Opinion
J-S01036-18 No. 1070 MDA 2017
04-06-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. RICHARD SCOTT LENHART Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 4, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001771-2014 BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Richard Scott Lenhart, appeals nunc pro tunc from the judgment of sentence entered in the Centre County Court of Common Pleas, following his nolo contendere plea to two counts each of indecent assault and insurance fraud. We affirm.
18 Pa.C.S.A. §§ 3126(a)(1), 4117(a)(2), respectively.
The relevant facts and procedural history of this case are as follows. Over the course of seventeen years, Appellant, a practicing psychologist, engaged in sexual behavior with two of his patients under the guise that the sexual contact was legitimate psychotherapeutic treatment. Appellant routinely billed insurance for these sessions.
On May 19, 2015, Appellant entered a nolo contendere plea to two counts each of indecent assault and insurance fraud. On February 4, 2016, with the benefit of a pre-sentence investigation report ("PSI"), the court ordered Appellant to pay restitution to the insurance company in the amount of $71,557.00, and sentenced him to an aggregate term of three (3) to six (6) years' incarceration. The court also adjudicated Appellant a Tier III sex offender and a sexually violent predator ("SVP") under the Sex Offender Registration and Notification Act ("SORNA") in effect at that time. On Monday, March 7, 2016, Appellant timely filed a notice of appeal. While the appeal was pending, Appellant filed a pro se petition pursuant to the Post-Conviction Relief Act ("PCRA") on April 4, 2016, which the court dismissed as premature on April 7, 2016. On August 11, 2016, this Court dismissed Appellant's appeal for failure to file a brief.
SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on December 20, 2012, after the commission of Appellant's sex offenses against his patients, which occurred up to November 2011. SORNA replaced Megan's Law as the statute governing the registration and supervision of sex offenders. SORNA was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018.
Appellant filed a timely PCRA petition on March 9, 2017, which sought to reinstate his post-sentence motion and direct appeal rights nunc pro tunc. The PCRA court held a hearing on June 1, 2017. The following day, the PCRA granted relief and reinstated Appellant's post-sentence motion and direct appeal rights nunc pro tunc. Appellant timely filed a post-sentence motion on June 8, 2017. On July 3, 2017, the court held a hearing, granted the motion in part, and denied it in part. The court vacated Appellant's SVP designation to allow Appellant to hire an expert to challenge SVP status; the court stayed SVP proceedings until after the present appeal is resolved. Appellant timely filed a notice of appeal on July 6, 2017. The next day, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on July 17, 2017.
If the court chooses to carry out further SVP proceedings in this case, it must first consider the new law decided during the pendency of Appellant's appeal. See , e.g., Commonwealth v. Muniz , ___ Pa. ___, 164 A.3d 1189 (2017) and Commonwealth v. Butler , 173 A.3d 1212 (Pa.Super. 2017). Likewise, the court must be cognizant of which version of Megan's Law applies to Appellant. Appellant shall also have the opportunity to raise, develop, argue, and preserve any constitutional challenges he might have to the SVP process and to his registration/reporting requirements as a sex offender.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION IN IMPOSING MINIMUM SENTENCES WITHIN AND ABOVE THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES WHERE THE RECORD DID NOT SUPPORT AGGRAVATING CIRCUMSTANCES OR REASONS TO DEPART FROM THE GUIDELINES[?](Appellant's Brief at 5).
Appellant argues he had no prior record and cannot abuse his position of authority as a psychologist anymore, due to the revocation of his license and his conviction for a registerable offense. Yet, the court sentenced Appellant to an aggregate sentence of three to six years' incarceration, including consecutive, aggravated range or above the aggravated range sentences, which were unsupported by legitimate factors, the court's reasons, or the record. Appellant complains the number of counts charged against him adequately addressed the number of victims, and their vulnerability was sufficiently addressed in the acknowledgment that the offensive conduct was nonconsensual. Appellant submits his commission of these offenses while he also committed insurance fraud was adequately addressed by the consecutive nature of the sentences imposed. Appellant concedes the possibility of consecutive sentences, based on the number of counts he pled guilty to, but he insists the court cannot then use the same factors (number of victims or insurance remuneration) to justify any departure from the standard sentencing guidelines. Appellant concludes the sentence imposed was excessive, violates the Sentencing Code and sentencing norms, and raises a substantial sentencing question. As presented, Appellant challenges the discretionary aspects of sentencing. See Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003) (stating claim that court considered "improper factors" at sentencing refers to discretionary aspects of sentencing); Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive refers to discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentencing court failed to consider or did not adequately consider certain factors refers to discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct 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, 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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 a.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams , 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in original) (internal quotation marks omitted).
"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Anderson , 830 A.2d 1013, 1018 (Pa.Super. 2003). 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." Sierra , supra at 912-13. When considering whether an appellant has raised a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich , 903 A.2d 1247 (Pa.Super. 2006). Rather, the appellant must articulate how the sentencing court's actions violated the sentencing code. Id.
"Generally, Pennsylvania law 'affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.'" Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa.Super. 2011) (quoting Commonwealth v. Pass , 914 A.2d 442, 446-47 (Pa.Super. 2006)). A basic "allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate." Cruz-Centeno , supra at 545. See also Commonwealth v. Foust , 2018 WL 988904, at *13 (filed February 21, 2018) (regarding mere challenge to imposition of concurrent versus consecutive sentences, "extensive case law in this jurisdiction holds that defendants convicted of multiple offenses are not entitled to a 'volume discount' on their aggregate sentence").
On the other hand, an appellant raises a substantial question when he alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances. Commonwealth v. Felmlee , 828 A.2d 1105 (Pa.Super. 2003) (en banc). Also, "claims that a penalty is excessive and/or disproportionate to the offense can raise substantial questions." Malovich , supra at 1253. Likewise, a substantial question exists when a defendant alleges the sentencing court considered impermissible factors when imposing an aggravated range sentence. Commonwealth v. Stewart , 867 A.2d 589, 592 (Pa.Super. 2005). An allegation that the sentencing court provided inadequate reasons on the record for imposing a sentence above the standard range also constitutes a substantial question. Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa.Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000).
"When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant [and], of course, the court must consider the sentencing guidelines." Commonwealth v. Fullin , 892 A.2d 843, 847-48 (Pa.Super. 2006). A sentencing court may consider any legal factor in imposing an aggravated range sentence. Commonwealth v. Bowen , 975 A.2d 1120, 1122 (Pa.Super. 2009). One legal factor is evidence of uncharged criminal conduct. See Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa.Super. 2006), appeal denied, 588 Pa. 780, 906 A.2d 542 (2006). Provided there is an appropriate evidentiary link between the uncharged conduct and the defendant, the court may consider the conduct as relevant to the "protection of the public" sentencing factor. See id. See also 204 Pa.Code § 303.5(d) (stating sentencing court may consider "previous convictions, juvenile adjudications or dispositions not counted in the calculation of the Prior Record Score, in addition to other factors deemed appropriate by the court") (emphasis added). The "court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
Our standard of review concerning the discretionary aspects of sentencing states:
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.Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). "[U]nder the Sentencing Code an appellate court is to exercise its judgment in reviewing a sentence outside the sentencing guidelines to assess whether the sentencing court imposed a sentence that is 'unreasonable.'" Commonwealth v. Walls , 592 Pa. 557, 568, 926 A.2d 957, 963 (2007). In making this "unreasonableness" inquiry, this Court must consider four factors:
§ 9781. Appellate review of sentence
* * *
(d) Review of record.—In reviewing the record the appellate court shall have regard for:
42 Pa.C.S.A. § 9781(d)(1)-(4). Our Supreme Court explained, "the concept of unreasonableness" is "inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition." Walls , supra at 568, 926 A.2d at 963.(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.
(4) The guidelines promulgated by the commission.
Where the sentencing court had the benefit of a PSI, we can assume the sentencing court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also Commonwealth v. Tirado , 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has benefit of PSI, then we can expect that court was aware of relevant information regarding defendant's character and weighed those considerations along with any mitigating factors).
Instantly, Appellant preserved his sentencing claims in his post-sentence motion and generally in his Rule 1925(b) statement. He also included a Rule 2119(f) statement in his brief that articulated his claims regarding the court's application of the sentencing guidelines, the court's use of "improper factors," and the adequacy of the court's reasons for the sentence imposed. We agree with the Commonwealth that Appellant has raised substantial sentencing questions.
Nevertheless, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jonathan D. Grine, we conclude the record belies Appellant claims, which in turn merit no relief. The trial court opinion comprehensively discusses and properly disposes of the complaints raised. ( See Trial Court Opinion, filed August 4, 2017, at 2-7) (finding: at sentencing, court stated it imposed sentence, based on consideration of minimum amount of confinement consistent with public protection, gravity of offenses, and rehabilitative needs of Appellant; court reviewed PSI and letters submitted on behalf of Appellant; court also considered circumstances of particular offenses, Appellant's character and education, and sentencing guidelines; Appellant abandoned all professional ethics when he engaged in sex acts with his highly vulnerable patients for seventeen years, failed to stop on his own, and isolated himself from other professionals and support people who warned him to stop; Appellant was unable to accept that his conduct was wrong; court considered Victim N.M.'s impact statement and Victim A.M.'s allegations; court explained on record it imposed sentences outside standard range on both indecent assault charges, in light of Appellant's monstrous offenses against his victims, whom he exploited and intimidated mentally and physically over long periods of time for Appellant's own sexual gratification, and court's belief Appellant is poor candidate for rehabilitation; court explained on record it imposed aggravated range sentences for insurance fraud offenses because Appellant systematically sought and received financial gain from his victimization of his patients; court properly fashioned aggregate sentence for Appellant under these circumstances). We agree. Here, the sentencing court considered the particularly heinous specifics of the offenses, which Appellant perpetrated for many years while he occupied a position of trust, as well as his character and lack of remorse. We cannot fault the manner in which the court did so in this case. Therefore, we refuse to supplant the court's discretion on the grounds alleged. See Griffin , supra. See also Walls , supra. Accordingly we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/6/2018
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