J-S41045-19

* Retired Senior Judge assigned to the Superior Court 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DANIEL R. HOSTETLER,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 80 MDA 2019

Appeal from the Judgment of Sentence Entered November 29, 2018

in the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000108-2018

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2019

Daniel R. Hostetler (Appellant) appeals from the judgment of sentence 

entered November 29, 2018, after he pleaded guilty to one count of indecent 

assault without consent and two counts of indecent assault with a person less 

than 16 years of age. We affirm. 

In early 2018, Appellant was charged with, inter alia, the 

aforementioned offenses committed against his biological daughter, M.P., 

which occurred between October 21, 2002, and October 20, 2006, when M.P. 

was a minor.

1

 On August 2, 2018, Appellant entered a guilty plea to the 

 

1 There is no guilty plea transcript in the certified record before us, which 

presumably sets forth a summary of the facts in this case. However, the 

certified record does include the affidavit of probable cause, which contained, 

inter alia, the following facts gathered by police to support the charges filed. 

At the time of the assaults [M.P.] was between the ages of [13 

and 16] years of age. Currently, [M.P.] is an adult. [M.P.] related 
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aforesaid offenses. Sentencing was deferred to a later date pending the 

completion of a pre-sentence investigation (PSI) report. 

On November 29, 2018, Appellant appeared before the trial court for 

sentencing. At the outset, the trial court determined that the two counts of 

indecent assault with a person less than 16 years of age merged for sentencing 

purposes. The trial court then sentenced Appellant to 6 to 12 months’ at the 

remaining two counts respectively, and ordered the sentences to run 

consecutively to one another. 

On December 6, 2018, Appellant timely filed a post-sentence motion to 

modify sentence, which the trial court denied the next day. See PostSentence Motion, 12/6/2018; Order, 12/7/2018. This timely-filed appeal 

followed,2 wherein Appellant presents the following issue for our review. 

1. Did the [trial] court err in sentencing [Appellant] to the top of 

the aggrav[ated] range on two counts of [indecent] assault 

where the court did not provide appropriate reasons for 

sentencing in the aggravated range of the guidelines?

 

[that] between those ages[, Appellant, her father,] touched her 

inappropriately on many occasions. [Appellant] touched her

breasts and vagina above her clothes. The touching started as 

hugging from behind and slow[ly] running his hands across her

breasts.

Affidavit of Probable Cause, 2/7/2018. After speaking to M.P., a trooper with 

the Pennsylvania State Police made contact with Appellant, who admitted to 

touching M.P.’s breasts and vagina, and stated that the touching was for his 

sexual arousal. Id. 

2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant’s Brief 6 (suggested answer and unnecessary capitalization 

omitted). 

Appellant’s sole issue on appeal challenges the discretionary aspects of 

his sentence.3 Accordingly, we bear in mind the following.

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

The record reflects that Appellant timely filed a notice of appeal and that 

Appellant preserved the issue by timely filing a post-sentence motion. 

Moreover, Appellant has included in his brief a statement pursuant to Pa.R.A.P 

2119(f). We now turn to consider whether Appellant has presented 

substantial questions for our review.

 

3 Because Appellant entered an open guilty plea as to the sentence imposed, 

he is not precluded from appealing the discretionary aspects of his sentence. 

See Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) 

(citation and quotation marks omitted). 

In his 2119(f) statement, Appellant contends the trial court erred in

imposing sentences in the aggravated range,

4 without setting forth “legally 

sufficient grounds for [] imposing such an excessive sentence.” Appellant’s 

Brief at 11. Such a claim raises a substantial question for our review. See 

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (“In his 

final issue [Wellor] claims the lower court failed to state on the record 

adequate reasons for imposing sentences in the aggravated range. This Court 

has held that such a challenge to the sentence raises a substantial question.”). 

We address the merits of this claim mindful of the following. 

Since Appellant was sentenced within the guidelines, we 

may reverse only if application of the guidelines is clearly 

unreasonable. The [Commonwealth v.] Walls[, 926 A.2d 957 

 

4 At sentencing, it was determined that with Appellant’s prior record score of

zero and an offense gravity score of four for both indecent assault without 

consent and indecent assault with a person under 16, the standard-range 

sentence for both crimes is restorative sanctions to three months, with an 

aggravated range of three to six months’ incarceration.
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(Pa. 2007)] Court noted that the term “unreasonable,” while not 

defined in the Sentencing Code, generally means a decision that 

is either irrational or not guided by sound judgment. The Court 

continued that the context of the term’s use in section 9781 

indicates that the legislature intended the concept 

of unreasonableness to be inherently a circumstance-dependent 

concept that is flexible in understanding and lacking precise 

definition.

The Supreme Court held that a sentence can be deemed 

unreasonable after review of the four elements contained in 

section 9781(d) or if the sentencing court failed to take into 

account the factors outlined in 42 Pa.C.S. § 9721(b). [Subs]ection 

9721(b) states in pertinent part:

[T]he court shall follow the general principle that 

the sentence imposed should call for confinement that 

is consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on the 

life of the victim and on the community, and the 

rehabilitative needs of the defendant. The court shall 

also consider any guidelines for sentencing adopted 

by the Pennsylvania Commission on Sentencing[.]

In conclusion, our Supreme Court in Walls stated that when 

the proper standard of review is utilized, rejection of 

a sentencing court’s imposition of sentence on unreasonableness 

grounds [should] occur infrequently, whether the sentence is 

above or below the guidelines ranges.

Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (some 

citations and quotation marks omitted). In reviewing the record on appeal, 

this Court considers:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.
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(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Here, Appellant contends that the trial court abused its discretion by 

relying on the familial relationship that existed between Appellant and M.P.

when sentencing Appellant, which Appellant avers was an “improper” factor.

Appellant’s Brief at 15. 

Despite Appellant’s show of remorsefulness, his cooperation with 

law enforcement, and his lack of subsequent offense, the [trial 

c]ourt chose to sentence Appellant to a sentence which had a 

minimum which was the top of the aggravated range and a 

maximum which was the statutory maximum for each offense. 

The [trial] court’s reasoning that the guidelines did not adequately 

take into account the familial relationship between Appellant and 

the victim was not an appropriate reason to impose a sentence in 

the aggravated range. 

Id. 

In this case, prior to sentencing, the trial court set forth the guideline 

ranges for each of the crimes Appellant was convicted. N.T., 11/29/2018, at 

3. Furthermore, the trial court noted that it was in receipt of the PSI report 

and had reviewed letters it received from M.P. and “people supporting” 

Appellant. Id. at 1, 3. Moreover, the trial court heard statements made by 

the Commonwealth, defense counsel and Appellant, as well as listened to

M.P.’s victim impact statement. Id. at 4-17. The trial court then stated the 

following. 

I’ve considered the sentencing guidelines and I've 

considered the statements of your supporters, sir. I’ve considered 

your statement and I've considered the victim’s letters and the 

words today. This is difficult because you have to look at this from 
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two perspectives. You need to look at this from someone who has 

confessed to this years ago[5] and then you have to look at this

from the victim’s perspective and when you consider the 

protection of the public and the gravity of this offense and the life 

of the victim and the community and your rehabilitative needs, it 

becomes more difficult.

I don’t think that the law or the sentencing guidelines 

adequately consider[] these offenses because this is an indecent 

assault case. An indecent assault case is a touching which can be 

over the clothes and that’s what we have here. But what the 

sentencing guidelines don’t consider is the fact that this was your 

child and we all see a young lady here, an adult, but it’s difficult 

attempting to get into her head when she was a child, a young 

girl, looking for someone to protect her and that’s why I think the 

sentencing guidelines are inadequate here because the sentencing 

guidelines consider indecent assault from the perspective, I think, 

of an adult assaulting maybe a child, maybe another adult but 

don’t consider that child’s only protection being the person who 

did this to her.

So I’m going to sentence in the aggravated range of 

sentence in this case.

Id. at 18-19. 

Upon review, we find that the trial court took into account all necessary 

considerations, including but not limited to, the nature of the offenses, PSI 

report,6 M.P.’s victim impact statement, Appellant’s allocution, and letters it 

received from Appellant’s supporters. Based upon the foregoing, for the 

 

5 More than a decade before police began its investigation into the abuse of 

M.P., Appellant “confessed” to the abuse “in front of his church” and “asked 

for forgiveness.” N.T., 11/29/2018, at 4-5.

6 “[W]here the sentencing judge had the benefit of a [PSI] report, it will be 

presumed that he or she was aware of the relevant information regarding the 

defendant’s character and weighed those considerations along with mitigating 

statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. 

Super. 2016). 
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reasons it cited on the record, the trial court concluded that the imposition of

aggravated-range sentences was appropriate. We see no abuse of discretion 

in this determination. See Commonwealth v. Mouzon, 828 A.2d 1126, 

1128 (Pa. Super. 2003) (An “appellate court must give great weight to the 

sentencing 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 character, and the 

defendant’s display of remorse, defiance, or indifference.”). See also 

Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017) (“To be clear, 

while the court must consider the guidelines, the court is also afforded broad

discretion in sentencing matters, as it is in the best position to evaluate the 

individual circumstances before it.”).

Moreover, Appellant fails to make a cognizable argument, or cite any 

authority to support his contention that the individual nature of the crime, 

such as the familial relationship shared between Appellant and M.P., was an 

improper factor to consider because it was already incorporated as a factor in

the guidelines. See Walls, 926 A.2d at 967 (holding that factors of victim’s 

precise age and victim being entrusted to defendant’s care were not subsumed 

within sentencing guidelines and thus could justify an above-guideline 

sentence). See also Commonwealth v. Shugars, 895 A.2d 1270, 1275 

(Pa. Super. 2006) (holding a sentencing court “has wide discretion 

in sentencing and can, on the appropriate record and for the appropriate 
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reasons, consider any legal factor in imposing a sentence in 

the aggravated range.” ). 

For the foregoing reasons, we conclude that Appellant has failed to 

demonstrate 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. 

Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth v. 

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)). Accordingly, we affirm 

Appellant’s judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2019