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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ROBERT WAYNE BROWN , : : Appellant : No. 2047 MDA 2016 Appeal from the Judgment of Sentence November 16, 2016 in the Court of Common Pleas of Cumberland County, Criminal Division, No(s): CP - 21 - CR - 0000029 - 2011;

CP - 21 - CR - 0003516 - 2010 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED AUGUST 23, 2017 Robert Wayne Brown (“Brown”) appeals from the judgment of sentence imposed foll owing his conviction of 41 counts of various sexual offenses committed against his four minor step - grandchildren over the course of several years. We affirm. In its Opinion, the trial court set forth the relevant factual and procedural history, which w e adopt for the purpose of this appeal. See Trial Court Opinion, 2/13/17, at 1 - 4 (unnumbered). On appeal, Brown raises the following issue for our review: “Did the sentencing court abuse its discretion by failing to justify on the record the imposition o f aggravated range and consecutive sentences?” 1 Brief for Appellant at 6 (capitalization omitted).

1 The trial court sentenced Brown to an aggregate term of 40 to 120 years in prison.J - S52012 - 17

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Brown challenges 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue, [this Court conducts] 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, [ see ] Pa.R.A.P. 2119(f); and (4) whether ther e is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [ see ] 42 Pa.C.S.A. § 9781(b). Moury, 992 A.2d at 170 (citation omitted). When an appellant challenges the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. Commonwealth v. Tuladziecki , 522 A.2d 17, 18 (Pa. 1987) ; 42 Pa.C.S.A. § 9781(b) ; s ee also Commonwealth v. Yanoff , 690 A.2d 260, 267 (Pa. Super. 1997) . In the instant case, Bro wn filed a timely Notice of Appeal, and included in his appellate brief a separate Rule 2119(f) Statement. However, our review of the record reflects that Brown failed to preserve his claim either at resentencing or in a timely post - sentence motion. See Commonwealth v. Mann , 820 A.2d 788, 794 (Pa. Super. 2003) (holding that objections to the discretionary aspects of sentence are generally waived if they are not raisedJ - S52012 - 17

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at the sentencing hearing or in a motion to modify the sentence imposed at that hearing) . Thus, we are unable to address his issue on appeal. 2 Judgment of sentence affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary Date: 8/23/2017

2 Even if Brown had preserved his issue for our review, we would have found that it lacked merit, given that the trial court, at the time of resentencing, had the benefit of a pre - sentence investigation report (“PSI”). See Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (holding that, w here a sentencing court is informed by a PSI, “it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.”). Moreover, “ [t] he sent encing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the [PSI]; thus properly considering and weighing all relevant factors.” Id. (citation omitted); see also N.T., 11/15/16, at 3.

# /1-:JAt docket 3516-2010 the charges are: 2 counts-Involuntary Deviate Sexual Intercourse (F1 ) . 2 counts-Involun t ary Deviate Sexual Intercourse with a Child (F1 ). 2 counts-Unlawfu l Contact w i th M i nor (F1 ). 2 counts- Sexual Assault (F2) , 2 counts-Indecent Assau l t (M1 ) . 2 counts-Corruption of Minors (M1 ) , and 2 counts Indecent Assault (M2) . At docket 0029-2011 the charges are: 2 counts Rape of a Child (F1 ) ; 2 coun t s-Involuntary Deviate Sexual I ntercourse (F1 ). 2 counts-Involuntary Deviate Sexual Intercourse with a Child (F1 ), 2 counts-Aggravated Indecent Assault of a Child (F1 ). 2 counts-Unlawful Contact with a Minor (F1 ). 1 count-Criminal Solicitat i on to IDSI with a Child (F1 ). 2 counts-Criminal Sol i citation to Incest (F2), 2 counts- Aggravated Indecent Assault (F2) , 2 countsAggravated Indecent Assault (F2), 2 counts-Aggravated Indecent Assault (F2), 2 counts-Indecent Assault (M 1) , 2 counts-Indecent Assault (M2) , 2 counts-Corrupt i on of Minors (M1 ) , and 2 countsIndecent Assault (M2) . 2 Multip l e extensions on appeal were granted to new counsel to allow full knowledge of the record. Correctional Institute . Defendant, through newly assigned counsel, filed an appeal on July 31, 2014, which was ultimately decided by the Superior Court in December 2015. 2 sentenced to an aggregate sentence of forty to one-hundred-twenty years in a State Sexually Violent Predator (SVP) and sentenced in April 2013. Defendant was sexual offenses committed upon his four minor step-grandchildren over the course of several years. 1 Defendant was convicted on all counts in August 2012, found to be a Defendant was charged in December 2012 with forty-one counts of various PLACEY, C.P

. J . - 13 February 2017

PROCEDURAL HISTORY ROBERT WAYNE BROWN CP-21-CR-3516-2010 CP-21-CR-0029-2011 IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a)



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# ,4- 2 3 The ve r dict s l ips for each count where ag e was a factor in s e n t encing were specifically presented to the jury fo r them to make findings of fact that wou l d be applicable a t sent e ncing . The t r ial court ' s use of the verdict slip fo r find i ngs of fact at sentencing did not prospect i vely cu r e the imprope r sentence . As c i ted by the Supe r ior Court , the cas e of Commonwealth v . Wolfe 106 A.3rd . 800 , 806 ( 2016 ) makes i t clea r that the " proof at sentence " provision contained in 4 2 Pa . C . S . §97 1 8 i s not separable from the section ' s other provision in the ent i re statute is fac i a ll y void . 4 Order o f Court 15 November 2 016 . 5 O r der o f Court 4 Apr il 2013 page 24 . I t is noted now the agg r egate sentence intended should have 40 to 120 years, which reflects one ten year mandatory m i nimum sentence with a full maximum term for each v i ctim ." 2 . The April . 4, 2013 Sentence specifically provided . the " aggregate sentence is for sentences . 4 Order of April 4 , 2013 to reflect the sentences imposed were not mandatory 1 . At the November 2016 re - sentencing , the trial court amended the Sentencing FACTS FROM SENTENCINGS guidelines . This Opinion is in support of the sentences imposed . on the record for imposing a sentence above the aggregated range of the sentencing alleged the trial court abused its discret i on at sentenc i ng by failing to state any reasons of appeal in August 2016 . Defendant was re-sentenced on November 15 , 2016 . Thereafter , counsel filed an appeal of the new sentence on December 14 , 2016 , which appealed the matter to the Supreme Court of Pennsylvan i a, which den i ed the allowance The remand from the Superior Court was stayed wh i le the Commonwealth mandatory minimum sentences must be submitted to the jury" and must be found beyond a reasonable doubt. Id . at 2162 . 3 v United States

, _ U . S . _, 133 S . Ct. 2151 (2013) , held that "facts that increase the issue on appeal, specifically that the United States Supreme Court ' s decision in Alleyne Our Superior Court ' s independent review of the trial record found a clearly meritorious CP-21-CR-3516-2010 CP-21-CR-0029-2011

## ,4-3

been 40-160 years . 6 Note of testimony April 4 , 2012 (sic] , SVP at sentencing proceedings , at page 32 Line 17 thru page 33 Line 10 . provided indicated a prior record score of zero (0), but the trial court ' s review of 9. It was noted at the April 2013 sentencing that the guidelines and report Involuntary Sexual Intercourse with a Child. 8 . At docket CR-3516-2010, the counts that had mandatory sentences associated With them are Count 1 , Involuntary Deviate Sexual Intercourse and Count 2 , lhtercourse: Count 3 , Involuntary Deviate Sexual Intercourse with a Child ; I I Count 4 , Aggravated Indecent Assault of a Child ; and Count 9 , Aggravated 1hdecent Assault. ! with them are Count 1 , Rape of a Child ; Count 2 , Involuntary Deviate Sexual 7 . At docket CR - 0029-2011 , the counts that had mandatory sentences associated indicating that they had lied on the witness stand at the preliminary hearing and again at tr i al . " 6 . Defendant , at sentencing , cast aspersions on the victims and their families 5. At sentencing the impact on the victims was presented in the victim impact statements both orally and in writing . Court 23 September 2014 (President Judge Kevin 

### A. Hess) . seriousness of the individual sentences . I . 4. The sentencing amendment was done pursuant to established County I I precedent , see Commonwealth v . Hippensteel

, CR-2715 - 2013 , Order of the full extent of the harm caused by the Defendant , thereby depreciating the 3 . In each sentence it was specifically stated that any lesser sentence would m i nimize the damage done to one or more of the victims and would not reflect CP-21-CR-3516-2010 CP-21-CR - 0029-20116 It is noted that the prior record score could be higher ; however , because the presentence invest i gation

d i d not note t he equ i valent grade of the charge in Pen n syl v an i a by default , a point would be g i ven for the felony charge and a point for the sum of the two m i sdemeanor charges . 9 205 Pa . I cade Sect i on 303 . 16 . 

### I j 7 Id at page 12 Line 14 through 19 (Pa . 198~) . 

### I We emphatically reject, therefore, interpretations of our law in this area wHich call for separate, written opinions embodying exegetical thought. Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors . A presentence report constitutes the record and speaks for itself . In order to dispel the rehabilitative needs of the defendant." Commonwealth v. Devers, 546 A.2d 12 , 13 choices are consistent with the protection of the public, the gravity of the offense, and sentencing alternatives · and the range of permissible confinements, provided the Statement of Law

: Courts have "broad discretion to choose a penalty from 12 . The gross aggregate sentence for all the charges to which Defendant was fbund guilty by the jury is 309 years to 618 years. 

### I ... DISCUSSION statutory limit (SL), for each of these six (6) counts , which is two-hundred and forty (240) months . 9 fourteen (14) and the standard range sentencing matrix for an OGS of 14 is the Involuntary Deviate Sexual Intercourse with a Child (4 counts total) is a 10 . At a minimum, these historical crimes would reflect a prior record · score of two (~) for purposes of guidelines . 8 

### I 11 . The offense gravity score (OGS) for Rape of a Child (2 counts total) and the report and sentencing guidelines indicated that there are applicable historically old convictions for burglary, theft and embezzlement . " CP-21-CR-3516-2010 CP-21-CR-0029-2011

# A- s

9721. vacating the sentence or resentence and resentencing the defendant. " 42 Pa.C.S . 

### § from the guidelines to the commission ... . Fa i lure to comply shall be grounds for provide 

## a contemporaneous written statement of the reason or reasons for the deviation

' guidelines adopted by the Pennsylvania Commission on Sentencing . .. the court shall Id. 

### I "In : every case where the court imposes a sentence or resentence outside the (1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously ; (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances whe r e the application of the guidelines would be clearly unreasonable ; or (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. Pa.C.S . 

### § 9781(c). sets forth the requirements of review for w h ether a sentence is "unreasonable . " 42 Commonwealth v. Mouzon, 812 A.2d 617 , 621 (Pa. 2002). The Sentenc i ng Code which defendants are to be sentenced . 42 - Pa.C . S. 

### § 9701 et seq. The guidelines must be considered and a court must explain i t s reasons for departure from them. Through the Sentencing Code , the General Assembly has enacted a process by Id. 546 A . 2d at 18. any lingering doubt as to our intention of engaging in an effort of legal purification , we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure . Having been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed. 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 considerations, and there we will presume also that the weighing process took place in a meaningful fashion . CP-21-CR-3516-2010 CP-21-CR-0029-2011

# 11- 6 10 De f endant's t erm i nal medical condition , wh i ch makes this sentence, indeed any sentence , a li fe sentence, I s not g r ounds for t he modification of the statutorily mandated and correct sentence . When De f endant's medical cond i tion actually reaches a t erminal s t ate he may then apply for a temporary defer r a l of t he serv i ce o f this sentence as provided for by statu t e 42 Pa . C . S . §9 77 7 . Moti o n t o Modify Sentence

, Order of Court 1 4 June 2013 . 11 I t i s aga i n noted that th e correct ma x imum ca l culation should have been 160 years, no t t he stated 120 yea rs . for each victim was at an OGS of 14 that would allow the standard guideline range to go minimize the damage done to one or more of the v i ctims that would not reflect the full extent of the harm caused by the Defendant. 11 This is a top count sentence , where the Defendant was sentenced consecutively at the top count for each victim to 1 O to 40 years, with the other 37 counts imposed concurrently to that top count. The top count victim to be run consecutively , which recognized that any lesser sentence would sentence , calls for one ten year minimum sentence with a full maximum term for each The initial sentence , with the mandatory language removed by the amended not in step with established Cumberland County precedent. totality of the circumstances vision of the trial court , the imposition of a completely applicable higher sentence would be punitive upon this type of procedural remand and maximum possible sentence of 309 years to 618 years would seem draconian . In the 160 years , wh i ch is within the standard guideline range . Everywhere but Texas , a sentence of 240 months to 480 months for each victim or an aggregate total of 80 to standard gu i deline range for the six OGS 14 counts , and which would now result in a requested by the Commonwealth no longer restricts the court to a lower end of the sentence is and always was within the sentencing gu i delines . In Defendant's myopic perspective this is a death sentence . 10 In view of Alleyne , the mandatory sentence Application of La w to Facts: Perspective is necessary to comprehend that this CP-21 - CR-3516-2010 CP - 21-CR - 0029-2011Distribution List:

Charles J . Volkert , Jr. Chief Deputy District Attorney Linda S. Hollinger First-Assistant Public Defender 

### I I sentences are lawful and reasonable . within th~ standard guideline ranges and no justification statement is required . The

I beyond t ~ e mandatory prior sentence , as the sentences , then and now , were clearly

' not call for the trial court to act in repr i sal ; indeed, it is proper not to go above and Unshackled from the mandatory sentence statute, this case upon remand does innocence and trust from these four child victims . sentences. There is no need to go into a critical analysis of how Defendant took the • 

### . . victims and the harm to which Defendant continued to enact upon them directly in the

the deficiency of the prior convictions . Further , the trial court noted the impact on the

' . guidelines as demonstrated by the trial court ' s correction of the pre-sentence report for justification for the aggregate sentence that would apply to any consideration that the 

# i . sentencewas outside of the guidelines. Specifically, the trial court had reviewed the the sentencing guidelines, the concise language of both sentences contained To the extent that the trial court needs to explain its reasons for departure from the trial court is necessary as there is no departure from the guidelines . up to 240 months, for which 120 months is clearly within and no further explanation from 'CP-21-CR-3516-2010 CP-21-CR - 0029-2011