J-S55020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MILO NEWLON, Appellant No. 182 WDA 2015

Appeal from the Judgment of Sentence Entered Decemb er 19, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000772-2014 CP-25-CR-0000779-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and S TRASSBURGER, J. * MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 19, 2015 Appellant, Milo Newlon, appeals from the judgment of sentence of an aggregate term of 34 to 68 years’ imprisonment, imp osed after he pled guilty in two separate cases to two counts each of indecent assault (18 Pa.C.S. § 3126(a)(7)) and endangering the welfare o f children (18 Pa.C.S. § 4304(a)), as well as single counts of corruption of minors (18 Pa.C.S. § 6301(a)(1)), involuntary deviate sexual intercourse (18 Pa.C.S. § 3123(b)), aggravated indecent assault of a child (18 Pa.C.S. § 3125(a)(8)), and rape of a child (18 Pa.C.S. § 3121(c)). Appellant assert s that his sentence is manifestly excessive and an abuse of the trial cour t’s discretion. We affirm.

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* Retired Senior Judge assigned to the Superior Cour t.J-S55020-15

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On September 8, 2014, Appellant pled guilty to the above-listed

offenses. 1 Appellant was initially sentenced to an aggregate term of 40 to 80 years’ imprisonment on December 19, 2014. Appel lant filed a timely post-sentence motion for reconsideration of his sen tence. On December 30, 2014, the trial court granted the motion for recons ideration, in part, which resulted in a reduced aggregate sentence of 34 to 6 8 years’ imprisonment. 2 Appellant subsequently filed a timely notice of ap peal on January 29, 2015, along with a Pa.R.A.P. 1925(b) statement. On appeal, Appellant now presents the following issue for our review: “Whet her the Appellant’s sentence is manifestly excessive, clearly unreasona ble and inconsistent with the objectives of the Pennsylvania Sentencing Code? ” Appellant’s Brief at 3. Initially, we note that Appellant’s allegation rel ates to the discretionary aspects of his sentence.

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1 The charges in the underlying cases stem from Appe llant’s acts which took place between July 2006 and July 2010, involving hi s two daughters, S.N. (born in July of 1997) and B.N. (born in July of 19 97) (hereinafter the “victims”).

2 The order provides as follows: AND NOW, this 30 th day of Dec., 2014, upon consideration of the foregoing Motion IT IS HEREBY ORDERED that the Moti on is GRANTED in that; 779 of 2014 [count] 7 reduced to: 180 mos. to 360 mos. [779 of 2014 count] 12 reduced to: 180 mos. to 360 mos. All other aspects of sentence remain as s et and the sentences remain CONSECUTIVE.J-S55020-15

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Challenges to the discretionary aspects of sentenci ng do not entitle an appellant to review as of right. An app ellant challenging the discretionary aspects of his senten ce must invoke this Court’s jurisdiction by satisfying a fo ur-part test: We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was pr operly preserved at sentencing or in a motion to reconside r and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 211 9(f); and (4) whether there is a substantial question that th e sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Objections to the discretionary aspects of a senten ce are generally waived if they are not raised at the sent encing hearing or in a motion to modify the sentence imposed. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (citations and internal quotations omitted). Here, the record clearly reflects that Appellant f iled a timely notice of appeal, properly preserved his claim in his post-se ntence motion, and included a separate, concise Rule 2119(f) statement in his appellate brief in compliance with the Pennsylvania Rules of Appellate Procedure. Thus, we proceed to determine whether Appellant has raised a substantial question to meet the fourth requirement of the four-part test o utlined above. As we explained in Moury :

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A subst antial question exists “only when the appellant advances a colorable argument that the sentencing judge’s actions were e ither: (1) inconsistent with a specific provision of the Sente ncing Code; or (2) contrary to the fundamental norms which underli e the sentencing process. Id. at 170 (citations and internal quotations omitted)

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Appellant contends that the trial court abused its discretion in sentencing him to consecutive sentences, resulting in a lengthy term of incarceration, without considering mitigating facto rs such as Appellant’s age, his mental health history, educational background a nd lack of any prior criminal record. Appellant’s Brief at 8. In suppo rt of his argument, Appellant avers that he accepted responsibility for his actions at both the preliminary hearing and trial phases of his case, t hereby sparing the victims the trauma of testifying at trial. Id. Appellant also claims to be extremely

remorseful for his actions and maintains that he re alizes the consequences of his actions. Additionally, Appellant asserts th at at his age of 42, he has essentially been given a life sentence, which he ar gues is inconsistent with the objectives of Section 9721(b) of the Sentencing Code. Id. at 8-9. There is ample precedent to support a determinatio n that Appellant’s claim fails to raise a substantial question. In Moury , we stated, “[a]n allegation that the sentencing court failed to cons ider certain mitigating factors generally does not necessarily raise a subs tantial question.” Moury , 992 A.2d at 171. See also Commonwealth v. Griffin , 65 A.3d 932, 936 (Pa. Super. 2013) (finding that defendant’s claim t hat his sentence failed to

take into account his rehabilitative needs did not raise a substantial question); Commonwealth v. Cannon , 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (concluding that a claim that trial co urt failed to consider the defendant’s rehabilitative needs, age, and educatio nal background did not present a substantial question); Commonwealth v. Mobley , 581 A.2d 949,J-S55020-15

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952 (Pa. Super. 1990) (holding that a claim that se ntence failed to take into

consideration defendant’s rehabilitative needs and was manifestly excessive did not raise substantial question where sentence w as within statutory and sentencing guidelines). Moreover, “[u]nder 42 Pa.C.S.A. § 9721, the court h as discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge

to this exercise of discretion does not raise a sub stantial question.” Moury , 992 A.2d at 171. “The imposition of consecutive, r ather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Id.

at 171-172. In the instant case, Appellant has been deemed a se xually violent predator and has caused the victims “severe, signif icant and probably permanent damage.” N.T. Sentencing, 12/19/14, at 15 , 17. The trial court

also noted that there were reasons to sentence in t he aggravated range of the guidelines, but the court gave Appellant the be nefit of a standard range sentence because he pled guilty, accepted responsib ility and spared the victims from having to testify. Id. at 17. Based on the foregoing, we do not consider Appellant’s sentence to be unduly harsh an d, therefore, we conclude that Appellant has failed to raise a subst antial question. However, even if we were to find that Appellant ha s raised a substantial question, his allegations are without m erit.J-S55020-15

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Sentencing is a matter vested in the sound discreti on of the sentencing judge, and a sentence will not be distur bed on appeal absent a manifest abuse of discretion. To constitu te an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. In th is 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, p rejudice, bias or ill will, or arrived at a manifestly unreasonabl e decision. *** In determining whether a sentence is manifestly exc essive, the appellate court must give great weight to the sente ncing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s ch aracter, and the defendant’s display of remorse, defiance, or in difference.

Commonwealth v. Perry , 883 A.2d 599, 602-603 (Pa. Super. 2005) (citations omitted).

We further note: When imposing a sentence, a court is required to co nsider the particular circumstances of the offense and the cha racter of the defendant. In particular, the court should refer t o the defendant’s prior criminal record, his age, persona l characteristics and his potential for rehabilitatio n. Where the sentencing court had the benefit of a presentence i nvestigation report (“PSI”), we can assume the sentencing court was aware of the relevant information regarding the defendant ’s character and weighed those considerations along with mitigat ing statutory factors. Further, where a sentence is within the s tandard range of the guidelines, Pennsylvania law views the sente nce as appropriate under the Sentencing Code. Griffin , 65 A.2d at 837 (citations and internal quotation marks omitted). Here, Appellant’s sentences were all within the st andard range of the guidelines. Additionally, we note that not only di d the trial court have theJ-S55020-15

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benefit of a PSI, it expressly stated that it consi dered all of the appropriate relevant factors, as explained in the following por tion of its Rule 1925(a) opinion: [T]he [c]ourt notes that all of [Appellant’s] sente nces were from the standard range of the sentencing guidelines, an d the [c]ourt was informed by a presentence report. Further, as the [c]ourt noted prior to imposing sentence, it took into cons ideration all relevant factors, including [Appellant’s] age, back ground, character, prior record (or lack thereof), remorse, cooperation, plea, etc. And in pleading [Appellant] received a significant plea bargain as to the nolle prossing of a number of other charges as well as notice by the [c]ourt of his acceptance of responsibility for his crimes. And while [Appellant] may have bee n remorseful, his crimes went on for years and only ceased when h e was apprehended. Trial Court Opinion (TCO), 2/12/15, at 1 (unpaginat ed). The trial court also provided the following detail ed explanation of Appellant’s sentence at the sentencing hearing: The [c]ourt has considered the Pennsylvania Sentenc ing Code, the rather lengthy presentence report and the Penns ylvania Guidelines on sentencing. The [c]ourt has consider ed the statements of defense counsel, [Appellant] and the attorney for the Commonwealth. The [c]ourt has considered [Appe llant’s] age, his background, his character and rehabilitati ve needs, the nature, circumstances and seriousness of the offens es, the protection of the community and the impact that the offenses ha[ve] had upon the victims. The [c]ourt would agree with defense counsel that [ Appellant] has come forward, pled guilty, accepted responsibil ity and done what was necessary to keep the children from having to testify, and that is certainly in his favor. It appears tha t he has expressed some remorse here. I’m not sure how genu ine that is. I’m not sure if he’s remorseful about what he did or the fact that he was caught. Because it appears from what w as going on, that had he not been caught, it probably would still be going on.J-S55020-15

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[Appellant], in terms of a prior criminal history, according to the presentence report only has two traffic violations, and has been convicted of no misdemeanor or felony charges eithe r as a juvenile or an adult. So he comes before the [c]ou rt with a Prior Record Score of zero. [Appellant] has, according to the presentence, [] b een diagnosed with a major depressive disorder and schizophrenia while he has been at the Erie County Prison. It is indeed unfor tunate that [Appellant] took advantage of his access and relati onship to his two daughters in this case to sexually assault and abuse them. Counsel has indicated that [Appellant] may have som e limited intelligence. But it seems to me that what we are talking about here is basic human value of a parent protecting hi s children, and I don’t believe even most animals would engage in this type of behavior with their young. So I’m not sure inte lligence has anything to do with this. What does have something to do with it is the fact that [Appellant] decided that he would satisfy his own s elfish lust by using[] his children as the instrument to accomplis h that end. And in doing so, he caused them severe, significant and probably permanent damage that hopefully they will be able t o put behind them, but probably will never be able to forget. A nd it is a pretty sad day when a child who looks to a parent f or protection against anything like this happening to them has it happen to them by that very person who is supposed to be the guardian and the protector. So these children were really in a position where t hey had no place to turn. They had no one to go to, and they had really nothing to do but reluctantly capitulate. Because over the course of time [Appellant] used threats, he ignored their protestations and on occasion used force to accompl ish his ends. He has been deemed and has admitted and stipulated to the fact that he is a sexually violent predator under Pennsy lvania law. The report of Miss Manno found him to be a pedophil e, and it is obvious that his actions had a significant effect o n his victims, as I have stated. One of the children indicated that: “How my dad affected my life is that I can’t even stand getting hugged by an older man and I feel uncomfortable around them even if they are people I know. What my dad did to me makes me scar ed of things, especially my future.”J-S55020-15

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And the other victim indicated, as the District Att orney has pointed out, that her father started using her when she was nine years old. “It would make me so upset because he w as my dad. I’m very upset about all of the things he did to me . He tried to make me believe that it was all my fault that this was happening. I really don’t feel like I have a dad. He took all of that away. I really don’t trust men anymore. He t old me that no one would believe me, and if I did tell someone, that I would go to a foster home and they would treat me bad. T hat isn’t true.” So it’s pretty clear that above all, I think these children have expressed a huge amount of disappointment in what t hey expected a dad to be, and what they expected their father to be, and what they expected their father to do in terms of protecting them and keeping them safe, healthy and allowing th em to have the kind of childhood that every child deserves. B ut, obviously, that didn’t happen in this case, unfortunately. N.T. Sentencing, 12/19/14, at 13-17. After careful review of the record, we are satisfi ed that the trial court gave appropriate consideration to the relevant fact ors before issuing Appellant’s sentence and ascertain no abuse of disc retion. Judgment of sentence affirmed. President Judge Emeritus Ford Elliott joins this m emorandum. Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/19/2015J-S55020-15

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