J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN MICHAEL WILBANKS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1147 WDA 2023
Appeal from the Judgment of Sentence Entered October 5 , 2022 In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP

- 65

- CR

- 0005108

- 2019

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN MICHAEL WILBANKS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1148 WDA 2023
Appeal from the Judgment of Sentence Entered September 26, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division

at No(s): CP

- 65

- CR

- 0001398

- 2020

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 30, 2024

In these consolidated cases, John Michael Wilbanks, Appellant, appeals

from the aggregate judgment of sentence of 23 to 46 years’ incarceration,

imposed after he pled guilty to numerous offenses stemming from his sexual

abuse of his minor stepdaughter over the course of six years, as well as his

possession of numerous images of child pornography. Appellant solely

challenges the discretionary aspects of his sentence. We affirm.J

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-

The trial court briefly summarized the facts underlying Appellant’s two

cases, as follows:

The charges in this case arose from on

- going sexual abuse and rape of [Appellant’s] minor stepdaughter from January 2013 through October 2019. Throughout the course of this abuse, [Appellant] photographed the minor child as well as video recorded episodes of rape and sexual abuse. During the course of their investigation, investigators located 1,193 suspected images of child pornography, separate and unrelated to the ongoing sexual abuse. Of the 1,193 images, 609 legally constituted child pornography. Over 300 of the images depicted either pre

- pubescent children, pubescent children, penetration, or attempted penetration of children. Some of the children were engaged in sexual conduct.

Trial Court Opinion and Order (TCOO)
, 12/1 5 /22, at 1.

Ultimately, on June 28, 2022, Appella n t pled guilty, at CP

- 65

- CR

0005108

- 2019 (hereinafter “case 5108

- 2019”)
, to the following charges

stemming from his abuse of the minor victim:

Count 1: Rape by Forcible Compulsion, in violation of 18 Pa.C.S. [] § 3121(a)(1); Count 2: Rape by Threat of Forcible Compulsion, in violation of 18 Pa.C.S. [] § 3121(a)(2); Count 3: Rape of a Child, in violation of 18 Pa.C.S. [] § 3121(c); Count 4: Aggravated Indecent Assault, in vio lation of 18 Pa.C.S. [] § 3125(b); Count 5: Aggravated Indecent Assault, in violation of 18 Pa.C.S. [] § 3125(b); Count 6: Statutory Sexual Assault: 11 years or older, in violation of 18 Pa.C.S. [] § 3122.1(b); Count 7: Aggravated Indecent Assault without Con sent, in violation of 18 Pa.C.S. [] § 3125(a)(1); Count 8: Aggravated Indecent Assault, in violation of 18 Pa.C.S. [] § 3125(a)(2); Count 9: Aggravated Indecent Assault, in violation of 18 Pa.C.S. [] § 3125(a)(7); Count 10: Aggravated Indecent Assault, in vio lation of 18 Pa.C.S. [] § 3125(a)(8); Count 11: False Imprisonment, in violation of 18 Pa.C.S. [] § 2903(a); Count 12: Corruption of Minors, in violation of 18 Pa.C.S. [] § 6301(a)(1)(ii); Count 13: Indecent Assault, in violation of 18 Pa.C.S. [] § 3126(a)(7); Count 14: Indecent Assault, in violation of 18 Pa.C.S. [] § 3126(a)(7); Count 15: Indecent Assault, in violation of 18 Pa.C.S. [] § 3126(a)(7); Count 16: EndangeringJ

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-

Welfare of Children, in violation of 18 Pa.C.S.[] § 4304(a)(1); Count 17: Indecent Assault, in violation of 18 Pa.C.S.[] § 3126(a)(7); Count 18: Indecent Assault, in violation of 18 Pa.C.S.[] § 3126(a)(2); Count 19: Indecent Assault, in violation of 18 Pa.C.S.[] § 3126(a)(3); Count 20: Indecent Assault, in violation of 18 Pa.C.S.[] § 3126(a)(1); Count 21: Indecent Assault, in violation of 18 Pa.C.S.[] § 3126(a)(8); Count 22: Unlawful Contact or Communication with Minor, in violation of 18 Pa.C.S.[] § 6318(a)(1)

.
Id. at 2

- 3 (for matting altered).

Additionally, in CP

- 65

- CR

- 0001398

- 2020 (hereinafter, “case 1398

-
2020”) , Appellant pled guilty to the following offenses stemming from his

possession of child pornography:

Count 1: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(b)(1); Count 2: Photograph/Film/Depict on Computer Sex Act, in violation of 18 Pa.C.S.[] § 6312(b)(2); Count 3: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(d); Count 4: Design/Copy Obscene Material

— Depict Minor, in violation of 18 Pa.C.S.[] § 5903(a)(3)(ii) [;] Count 5: Write/Print Obscene Material

— Minor, in violation of 18 Pa.C.S.[] § 5903(a)(5)(ii); Count 6: Hire/Employ/Use Minor to Assist, in violation of 18 Pa.C.S.[] § 5903(a)(6); Count 7: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(b)(1); Count 8: Photograph/Film/Depict on Computer Sex Act, in violation of 18 Pa.C.S.[] § 6312(b)(2); Count 9: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(d); Count 1 0: Design/Copy Obscene Material

— Depict Minor, in violation of 18 Pa.C.S.[] § 5903(a)(5)(ii); Count 11: Write/Print Obscene Material

— Minor, in violation of 18 Pa.C.S.[] § 5903(a)(5)(ii); Count 12: Hire/Employ/Use Minor to Assist, in violation of 18 Pa.C .S.[] § 5903(a)(6); Count 13: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(b)(1); Count 14: Photograph/Film/Depict on Computer Sex Act, in violation of 18 Pa.C.S.[] § 6312(b)(2); Count 15: Sexual Abuse of Children, in violation of 18 Pa.C. S.[] § 6312(d); Count 16: Design/Copy Obscene Material

— Depict Minor, in violation of 18 Pa.C.S.[] § 5903(a)(3)(ii); Count 17: Write/Print Obscene Material

— Minor, in violation of 18 Pa.C.S.[] § 5903(a)(5)(ii); Count 18: Hire/Employ/Use Minor to Assist, in violation of 18 Pa.C.S.[] § 5903(a)(6); Count 19: Sexual Abuse ofJ

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-

Children, in violation of 18 Pa.C.S.[] § 6312(d); Count 20: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(d); Count 21: Sexual Abuse of Children, in violation of 18 Pa.C.S .[] § 6312(d); Count 22: Sexual Abuse of Children, in violation of 18 Pa.C.S.[] § 6312(d); Count 23: Criminal Use of a Communication Facility, in violation of 18 Pa.C.S. [] § 7512(a); Count 24: Criminal Use of a Communication Facility, in violation of 18 Pa .C.S.[] § 7512(a); Count 25: Criminal Use of a Communication Facility, in violation of 18 Pa.C.S.[] § 7512(a); Count 26: Criminal Use of a Communication Facility, in violation of 18 Pa.C.S.[] § 7512(a).

Id. at 3

- 4 (formatting altered).

The trial court deferred Appellant’s sentencing for the preparation of a

pre

- sentence investigation (PSI) report, and for a sexually violent predator

(SVP) evaluation to be conducted. On September 26, 2022, a sentencing

hear ing was conducted. The re,

[t] he Commonwealth sought an aggregate sentence of at least 25 to 50 years of incarceration due to the “ significantly heinous and reprehensible sexual assaults [Appellant] committed against his own minor stepdaughter over a six

- y ear period, in addition to the voluminous trove of child pornography videos and images [Appellant] possessed. ” Commonwealth ’ s Answer to Def. ’ s Post

Sent. Mot., Dec. 2, 2022, at 16. The Commonwealth presented impact statements from the victim, her sister, their mother, and Westmoreland County Detective John Mandarin. [Appellant] called the Westmoreland County Prison chaplain and [Appellant’s] mother as sentencing mitigation witnesses. [Appellant] also provided a statement.
On the record at the Sentencing Hearing on September [] 26, 2022, th[e trial c] ourt provided a verbal summary of all considerations taken into account in fashioning [Appellant’s] sentence in addition to the statutory guidelines, including the following: the [PSI r] eport completed by the Probation Office, [Appellant’s] lack of criminal record, [Appellant’s] acceptance of responsibility “ albeit at not a very early date, ” [Appellant’s] entry of guilty pleas instead of putting the victim through a trial, [Appellant’s] need and likelihood of treatment, the severe impact that this has had on the victim in the case, the seriousness of the crimes, the ongoing nature of the crimes, the separate andJ

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-

distinguishable crimes of sexual offenses against the victim as well as the memorialization of the crimes by picture and video causing additional significant trauma to the victim, and [ the] need to protect the community to deter any future crime. [N.T. Sentencing]
, [9/26 /22] , at 43

- 44.

Th [e trial c] ourt imposed an aggregate sentence of 20 to 40 years in a state correctional institution at case 5108 [

- ] 2019 and an aggregate sentence of 5 to 10 years in a state correctional institution at case 1398 [

- ] 2020. Id. at 44

- 47. [A ppellant] was sentenced to comply with required sex offender conditions of probation and parole [,] as well as statutory sex offender requirements, including consecutive probation under 42 Pa.C.S. § 9718.5 and compliance with Megan ’ s Law registration requir ements to register as a Tier III offender. Id. [Appellant] waived his right to a simultaneous [SVP] Hearing at sentencing. Id. at 3.

Id. at 4

- 5.

On October 5, 2022, the court entered an order amending Appellant’s

sentence in case 5108

- 2019, solely “to reflect that [Appellant] is also to

comply with the Pennsylvania’s Parole Board’s Standard Special Conditions for

Sex Offenders and Optional Special Conditions for Sex Offenders.” Order,

10/5/22, at 1 (single page). On Octob er 6, 2022, Appellant filed a timely,

post

- sentence motion in each case , which the court denied by order and

opinion filed on December 15, 2022. On September 7, 2023, the court held

an SVP hearing, and at the close thereof, Appellant was determined to be an

SVP. On September 25, 2023, Appellant filed two, separate notices of appeal

. 1

Both notices state that Appellant i s appealing from “the Order of Court denying

_________________ __________ ______ ____ _______

1 We sua sponte consolidated Appellant’s cases on January 31, 2024.J

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-

his Post

- Sentence Motion entered in this matter on the 15 th of December, 2022

and from the O rder of Court Classifying Defendant as a Sexually Violent

Predator entered in this matter on September 7, 2023.” Notices of Ap p eal,

9/25/23, at 1 (unnumbered). We have amended our dockets to reflect that

the appeal in case 1398

- 2020 (1148 WDA 2023) prope rly lies from Appellant’s

September 26, 2022 judgment of sentence, 2 while the appeal in case 5108

-
2019 (1147 WDA 2023) properly lies from Appellant’s October 5, 2022

amended judgment of sentence. 3 Both appeals are timely, as Appellant’s

judgment s of sen tence became final when his SVP determination was

rendered. See Commonwealth v. Schrader , 141 A.3d 558, 561 (Pa. Super.

2016) (holding that
, when a defendant waives the pre

- sentence SVP

determination, his judgment of sentence is not final until the SVP

determination is rendered)

. Appellant thereafter complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In

response, t he trial court submitted a statement in lieu of a Rule 1925(a)

opinion, indicating that it is relying on the rationale set forth in its December

15, 2022 order and opinion denying Appellant’s post

- sentence motion.

_________________ __________ ______ ____ _______

2 See Commonwealth v. Shamberger
, 788 A.2d 408, 410 n.2 (“In a criminal action, appeal properly lies from the judgment of sentence made final by the denial of post

- sentence motions .”) (citation omitted).

3 See Commonwealth v. Garzone , 993 A.2d 1245, 1254 n.6 (Pa. Super. 2010) (explaining t hat in cases where the trial court amends the judgment of sentence during the period it maintains jurisdiction pursuant to 42 Pa.C.S. § 5505, the direct appeal lies from the amended judgment of sentence).J

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-

Herein, Appellant states one issue for our review: “Did the [c]ourt err in

sentencing [Appellant] to multiple consecutive sentences?” Appellant’s Brief

at 4.

Appellant’s issues implicate the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra
, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

c hallenging 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 [the] 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 [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial questi on that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans
, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied , ... 909 A.2d 303 ([Pa.] 2006). Objections to the discretionary aspects of a s entence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann
, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied , ... 831 A.2d 599 ([Pa.] 2003).

The determination of what c onstitutes a substantial question must be evaluated on a case

- by

- case basis. Commonwealth v. Paul
, 925 A.2d 825, 828 (Pa. Super. 2007). 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.” Sierra
, supra at 912

– 13.

Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).J

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-

Initially, we note that the Common wealth argues that Appellant has

waived his sentencing claim for our review because he raised it in an

“impermissibly vague” fashion in his post

- sentence motion, which does not

match the more specific claim he asserts on appeal. See Commonwealth’s

Brief a t 4

. More specifically, in Appellant’s post

- sentence motion , he raised

the following, single issue: “The [c]ourt abused its discretion in sentencing

[Appellant] to consecutive sentences.” Post

- Sentence Motion, 10/6/22, at 1

( single page)

. This is essent ially the same claim he asserts in his Statement

of the Questions Presented section of his appellate brief. However, in his Rule

2119(f) Statement
, and the Argument section of his brief , Appellant presents

a different claim , arguing that he “was subjected to an unduly harsh sentence

that did not take into account any mitigating evidence or rehabilitative

measures.” Appellant’s Brief at 13. The Commonwealth concludes that

Appellant waived his more specific argument by not stating it in his post

sentence motion.

We disagree. In conjunction with Appellant’s post

- sentence motion, he

filed a brief in support
, in which he contended that :

[T] he [c]ourt abused its discretion in sentencing [Appellant] to multiple consecutive sentences, and in doing so, sentenced [Appellant] to a disproportionately high sentence relative to his criminal conduct. [Appellant] claimed that th[e c]ourt violated “fundamental sentencing norms” and that th[e c]ourt “ignored any mitigating evidence on behalf of [Ap pellant] or any rehabilitative efforts he made while incarcerated.” [Appellant] requested th[e c]ourt to vacate the sentence or “revisit this matter for resentencing to issue a sentence in conformity with the prevailing sentencing norms.”J

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-

TCOO at 5

- 6 (i nternal citations omitted). Th us, in the court’s opinion denying

his post

- sentence motion, the court fully addressed the arguments that

Appellant now raises herein. See id. at 7

- 9. Consequently , although we

admonish Appellant for his lack of specificity in his post

- sentence motion and

Statements of the Questions Presented , we deem his argument adequately

preserved for our review.

We also consider Appellant’s claim as constituting a substantial question

for our review. See Commonwealth v. Swope , 123 A. 3d 333, 340 (Pa.

Super. 2015) (con cluding “that [Swope’s] challenge to the imposition of his

consecutive sentences as unduly excessive, together with his claim that the

court failed to consider his rehabilitative needs and mitigating factors upon

fashioning its sentence,” presents a substantial question) . Accordingly, we

will assess the merits of Appellant’s sentencing challenge, mindful that,

[s]entencing 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 misa pplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006).

Instantly, Appellant avers that the court’s im position of multiple,

consecutive sentences was “disproportionate to his criminal conduct.”

Appellant’s Brief at 17. He complains that the court “ignored any mitigatingJ

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-

evidence ... or any rehabilitative efforts [Appellant] made while incarceration

. ”

Id. In particular , Appellant claims that

the [c]ourt did not address testimony from prison Chaplain Nick Borgfeldt [,] who described [Appellant] as somebody who genuinely appeared to be embracing faith, was facing and accepting responsibility for his sins, and , as such, appeared to be a different person than the one who committed these offenses. The [c]ourt also did not address [Appellant’s] statements that echoed the testimony of Chaplain Borgfeldt. Specifically, he fully accepted responsibility, expressed r emorse, and outlined the actions that he had been taking to no longer be the person that he was in the past. Ultimately, the [court] only addressed his acceptance of responsibility by taking a plea as a mitigating factor. It respectfully is submitted tha t failure to consider any additional mitigation measures resulted in an unduly harsh sentence and thus constitutes an abuse of discretion.

Id. at 17

- 18 (citations to the record omitted).

In rejecting Appellant’s challenge to its imposition of consecutive

sentences, the trial court reasoned that,

[l]o ng [

- ] standing precedent of the Superior Court recognizes that the statute generally governing sentencing, 42 § Pa.C.S.[] 9721,

“ affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. ” Commonwealth v. Zirkle , 107 A.3d 127, 133 (Pa. Super. 2014) (citing Commonwealth v. Marts , 889 A.2d 608, 612 (Pa. Sup er. 2005); Commonwealth v. Graham , 661 A.2d 1367, 1372 (Pa. 1995)).
[Appellant] claims the imposition of multiple consecutive sentences violates fundamental sentencing norms and is disproportionate to his

... crimes. Other than generally stating that this [c] ourt should have imposed sentences concurrently rather than consecutively because it was disproportionate to the conduct at issue, [Appellant] does not provide [a] rationale with specific reference to the Sentencing Code or reference to the record of how the sentence “ violated fundamental sentencing norms. ” As stated on the record, this [c] ourt considered the charges in bothJ

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cases as separate and distinguishable crimes and stated the reasons for doing so on the record. This [c] ourt was within its discretion to fashion the sentence consecutively. Therefore, this argument lacks merit.

TCOO at 7

- 8.

We discern no abuse of discretion by the court. Appellant committed

numerous and separate acts of abuse against his minor stepdaughter over the

course of six years. Not only did he physically assault her, but he also

“memorializ[ed] by picture and video” his abuse of the victim, which the court

found caused “additional[,] significant trauma” t o her. N.T. Sentencing at 43

-

44. Moreover, Appellant possessed hundreds of images of child pornography
,

and he has not demonstrated that t he court abuse d its sentencing discretion

in considering each of Appellant’s criminal acts in case 1398

- 2020 “as sep arate

and distinguishable crimes....” Id. at 46. Ultimately, we see no reason that

Appellant “ should be afforded a ‘volume discount’ for his crimes by having all

sentences run concurrently.” Zirkle , 107 A.3d at 133 (citation omitted).

We additionally fi nd no merit to Appellant’s contention that the court

failed to take into account the mitigating evidence and his rehabilitative

efforts. First, as the trial court noted :

The Pennsylvania Supreme [c]ourt emphasized that “ whe [re] pre

sentence reports exist, [it] will continue to presume that the sentencing judge was aware of relevant information regarding the defendant ’ s character and weighed those considerations along with the mitigating statutory factors. ” Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). “ Having been fully informed by the pre

- sentence report, the sentencing [c]ourt’ s discretion should not be disturbed. ” Id. “ This is particularly true, we repeat, in those circumstances where it can be demonstrated that the jud ge had any degree of awareness of the sentencingJ

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-

considerations, and there we will presume also that the weighing process took place in a meaningful fashion. ” Id.

TCOO at 8. Here, the court had the benefit of a PSI and the record

demonstrates that it was aware of the pertinent sentencing consideration.

Moreover, i n rejecting Appellant’s claim that it “‘ ignored ’ any mitigating

evidence on behalf of [Appellant] or any rehabilitative effort he made while

incarcerated [,]” id.
, the court explained that,

all t he mitigating evidence on behalf of [Appellant] and rehabilitative efforts he made while incarcerated were considered, in addition to many others in [Appellant ’s ] favor as discussed on the record at the time of sentencing. This [c]ourt considered all of the following mitigating evidence: information provided in the [PSI report]
, [Appellant ’s ] lack of criminal record, [Appellant ’ s ] need [for] and likelihood of treatment, [Appellant ’s ] statement that included accepting responsibility and remorse for his actions, [Appellant ’s ] pleading guilty rather than putting the victim and others through a trial, the WCP Chaplain ’ s statement, as well as [Appellant ’s ] mother ’ s statement. While this [c]ourt acknowledges that [Appellant] has made some pos itive changes while incarcerated, all of which were considered, these do not erase the rest of the other factors this [c]ourt must take into consideration when fashioning [Appellant ’s ] sentence for all 46 abhorrent criminal charges. While [Appellant] woul d have liked this [c]ourt to put more weight on these mitigating factors, this [c]ourt merely decided that the facts did not warrant imposition of a sentence lower than the standard range when weighing all of the factors of the cases at hand. Therefore, t his argument lacks merit.

Id. at 8

- 9.

Our review of the record confirms that the trial court adequately

considered Appellant’s PSI report, the mitigating evidence offered at the

hearing, and his rehabilitative efforts since committing his crimes. Therefore,

the court did not abuse its ample sentencing discretion.J

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Judgment of sentence affirmed.

DATE: 05/30/2024