Com. v. Archacki, M.

J-A11010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MICHAEL ANDREW ARCHACKI

Appellant No. 1261 MDA 2017

Appeal from the Judgment of Sentence imposed July 7, 2017

In the Court of Common Pleas of Lancaster County

Criminal Division at Nos: CP-36-CR-0000499-2012; CP-36-CR-0004537-

2011; CP-36-CR-0004536-2011; CP-36-CR-0004527-2011

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2018

Appellant, Michael Andrew Archacki, appeals from the judgment of

sentence the Court of Common Pleas of Lancaster County imposed on July 7,

2017. Specifically, Appellant challenges the discretionary aspects of his

sentence. For the reasons stated below, we affirm.

The underlying facts are not at issue here. The trial court summarized

the procedural history of the case as follows:

[Appellant] was originally sentenced on September 19, 2012,

after a jury trial, of one count of indecent assault-unconscious

victim, two counts of indecent assault person less than 16 years

age, three counts of corruption of minors, one count of indecent

assault-unconscious victim, one count of rape by forcible

compulsion, one count of involuntary deviate sexual intercourse

person less than 16 years of age, three counts of aggravated

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* Retired Senior Judge assigned to the Superior Court.

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assault person less than 16 years of age, one count of statutory

sexual assault, one count of unlawful contact with minors, two

counts of aggravated indecent assault, three counts of

photographing/filming sex acts with a child under 18, three counts

of indecent assault person less than 13 years of age, one count of

involuntary deviate sexual intercourse with a child, and two counts

of corruption of minors-defendant age 18 or above.

On December 19, 2012, after a pre-sentence investigation, he was

sentenced to an aggregate sentence of 32½-65 years in prison.[1]

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1 The instant appeal pertains to four criminal dockets: 4527-2011, involving a

12-years old female (ten counts); 4536-2011, involving a 13-years old female

(three counts); 4537-2011, involving a 13-years old female (three counts);

and, 499-2012, involving a 14-years old female (eight counts). Following his

convictions, Appellant was sentenced as follows:

 Docket number 4527-2011: Appellant was sentenced to 10 to 20 years’

incarceration at count 1, and all other sentences imposed at the

remaining counts (counts 2 through 4, and 6 through 11) were imposed

to run concurrently with count 1 of the same docket.

 Docket number 4536-2011: count 1, 9 to 18 months’ imprisonment, to

run consecutively to sentence at count 1 of docket number 4527-2011,

and all other sentences imposed on the remaining counts (2 and 3) of

docket number 4536-2011 were imposed concurrent with count 1 of the

same docket.

 Docket number 4537-2011: counts 1 and 2 to run concurrently with

sentences imposed at docket number 4536-2011; sentence imposed at

count 3 (9 to 18 months’ imprisonment) to run consecutively to the

sentences imposed a 4536-2011.

 Docket number 499-2012: count 1, 10 to 20 years’ imprisonment to be

served consecutively to sentences imposed at 4536-2011, sentence

imposed at counts 2 and 3 ran concurrently with sentence at count 1 of

docket number 499-2012, count 4, the court imposed 5 to 10 years’

imprisonment to run consecutively to sentence imposed on count 1 of

docket number 499-2012, sentences imposed at count 5, 6 and 7, to

run concurrently with sentence imposed at the same docket, and

sentence imposed at count 8 (6 to 12 years’ imprisonment) to run

consecutively to sentence imposed at count 4 of the same docket.

See N.T. Sentencing, 12/19/12, at 29-32.

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[Appellant] appealed from the judgment of sentence to the

Superior Court. The Superior Court affirmed the judgment of

sentence in part and vacated [the] judgment of sentence in part,

and the case was remanded for resentencing on April 4, 2012.[2]

On May [2], 2014, [Appellant] was resentenced to an aggregate

sentence of 29½-65 years in prison.[3] Pursuant to a change in

the law that made the mandatory minimums on [Appellant]’s

original sentence unconstitutional, [Appellant] was resentenced

on July 7, 2017 to an aggregate sentence of 29½-59 years in

prison. [This appeal followed.4]

Trial Court Opinion, 10/13/17, at 1-2 (some capitalization, citations, and

footnotes omitted).

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2 See Commonwealth v. Archacki, 223 MDA 2013, unpublished

memorandum (Pa. Super. filed April 4, 2014). On appeal, we found that the

sentencing court miscalculated the applicable offense gravity score in

connection with count 8 of docket number 499-2012, and that it improperly

applied a mandatory minimum sentence in connection with counts 4, 5 and 6

of the same docket.

3 At the May 2, 2014 resentencing, the sentencing court imposed the same

sentences originally imposed in connection with counts 1, 2, 3, 7 and 8. On

count 4, Appellant was sentenced to three to ten years’ incarceration to be

served consecutively to the sentence imposed at count 1. Similarly, the court

imposed three to ten years at counts 5 and 6 to be served concurrently with

each other and concurrently with the sentence imposed at count 1.

4 Under the new sentencing scheme, the sentence imposed at count 8 of

docket number 4527-2011 now runs consecutively to the sentence imposed

at count 1 of 4527-2011; sentence imposed at count 1 of docket number

4536-2011 now runs consecutively to sentence at count 1 of docket 4527-

2011, counts 2-3 of the same docket run concurrently with each other and

concurrently with sentence imposed at count 1 of 4536-2011; and, finally,

the sentence imposed at count 1 at docket number 499-2012 now runs

consecutively to count 1 at docket number 4536-2011. N.T. Resentencing,

7/7/17, at 52-56.

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Appellant argues that the most recent sentence was excessive because

(1) the imposition of consecutive sentences was not warranted; (2) the

sentencing court improperly penalized Appellant for exercising his right not to

testify, and (3) the sentencing court failed to give individualized consideration

to Appellant’s personal history, rehabilitative needs and protection of

community. Appellant’s Brief at 4.

The issue raised on appeal, namely, excessiveness of sentence, involves

the discretionary aspects of Appellant’s sentence. See, e.g.,

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008). “In

reviewing a challenge to the discretionary aspects of sentencing, we evaluate

the court’s decision under an abuse of discretion standard. Additionally, this

Court’s review of the discretionary aspects of a sentence is confined by the

statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).” Commonwealth

v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (quotation marks and

citations omitted).5

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5 Section 9781(c) directs:

The appellate court shall vacate the sentence and remand the case

to the sentencing court with instructions if it finds:

(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 where the

application of the guidelines would be clearly unreasonable; or

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Additionally, because challenges to the discretionary aspects do not

entitle an appellant to appellate review as of right, an appellant challenging

the discretionary aspects of his sentence must invoke this Court’s jurisdiction

by satisfying a four-part test to determine: 1) whether the appellant has filed

a timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether the

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

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(3) the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence

imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

Section 9781(d) directs that the appellate court, in reviewing the record, shall

have regard for:

(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.

42 Pa.C.S.A. § 9781(d).

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Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 169-70

(Pa. Super. 2010).

For the sake of this appeal, we assume the first three requirements for

our review of the discretionary aspects of his sentence were met. Thus, we

will focus our attention on whether the issues raised qualify as a “substantial

question”6 for our review.

Appellant argues that the sentencing court on resentencing imposed

essentially the same sentence it imposed originally (lengthwise), the only

difference being that some counts that previously ran concurrently now run

consecutively. Appellant avers that no additional facts were adduced at the

resentencing hearing that would justify the imposition of consecutive

sentences. The claim is without merit.

Generally, the imposition of consecutive sentences is not viewed as

raising a substantial question. See, e.g., Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010). It might be ‘substantial’

where the “sentencing court sentenced within the sentencing guidelines but

the case involves circumstances where the application of the guidelines would

be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). It is not the case here.

____________________________________________

6 A substantial question will be found where an appellant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

which underlie the sentencing process. “At a minimum, the Rule 2119(f)

statement must articulate what particular provision of the code is violated,

what fundamental norms the sentence violates, and the manner in which it

violates that norm.” Commonwealth v. Mastromarino, 2 A.3d 581, 585–

86 (Pa. Super. 2010) (citation omitted).

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In his brief, Appellant argues that keeping the original structure of the

sentence (which, as noted, ran some counts concurrently, as opposed to

consecutively) would have resulted in a substantial amount of time in prison

(approximately 17 years). Under the new sentence (which runs some counts

consecutively, as opposed to concurrently), Appellant will be in prison for at

least 29½ years, and he will be almost 73 years old upon completion of his

minimum sentence. Appellant is essentially asking for a discount on the

aggregate sentence based on his current age and that 17 years in prison is

enough, but fails to show us what specific provision of the sentencing code is

violated, what fundamental norms the sentence violates, or the manner in

which his sentence violates that norm. Appellant is silent on these very crucial

matters.

Additionally, regarding the imposition of consecutive sentences, it is well

established that “the imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en

banc), appeal denied, 75 A.3d 1281 (Pa. 2013) (emphasis added).

A review of Appellant’s argument and the record does not reveal

anything that could suggest the aggregate sentence imposed is unduly harsh,

considering the nature of the crimes and length of imprisonment. Indeed, the

trial court sentenced Appellant to standard range sentences, and Appellant

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failed to provide any evidence supporting a claim for undue harshness.

Therefore, Appellant has failed to raise a substantial question for our review.

See Lamonda, supra.

Even if we were to find that Appellant has presented a substantial

question, we note that a review of the record shows that the trial court

considered the nature of the crime, Appellant’s personal history and

rehabilitative needs, the protection of the community, and all other relevant

circumstances in fashioning his sentence, and there is nothing in the record

that would suggest an abuse of discretion by the sentencing court. Thus, even

if we had reached the merits of the issue, we would find the trial court did not

abuse its discretion. See Commonwealth v. Downing, 990 A.2d 788, 792-

93 (Pa. Super. 2010) (“Sentencing is vested in the discretion of the trial court

and will not be disturbed absent a manifest abuse of that discretion”) (citation

omitted).

Appellant next contends that the sentencing court improperly penalized

him by inferring lack of remorse from the fact he did not testify or address the

court. Assuming the claim raises a substantial question for our review, a

review of the record belies the claim. The sentencing court addressed the

claim as follows:

[The sentencing court’s] comments about [Appellant]’s lack of

remorse were not based on his exercise of his [F]ifth

[A]mendment rights. Rather, the [sentencing c]ourt noted, based

on its own observations during the resentencing hearing, that:

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during all of the testimony that was presented by the

victims or their family members this morning that

your demeanor didn’t change [but when your family

members came up here it was obvious to me that you

did display some emotion].

I don’t believe for one minute that you’re ever going

to feel any particular remorse for the damage that you

caused to the victims in this case or to their family

members.

[N.T. Resentencing Hearing, 7/7/17, at 50-51].

The [sentencing court] also noted the incalculable impact

[Appellant]’s crimes had on the victims in this case, their

family members, and the community, and the impact it still

has nearly five years later.

Trial Court Opinion, 10/13/17, at 4 (unnumbered).

We agree with the sentencing court that the comment it made about

lack of remorse had nothing to do with Appellant’s exercise of his

constitutional rights. The sentencing court specifically mentioned that its

comments were based on its observation of Appellant’s demeanor throughout

the proceeding. It is well-established that “when reviewing sentencing

matters, we must accord the sentencing court great weight as it is in the best

position to view the defendant’s character, displays of remorse, defiance or

indifference, and the overall effect and nature of the crime.” Commonwealth

v. Hanson, 856 A.2d 1254, 1260 (Pa. Super. 2004). Nothing in the record

would suggest that the sentencing court’s assessment of Appellant’s lack of

remorse was based on anything other than its own observations of Appellant’s

demeanor.

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Appellant relies on Commonwealth v Bowen, 975 A.2d 1120 (Pa.

Super. 2009), to support his claim that the sentencing court improperly

weighed Appellant’s silence at the resentencing hearing. Reliance on Bowen

is, however, misplaced. In Bowen, as acknowledged by Appellant, “the trial

court improperly cited the defendant’s failure to take responsibility, specifically

referencing that the jury convicted him of the crimes.” Appellant’s Brief at 30.

This is not the case here. Indeed, Appellant acknowledged that “the

Sentencing Court did not reference the jury finding Appellant guilty of the

crimes charged as the sentencing court [did] in Bowen.” Id. “As to the

defendant’s lack of remorse, the Bowen Court concluded that ‘silence at

sentencing may not constitute the only factor relied upon to find lack of

remorse[.]’” Id. Instantly, the sentencing court’s finding of lack of remorse,

was not based on Appellant’s silence. Rather, as the record shows, it was

based on the sentencing court’s observation of Appellant’s demeanor

throughout the proceedings.

Aware that the instant matter is easily distinguishable from the Bowen

case, Appellant relies on comments the sentencing court made at the time of

his first sentencing (in 2012). It is worth noting that the instant appeal

pertains to the 2017 resentencing, not the 2012 or the 2014 sentencings.

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Nowhere does Appellant explain how comments made in 2012 become

relevant to understand what the sentencing court stated or did in 2017.7

Finally, Appellant argues that the sentencing court did not account for

“Appellant’s personal history and background, rehabilitative needs and the

protection of the community.” Appellant’s Brief at 24. 8 The record clearly

shows otherwise.

The record shows that the sentencing court was fully aware of the crimes

of which Appellant was convicted, the information contained in the PSI, and

the applicable guidelines. Additionally, the judge read the letters written on

behalf of Appellant, heard the testimony of all the witnesses the parties

presented at the sentencing hearing, and heard argument made by both

counsel. Thus, it is clear that the sentencing court considered of all the above,

including, all the good things Appellant did prior to the criminal charges and

while incarcerated. Addressing Appellant, the sentencing court, noted, “It’s

hard sometimes to reconcile the things that I hear from both sides in cases

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7 At the 2017 resentencing hearing, the sentencing court stated that “the

record from the [sentencing] proceedings of December 19th of 2012 and also

from May 2nd of 2014 are incorporated in the record of [the instant]

proceedings.” N.T. Resentencing, 7/7/17, at 5. It appears the incorporation

was limited to the pre-sentence investigation report (PSI) (which remained

unchanged), Appellant’s SVP determination, and the notification requirements

under the Sex Offender Registration and Notification Act, SORNA. Id.

8 Despite the broad language, Appellant’s argument focuses on the alleged

sentencing court’s failure to give more weight to the good things Appellant’s

relatives mentioned at the time of resentencing. Appellant’s Brief at 24-25.

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like this; and this is another perfect example of it, because it’s clear that

you’ve done numerous things in your life that were selfless and helpful to

other people.” N.T. Resentencing, 7/7/17, at 51. The sentencing court also

noted:

But it’s often been said that a man’s true character is revealed in

those moments when he thinks no one is watching, and I think

that what happened in this case is a revelation or indication of

your character.

You didn’t think anybody was ever going to say anything about

this, and I am sure you thought, even if they did, nobody would

believe those young girls. And I think I’ve said this before in this

case, but you were sadly mistaken when it came to that.

Id. at 51-52.

Moreover, as previously mentioned, the sentencing court additionally

noted the incalculable impact Appellant’s crimes had on the victims in this

case, their family members, and the community, and the impact it still has

several years later.

The record shows, therefore, that the sentencing court considered all

the relevant circumstances, including those highlighted by Appellant, but

decided to weigh them not as favorably as Appellant wished. This falls short

of showing an abuse of discretion by the sentencing court. See

Commonwealth v. Raven, 97 A.3d 1244, 1253–55 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014) (holding sentence not manifestly

unreasonable where sentencing court reviewed PSI, heard testimony on behalf

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of defendant, and reviewed letters and victim impact statements, thus

showing court had considered all mitigating information).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/18/2018

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