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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARK ALAN MCELHENY :
:
Appellant : No. 836 WDA 2019
Appeal from the Judgment of Sentence Entered May 14, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001684-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 21, 2020
Mark Alan McElheny (Appellant) appeals from the judgment of sentence
imposed after the trial court granted his motion for reconsideration of
sentence. We affirm.
On September 13, 2018, Appellant pled guilty to aggravated assault of
a victim less than 6 years old, simple assault, and two counts of endangering
the welfare of a child, stemming from the physical abuse of two minor children
in Appellant’s care.1 Affidavit of Probable Cause, 7/19/17, at 1. One victim,
a 6-year-old, reported that Appellant struck her and forcefully pulled her hair.
Id. Following an investigation, the Commonwealth determined that Appellant
subjected a 14-month-old victim to hair pulling and other physical abuse. Id.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(8), 2701(a)(1), and 4304(a)(1).
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As a result, the younger victim suffered subgaleal hematomas and a torn
frenulum. Id. at 1-2.
After Appellant entered his plea, the trial court deferring sentencing for
the preparation of a pre-sentence investigation (PSI) report. On December
20, 2018, the court sentenced Appellant to an aggregate 6 to 13 years of
incarceration. On December 26, 2018, Appellant filed a post-sentence motion
for reconsideration of sentence. Following a hearing on May 14, 2019, the
court granted Appellant’s request and reduced the aggregate sentence to 5 to
11 years.2
Appellant filed this timely appeal. Both Appellant and the trial court
have complied with Pennsylvania Rule of Appellate Procedure 1925. On
appeal, Appellant presents a single question:
Did the trial court manifestly abuse the discretion afforded to it
where it imposed a sentence considerably above the standard and
aggravated ranges to an extent that said sentence was contrary
to the fundamental norms underlying our established plea and
sentencing process, and in relying on duplicative or non-existent
factors?
Appellant’s Brief at 5 (numbering omitted).
Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
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2The court reduced Appellant’s sentence for aggravated assault from 4 to 8
years of incarceration to 3 to 6 years of incarceration.
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“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of the test by raising
his discretionary sentencing claim in a timely post-sentence motion, filing a
timely notice of appeal, and including in his brief a Rule 2119(f) concise
statement. See Appellant’s Brief at 12-13. Therefore, we examine whether
Appellant presents a substantial question.
Appellant presents three claims of error. Appellant first argues that the
trial court abused its discretion in formulating his sentence for aggravated
assault. Appellant “avers that the [trial] court erred in imposing an excessive
sentence, an upward departure from the recommended standard and
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aggravated sentencing range, without proper justification.” Appellant’s Brief
at 12. This claim raises a substantial question. See Commonwealth v.
Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (An appellant’s “contention
that the sentencing court exceeded the recommended range in the Sentencing
Guidelines without an adequate basis raises a substantial question for this
Court to review.”) (citations omitted). Secondly, Appellant argues that the
trial court imposed an excessive sentence for aggravated assault where the
court considered impermissible factors. Appellant’s Brief at 12. This claim
also raises a substantial question. See Commonwealth v. Allen, 24 A.3d
1058, 1064-65 (Pa. Super. 2011) (“A claim that a sentence is excessive
because the trial court relied on an impermissible factor raises a substantial
question.”). Finally, Appellant claims the court “abused its discretion in failing
to consider the mitigating factors that were presented at and before
sentencing [when imposing his sentence in the aggregate].” Appellant’s Brief
at 12. This claim also raises a substantial question. See Commonwealth v.
Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This Court has also held that
an excessive sentence claim — in conjunction with an assertion that the court
failed to consider mitigating factors — raises a substantial question.”)
(citations omitted).
Preliminarily, we recognize:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
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committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations
omitted).
The relevant portion of 42 Pa.C.S.A. § 9721(b) states:
In selecting from the alternatives set forth in subsection (a), 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. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
Id.
Additionally:
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 presentence investigation report, 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.
Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)).
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Here, the trial court sentenced Appellant to 3 to 6 years of incarceration
for aggravated assault. Order, 5/14/19. This sentence is outside of the
Sentencing Guidelines, but below the statutory maximum sentence.3 See 18
Pa.C.S.A. § 1103(2) (stating the statutory maximum sentence for a second-
degree felony is 10 years). We have explained:
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.
The court may deviate from the recommended guidelines; they
are merely one factor among many that the court must consider
in imposing a sentence. 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. When a court chooses
to depart from the guidelines, however, it must demonstrate on
the record, as a proper starting point, his [or her] awareness of
the sentencing guidelines. 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).
When reviewing a sentence outside 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.A. § 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.
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3 The sentences Appellant received at his other three convictions were within
the Sentencing Guideline recommended ranges.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable
if it fails to properly account for these four 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 [set forth in 42
Pa.C.S.A. § 9721(b)].
Sheller, 961 A.2d at 190-91 (some citations omitted).
At sentencing on December 20, 2018, the trial court stated:
. . . The [c]ourt notes that it stayed within the standard range
sentencing guidelines, except for Count 1, Aggravated Assault.
The reasons for which the [c]ourt went outside the guidelines are
as follows:
A. The age of the victims. The [c]ourt recognizes that the
crime itself encompasses and considers the age of the
victims and that was not a defining nor controlling factor but
is important to note.
B. There were multiple victims.
C. The actions of [Appellant], even though he provided the
[c]ourt with a drug-related excuse, were deliberate.
D. The continuing action or the pattern of abuse imposed by
the [Appellant] upon the children.
E. The lasting impact upon the victims.
F. The physical pain inflicted upon the victims.
G. The emotional pain inflicted upon the victims.
H. The degree of suffering, both from the professional
opinions proffered but more so from the photos proffered
([Commonwealth] Exhibit 1) of the victims.
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See Order, 12/20/18, at 7-8; N.T., 12/20/18, at 22.
At Appellant’s re-sentencing, the trial court explained:
I want to say to [Appellant’s] family that came, I do listen to you.
When I come into these things, I usually have a range of what I’m
going to do. I don’t want to have my mind made up before I come
in or listening to you would have no impact and I don’t think that
would be fair to you, so, I do pay attention to what you have to
say. I don’t want to, nor can I undo what occurred. I would tell
you that when I reviewed this yesterday and I spent much more
time on this than I normally would. I spent about two hours
preparing for this, which is a lot of time for me on something like
this. I did notice [Appellant] that you had walked out of two
inpatient drug and alcohol treatments, that when you then had a
chance for outpatient, you walked away. So, while I recognize --
and I have a lot of respect for [your attorney]. . . . the fact of the
matter is that every effort was made to provide you with what
could be done to address your drug and alcohol treatment -- your
drug and alcohol condition and three different times, you rejected
that help. When I read my order and went back into the file, I
saw it on the criminal complaint but the criminal complaint is often
not sufficient to act on and it was whether or not it was -- I want
you to know the two things I looked at; was there a pattern of
abuse, was it more than an isolated incident? I believed and found
that it was more than -- it was not an isolated incident, that it
occurred more than once and that there was a pattern. If
somehow that would be wrong, then that would have given way
to me making some changes. The enduring consequences to the
victims and their ages were substantial factors in how I arrived at
that original sentence. I’m going to provide you with some relief
but it’s going to not be substantial. It’s going to be -- when I did
my review of the aggravated assault charge, that is the highest
sentence I’ve ever provided in that range. I’ve been on the bench
17 years, you know, it’s near -- I have never given anyone with 0
prior record score -- although when you read the Pre-Sentence,
[Appellant] might have a prior 0 record but he did have a lot of
run-ins, I mean, he had a lot of different run-ins with the law,
albeit, they don’t create a score for you. . . .
N.T., 5/14/19, at 17-18.
The court subsequently opined:
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The court, in its sentencing order dated December 20, 2018
(pages 7-8), put forth its reasons for that sentencing and for going
outside the aggravated range on the charge of aggravated assault
(against a child less than 6 years old).
[Appellant] filed a timely motion for reconsideration which
was granted and the court conducted a subsequent hearing on
May 14, 2019. At that hearing, the court resentenced [Appellant],
lowering his sentence at count one, aggravated assault[,]
lowering the minimum of six years to five years. Therefore[,
Appellant’s] sentence was reduced to a period of not less [than]
five years nor more than eleven years. In all other ways, the
original sentence of December 20, 2018 remained in full force and
effect. Once again, the court laid out its reasons for its sentencing
that day and the transcript of both hearings contained that
discussion. This court notes the photos of the children, which
were put into evidence, are indicative of the degree of injuries
which [Appellant] imposed upon these very young children. The
December 20, 2018 sentencing hearing transcript, pages 13-20,
discusses the impact on the victims. This court spent substantial
time, and heard from all parties involved and weighed its
consideration.
Finally, the court did upon the review, reduce [Appellant’s]
minimum sentence by one year. The statement of matters
complained of filed by [Appellant] all goes to the discretion of the
court’s sentence, alleging an abuse of discretion. The court did
consider the Sentencing Guidelines and followed them except for
count one, aggravated assault, in which the court believed that
going outside the aggravated range was appropriate. The court
considered the general standard set forth under 42 Pa.[C.S.A.]
§[]9721(b), however placed more weight as it relates to the
impact on the life of the victims. The rehabilitative needs of
[Appellant] would have been provided more consideration had
[Appellant] not left both inpatient and outpatient drug
rehabilitation []voluntarily and against orders.
Trial Court Opinion, 9/26/19, at 2-3.
Upon review, we discern no error. At Appellant’s original sentencing
hearing, while acknowledging the Sentencing Guidelines, the trial court
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imposed a sentence outside the Guidelines for aggravated assault. Order,
12/20/18, at 7. In open court, the trial court dictated the reasons for deviating
from the Guidelines. Order, 12/20/18, at 7-8; N.T., 12/20/18, at 22. Further,
the court had multiple opportunities to observe Appellant and was aided by a
PSI report. Appellant’s sentence of 3 to 6 years of incarceration is therefore
reasonable.
Appellant further argues the trial court abused its discretion by
considering impermissible factors. Appellant’s Brief at 12. Specifically,
Appellant argues the trial court impermissibly considered its finding that
Appellant engaged in a pattern of abuse, as well as the victim’s age, as
reasons for imposing a sentence above the Guidelines. See Appellant’s Brief
at 15-21.
As to impermissible sentencing factors:
A sentence is invalid if the record discloses that the sentencing
court may have relied in whole or in part upon an impermissible
consideration. This is so because the court violates the
defendant’s right to due process if, in deciding upon the sentence,
it considers unreliable information, or information affecting the
court’s impartiality, or information that it is otherwise unfair to
hold against the defendant.
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010). We are
only required to vacate the sentence if we conclude the court relied upon
impermissible factors when imposing its sentence.
In deciding whether a trial judge considered only permissible
factors in sentencing a defendant, an appellate court must, of
necessity, review all of the judge’s comments. Moreover, in
making this determination it is not necessary that an appellate
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court be convinced that the trial judge in fact relied upon an
erroneous consideration; it is sufficient to render a sentence
invalid if it reasonably appears from the record that the trial court
relied in whole or in part upon such a factor.
Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004).
Here, the trial court listed the “continuing action or the pattern of abuse
imposed by the [Appellant] upon the children” as a factor in sentencing
Appellant outside the Sentencing Guidelines for aggravated assault. Order,
12/20/18, at 8. Upon review, there is ample evidence that Appellant’s abuse
of the 14-month-old victim was ongoing.
For example, the emergency room physician who examined the 14-
month-old victim is quoted as stating her “injuries occurred over a course of
time and were in various stages of healing.” PSI Report, 12/6/18, at 2 (citing
Affidavit of Probable Cause, 7/19/17, at 1).4 The report further states that
“[w]itnesses at the daycare center and interviews compiled throughout [the]
investigation do indicate evidence of hair loss over a period of one month.”
Id. (citing Affidavit of Probable Cause, 7/19/17, at 1). Thus, the trial court
had an evidentiary basis to conclude that Appellant’s abuse of the 14-month-
old victim was not isolated, and properly cited the ongoing nature of the abuse
as a reason for departing from the Guidelines.
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4 Appellant did not object to the contents of the PSI report and does not
challenge the report on appeal.
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In examining the court’s consideration of the 14-month-old victim’s age
as an aggravating factor in sentencing Appellant outside the Sentencing
Guidelines, see Order, 12/20/18, at 8, we recognize that the victim’s age is
an element of the section of the aggravated assault statute. 18 Pa.C.S.A. §
2702(a)(8) (“A person is guilty of aggravated assault if he . . . attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to a child
less than six years of age, by a person 18 years of age or older.”).
However, “[e]ven if a sentencing court relies on a factor that should
have not been considered, there is no abuse of discretion when the sentencing
court has significant other support for its departure from the [S]entencing
[G]uidelines.” Sheller, 961 A.2d at 192 (citations omitted). Here, the trial
court recited proper factors it considered in fashioning Appellant’s sentence,
including the deliberate nature of Appellant’s actions, the pattern of abuse,
the physical and emotional impact on the victim, and the degree of suffering
the victim endured. See id. We discern no error.
Finally, Appellant claims that the trial court imposed an excessive
sentence by failing to consider mitigating factors. However, “[w]here the
sentencing court imposed a standard-range sentence with the benefit of a pre-
sentence report, we will not consider the sentence excessive.”
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). “In those
circumstances, we can assume the sentencing court was aware of relevant
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information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Id.
Here, in addition to referencing the PSI report, the court addressed
Appellant’s rehabilitative needs, his voluntary departure from several
rehabilitation programs, the statements of Appellant’s witnesses at
resentencing, the impact of the crimes on the victims, and the severity of the
victims’ injuries.
Ultimately, and in its discretion, the trial court determined that
Appellant’s crimes necessitated consecutive sentences. See Commonwealth
v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“We have stated that the
imposition of consecutive rather than concurrent sentences lies within the
sound discretion of the sentencing court.”) (citations omitted). In sum, the
record reflects that the trial court weighed the appropriate factors and
properly fashioned an individualized sentence.
For the foregoing reasons, Appellant’s sentencing claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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