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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOHN HENRY JONES

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 o f 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
use rn ame 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

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § 6312 (d )

.J

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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 ex ternal 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 vide os 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, Clea rnet, 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 e xternal hard drive contained over 40,000 videos and images, and a third contained over 14,000.
During the preparation of the p resentence i nvestigation [(“PSI ” )] r eport, Appellant admitted he was an administrator to a chat room where child pornography wa s shared and admitted creating the above

- referenced documents.

* * *
Appellant was arraigned on April 28, 2021 and charged with one count of p ossession of c hild p ornography, 18 Pa.C.S.A. § 6312( d ), graded as a f elony of the s econd d egree, and one count of d issemination of p hotos or f ilms of c hild s ex a cts, [18 Pa.C.S.A.] § 6312( c ), also graded as a f elony of the s econd d egree. On July 19, 2021, Appellant entered a guilty plea in the form of an open plea to one count of p ossession of c hild p ornography. A PSI was ordered, and Appellant appeared before the [court] on October 25, 2021 for sentencing. The c ourt imposed a sentence of not lessJ

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- than two (2) nor more than ten (10) years in a s tate
c orrectional i nstitution. [ 2 ] Appellant fi led a m otion to
r econsider and m odify s entence on November 3, 2021. That motion was denied on February 8, 2022.
On March 3, 2022, Appellant fil e d a n otice of a ppeal. The court entered an o rder on July 6, 2022 directing Appellant to file a [ Pa.R.A.P. 1 925(b)] c oncise s tatement of m atters
c omplained of on a ppeal. 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 p ossession of c hild p ornography on a computer manifestly excessive as such sentence, in essence, amounts to a life sentence?
(Appellant’s Brief at 7).
On appe al, 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 hi s 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).J

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impos ition 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. C oulverson , 34 A.3d 135
(Pa.Super. 20 11 ) ( explaining claim that court imposed excessive sentence by
deviating from sentencing norms constitute d 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 reac hing 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 Sen tencing Code, 42 Pa.C.S.A. § 9781(b).J

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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 a spects 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. Mouzo n , 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 th e 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 que stion must be

evaluated on a case

- by

- case basis.” Commonwealth v. Moury , 992 A.2d

1 62 , 1 70 (Pa.Super. 20 10 ). “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 12 82 (2015) (quoting

Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa.Super. 2011)). A n appellantJ

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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 s entence 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 Appe llant’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 co urt 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

Com monwealth 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 partic ular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and hisJ

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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 spec ifically 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 at tachments as well, which were reviewed by the court.
[Appellant] , I ’ m always a little struck by the fact that defendants apologize to the c ourt. 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 whichJ

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- were in possession of [Appellant 3 ]

.
* * *

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 v is ual 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 de tails 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 y ears. I kept the

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3 At this point, t he 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.J

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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 2 2

- 25, 2 8 ) (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 advan ced 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 i f
sentencing court has benefit of PSI report, law presumes court was aware ofJ

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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 sentenc e.
Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/27/2023