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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ALBERT KRUPITZER :
:
Appellant : No. 460 WDA 2019
Appeal from the Judgment of Sentence Entered September 10, 2018
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000317-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 18, 2020
William Albert Krupitzer (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to one count of involuntary deviate
sexual intercourse with a child (IDSI) and two counts of indecent assault.1 We
affirm.
Appellant’s convictions arose from his repeated sexual abuse of three
minor children over a period of several years. In March 2018, the
Pennsylvania State Police (PSP) became aware of Appellant’s crimes when one
of the children, L.A.W., who was 23 years old at the time, reported that
Appellant had sexually abused him on multiple occasions when he was 9-10
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7) and (a)(8).
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years old. One week later, L.A.W.’s sister, K.J.E., who was 30 years old at
the time, informed the PSP that Appellant had sexually abused her when she
was 15 years old. Approximately 6 weeks later, the PSP learned that another
victim, who was 10 years old at the time, told a forensic interviewer that
Appellant had sexually abused her more recently, and on more than one
occasion.
The Commonwealth charged Appellant with 47 counts related to the
sexual assaults. On June 14, 2018, Appellant entered a negotiated guilty plea
to one count of IDSI and two counts of indecent assault; the Commonwealth
nolle prossed the remaining charges. Prior to sentencing, the trial court
ordered the preparation of a pre-sentence investigation report (PSI).
On September 10, 2018, the trial court sentenced Appellant, who was
80 years old at the time, to an aggregate term of 195 to 588 months in prison.2
Notably, the court ordered the respective sentences imposed on Appellant’s
three convictions to run consecutively. Also, the sentences were within the
respective standard ranges of the sentencing guidelines.
Appellant filed a timely motion for reconsideration, asserting that the
sentence was manifestly harsh and unreasonable given his individualized
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2 Appellant exercised his right to allocution, and expressed remorse for his
crimes. Additionally, the sentencing court considered, inter alia, the PSI and
victim impact statements.
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circumstances; in addition he filed a timely notice of appeal.3 Both Appellant
and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents one issue for our review:
Whether the sentenc[ing] court erred and/or abused its discretion
when it imposed a sentence without giving due consideration to
all the relevant factors under 42 Pa.C.S.A. section 9721(b);
chiefly, the court failed to consider the rehabilitative
needs/mitigating circumstances of [Appellant,] so that he can
have a meaningful opportunity for release, including attending
treatment during his parole. By imposing a sentence that is
essentially a life sentence, the sentence is contrary to the
fundamental norms which underlie the sentencing process and
guidelines[.]
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal.4 See Commonwealth v. Hill, 66
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3 Because there was a breakdown in the operation of the Venango County
Clerk of Courts in failing to enter an order, despite direction by the trial court
denying Appellant’s motion for reconsideration by operation of law, Appellant’s
appeal is timely. See Commonwealth v. Braykovich, 664 A.2d 133, 137-
38 (Pa. Super. 1995) (holding that a defendant’s notice of appeal was timely
where there was a breakdown in the process of the court because the clerk
of courts failed to enter an order denying defendant’s post-sentence motion
by operation of law, as required by the Pennsylvania Rules of Criminal
Procedure).
4 Although Appellant entered a negotiated guilty plea, he is nevertheless
permitted to challenge the discretionary aspects of his sentence. See
Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017)
(explaining that where, as here, a plea agreement contains no bargain for a
specific or stated term of sentence, the defendant will not be precluded from
appealing the discretionary aspects of his sentence)).
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A.3d 359, 363 (Pa. Super. 2013). Rather, where the appellant has preserved
the sentencing challenge for appellate review by raising it in a post-sentence
motion, he or she must (1) include in his or her brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2)
show that there is a substantial question that the sentence is not appropriate
under the Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Appellant included a Rule 2119(f) Statement in his brief. See
Appellant’s Brief at 8-9. We therefore examine the Rule 2119(f) Statement
to determine whether a substantial question exists. Appellant asserts:
[T]he sentence imposed was unreasonably harsh and manifestly
excessive. [] Appellant believes the sentenc[ing] court did not
consider his rehabilitative needs or mitigating circumstances,
namely that the sentence imposed effectively constitutes a life
sentence given Appellant’s advanced age, that he has not had the
opportunity to take advantage of treatment, the fact that he had
a prior record score of zero, and is amenable to treatment under
supervision.
Appellant’s Brief at 9; see also id. at 13 (asserting that Appellant will not be
eligible for parole until he is 96 years old, and “at his advanced age, he does
not represent a danger to society.”).
In determining whether a substantial question exists, this
Court does not examine the merits of whether the sentence is
actually excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
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Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Instantly, Appellant’s claim fails to present a substantial question for our
review. See, e.g., Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.
Super. 2018) (holding that defendant did not present a substantial question
where the court ordered the separate sentences – imposed on
defendant/psychiatrist’s numerous convictions for exploiting multiple female
patients for his sexual gratification – to run consecutively versus concurrently,
and rejecting defendant’s claim that the court imposed an excessive, de facto
life sentence); Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super.
2010) (stating that the imposition of consecutive, rather than concurrent,
sentences is within the sound discretion of the sentencing court, and may raise
a substantial question in only the most extreme circumstances); see also
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (noting
that a defendant is not entitled to a “volume discount” for his crimes by having
all of his sentences run concurrently).
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However, even if Appellant had presented a substantial question, 5 the
trial court acted well within its discretion in imposing a just and reasonable
sentence under the circumstances, and considered and addressed all pertinent
sentencing factors.
“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.” Commonwealth v. Barnes, 167 A.3d 110, 122 n.9 (Pa.
Super. 2017) (en banc) (citation omitted). The Sentencing Code sets forth
the considerations a trial court must take into account when formulating a
sentence, providing that “the court shall follow the general principle that 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).
It is well settled that when a sentencing court is informed by a PSI, “it
is presumed that the court is aware of all appropriate sentencing factors and
considerations, and where the court has been so informed, its discretion
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5 See, e.g., Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super.
2013) (claim that a sentencing court failed to consider defendant’s
rehabilitative needs in imposing a manifestly excessive, de facto life sentence,
may present a substantial question); see also Commonwealth v. Mouzon,
812 A.2d 617, 627-28 (Pa. 2002) (plurality) (stating that a claim of
excessiveness may raise a substantial question even if the sentence imposed
is within the guidelines).
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should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (citation omitted). The Ventura Court further explained:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a [PSI], it will be presumed that he or she was aware of
the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors. Additionally, the sentencing court must state its reasons
for the sentence on the record. The sentencing judge can satisfy
the requirement that reasons for imposing sentence be placed on
the record by indicating that he or she has been informed by the
[PSI]; thus properly considering and weighing all relevant factors.
Id. (citation omitted).
Because the sentencing court in this case reviewed and referenced
Appellant’s PSI prior to imposing the sentence, it is presumed that the court
considered, inter alia, Appellant’s age, lack of criminal history, rehabilitative
needs, and any mitigating circumstances. See id. Additionally, the court
stated sufficient reasons on the record for the sentence imposed. See
generally N.T., 9/10/18, at 29-30.
We discern no abuse of discretion by the trial court and conclude that
Appellant’s standard-range sentences were neither excessive nor
unreasonable, where he abused his position of trust and authority to
repeatedly sexually abuse three minor children over a period of many years.
See, e.g., Moury, 992 A.2d at 171 (stating that “where a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence as
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appropriate under the Sentencing Code.”); see also Radecki, 180 A.3d at
470 (noting “although Pennsylvania’s system stands for individualized
sentencing, the court is not required to impose the ‘minimum possible’
confinement.” (citation omitted)). In addition, the court did not abuse its
discretion in determining that consecutive sentences were warranted in light
of, inter alia, the heinousness of Appellant’s crimes and the impact they had
upon the victims. See Moury, 992 A.2d at 171-72.
In its opinion, the trial court explained:
[The] facts show this [c]ourt that [] Appellant poses a serious risk
to the public. Moreover, the factual bases established for the
separate criminal offenses, combined with the victim impact
statements this [c]ourt received and considered during the
sentencing hearing, shows the devastating and long-lasting
impact Appellant’s criminal acts have had, and will continue to
have, on the victims in this case, the family of the victims, and
the community-at-large.
Trial Court Opinion, 10/9/19, at 11; see also id. at 12 (trial court stating it
considered Appellant’s expression of remorse and his accountability for his
crimes).
The trial court went on to refute Appellant’s claim that the court failed
to consider mitigating circumstances and imposed a de facto life sentence:
While [the court] considered the fact that Appellant had a prior
record score of zero and was in his seventies at the time of
sentencing, [the court] also considered why [] Appellant had a
zero prior record score …. [T]he sexual abuse he subjected [the
victims to] over the course of more than a decade was not
discovered by law enforcement until 2018, when Appellant was of
such an age. [The court] also considered the fact that despite his
age, [] Appellant had committed [criminal] acts against [the] 10-
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year-old [victim] as recently as six weeks before the [PSP]
received L.A.W.’s report in 2018.
[] Appellant, who appeared in good health at the sentencing
hearing, will have a meaningful opportunity for release, as [the
court] did not impose a life sentence on him. Rather, [the court]
imposed consecutive, standard range sentence[s] on [] Appellant
on the three offenses he perpetrated against three different
victims.
Id.
The trial court’s reasoning is supported by both the law and the record.6
Accordingly, Appellant’s sentencing issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2020
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6 Additionally, Appellant emphasizes his desire to participate in sex offender
treatment once he is paroled, but disregards the fact that the Department of
Corrections provides sex offender treatment to incarcerated individuals.
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