Com. v. Windom, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROY WINDOM :
:
Appellant : No. 607 EDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005594-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 15, 2021
Roy Windom claims the trial court abused its discretion when it
sentenced him for his sexual abuse of a minor. His convictions stem from his
protracted physical and sexual abuse of his prepubescent younger sister, D.J.,
which continued from the time she was 9 years old until she was
approximately 14 and removed from the home. Windom was approximately
24 years old when he began sexually abusing his sister. D.J. lived with her
mother and her siblings, including Windom, in Philadelphia. When D.J. and
Windom’s grandmother died, Windom began drinking and acting in fits of rage
against other members of the household, including D.J.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Windom repeatedly threatened D.J. with physical harm to her or their
mother if D.J. ever told anybody what he did to her. On one occasion before
D.J. and her siblings went to school, Windom violently attacked D.J. and their
mother. During this altercation, Windom punched D.J. in the face, giving her
a black eye. Following the altercation, D.J. reported the incident to the
principal, who then contacted the Philadelphia Department of Human Services.
D.J. was subsequently removed from her home and placed in her father’s care
in Delaware. D.J. also gave a report to Officer Timothy McIntyre from the
Philadelphia Police Department’s Special Victims Unit, and he referred the case
to the Philadelphia Children’s Alliance (hereinafter “PCA”). After the PCA
interviewed D.J. and after further investigation from the Special Victims Unit,
the police arrested Windom on May 17, 2017. (N.T. 6/5/2019, 40-49, 50-57,
60-69, 70, 112-119, 124-127, 165).
On June 7, 2019, a jury found Windom guilty of rape of a child, unlawful
contact with a minor, endangering the welfare of a child (“EWOC”), and
indecent assault of a person less than thirteen. On January 13, 2020, the trial
court sentenced Windom to an aggregate term of twelve and one-half to
twenty-five years’ incarceration, followed by twelve years of probation. The
trial court sentenced Windom to ten to twenty years’ imprisonment for
EWOC—to be followed by seven years’ probation for unlawful contact with a
minor and a consecutive term of five years’ probation for indecent assault.
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On appeal, Windom claims that the trial court abused its discretion in
sentencing him because the court failed to thoroughly consider Windom’s
background, his ability for rehabilitation, his social history, rehabilitative
needs, and mental health capacity. See Appellant’s Brief, at 5. Windom also
asserts that the sentencing court abused its discretion in sentencing him to a
consecutive, rather than concurrent, sentence. See id.
The standard employed when reviewing the discretionary aspects of
sentencing is very narrow. See Commonwealth v. King, 182 A.3d 449, 454
(Pa. Super. 2018). We may reverse only if the sentencing court abused its
discretion or committed an error of law. See id. Merely erring in judgment is
insufficient to constitute abuse of discretion. A court has only abused its
discretion when "the record disclosed that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will."
Id.Windom concedes that his claim is directed at the discretionary aspects
of the sentence imposed. See Appellant’s Brief, at 9. As such, his claim is
treated as a petition for allowance of appeal. See Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). In order to invoke our
jurisdiction to review his claim, Windom must establish four circumstances:
(1) that he filed a timely notice of appeal; (2) that he properly preserved his
claim under the Rules of Criminal Procedure; (3) that he has complied with
Rules of Appellate Procedure in briefing his claim; and (4) that his claim
presents a substantial question that his sentence is not appropriate under the
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Sentencing Code. See Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa.
Super. 2019), appeal denied, 220 A.3d 1066 (Pa. 2019). “We evaluate on a
case-by-case basis whether a particular issue constitutes a substantial
question about the appropriateness of sentence.” Id.Here, Windom properly preserved his claims by filing a post-sentence
motion and timely notices of appeal. Additionally, Windom’s brief contains the
required Pa.R.A.P. 2119(f) statement. Next, we must determine whether
Windom’s claim constitutes a substantial question.
This court has held that “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.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
An appellant’s contention that the trial court failed to consider relevant
sentencing criteria including the protection of the public, the gravity of the
underlying offense, and her rehabilitative needs, presents a substantial
question for our review. See Commonwealth v. Derry, 150 A.3d 987, 992
(Pa. Super. 2016). Additionally, this court has found that a contention that a
sentence is excessive presents a substantial question for our review. See
Hill, 210 A.3d at 1116.
Here, Windom contests that his sentence was excessive and that the
trial court failed to consider mitigating factors such as his prior record and his
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capacity to rehabilitate. We find these challenges raise substantial questions.
Therefore, we will address the substance of Windom’s argument.
Although sentencing courts are granted broad discretion, a sentence
must always fall within the statutory limits. See Commonwealth v.
Messmer, 863 A.2d 567, 571 (Pa. Super. 2004). If the sentence is within
the statutory limits, there is no abuse of discretion unless the sentence is
unreasonable or “manifestly excessive so as to inflict too severe a
punishment.” Commonwealth v. Mouzon, 812 A.2d 617, 625 (Pa. 2002).
Pennsylvania law requires courts to impose a sentence 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. See 42 Pa. C.S.A. § 972(b). Accordingly, a sentence
is not unreasonable or manifestly excessive if it accounts for (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; and (4) the guidelines promulgated by the
commission. See 42 Pa. C.S.A. § 9781(d); Commonwealth v. Sheller, 961
A.2d 187, 190-91 (Pa. Super. 2008).
Here, the trial court sentenced Windom to an aggregate term of twelve
and one half to twenty-five years’ incarceration, followed by twelve years of
reporting probation. (N.T. 1/13/20 at 9). Windom has a prior record score of
zero. (N.T. 1/13/20 at 9). Rape of a child is punishable by no more than forty
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years’ incarceration, 18 Pa. C.S.A. § 3121(e)(1), and has an offense gravity
score (hereinafter “OGS”) of fourteen. 204 Pa. Code § 303.15. As a result,
the standard-range guidelines recommended a minimum term of incarceration
between six and twenty years. 204 Pa. Code § 303.16(a).
Moreover, unlawful contact with a minor in child rape cases is a first-
degree felony subject to a maximum term of twenty years’ incarceration. 18
Pa.C.S.A. § 1103. The offense has an OGS of fourteen. 204 Pa. Code s 303.15.
As a result, the guidelines recommend a standard-range, minimum sentence
of six to ten years’ incarceration. Pa. Code § 303.16(a). Finally, EWOC and
indecent assault of a person less than thirteen are both third-degree felonies
subject to a maximum term of seven years’ incarceration. 18 Pa. C.S.A. §
1103. Both have an OGS of six, and the applicable standard guidelines
suggest a minimum sentence range of three to twelve months’ incarceration.
Pa. Code 303.16(a).
Looking at the totality of Windom’s crimes, the maximum statute-
sanctioned sentence for Windom’s crimes is thirty-seven to seventy-four years
of incarceration. The standard-range guidelines suggest a minimum term of
imprisonment between twelve and one-half to thirty-two years’ incarceration
(if imposed consecutively). However, Windom’s sentence—twelve and one-
half to twenty-five years’ incarceration, followed by twelve years’ probation—
is well below the statutory maximums and falls within the lower end of the
guidelines’ standard range. The length of Windom’s sentence, therefore, is
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presumptively appropriate. See Commonwealth v. Hill, 210 A.3d 1104,
1117 (Pa. Super. 2019).
Moreover, the trial court’s imposition of consecutive, rather than
concurrent, sentences did not constitute an abuse of discretion. The
imposition of consecutive sentences is only an abuse of discretion in “the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (citation
omitted). In this case, the facts weighed in favor of consecutive sentences,
especially in light of (1) the protracted and violent nature of Windom’s crimes,
(N.T. 6/5/19 at 42, 61); (2) the fact that D.J. was a nine year old prepubescent
child when Windom first raped her, (Id. at 42); and (3) the fact that Windom
cultivated and maintained an environment of terror, which effectively
prevented D.J. from disclosing Windom’s physical and sexual abuse for several
years. Consequently, there is no legitimate reason to find the consecutive
framing of Windom’s sentence unduly harsh.
Finally, we find Windom’s claims that the trial court failed to consider
mitigating factors in determining the length of his sentence to be categorically
false. The trial court had the benefit of reviewing the presentence
investigation report (hereinafter “PSI”) before sentencing Windom. When a
sentencing court is informed by a PSI, there is a presumption that the judge
was aware of relevant information regarding the defendant’s character and
“weighed all relevant information regarding the defendant’s character against
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any mitigating factors.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa.
Super. 2020).
Moreover, the record unequivocally demonstrates that this court gave
due consideration to the defendant’s personal characteristics. At sentencing,
the Commonwealth asked for an aggregated sentence of 30 to 60 years of
incarceration followed by 3 years of reporting probation due to the nature of
Windom’s actions over a long period of time and the way the victim suffered.
(N.T. 1/13/20 at 8). In response, Windom’s attorney highlighted persuasive
mitigating factors emphasizing Windom’s capacity for rehabilitation including
the fact that he has no prior record, his medical diagnosis of bipolar disorder,
his propensity to be a productive, tax-paying citizen, and his ability to
maintain employment over a long period of time. (N.T. 1/13/20 at 4-6).
Based on these arguments, the sentencing court determined that
Windom’s crimes warranted a standard-range guideline sentence. The trial
court expressly acknowledged, considered, and accepted Windom’s mitigating
factors throughout the sentencing process. See, e.g., N.T. 1/13/20 at 9.
Therefore, there is no basis to find that Windom’s sentence is excessive or
that this court failed to consider his mitigating characteristics.
We affirm the trial court’s judgment of sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
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