Opinion
J-A26014-17 No. 245 MDA 2017
02-15-2018
COMMONWEALTH OF PENNSYLVANIA v. ROBERT CONVERY, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 4, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005271-2015 BEFORE: BOWES, OLSON, AND RANSOM, JJ. MEMORANDUM BY BOWES, J.:
Robert Convery, Jr. appeals from his January 4, 2017 judgment of sentence imposing an aggregate term of thirteen and one-half to thirty years imprisonment after he was convicted of three counts each of involuntary deviate sexual intercourse ("IDSI") and sexual assault. We affirm.
The trial court succinctly summarized the facts and procedural history as follows:
Between 2013 and 2015 Appellant and his two victims, T.M. and A.J., were students at Albright College. [N.T.], June 14-15, 2016, at 32, 33, 149, 205. All three individuals were "brothers" of the Pi Kappa Phi fraternity. Id. at 33, 149, 206. Prior to the events that precipitated this case, all three men were friends. Id. at 84, 152, 208. Throughout the events in question, Appellant and A.J. shared various residences in the City of Reading. Id. at 206.
On the evening of December 6, 2013 and stretching into the next day, T.M. was partying at Appellant's residence. Id. at 40. During the course of the evening, T.M. became intoxicated and fell asleep on a couch. Id. at 42. When T.M. awoke, he discovered that he was in Appellant's bedroom, his pants were off, and Appellant was performing oral sex on him. Id. at 44. Shocked by the assault, T.M. fled the residence. Id. at 47. Later, Appellant apologized by text message for the assault, however this message was not preserved by the victim. Id. at 48. At that time, T.M. did not report the assault out of fear of public humiliation and a desire to forget the incident. Id. at 49-51. After the assault, T.M. permitted life to return to normal and forgave Appellant. Id. at 56.
During the following year, Appellant and A.J. moved to a new residence on 1610 [North] 11th Street in the City of Reading. Then, on or around November 22, 2014, an almost identical pattern of assault occurred. Id. at 52-53. Similar to the precipitating events of the first assault, T.M. became intoxicated after a night of clubbing. Id. T.M. returned to Appellant's new residence and was hanging out in Appellant's room with several other people. Id. at 55. Overcome by either tiredness or intoxication, T.M. fell asleep in Appellant's bed. Id. at 56-57. When T.M. awoke he found that his pants were partially removed and Appellant was performing oral sex on him again. Id. at 57. T.M. fled to his own residence after the assault. Id. at 58-59. Like after the previous assault, Appellant attempted to apologize for his actions using text messages. Id. at 61-64. In these messages he also affirmed the existence of a previous assault. Id. (Appendix A). Though T.M. did not immediately report the assault, he preserved the text messages.
The final assault occurred on February 8, 2015 to A.J. Id. at 153-54. Like the prior two assaults, the victim was intoxicated and fell asleep at a party. Id. at 155. Also like in the prior assaults, A.J. awoke to Appellant performing oral sex on him. Id. at 157-58. A.J. was not conscious at the time of the assault and did not give his consent. Id. at 157, 163. After he awoke, A.J. left the room and went into a friend's room. Id. at 158. Following the assault, Appellant pled by text message for A.J. to forgive him. Id. at 159. These messages were deleted by A.J. as he wished to "wipe [himself] clean [of] the situation." Id. at 160.
After the third assault, on February 23, 2015, T.M. reported the assaults made against his person to Albright's Public Safety Officer. Id. at 67, 125. A.J., after consulting with T.M., also decided to come forward and report the assault perpetrated against him. Both parties filed reports with the Public Safety Officer. Id. at 125, 162. At T.M.'s request, the matter was then referred to local authorities. Id. at 69.Trial Court Opinion, 4/21/17, at 2-4.
At trial, Appellant took the stand in his own defense. Appellant represented that all three events were consensual. However, the jury determined that most of his testimony was mendacious[.] During his testimony, Appellant stated his level of inebriation at all three assaultive events. At the time of the first event he stated that though he was intoxicated he was functioning and understood what was going on. Id. at 211. At the time of the second event, Appellant testified that he knew what he was doing. Id. at 223. On the instance of the third event, Appellant again testified that though he had been drinking he was able to function. Id. at 230-31. Appellant never testified that inebriation played a role in his decision to assault the victims. The record is devoid of any other evidence that Appellant was significantly intoxicated[.]
The jury convicted Appellant of three counts of IDSI and three counts of sexual assault. Following its assessment, the Pennsylvania Sexual Offender Assessment Board ("SOAB") recommended that Appellant be classified as a sexually violent predator ("SVP"). However, the trial court rejected SOAB's determination and concluded that Appellant did not meet the criteria of SVP classification. On January 4, 2017, the trial court imposed an aggregate sentence of thirteen and one-half to thirty years imprisonment. Specifically, for each of the three ISDI convictions, the trial court imposed four and one-half to ten years imprisonment. It found that the sexual assaults merged for the purpose of sentencing. This timely appeal followed the denial of Appellant's post-sentence motion seeking reconsideration of his sentence.
Appellant complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Rule 1925(b) statement raised three issues, which he consolidated on appeal as follows:
Is Appellant entitled to a vacating of sentence and a new hearing because the trial court (1) sentenced based upon a mistaken fact; (2) imposed a sentence beyond that sought by the prosecution with no basis under the sentencing code; and (3) sentenced appellant to 4.5 times the length of a pre-trial plea offer, thereby punishing him for exercising his Constitutional right to stand trial?Appellant's brief at 5.
As we observed in Commonwealth v. McLaine , 150 A.3d 70, 76 (Pa.Super. 2016) (cleaned up), "an appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right." Instead, to invoke our jurisdiction involving a challenge to the discretionary aspects of a sentence, an appellant must satisfy the following 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, 42 Pa.C.S.A. § 9781(b).Id.
Instantly, Appellant filed a timely appeal, and preserved his contentions in a post-sentence motion for reconsideration of sentence. Additionally, Appellant's Pa.R.A.P. 2119(f) statement raises three issues: 1) the trial court made factual errors by failing to consider his intoxication when focusing on the intentionality of his conduct; 2) the court failed to explain its reasons for imposing consecutive sentences that exceeded the Commonwealth's recommendation of eleven to twenty-two years imprisonment; and 3) the imposition of a sentence that dwarfed the Commonwealth's pretrial plea offer of three years imprisonment with RRRI and boot camp eligibility was tantamount to a penalty for exercising his right to trial. All three allegations can be deemed to present substantial questions. See Commonwealth v. McAfee , 849 A.2d 270, 274 (Pa.Super. 2004) ("claim that the trial court relied upon incorrect factual assertions when imposing sentence asserts a 'substantial question.'"); Commonwealth v. Simpson , 829 A.2d 334, 338 (Pa.Super. 2003) (trial court's failure to articulate sufficient reasons for the sentence imposed may raises a substantial question); and Commonwealth v. Bethea , 379 A.2d 102, 105 (Pa. 1977) ("it is constitutionally impermissible for a trial court to impose a more severe sentence because a defendant has chosen to stand trial rather than plead guilty.").
In McLaine , supra , this Court reiterated the relevant legal framework when addressing the merits of a challenge to the discretionary aspect of sentencing.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this 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, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.McLaine , supra at 75-76.
When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant's prior criminal record, age, personal characteristics and potential for rehabilitation.
In Commonwealth v. Walls , 926 A.2d 957 (Pa. 2007), our Supreme Court noted that this Court's ability to review a sentence is constrained by 42 Pa.C.S. § 9781(c). That statute provides that we can vacate a sentence and remand for re-sentencing only if we find: 1) that the court intended to sentence within the guidelines but "applied the guidelines erroneously;" 2) a sentence was imposed within the guidelines "but the case involves circumstances where the application of the guidelines would be clearly unreasonable;" or 3) "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S. § 9781(c). "In all other cases the appellate court shall affirm the sentence imposed by the sentencing court." Id.
As the trial court imposed three consecutive standard range sentences for IDSI, we can reverse only if the trial court's application of the guidelines was clearly unreasonable. The Walls Court described unreasonable as follows: "'unreasonable' commonly connotes a decision that is 'irrational' or not guided by sound judgment." Id. at 963.
After a thorough review of the certified record, the parties' briefs and the pertinent law, we affirm the judgment of sentence on the basis of the cogent and well-reasoned opinion entered on April 21, 2017, by the distinguished President Judge Paul M. Yatron. Specifically, President Judge Yatron observed that the record does not support Appellant's claim that inebriation played a role in his decision to assault the victims on three separate occasions, particularly in light of Appellant's testimony that he was functional and understood his behavior. As to the Commonwealth's sentencing recommendation, President Judge Yatron highlighted that he was not obligated to follow the Commonwealth's suggestion and that his decision to impose consecutive standard range sentences was reasonable in light of the fact that the three individual crimes occurred separately over a fourteen-month period and warranted three distinct terms of incarceration. Finally, the esteemed jurist emphasized that, since he was not aware that Appellant had rejected the Commonwealth's generous pretrial offer when he fashioned Appellant's aggregate sentence, the record belies Appellant's argument that he was penalized for exercising his right to trial. As to all of the foregoing points, we adopt President Judge Yatron's reasoning as our own.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/15/2018
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