J-A13042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN MICHAEL WILBANKS 

Appellant

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 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

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 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.
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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), 12/15/22, at 1.

Ultimately, on June 28, 2022, Appellant pled guilty, at CP-65-CR0005108-2019 (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 violation 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 Consent, 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 violation 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: Endangering 
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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 (formatting 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 10: 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 of 
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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 

hearing was conducted. There,

[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-year period, in addition to the 

voluminous trove of child pornography videos and images 

[Appellant] possessed.” Commonwealth’s Answer to Def.’s PostSent. 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 and 
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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. [Appellant] 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 

requirements 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 October 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 is appealing from “the Order of Court denying 

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1 We sua sponte consolidated Appellant’s cases on January 31, 2024.
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his Post-Sentence Motion entered in this matter on the 15th of December, 2022 

and from the Order of Court Classifying Defendant as a Sexually Violent 

Predator entered in this matter on September 7, 2023.” Notices of Appeal, 

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

the appeal in case 1398-2020 (1148 WDA 2023) properly 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

judgments of sentence 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, the 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. 

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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 that 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). 
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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 

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 

[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 question 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 sentence 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 constitutes 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)).
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Initially, we note that the Commonwealth 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 at 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 essentially 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 postsentence 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 [Appellant] 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.” 
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TCOO at 5-6 (internal citations omitted). Thus, 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) (concluding “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 misapplied 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 imposition of multiple, 

consecutive sentences was “disproportionate to his criminal conduct.” 

Appellant’s Brief at 17. He complains that the court “ignored any mitigating 
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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 remorse, 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 that 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]ong[-]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. Super. 

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 both 
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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” to her. N.T. Sentencing at 43-

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

and he has not demonstrated that the court abused its sentencing discretion 

in considering each of Appellant’s criminal acts in case 1398-2020 “as separate 

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 find 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] presentence 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 

judge had any degree of awareness of the sentencing 
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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, in 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 the 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 positive 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] would 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, this 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.
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Judgment of sentence affirmed.

DATE: 05/30/2024