Com. v. Young, G. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GORDON LEE YOUNG :
:
Appellant : No. 185 MDA 2020
Appeal from the Judgment of Sentence Entered November 18, 2019
In the Court of Common Pleas of Clinton County Criminal Division at
No(s): CP-18-CR-0000638-2018
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 23, 2020
Appellant, Gordon Lee Young, appeals from the November 18, 2019
Judgment of Sentence entered in the Clinton County Court of Common Pleas
following his open guilty plea to eight counts of Rape by Forcible Compulsion.
Appellant challenges the discretionary aspects of his sentence. After careful
review, we affirm.
On July 1, 2019, Appellant entered open guilty pleas to the above
charges.1 The trial court deferred sentencing pending preparation of a Pre-
Sentence Investigation Report. Following a sentencing hearing on November
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1 The charges arose from Appellant’s abuse of his teenage stepdaughter over
a period of two years in the late 1990s.
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18, 2019, the trial court sentenced Appellant to eight consecutive terms of
five to twenty years’ incarceration.2
On November 27, 2019, Appellant filed a Motion for Reconsideration of
Sentence, in which he asserted that his sentence was excessive because: (1)
he took responsibility for his actions by confessing and pleading guilty; (2) he
did not contest the Sexual Offenders Assessment Board’s finding that he is a
Sexually Violent Predator; (3) the court failed to consider the length of time
that had elapsed between the commission of the crimes in the late 1990s and
the filing of charges; and (4) it is essentially a life sentence. On December
30, 2019, the trial court denied Appellant’s Motion for Reconsideration.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Did the [t]rial [c]ourt issue a Sentencing Order that was cruel and
excessive in sentencing [Appellant] to an aggregate forty (40)
year to one hundred sixty (160) year sentence when [Appellant]
entered guilty pleas, took responsibility for his actions, cooperated
with police, and the incidents giving rise to the matter stemmed
from actions over twenty (20) years earlier?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing are not automatically
reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136,
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2The standard range sentence for Rape by Forcible Compulsion is four to five
and a half years’ incarceration.
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1144 (Pa. Super. 2001). Prior to reaching the merits of a discretionary
sentencing issue, we must determine: (1) whether appellant has filed a timely
notice of appeal; (2) whether the issue was properly preserved at sentencing
or in a motion to reconsider and modify sentence; (3) whether appellant’s
brief sufficiently addresses the challenge in a statement included pursuant to
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.
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant has preserved his challenge by filing a timely Notice of Appeal,
a Motion for Reconsideration of Sentence, and by including a Rule 2119(f)
Statement in his Brief to this Court. We, thus, proceed to consider whether
Appellant has raised a substantial question for our review.
Whether an appellant has raised a substantial question regarding
discretionary sentencing is determined on a case-by-case basis.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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 and
quotation marks omitted).
Here, Appellant avers that the court abused its discretion in imposing
“in effect, a life sentence for conduct that had occurred decades earlier.” Id.
at 9. He complains that the court “gave him no deference for the conciliatory
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manner in which [he] conducted himself” and failed to take into consideration
that he has lived a “law-abiding life outside of this incident”3 and his military
service. Id.
Appellant has not identified which provision of the Sentencing Code or
fundamental norm underlying the sentencing process his sentence violates or
offends. His argument is that the trial court did not properly weigh allegedly
mitigating factors. Claims that the sentencing court did not adequately
consider mitigating factors generally do not raise a substantial question. See
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“This Court
has held on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review.”)
(citation omitted); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014) (“[W]e have held that a claim that a court did not weigh the factors as
an appellant wishes does not raise a substantial question.”) (citation omitted).
We conclude, therefore, that Appellant has failed to present a substantial
question in challenging the discretionary aspects of his sentence.4
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3 During this “law-abiding” period, Appellant served a sentence of 60 months’
incarceration for a federal conviction of Possession of Child Pornography.
4 To the extent that Appellant’s claim that his sentence is “in effect, a life
sentence” challenges the court’s imposition of consecutive sentences, we note
that such challenges do not raise a substantial question permitting our review.
See, e.g., Commonwealth v. Austin, 66 A.3d 798, 807-09 (Pa. Super.
2013) (where this Court found that the appellant had not presented a
substantial question when he claimed that the imposition of consecutive
sentences resulted in a “de facto life sentence”), Commonwealth v. Prisk,
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Because Appellant has failed to present a substantial question, this
Court has no jurisdiction to review Appellant’s challenge to the discretionary
aspects of his sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/23/2020
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13 A.3d 526, 533 (Pa. Super. 2011) (rejecting the appellant’s claim that the
trial court’s imposition of consecutive sentences effectively imposed a life
sentence raised a substantial question).
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