Com. v. Crater, Sr. D. (memorandum)

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J -S07021-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DANIEL EDWARD CRATER, SR. Appellant No. 1094 MDA 2016 Appeal from the Judgment of Sentence December 5, 2013 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000495-2011 CP-50-CR-0000500-2011 CP-50-CR-0000501-2011 BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J. FILED APRIL 06, 2017 MEMORANDUM BY LAZARUS, J.: Daniel Edward Crater, Sr., appeals from the judgment of sentence, entered in the Court of Common Pleas of Perry County, following his conviction for two counts of sexual abuse of children.' Upon review, we affirm. Three separate cases were opened against Crater involving allegations of child sexual abuse. 2011 resulted in a A jury trial in the case at docket number CR-501- guilty verdict for one count each of unlawful contact with a minor,2 endangering the welfare of ' 18 Pa.C.S. § 6312(b). 2 18 Pa.C.S. § 6318(a). a child,3 corruption of minors,4 simple J -S07021-17 assault,5 and harassment.6 In each of the cases at docket numbers CR-4952011 and CR-501-2011, Crater entered a guilty plea to two counts of sexual abuse of children. Initially, Crater was sentenced to 12 to 24 months' incarceration for each of the four counts of sexual abuse of children, 12 to 24 months' incarceration for endangering the welfare of incarceration for unlawful contact with consecutively to each other. a a child, and 16 to 60 months' minor. All sentences were to run On December 13, 2013, Crater filed a motion to modify sentence, which was granted in part on March 10, 2014. court reduced the sentence for unlawful contact with a minor to 1 The to 9 months' incarceration and the sentence for endangering the welfare of child to 5 a to 12 months' incarceration. The court denied Crater's request to run his sentences for sexual abuse of a child concurrently because there were four different victims. This appeal followed.' Crater raises the following issues for our review: (Footnote Continued) 3 18 Pa.C.S. § 4304(a). 4 18 Pa.C.S. § 6301(a). 5 18 Pa.C.S. § 2701(a). 6 18 Pa.C.S. § 2709(a) Crater's direct appeal rights were reinstated nunc pro tunc by the trial court after he filed a petition pursuant to the Post -Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546. See Order, 6/14/16 7 -2 J -S07021-17 the [h]onorable [s]entencing [c]ourt abuse its discretion by sentencing Mr. Crater to four (4) consecutive terms of 1224 months of incarceration without considering mitigation, was said sentence manifestly unreasonable and excessive, and did the [c]ourt below not state a sufficient reason in support of imposition of consecutive sentences? 1. Did 2. Did the honorable sentencing court abuse its discretion by sentencing Mr. Crater to 1-9 months['] incarceration for the count of unlawful contact with a minor and a consecutive 5-12 month term of incarceration for the count of endangering welfare of a child consecutive to one another, without considering mitigation, was said sentence manifestly unreasonable and excessive, and did the [c]ourt below not state a sufficient reason in support of imposition of consecutive sentences? Brief for Appellant, at 7. Although divided into two issues, Crater's appeal raises one claim: whether his sentence is excessive, particularly since he has been ordered to serve the sentence for each conviction consecutively. This issue raises challenge to the discretionary aspects of sentencing and is a not appealable as of right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather, before we can address such must satisfy a a discretionary challenge, an appellant four-part test: (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. -3 J -S07021-17 Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en Allen, 24 A.3d 1058, 1064 banc) (quoting Commonwealth v. (Pa. Super. 2011)). Instantly, Crater filed post -sentence motion to modify his sentence a raising his claim, followed by timely notice of appeal to this Court. He has a also included in his appellate brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Rule 2119(f). We must now determine whether Crater has raised a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. must "advance a colorable argument that the sentencing court's actions were inconsistent with a In order to do so, an appellant a specific provision of the Sentencing Code or violated fundamental norm of the sentencing process." Commonwealth v. Feucht, 955 A.2d 377, 383-84 (Pa. Super. 2008). Typically, "[a] court's exercise of discretion in imposing concurrently or consecutively does not ordinarily raise question." Caldwell, Mastromarino, 2 supra at 769 (citing A.3d 581, 587 (Pa. Super. 2010)). distinction [exists] between a a a sentence substantial Commonwealth However, a v. "critical bald excessiveness claim based on imposition of consecutive sentences and an argument that articulates reasons why consecutive sentences in a particular case Commonwealth v. Dodge, 77 A.3d 1263, 1270 -4 are (Pa. unreasonable." Super. 2013). J -S07021-17 Indeed, the latter case "may raise in a substantial question." Id. (emphasis original). Here, however, Crater merely makes a bald claim that the court "failed to give appropriate weight to mitigating circumstances, such as Mr. Crater's lack of any criminal history, age, exemplary employment history, personal characteristics and life situation[.]" Brief for Appellant, at 15. Crater does not articulate with any specificity in his Rule 2119(f) statement or elsewhere in his brief what should have mitigated his sentence, nor does he state any fundamental norm that was violated during his sentencing process. Feucht, supra; Dodge, supra. Accordingly, we find that Crater fails to raise a substantial question necessitating our review of his sentence.8 Judgment of sentence affirmed. 8 Even if Crater raised a substantial question, he would be entitled to no relief since, as the trial court notes, it reviewed a presentence investigation report. See Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) ("where the sentencing judge had the benefit of a presentence investigation 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"). The court also provided its reasons on the record for sentencing Crater in the manner it did, which include, in particular, that two of Crater's victims are his children. See Trial Court Opinion, 9/7/16, at 4. -5 J -S07021-17 Judgment Entered. J seph D. Seletyn, Prothonotary Date: 4/6/2017 -6

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