Essentially, Appellant contends that his aggregate sentence is harsh
and excessive because the court imposed consecutive, statutory maximum
terms that result in what is effectively a life sentence. Appellant’s argument
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fails to demonstrate an abuse of discretion by the sentencing court. Our
review of the record reveals that, prior to imposing Appellant’s sentence, the
court reviewed a presentence report. See N.T. Sentencing, 12/15/15, at 36.
Thus, we “presume[] that [the court] was aware of the relevant information
regarding [Appellant’s] character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Fowler, 893 A.2d
758, 767-68 (Pa. Super. 2006) (citation omitted). The court also considered
a victim impact statement, the arguments of the Commonwealth and
defense counsel, a statement on Appellant’s behalf by a family member, and
Appellant’s own statement to the court. See N.T. Sentencing at 29-36, 39.
Additionally, the court stated various reasons for imposing statutory
maximum, consecutive sentences in this case, including: the need to protect
the public (especially children) from Appellant; the length of time over which
Appellant sexually abused the victim; the fact that the victim was Appellant’s
biological daughter; the significant age difference between Appellant and the
victim; Appellant’s exhibiting “a complete lack of regard for the seriousness
of the offense, [and] the physical and psychological harm [he] caused to the
victim[;]” Appellant’s unwillingness to accept any responsibility for his
“heinous act[s]” and his total “lack of remorse[;]” Appellant’s prior criminal
history, including a sexual assault against another child “in a similar
situation” as the present; Appellant’s failure to rehabilitate himself following
that previous offense; and Appellant’s prior offenses of failing to register as
a sex offender, which demonstrated to the court that Appellant has a
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“complete disregard for the law….” Id. at 36-39. For all of these reasons,
the court felt “it appropriate that the maximum sentence … be imposed” for
each of Appellant’s offenses, and it determined that those sentences should
run consecutively. Id. at 39.
Due to the ample reasons provided by the court for fashioning
Appellant’s sentence, all of which are supported by the record, Appellant’s
argument fails to demonstrate that the court abused its discretion. The
main thrust of Appellant’s argument is that he received what is essentially a
life sentence. However, we reject Appellant’s suggestion that he should
have received a lesser sentence simply because of his age at the time of the
sentencing hearing, where Appellant committed heinous sexual offenses
against his own child over the course of two years, and he had previously
committed similar abuse of another child victim. Given the seriousness of
Appellant’s offenses, along with the totality of other factors cited by the
court, Appellant’s sentence is not manifestly excessive.
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Judgment of sentence affirmed.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens concurs in the result of this
memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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