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. HOSTE T LER ,

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

PENNSYLVANIA

No. 80 MDA 2019
Appeal from the Judgment of Sentence Entered November 29, 2018

in th e Court of Common Pleas of Huntingdon County C riminal Division at No(s): CP

- 31

- CR

- 0000108

- 2018

BEFORE: LAZARUS, J., MURRAY, J. a nd STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2019

Daniel R. Hoste t ler (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 mino r

. 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 set s 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.] relatedJ

- S41045

- 19

- 2

-

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 cou rt for
sentencing . At the outset, t he 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 Post

Sentence Motion, 12/6/2018; Ord er, 12/7/201 8

. This timely

- filed appeal
followed, 2 wherein Appella nt 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 he r breasts.

Affidavit of Probabl e 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 breast s 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. 192 5.J

- S41045

- 19

- 3

-

Appellant’s Brief 6 (suggested answer and un necessary capitalization
omitted).
Appellant ’s sole iss ue 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 challeng ing 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 su bstantial 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 timel y 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

sub stantial 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).J

- S41045

- 19

- 4

-

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

a dvances 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 cou rt 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 ra ises 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 sentencin g, it was determined that with Appellant’s prior record score of
zero a nd 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.J

- S41045

- 19

- 5

-

(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 continu ed that the context of the term’ s use in section 9781 indicates that the legislature intended the concept of unreasonableness to be inhe rently a circumstance

- dependent concept that is flexible in understanding a nd 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 th e 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 Pen nsylvania Commission on Sentencing [.]
In conclusion, our Supreme Court in Walls stated that when the proper s tandard of review is utilized, rejection of
a sentencing court’ s imposition of sentence on unreasonableness grounds [should] occur infrequently, w hether the sentence is above or below the guidelines ranges.

Com monwealth 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.J

- S41045

- 19

- 6

-

(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 Appellan t avers was an “improper” factor.
Appellant’s Brief at 15.

D espite 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 minim um 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 couns el 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 stat ements of your supporters, sir. I’ ve considered your s t atement and I've considered the victim’ s letters and the words today. This is difficult because you have to look at this fromJ

- S41045

- 19

- 7

-

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 sent encing guidelines adequately consider[] these offenses because this is an indecent
as sault 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 gui delines don’ t consider is the fac t that this was your child and we all see a youn g 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 th at’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 ch ild’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 im pact 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.” Commonw ealth v. Finnecy , 135 A.3d 1028, 1038 (Pa. Super. 2016).J

- S41045

- 19

- 8

-

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 cogniza ble argument, or cite any
authority to support his contention that the ind ividual 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 i n 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 appropriateJ

- S41045

- 19

- 9

-

reasons, consider any legal factor in imposing a sentence in

the aggrav ated 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 manife stly 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