Commonwealth v. Wheeler

1

COMMONWEALTH OF PENNSYLVANIA v. BENJAMIN RICHAR WHEELER Appellant

No. 1071 MDA 2023

No. J-S14037-24

Superior Court of Pennsylvania

June 10, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered June 12, 2023 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000488-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Benjamin Richar Wheeler (Appellant) appeals from the judgment of sentence entered following his guilty plea to involuntary deviate sexual intercourse (IDSI) with a child less than thirteen years old,^[1] a tier III offense under the Sexual Offender Registration and Notification Act (SORNA). See 42 Pa.C.S.A. §§ 9799.14(d) 9799.15(a)(3). After careful consideration, we affirm.

The trial court summarized the relevant history underlying this appeal:

On or about August 8, 2022, [Appellant] was charged with various crimes arising out of his alleged sexual abuse of his five-year-old stepdaughter, including [IDSI] with a child and sexual assault. [Appellant] was also charged with four (4) counts of sexual abuse of children related to allegations that he took sexually explicit videos or photographs of his stepdaughter and also videos or photographs of his stepdaughter and her ten-year-old male cousin engaging in prohibited sexual acts or the simulation of such acts.

...[O]n April 23, 2023, [Appellant] pled guilty to [IDSI] with a child, ... a felony of the first degree and a tier III SORNA offense. See Order dated April 24, 2023. At the plea hearing, the Commonwealth indicated it did "not intend to seek to designate him as a sexually violent predator" (SVP)." Id.

On June 12, 2023, [the trial court] sentenced [Appellant] to a split sentence of total confinement and supervision, such that [Appellant] shall undergo an indeterminate period of incarceration, the minimum of which shall be sixteen (16) years and the maximum of which shall be thirty-five (35) years[,] followed by three (3) years of mandatory consecutive probation pursuant 42 Pa.C.S.[A.] § 9718.5. See Order dated June 12, 2023. [The court] had the benefit of a presentence investigation report [(PSI),] and the minimum sentence was within the standard range of ten (10) to twenty (20) years. [T]he offense of [IDSI,] 18 Pa.C.S.[A.] § 3123, has a mandatory minimum of ten (10) years pursuant to 42 Pa.C.S.A. § 9718(a).

Trial Court Opinion, 10/13/23, at 1-2 (internal quotation marks omitted; emphasis added). Appellant was informed of his registration obligations.

Appellant timely filed a post-sentence motion, which the trial court denied on June 28, 2023. Thereafter, Appellant filed the instant timely appeal. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue:

Did the trial court err in imposing a sentence the minimum term of which shall be 16 years[,] where [Appellant] pled guilty and there were no reasons articulated or found by the court that would justify a sentence greater than the statutory minimum of 10 years?

Appellant's Brief at 4.

In his brief, Appellant actually asserts two issues: (1) his sentence above the statutory mandatory minimum sentence is illegal; and (2) the trial court abused its discretion in sentencing him above the mandatory minimum.^[2] See id.

Regarding his claim of an illegal sentence, Appellant cites our Supreme Court's decision in Commonwealth v. Elia, 83 A.3d 254 (Pa. 2013). Appellant's Brief at 13. Appellant argues that in Elia, our Supreme Court recognized that, by imposing a mandatory minimum sentence,

the General Assembly has chosen to punish those offenders uniformly with a mandatory minimum sentence, regardless of whether the victim consented or was coerced into the sexual contact.

Appellant's Brief at 13 (emphasis added) (quoting Elia, 83 A.3d at 269).

Appellant asserts

this is a case wherein the legislature has, in a sense, imposed a specific sentence for a specific offense, and to justify a more severe sentence the court must articulate reasons therefore.

Id. at 14 (emphasis added). According to Appellant, the trial court's sentence is,

in a sense, an aggravated sentence which can only sustain review if the court articulates some specific reason or reasons which justify a sentence more excessive than the statutorily mandated minimum.

Id. Thus, Appellant appears to claim that a sentence above the mandatory minimum, without justification, constitutes an illegal sentence. See id. at 13-14.

A challenge to the legality of a sentence presents "a pure question of law." Commonwealth v. Wright, 276 A.3d 821, 827 (Pa. Super. 2022) (citation omitted). "As such, our scope of review is plenary and our standard of review de novo." Id. (citation and internal quotation marks omitted).

Appellant was subject to the following mandatory minimum sentencing statute:

A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S.[A.] § 3123 (relating to involuntary deviate sexual intercourse) - not less than ten years.

42 Pa.C.S.A. § 9718(a)(1) (emphasis added).

In addition, the Sentencing Code provides that a sentencing 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." 42 Pa.C.S.A. § 9721(b). "[T]he 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).

In Elia, James Elia (Elia) challenged the constitutionality of the mandatory minimum sentence required by 42 Pa.C.S.A. § 9718(a). Elia, 83 A.3d at 256. In upholding the constitutionality of Section 9718(a), our Supreme Court opined:

The fact that the General Assembly has not enacted a mandatory minimum sentence for one particular crime, one which Elia feels is more severe, does not, ipso facto, mean that the mandatory minimum sentence for IDSI is constitutionally infirm. Second, the absence of force or coercion does not render the mandatory minimum statute unconstitutionally disproportionate to Elia's conduct. The Commonwealth has a legitimate state interest in protecting minors younger than sixteen years old from adult sexual aggressors. … To that end, the General Assembly has chosen to punish those offenders uniformly with a mandatory minimum sentence, regardless of whether the victim consented or was coerced into the sexual contact. The absence of consent in one particular case does not vitiate the General Assembly's reasonable punitive goal. Moreover, the absence of consent or coercion does not, by itself, give rise to a reasonable inference that the sentence was grossly disproportionate.

Id. at 269 (emphasis added; citation omitted).

In Elia, the Supreme Court discerned no constitutional infirmity where the statute imposed the same mandatory minimum sentence, regardless of whether the offender used force or coercion. See id. The Supreme Court did not interpret the mandatory minimum sentencing statute as requiring a 10-year minimum sentence, or requiring extraordinary circumstances when sentencing in excess of 10 years. See id. To the extent Appellant challenges the legality of his sentence based on Elia, his claim merits no relief.

Appellant also challenges the discretionary aspects of his sentence.^[3] "A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted). Accordingly, to reach the merits of a discretionary issue, this Court must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013) (citation omitted).

Appellant preserved his claim in a timely post-sentence motion for modification of sentence and timely filed his notice of appeal. Appellant included in his appellate brief a statement of reasons relied upon for appeal, in accordance with Pa.R.A.P. 2119(f). Appellant's Brief at 9-11. Accordingly, we next determine whether Appellant has raised a substantial question justifying our review. See Edwards, 71 A.3d at 330.

A substantial question exists when an appellant sets forth a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code "or is contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009).

In his Pa.R.A.P. 2119(f) statement, Appellant claims

[n]othing was stated of record at sentencing or in the [PSI] that would justify the imposition of a sentence six years in excess of the mandatory minimum which the general Assembly has provided in an effort to establish uniformity throughout the state for sentencing this particular class of offenders….

Appellant's Brief at 11.

Appellant contends his sentence is not appropriate under 42 Pa.C.S.A § 9781(c).^[4] Appellant's Brief at 9. Appellant points out he had no prior criminal record and had graduated high school. Id. Appellant states he presented evidence of his supportive family and made no excuses for...