Com. v. Jones, J. ( 2023 )

J-S11045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN HENRY JONES :
:
Appellant : No. 634 EDA 2022
Appeal from the Judgment of Sentence Entered October 25, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000601-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 27, 2023
Appellant, John Henry Jones, appeals from the judgment of sentence
entered in the Lehigh County Court of Common Pleas, following his open guilty
plea to possession of child pornography.1 We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On September 9, 2020, officers with the Allentown Police
Department received a CyberTip Report from the National
Center for Missing and Exploited Children that a Discord user
with the profile name “HappyGoLucky#7504” uploaded
images and videos containing child pornography using the
platform. Officers investigated the tip and linked the
username to an RCN IP address assigned to Appellant.
Officers obtained a search warrant and executed the
warrant at Appellant’s home located at 847 Constitution
Drive, Allentown, Lehigh County, Pennsylvania on
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1 18 Pa.C.S.A. § 6312(d).
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September 23, 2020. Appellant denied using Discord, but
admitted there was child pornography on a computer in his
bedroom. Officers seized several external hard drives
attached via USB to the back of Appellant’s computer.
Forensic investigators accessed the hard drives using
passwords written down on a piece of paper which had been
confiscated from Appellant’s bedroom and found various
images and videos depicting child pornography.
Additionally, the investigators located a Word document
which was entitled “vetting and introduction” and detailed
“a three-step process to admitting you to our chat rooms.”
The instructions explained that a person needed to
introduce him or herself, provide an image depicting child
pornography, and compliance with the chat room’s rules of
safety and behavior.
Officers also located a document entitled “Technical Data”
explaining how to hide on the internet, Darknet, Clearnet,
etc. and cautioning against the use of Bitcoin for child
pornography purchases due to its capacity to be traced. In
sum, officers located over 400,000 images of child
pornography and over 200,000 images of child erotica on
the hard drive. Another external hard drive contained over
40,000 videos and images, and a third contained over
14,000.
During the preparation of the presentence investigation
[(“PSI”)] report, Appellant admitted he was an
administrator to a chat room where child pornography was
shared and admitted creating the above-referenced
documents.
* * *
Appellant was arraigned on April 28, 2021 and charged with
one count of possession of child pornography, 18 Pa.C.S.A.
§ 6312(d), graded as a felony of the second degree, and
one count of dissemination of photos or films of child sex
acts, [18 Pa.C.S.A.] § 6312(c), also graded as a felony of
the second degree. On July 19, 2021, Appellant entered a
guilty plea in the form of an open plea to one count of
possession of child pornography. A PSI was ordered, and
Appellant appeared before the [court] on October 25, 2021
for sentencing. The court imposed a sentence of not less
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than two (2) nor more than ten (10) years in a state
correctional institution.[2] Appellant filed a motion to
reconsider and modify sentence on November 3, 2021. That
motion was denied on February 8, 2022.
On March 3, 2022, Appellant filed a notice of appeal. The
court entered an order on July 6, 2022 directing Appellant
to file a [Pa.R.A.P. 1925(b)] concise statement of matters
complained of on appeal. Appellant filed that statement on
July 21, 2022.
(Trial Court Opinion, filed 8/5/22, at 1-3) (internal footnote and some
capitalization omitted).
Appellant now raises the following issue for our review:
Is the sentencing of an eighty-one (81) year old individual
in poor health to a maximum sentence of ten (10) years for
one count of possession of child pornography on a computer
manifestly excessive as such sentence, in essence, amounts
to a life sentence?
(Appellant’s Brief at 7).
On appeal, Appellant emphasizes that he was eighty-one (81) years of
age at the time of sentencing. Appellant also asserts that he suffers from
various maladies, “including the need for a full time 24 hours/7 days a week
heart monitor with defibrillator as well as diabetes and kidney disease.” (Id.
at 14). Considering his life expectancy, Appellant maintains that the court’s
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2 With an offense gravity score of eight (8) and a prior record score of three
(3), the standard range of the Sentencing Guidelines provided for a minimum
sentence of eighteen (18) to twenty-four (24) months. (See N.T. Sentencing
Hearing, 10/25/21, at 4). Additionally, the statutory maximum sentence for
possession of child pornography, graded as a second-degree felony, was ten
(10) years. See 18 Pa.C.S.A. § 1103(2).
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imposition of a ten (10) year maximum is effectively a sentence of life
imprisonment. Appellant contends that the court did not provide sufficient
reasons to justify the maximum sentence imposed. Moreover, Appellant
insists that his maximum sentence is a product of partiality and prejudice
because the court knew “it was very unlikely that [Appellant] would live that
long.” (Id. at 16). Appellant concludes that the court imposed a manifestly
excessive and unreasonable maximum sentence, which this Court must
vacate. As presented, Appellant’s claim challenges the discretionary aspects
of his sentence. See Commonwealth v. Coulverson, 34 A.3d 135(Pa.Super. 2011) (explaining claim that court imposed excessive sentence by
deviating from sentencing norms constituted challenge to discretionary
aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
sentencing issue:
[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).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112
(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated 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.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc), appeal denied, 633 Pa. 774, 126 A.3d 1282 (2015) (quoting
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)). An appellant
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raises a substantial question where he claims the court failed to offer specific
reasons that comport with statutory considerations for extending a standard-
range sentence to the statutory maximum. See Coulverson, supra at 143.
Instantly, Appellant timely filed his notice of appeal, he preserved his
issue in his post-sentence motion, and his brief included a Rule 2119(f)
statement. Further, Appellant’s claim raises a substantial question as to the
appropriateness of the sentence imposed by asserting that the court did not
provide an adequate justification for imposing a statutory maximum sentence.
See id. Accordingly, we proceed to address the merits of Appellant’s issue.
This Court reviews discretionary sentencing challenges based on the
following standard:
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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“[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), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984,
162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
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potential for rehabilitation.” Id.A sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence or specifically
reference the statute in question[.] [W]hen a trial court
imposes a sentence that is within the statutory limits, there
is no abuse of discretion unless the sentence is manifestly
excessive so as to inflict too severe a punishment.
Commonwealth v. Conklin, 275 A.3d 1087, 1098 (Pa.Super. 2022) (internal
citations and quotation marks omitted).
Instantly, the court provided the following statement of reasons to
support the sentence imposed:
As I stated before, the record should reflect that I have
reviewed the extensive presentence memo submitted by
[defense counsel] with the written letter from [Appellant’s]
daughter as well as the three reports from [Appellant’s
mental healthcare provider]. The presentence investigation
report had various attachments as well, which were
reviewed by the court.
[Appellant], I’m always a little struck by the fact that
defendants apologize to the court. There’s no need to
apologize to me. This is what I signed up for in a way, I
guess. So these are the kind of things that judges have to
address. And I appreciate and respect the comments made
by your daughter in her letter and your son in his testimony
today. I think it’s very important you have that support
network available to you.
And my comments that I’m next about to offer are not
meant to distress your children. So I’m going to give them
the opportunity to leave the room if they want so they don’t
hear about the depiction of the pornographic images which
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were in possession of [Appellant3].
* * *
And this was all after [Appellant’s] federal conviction for
when he was found to possess 20,000 images of child
pornography after initially releasing 300 visual depictions.
He was enrolled in sex offender treatment at Forensic
Treatment Services. After 6 to 9 months, he was
unsuccessfully discharged after they discovered he was
viewing adult pornography. On page seven of the PSI, it
does reflect that [Appellant] was sexually assaulted as a
four-year-old, with that perpetrator never being prosecuted.
He admitted to being aroused by children since he was a
kid, adding that they have beautiful faces, good
personalities. He was attracted to both male and female pre
and early pubescent children. And last sentence on page
seven, “I got stuck into it by accident, it’s alluring, it’s not
really that bad of a problem.”
So while I understand the Sexual Offender’s Assessment
Board has determined that he is not to be classified as a
sexually violent predator, [Appellant], quite frankly, if
individuals like yourself and others did not view these
images, there would not be the motivation by those who
compile and then distribute these images subjecting
children to sexual assaults and victimization, even though
you never may come in personal contact with them.
I will give you credit for your frankness with the prosecuting
officers in releasing the information and for entering a plea
and perhaps sparing a jury the details of this. However, I
do not feel it’s appropriate to place you on house arrest.
* * *
You’re going to state prison for two to ten years. I kept the
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3 At this point, the court described the specific pornographic images recovered
from Appellant’s electronic devices. (See N.T. Sentencing Hearing at 23-24).
Due to the graphic nature of these images, we decline to include the
descriptions.
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sentence at the top of the standard range in light of your
admission to this offense, your voluntary participation to
release the images involved to the prosecutors and in light
of your age and health conditions. Certainly, an aggravated
sentence would have been warranted, but because of the
factors I just announced this is a standard range sentence.
(N.T. Sentencing Hearing at 22-25, 28) (some capitalization omitted).
In its Rule 1925(a) opinion, the court reiterated the factors that it
weighed when crafting Appellant’s sentence:
The [c]ourt considered the PSI and sentencing
memorandum submitted by defense counsel. Appellant had
an extensive collection of child pornography on his
computer. As the administrator of a Discord server or chat
room, he also played a role in the further dissemination of
these images. By the same token, he cooperated with the
police officers, admitted his offense, and is of advanced age
and has health conditions. The sentence imposed balanced
all of these factors and was appropriate under these
circumstances.
(Trial Court Opinion at 6-7).
Here, the court properly weighed the relevant factors, including
Appellant’s age and health, in fashioning the sentence. See Griffin, supra.We emphasize that a court need not undertake a lengthy discourse to support
the sentence imposed, and we cannot fault the justifications provided here.
See Conklin, supra. Further, the presence of a PSI report allows us to
presume that the court considered mitigating factors, and the court’s
discretion while using a PSI report should not be disturbed. See
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if
sentencing court has benefit of PSI report, law presumes court was aware of
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relevant information regarding defendant’s character and weighed those
considerations along with mitigating factors). Under these circumstances, we
see no abuse of discretion. See McNabb, supra. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2023
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