Com. v. Blauser, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JARRED DALE BLAUSER :
:
Appellant : No. 337 WDA 2022
Appeal from the Judgment of Sentence Entered February 4, 2022
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000284-2021
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 7, 2023
Appellant Jarred Dale Blauser appeals from the judgment of sentence
imposed after he pled guilty to one count each of aggravated assault of a child
less than six years old and endangering the welfare of a child (EWOC).1
Appellant contends that the trial court abused its discretion by sentencing him
outside the sentencing guidelines, imposing an excessive sentence, and failing
to consider relevant sentencing factors and mitigating evidence. Following
our review, we affirm.
The trial court summarized the facts of this case as follows:
On May 29, 2021, [Appellant’s] two-month-old child received
multiple injuries while under his supervision. [Appellant] struck
the child twice on his body with a closed fist causing injury and
bruising. [Appellant] also hit the child on his head and face at
least twice with the back of his hand. The victim needed to be
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1 18 Pa.C.S. §§ 2702(a)(8) and 4304(a)(1), respectively.
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transported to the Children’s Hospital in Pittsburgh in order to
treat his injuries. It was further reported that [Appellant] had
previously struck his paramour’s three-year-old daughter in the
face giving her a black eye.
Trial Ct. Op., 4/11/22, at 1.
Appellant was charged on June 9, 2021, with two counts of aggravated
assault of a child less than six-years old and two counts of EWOC. On
November 18, 2021, Appellant entered an open guilty plea to one count each
of aggravated assault and EWOC.2 The aggravated assault charge stemmed
from Appellant hitting his two-month-old child, and the EWOC charge
stemmed from Appellant hitting his paramour’s three-year-old-daughter. See
Trial Ct. Op. at 2. On February 4, 2022,3 the trial court sentenced Appellant
to a term of sixty to 120 months’ imprisonment for aggravated assault and a
consecutive term of twelve to twenty-four months’ imprisonment for EWOC,
resulting in an aggregate sentence of seventy-two to 144 months’
imprisonment, with credit for time served of 241 days. Sentencing Order,
1/28/22, at 1-3. The trial court also ordered that Appellant be subject to a
period of 12 months’ reentry supervision. See 61 Pa.C.S. § 6137.2.
Appellant filed a timely post-sentence motion challenging the
discretionary aspects of his sentence. The trial court denied this motion on
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2 The Commonwealth nolle prossed the remaining charges.
3 The trial court originally sentenced Appellant on January 28, 2022. After the
court determined that it inadvertently omitted the mandatory twelve-month
reentry supervision pursuant to 61 Pa.C.S. § 6137.2, the court held a second
hearing on February 4, 2022, to correct this oversight.
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February 25, 2022. Appellant filed a timely notice of appeal on March 17,
2022. Both the trial court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for review:
1. Did the [t]rial [c]ourt impose a sentence that failed to properly
abide by the requirements for fashioning a sentence outside of
the guidelines[?]
2. Did the [t]rial [c]ourt abuse its discretion by fashioning a
sentence outside of the guidelines that was manifestly
unreasonable[?]
Appellant’s Brief at 30.
Appellant contends that the trial court abused its discretion by
sentencing him outside the sentencing guidelines, failed to consider relevant
sentencing factors, relied on factors already subsumed in the guidelines, and
imposed a manifestly excessive sentence. Appellant’s Brief at 37-53. Both of
Appellant’s interrelated claims challenge the discretionary aspects of his
sentence, and we address them concurrently.
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. 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. § 9781(b).
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Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “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.” Id. (citation omitted).
Instantly, Appellant preserved his sentencing claims in a post-sentence
motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in
his brief.4 See Appellant’s Brief at 24-26. Further, we conclude that Appellant
has presented a substantial question for review. See, e.g., Commonwealth
v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019) (explaining that allegations
that the trial court failed to consider the relevant factors and imposed a
manifestly excessive sentence raise a substantial question); Commonwealth
v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004) (holding that a claim that
the sentencing court imposed a sentence outside the guidelines presents a
substantial question). Accordingly, we will address Appellant’s appeal on the
merits.
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4 Technically, Appellant did not include a separate and distinct Rule 2119(f)
statement in his brief, and merely referred to his Rule 1925(b) statement.
See Appellant’s Brief at 33. However, the Commonwealth has expressly
waived its objection to the omission of a Rule 2119(f) statement, so the
omission by Appellant is not fatal to his appeal. See Commonwealth’s Brief
at 9 n.2; Commonwealth v. Lynch, 242 A.3d 339, 346 (Pa. Super. 2020)
(holding that this Court may overlook a Rule 2119(f) violation if the
Commonwealth fails to object).
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Our well-settled standard of review is as follows:
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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(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.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
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42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted and some formatting altered).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
Additionally, the trial court “must consider the sentencing guidelines.” Id. at
848 (citation omitted).
Additionally, this Court has explained that
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, [its] 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. § 9721(b).
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (some
citations omitted and formatting altered). “The requirement that the court
provide a contemporaneous written statement is satisfied when the judge
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states his reasons for the sentence on the record and in the defendant’s
presence.” Commonwealth v. Durazo, 210 A.3d 316, 321 (Pa. Super.
2019) (citations and quotation marks omitted).
“When reviewing a sentence outside of the guidelines, the essential
question is whether the sentence imposed was reasonable.” Id. (citing
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007); Sheller, 961 A.2d
at 190). “A sentence may be found unreasonable if it fails to properly account
for” the four statutory factors of Section 9781(d). Sheller, 961 A.2d at 191.
“Even if the sentencing court relied on factors that were subsumed into the
guideline recommendation, . . . there is no abuse of discretion when the
sentencing court has significant other support for its departure from the
sentencing guidelines.” Id. at 192 (citations omitted).
Further, “[w]here the sentencing judge had the benefit of a [PSI], it will
be presumed that he was aware of relevant information regarding [the
defendant’s] character and weighed those considerations along with the
mitigating statutory factors.” Fullin, 892 A.2d at 849-50 (citation omitted).
Here, the trial court addressed Appellant’s claims as follows:
This court gave five reasons for sentencing [Appellant] to the
maximum sentence permitted by law at Count 1. These factors
were explained in detail on the record at sentencing and also
appear in the sentence order. The young age of the victim, two
months old, was an aggravating factor. The sentence was
aggravated because the victim was the biological child of
[Appellant], and the aggravated assault occurred while the victim
was in [Appellant’s] sole care. This court also found that the
nature of the assault and the injuries suffered by the victim to be
an aggravating factor. [Appellant’s] demonstrated inability to
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understand the serious nature of his offenses, take responsibility
for his actions, or understand his need for rehabilitation was an
aggravating factor at sentencing. [Appellant’s] prior assault of a
three-year-old child left in his care where he did not seek help and
continued to care for small children two weeks before assaulting
the victim was an aggravating factor this court considered at
sentencing.
The young age of the victim can be an aggravating factor at
sentencing even for crimes where a victim below a certain age is
an element of the offense. See [Durazo, 210 A.3d at 324],
Walls, 926 A.2d at 966[-67]. In Walls, the Pennsylvania
Supreme Court found that the fact that the victim was seven years
old could be used as an aggravating factor at sentencing for rape
or IDSI with: a victim less than thirteen years old. [Walls,] 926
A.2d at 966[-67]. The Superior Court considered the age of a
five-week-old victim as an aggravating factor during sentencing
for the crime of assault on a child under the age of thirteen.
Durazo, 210 A.3d at 324. The Court has held that a victim’s
particularly young age “could justify an above-guideline sentence
which might be more heinous than the rape of an older child.”
Walls, 926 A.2d at 966.
Under the reasoning of Walls and Durazo, the age of a two-
month-old infant victim can be an aggravating factor at
sentencing for the crime of assault with a victim under six years
of age. The helplessness of a two-month-old infant compared to
a five-year-old child makes this crime particularly heinous, and
this court reasonably considered the victim’s age as an
aggravating factor. A two-month-old is completely unable to
defend himself, to yell for help, to flee from his abuser, or to report
the assault to another. A two-month-old is more susceptible to
permanent injury and death as the result of repeated trauma to
his head and torso.
The court may also aggravate a sentence if the defendant was a
relative of the victim and the victim was in the sole care of the
victim at the time of the crime. Durazo, 210 A.3d at 322(aggravated because defendant was in sole caregiving role as a
babysitter); Commonwealth v. Conte, 198 A.3d 1169, 1177-78
(Pa. Super. 2018); Walls, 926 A.2d at 967 (aggravated because
the defendant was in a “position of trust and responsibility” over
the child victim and was the victim’s grandfather). The Superior
Court has permitted sentencing courts to aggravate a sentence
when the defendant was in a “parental position of trust” at the
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time of the crime. Conte, 198 A.3d at 1178. [Appellant] in this
case is the biological father of the victim. At the time of the
assault, [Appellant] was in a sole caregiving role over the victim.
This Court may aggravate [Appellant’s] sentence for both his role
as a parent and as the sole caregiver at the time of the assault.
A sentence may be aggravated due to the extent of the victim’s
injuries. Durazo, 210 A.3d at 322; [Commonwealth] v. Eck,
654 A.2d 1104, 1106 (Pa. Super. 1995). In Durazo, one of the
aggravating factors that led to a defendant receiving the
maximum sentence for was the extent of the injuries inflicted on
a five-week-old infant victim. [Durazo,] 210 A.3d at 322. The
two-month-old victim[’s] injuries included bruising on the torso,
head, and face, and the victim required hospitalization. The child
was assessed in the local hospital emergency room and
transported to Children’s Hospital in Pittsburgh because of the
concern for internal injuries. This court was justified in
considering the victim’s injuries as an aggravating factor to
sentence [Appellant] to the maximum sentence permitted by law.
The court aggravated [Appellant’s] sentence for failing to
understand the serious nature of his offenses, take responsibility
for his actions, or understand his rehabilitation needs. A lack of
remorse can be used as an aggravating factor at sentencing.
Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001); see
also Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa.
Super. 2009) (“it is undoubtedly appropriate for a trial court to
consider a defendant’s lack of remorse as a factor at sentencing,
provided that it is specifically considered in relation to protection
of the public, the gravity of the offense, and the defendant’s
rehabilitative needs.”). The Superior Court has also affirmed
sentences where a failure to take responsibility was an
aggravating factor. Commonwealth v. Lewis, 911 A.2d 558,
567 (Pa. Super. 2006). In this case, [Appellant] called his conduct
“irresponsible” and blamed his behavior on character defects like
narcissism, and self-centeredness. He seemed to believe that he
could return as a caregiver to the victim and the other child he
previously assaulted after receiving some parenting classes.
[Appellant] has failed to acknowledge the violent and intentional
character of his actions. His belief that he could return in short
order as a caretaker of the children indicates that he does not
understand the severity of his crimes. By failing to understand
the gravity of his crimes or take responsibility for them, this court
was permitted to aggravate his sentence on this basis. In Walls,
the defendant’s characterization of his sexual assaults of his
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grandchild as “accidents” was properly determined to be an
aggravating factor. [Walls,] 926 A.2d at 967. In addition,
[Appellant] here did not accept responsibility for his conduct until
a third party took the child for medical treatment, increasing the
risk of untreated injuries, the police were called to the hospital,
and the children’s mother reported that [Appellant] was alone with
the child when the infant incurred his injuries and the mother
further disclosed that [Appellant] had previously assaulted her
[three]-year-old. It was then that [Appellant] admitted his
conduct and decided to attempt to take responsibility.
The court was justified in aggravating [Appellant’s] sentence due
to his prior conduct of hitting a three-year-old child in his care.
[Appellant] should have immediately sought treatment, isolated
himself from caregiving, sought help from some of the supportive
family and friends that wrote on his behalf, or otherwise taken
steps to ensure the safety of these children.
Trial Ct. Op. at 10-13 (some formatting altered); see also N.T. Sentencing
Hr’g, 1/28/22, at 17-31 (trial court stated its reasons for the sentence).
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Raven, 97 A.3d at 1253. The record indicates that the
trial court reviewed the PSI report prior to sentencing and was aware of
Appellant’s rehabilitative needs, as well as the danger Appellant posed to the
children in his care. See Fullin, 892 A.2d at 849-50 (explaining that when
the trial court had the benefit of a PSI report, we may presume it was aware
of the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating factors); see also Trial Ct. Op. at
10-15. The trial court also considered the relevant sentencing factors, the
sentencing guidelines, and stated its reasons for imposing a sentence that
exceeded the guideline range. See Durazo, 210 A.3d at 321; Sheller, 961
A.2d at 190); see also Trial Ct. Op. at 11-13.
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In any event, even if the trial court relied on factors already subsumed
in the guidelines, we discern no abuse of discretion because the trial court had
“significant other support for its departure from the sentencing guidelines.”
See Sheller, 961 A.2d at 192 (citation omitted). Here, the sentencing court
explained that it relied on the very young age of the victim, Appellant’s
relationship with the victim (i.e., parent and child), and Appellant’s failure to
take responsibility for his actions as aggravating factors to impose a sentence
outside the guidelines. See Trial Ct. Op. at 10-13. On this record, we
conclude that the trial court properly considered the aforementioned
circumstances as aggravating factors within its discretion. See 18 Pa.C.S. §
2702(a)(8); see also Durazo, 210 A.3d at 324 (stating that “to the extent
that [18 Pa.C.S. § 2702(a)(9)] delineates a crime for assault on a child under
the age of 13, nothing prevents the court from considering the extreme age
difference of the victim, such as . . . where the victim was a 5-week-old,
defenseless baby” as an aggravating sentencing factor). Under these
circumstances, we have no basis to conclude that the trial court’s sentence
was unreasonable nor an abuse of discretion. See Durazo, 210 A.3d at 321;
see also Sheller, 961 A.2d at 190.
For these reasons, we conclude that Appellant is not entitled to relief.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2023
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