J-S38026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT ANTONELLO CLARK :
:
Appellant : No. 2006 MDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2019
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000490-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT ANTONELLO CLARK :
:
Appellant : No. 2007 MDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2019
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000491-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT ANTONELLO CLARK :
:
Appellant : No. 2008 MDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2019
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000492-2009
J-S38026-20
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 6, 2020
Vincent Antonello Clark appeals from the judgment of sentence imposed
following his third resentencing at which the court imposed an aggregate
prison term of 600 to 1,200 months. On appeal, Clark claims that the trial
court abused its discretion by imposing a manifestly excessive sentence after
failing to consider mitigating factors and focusing solely on the gravity of the
offense. We affirm.
Clark was convicted of three counts each of rape of a child, involuntary
deviate sexual intercourse (“IDSI”) with a child, aggravated indecent assault
of a child, statutory sexual assault, indecent assault, corruption of minors, and
incest,1 for the repeated sexual assault of his three children. All of them were
under the age of eight when the assaults occurred. He was also convicted of
rape of a child and other offenses related to his sexual assaults of two minor
nieces, who were under the age of eleven at the time.
The trial court structured the original sentence as follows. It imposed
mandatory minimum terms of 120 to 240 months of imprisonment on each of
the five counts of rape of a child, which sentences were imposed
consecutively. The court imposed concurrent sentences on the remaining
convictions. This Court affirmed the judgment of sentence on direct appeal.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3122.1, 3126(a)(7),
6301(a)(1), and 4302, respectively.
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Clark filed a PCRA petition, and on August 28, 2017, the PCRA court
granted relief in part based on Alleyne v. United States, 750 U.S. 99 (2013),
and granted a new sentencing hearing. The trial court resentenced Clark on
January 4, 2018, to an aggregate term of 600 to 1,200 months’ imprisonment.
After noting the serious nature of the offenses the court imposed five
consecutive terms of 120 to 240 months’ imprisonment for each count of rape
of a child, sentences that fell within the standard range of the guidelines. The
court imposed concurrent sentences on the remaining convictions.
After his post-sentence motion was denied, Clark appealed to this Court
claiming that the trial court abused its discretion and imposed a manifestly
excessive sentence. He argued that the court abused its discretion by not
considering the pre-sentence investigation report (“PSI”), which had not been
updated, and by refusing to consider evidence of his rehabilitative needs,
shown by his good behavior while in prison. This Court found that the court
did not abuse its discretion concerning the PSI, since Clark had testified about
his progress in prison since the issuance of the PSI. See Commonwealth v.
Clark, No. 343, 344, 345 MDA 2018, unpublished memorandum at *9
(Pa.Super. filed June 10, 2019). However, this Court found merit to Clark’s
second argument, which challenged the court’s consideration of mitigating
factors, and again we vacated and remanded for resentencing.
[O]ur review of the record reveals Clark correctly asserts the trial
court did not consider his rehabilitative needs, and specifically his
progress while incarcerated, before imposing sentence. Although,
as noted above, Clark testified regarding his accomplishments
during his time in prison, the trial court made it clear in its opinion
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that it did not consider that information before imposing sentence.
The court opined:
At the time of resentencing [Clark] testified to what
he has accomplished during incarceration. Defen[se]
Counsel believes these are mitigating factors which
this [c]ourt should have taken into consideration.
However, resentencing is not an opportunity for this
[c]ourt to look at mitigating factors that were not
before this [c]ourt at the time of original sentencing.
[Clark’s] sentencing was based on the extreme nature
of the crimes and the number of children family
member victims and not the treatment nor progress
[Clark] may have completed while incarcerated.
* * *
Therefore, because we agree the trial court abused its
discretion in refusing to consider Clark’s progress in prison since
his last sentencing hearing, we are constrained to vacate the
judgment of sentence and remand for resentencing. At the
resentencing hearing, the trial court should consider any
mitigating evidence Clark presents, with a particular focus on the
sentencing factors set forth in 42 Pa.C.S.[A.] § 9721(b).
Clark, No. 343, 344, 345 MDA 2018, at *9-11 (quoting Trial Ct. Op., 4/06/18,
at 12) (some alterations in original).
On remand, the trial court conducted a resentencing hearing during
which it heard extensive testimony concerning Clark’s progress in prison:
At resentencing, [Clark] provided testimony of his undertakings
while incarcerated including, but not limited to, his employment,
his continued undertakings toward achieving his GED, his
completion of a course entitled Pathway to Success, and the fact
that he had not been in trouble or written up while incarcerated
and because of that conduct, was moved to a lower security
facility.
Trial Ct. Op., 01/03/20, at 3.
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The court then sentenced Clark to an aggregate term of 600 to 1,200
months of incarceration. Clark filed a timely motion for reconsideration, which
the trial court denied. This timely appeal followed.
Clark raises one issue on appeal: “Did the trial court abuse its discretion
or err as a matter of law when it failed to consider [Clark’s] background, was
improperly persuaded solely by the egregiousness of the crimes to which
[Clark] was convicted, and, singularly and in the aggregate, imposed a
manifestly excessive sentence?” Clark’s Br, at 3.
Clark’s claim implicates the discretionary aspects of his sentence. Such
a challenge is not appealable as of right.
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:
[W]e 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),
(internal citations omitted).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (some
citation formatting provided).
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Here, Clark preserved his issue in a timely post-sentence motion for
modification of sentence, and then filed a timely notice of appeal. His appellate
brief includes a statement of reasons relied upon for appeal pursuant to
Pa.R.A.P. 2119(f). See Clark’s Br. at 17-20. Therefore, we must determine
whether he has raised a substantial question justifying our review.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Moury, 992 A.2d at 170 (citations and quotation marks omitted)
Clark’s Rule 2119(f) statement contends that the trial court abused its
discretion and imposed a manifestly excessive sentence when it failed to
consider his personal characteristics and rehabilitative needs, and instead
focused on the seriousness and egregiousness of his crime. See Clark’s Br. at
19.
This Court has held that an excessive sentence claim, together with an
assertion that the court failed to consider mitigating factors, such as the
appellant’s rehabilitative needs, presents a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa.Super. 2015) (en
banc). We have also found a substantial question where an appellant claims
the trial court focused solely on the seriousness of the offense and failed to
consider all relevant factors. See Commonwealth v. Bricker, 41 A.3d 872,
875 (Pa.Super. 2012).
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Therefore, we conclude that Clark has raised a substantial question.
Accordingly, we turn to our standard of review.
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
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. Lekka, 210 A.3d 343, 350 (Pa.Super. 2019) (citation
omitted).
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super. 2002). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics
and his potential for rehabilitation.” Id. Where the sentencing
court had the benefit of a presentence investigation report (“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.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Further,
where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code. See Commonwealth v. Cruz-Centeno, 668
A.2d 536 (Pa.Super. 1995), (stating combination of PSI and
standard range sentence, absent more, cannot be considered
excessive or unreasonable).
Moury, 992 A.2d at 171 (some citation formatting provided, some citations
omitted).
Clark argues that the trial court failed to consider his personal
characteristics such as not having a prior record, maintaining employment
prior to his arrest, his age, and his potential for rehabilitation. He also notes
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the educational courses that he has taken while incarcerated and the fact that
he has maintained employment in the prison kitchen. Clark contends that the
trial court abused its discretion by failing to consider these factors because,
aside from a passing reference, it did not mention them at resentencing.
Finally, Clark claims that the “trial court did not appropriately consider [the
above] facts and factors, rather the trial court unequivocally considered the
egregiousness of the offense, which was already factored into the sentencing
guidelines.” Clark’s Br. at 27.
In the instant case, the court imposed sentence after an extensive
hearing concerning Clark’s personal characteristics, his participation in prison
programs, his good behavior in prison, and his potential for rehabilitation.
After imposing sentence, the court set forth its reasons for the sentence:
With respect to reasons for sentence, for all sentences imposed
just by this Court, the Court notes the following: the Court
commends [Clark] for his progress while being incarcerated.
However, the Court cannot overlook the gravity of the offenses by
[Clark]. [Clark] violated the trust of a parent and child. The Court
notes that all sentencing today is within the standard range
guidelines. We’ll note that there were three victims in this matter.
One victim was a step-niece, one victim was [Clark’s] own
daughter, and one victim was [Clark’s] own son. The Court notes
the extreme nature of the crimes with respect to sentencing. The
Court also has imposed sentence for the protection of the victims.
The Court notes the reason for sentence is that Mr. Clark raped
and sexually assaulted minor children over a continuous period of
time. The Court notes that this sentence imposed meets safety
requirements for the community and safety and protection for the
victims in this matter.
N.T. Sentencing, 10/25/19, at 58-59.
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The trial court did not refuse to consider Clark’s conduct since the prior
sentencing hearing, but rather heard testimony of Clark’s performance in
prison, and commended him for his accomplishments. However, weighing this
information against the other relevant sentencing factors, the trial court
concluded that a lengthy prison sentence was appropriate. The court
concluded that Clark’s “new evidence pales in significance when compared
with other aspects of his case including the gravity of his offenses.” See
Commonwealth v. Losch, 535 A.2d 115, 123 (Pa.Super. 1987).
Upon review, we conclude that the trial court did not abuse its discretion
when it imposed its sentence. The court had the benefit of a PSI, heard
additional testimony about Clark, and weighed the sentencing factors
appropriately, in settling on an appropriate sentence. Accordingly, we
conclude that the trial court did not abuse its discretion, and we affirm Clark’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/06/2020
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Com. v. Clark, V.
Combined Opinion