Com. v. Morgan, R.

J-S29034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RONALD SCOTT MORGAN :

:

Appellant : No. 185 WDA 2022

Appeal from the Judgment of Sentence Entered January 18, 2022

In the Court of Common Pleas of Butler County Criminal Division at

No(s): CP-10-CR-0000991-2011

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: DECEMBER 21, 2022

Appellant, Ronald Scott Morgan, appeals from the judgment of sentence

imposing an aggregate term of imprisonment of 182 to 364 months following

his conviction of numerous sexual and drug offenses. Appellant argues on

appeal that (1) the trial court abused its discretion by imposing the same

sentence that had previously been imposed and vacated on appeal, and (2)

his designation as a sexually violent predator (“SVP”) was unconstitutional.

Upon careful review, we affirm the judgment of sentence.

This Court has previously set forth the background of this case:

In May 2013, a jury convicted Appellant of one count each of

Possession of a Controlled Substance, Possession of a Small

Amount of Marijuana, Statutory Sexual Assault, Aggravated

Indecent Assault, Indecent Assault, Endangering the Welfare of

Children, and Corruption of Minors; two counts each of

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S29034-22

Involuntary Deviate Sexual Intercourse (“IDSI”); and 104 counts

each of Sexual Abuse of Children (Photographing, Videotaping,

Depicting on Computer or Filming Sexual Acts) and Sexual Abuse

of Children (Child Pornography).1 The court sentenced Appellant

to an aggregate term of 182 to 364 months of imprisonment.2

After a hearing, the court also designated him an SVP and lifetime

registrant under The Sexual Offender Registration and Notification

Act (“SORNA”). Appellant timely appealed, but this Court denied

relief. See Commonwealth v. Morgan, 135 A.3d 661 (Pa.

Super. 2015) (unpublished memorandum).

1 35 P.S. §§ 780-113(a)(16) and (a)(31), 18 Pa.C.S. §§

3122.1, 3125(a)(8), 3126(a)(8), 4304(a)(1), 6301(a)(1),

3123(a)(7), 6312(b), and 6312(d), respectively.

2 Specifically, the court sentenced Appellant to the

mandatory minimum sentence of ten to twenty years of

imprisonment for each count of IDSI, set to run concurrently

to each other; a concurrent term of one to two years of

imprisonment for Statutory Sexual Assault; a consecutive

term of 36 to 72 months of imprisonment for Aggravated

Indecent Assault; fourteen to twenty-eight months of

imprisonment for each count of Sexual Abuse of Children

(Photographing), set to run concurrently to each other and

consecutively to the sentences imposed at the first count of

IDSI and Aggravated Indecent Assault; a consecutive term

of one to two years of imprisonment for Endangering the

Welfare of Children; a concurrent term of nine to eighteen

months of imprisonment for Corruption of Minors, and guilty

without further penalty at the remaining counts.

On January 12, 2017, Appellant timely sought collateral relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. [§§

9541-9546], challenging the legality of his sentence and the

effective assistance of counsel. Following a hearing, the PCRA

court entered an order on May 21, 2018, partially granted the

petition and vacated Appellant’s sentence because the mandatory

minimum sentences imposed at the two IDSI convictions were

illegal in light of Alleyne v. United States, 570 U.S. 99, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013). The PCRA court denied the

petition in all other respects. Appellant timely appealed, but this

Court denied relief. See Commonwealth v. Morgan, 221 A.3d

1228 (Pa. Super. 2019) (unpublished memorandum).

-2-

J-S29034-22

On March 6, 2020, the court held a resentencing hearing and

imposed the same aggregate sentence of 182 to 364 months of

imprisonment.4

4 Specifically, instead of imposing the prior mandatory

minimum sentence of ten to twenty years of imprisonment

at each count of IDSI to run concurrent to each other as in

the original sentence, the court imposed consecutive

standard-range sentences of five to ten years of

imprisonment at each count, for a total aggregate sentence

of ten to twenty years of imprisonment for the two IDSI

counts. The court reimposed the original sentences at the

remaining counts, resulting in the same aggregate

sentence. The court did not disturb Appellant’s SVP

designation.

Commonwealth v. Morgan, 258 A.3d 1147, 1149-50 (Pa. Super. 2021)

(footnote 3 omitted).

In his most recent appeal, Appellant argued that his SVP designation

violated his right to reputation under Article I, Section 1 of the Pennsylvania

Constitution. We rejected this argument, holding that “SVP designations

under Subchapter I of SORNA II[1] are constitutional and do not violate the

right to reputation under Pennsylvania’s constitution.” Id. at 1157.

Appellant also argued in his prior appeal that the trial court abused its

discretion when resentencing him on March 6, 2020 as it imposed the same

sentence originally imposed on February 19, 2014. We found this argument

persuasive, noting that the trial court was not in possession of an updated

____________________________________________

1 Following 2018 amendments to the SORNA statute (“SORNA II”), Appellant

is subject to registration requirements set forth in Subchapter I of SORNA II

because his offenses were committed prior to the original effective date of

SORNA, December 20, 2012. Morgan, 258 A.3d at 1151-52.

-3-

J-S29034-22

pre-sentence investigative report (“PSI”) at his 2020 resentencing hearing nor

did it receive any information pertaining to Appellant’s conduct after he began

serving his sentence in 2014. Id. at 1158. In addition, we cited the fact that

the trial court did not explain why it was appropriate to impose the same

aggregate sentences on the two IDSI counts in 2020 as in the original

sentence, when the court had stated at the original sentencing hearing that it

was directing the two IDSI mandatory minimum sentences to run concurrently

to give Appellant the shortest possible sentence. Id. at 1158-59.

We therefore vacated Appellant’s sentence on the basis that “the

sentencing court did not ‘start afresh’ but instead mechanically reimposed the

same aggregate sentence without explanation as to why such a sentence was

individualized to Appellant and without consideration of his conduct over the

preceding six years.” Id. at 1159 (quoting Commonwealth v. Jones, 640

A.2d 914, 920 (Pa. Super. 1994)). On remand, we directed that “the

sentencing court ‘should start afresh’ and ‘reassess the penalty to be imposed’

upon Appellant.” Id. (quoting Jones, 640 A.2d at 919-20).

Following remand, a resentencing hearing was held on November 1,

2021 before the Honorable William R. Shaffer, who had presided over

Appellant’s trial and prior sentencings. On November 2, 2021, an order was

filed that “re-affirmed [the March 6, 2020 sentence] with credit for time-

served from May 22, 2013.” Order, 11/2/21. Appellant filed a timely post-

sentence motion seeking the vacatur of his sentence and the recusal of Judge

Shaffer for resentencing. On November 9, 2021, Judge Shaffer granted

-4-

J-S29034-22

Appellant his requested relief by vacating the sentence, recusing himself, and

reassigning the matter to the Honorable Timothy F. McCune.

A sentencing hearing was held before Judge McCune on January 18,

2022. On that same date, Judge McCune imposed the same aggregate term

of 182 to 364 months of imprisonment as had been imposed in the prior

judgments of sentence.2 Appellant filed a post-sentence motion, which the

court denied on January 21, 2022. Appellant then filed this appeal.3

Appellant raises the following issues on appeal:

I. Whether the trial court erred or abused its discretion when it

resentenced Appellant to the same sentence as previously

imposed before and vacated following the Superior Court’s

remand for resentencing?

II. Whether the sexually violent predator (SVP) designation as

provided under Pennsylvania’s Sexual Offender Registration and

Notification Act (SORNA) is unconstitutional because it violates

Appellant’s fundamental right to protect his reputation as secured

by Article 1, Section 1 of the Pennsylvania Constitution?

Appellant’s Brief at 15 (trial court disposition and unnecessary capitalization

omitted).

____________________________________________

2 The sentence consisted of two consecutive 60-to-120-month sentences on

the two IDSI counts; a consecutive term of 36 to 72 months for aggravated

indecent assault; a consecutive term of 12 to 24 months for endangering the

welfare of children; and 14 to 28 months for each count of sexual abuse of

children (photographing) to run concurrently with each other but consecutive

to the remaining sentences discussed above. Concurrent terms of

imprisonment were also imposed for statutory sexual assault and corruption

of minors.

3 Appellant filed his concise statement of errors on appeal as directed by the

trial court on February 18, 2022. The trial court filed its Pa.R.A.P. 1925(a)

opinion on March 16, 2022.

-5-

J-S29034-22

Appellant first argues that the trial court “mechanically reimposed” the

same illegal 10-year mandatory minimum for IDSI that was initially ruled

unconstitutional pursuant to Alleyne but the court “simply disguis[ed]” the

new sentence as two consecutive 5-to-10-year sentences. Appellant’s Brief

at 38, 47; see also Morgan, 258 A.3d at 1159. Appellant contends that the

lower court did not “start afresh” on resentencing as directed by this Court,

Morgan, 258 A.3d at 1159 (citation omitted), but instead “it merely

reimposed the very same vacated sentence before attempting to place enough

on the record to justify” the sentence. Appellant’s Brief at 39. Appellant

asserts that the latest sentencing of Appellant was deficient because the court

failed to properly consider the sentencing factors set forth at Sections 9721(b)

and 9725 of the Sentencing Code, 42 Pa.C.S. §§ 9721(b), 9725, and that the

court also failed to take account of Appellant’s lack of any prior criminal record.

Appellant thus contends that his sentence “violate[d] several principles of

individualized sentencing,” as the trial court did not consider his rehabilitative

needs or fashion the least-restrictive sentence that would still adequately

protect the public. Appellant’s Brief at 44.

Appellant further argues that the January 18, 2022 judgment of

sentence “is verging on being vindictive,” as the trial court appears set on

imposing the same aggregate sentence no matter how many times this Court

vacates and remands. Id. at 40. Appellant avers that the trial court’s

insistence on imposing the same sentence in spite of our rulings to the

-6-

J-S29034-22

contrary may require the remedy of recusal of the Court of Common Pleas of

Butler County on remand.

Initially, we note that, while Appellant argues that his aggregate

sentence of 182 to 364 months’ imprisonment “is verging on being vindictive,”

id., the sentence under review is not in fact “vindictive” as that term is

understood by the courts of this Commonwealth. A claim that a reimposed

sentence was vindictive is a challenge to the legality of the sentence that

implicates the due process clause of the United States Constitution.

Commonwealth v. Prinkey, 277 A.3d 554, 566-68 (Pa. 2022).

Vindictiveness is premised on the imposition of a more severe sentence at a

successive sentencing; thus, where the trial court at resentencing merely

adjusts the sentences on various counts in order to preserve the aggregate

term of imprisonment imposed in the original sentencing scheme, the new

sentence does not qualify as vindictive. See Commonwealth v. Rominger,

199 A.3d 964, 971 (Pa. Super. 2018); Commonwealth v. Barnes, 167 A.3d

110, 124-25 (Pa. Super. 2017) (en banc); Commonwealth v. McHale, 924

A.2d 664, 673 (Pa. Super. 2007), overruled on other grounds,

Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc). In

this case, because the original sentencing scheme has been preserved in the

judgment of sentence under appeal, he is not a victim of a vindictive sentence,

-7-

J-S29034-22

and there was no violation of his due process rights. Barnes, 167 A.3d at

125.4

Appellant’s remaining arguments implicate the discretionary aspects of

sentencing. A challenge to the discretionary aspect of a sentence is not

appealable as of right. Commonwealth v. Akhmedov, 216 A.3d 307, 328

(Pa. Super. 2019) (en banc).

Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by (1) filing a timely notice of

appeal; (2) properly preserving the issue at sentencing or in a

motion to reconsider and modify the sentence; (3) complying with

Pa.R.A.P. 2119(f), which requires a separate section of the brief

setting forth “a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a

sentence[;]” and (4) presenting a substantial question that the

sentence appealed from is not appropriate under the Sentencing

Code[.]

Id. (citation omitted). Only once the appellant has satisfied each of the four

requirements will we proceed to review the merits of the discretionary

sentencing issue. Id. at 328-29.

Here, Appellant filed a timely notice of appeal, preserved his sentencing

claims in his post-sentence motion, and included a separate Rule 2119(f)

statement within his appellate brief. We thus must address whether Appellant

has presented a substantial question that warrants our review. A substantial

question is present where the appellant advances an argument that the

____________________________________________

4 A presumption of vindictiveness also would not attach in this case because

the judgment of sentence presently before this Court was imposed by a

different judge than who had imposed the original sentences. See

Commonwealth v. Tapp, 997 A.2d 1201, 1205 (Pa. Super. 2010).

-8-

J-S29034-22

sentence was inconsistent with a specific provision of the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process. Id.

Appellant’s claims in his Rule 2119(f) statement that the court effectively

continued to sentence him based on an illegal mandatory minimum without

considering the Section 9721(b) or Section 9725 factors and without ordering

a new PSI raise a substantial question. Morgan, 258 A.3d at 1157 (finding

that these claims present a substantial question); see also Commonwealth

v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“[A]llegation that the trial court

imposed sentence without considering the requisite statutory factors or stating

adequate reasons for dispensing with a pre-sentence report [raises] a

substantial question.”) (citation omitted).

Our standard of review for a discretionary sentence challenge is as

follows:

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. Taylor, 277 A.3d 577, 592-93 (Pa. Super. 2022) (citation

omitted).

Furthermore, the “imposition of consecutive rather than concurrent

sentences lies within the sound discretion of the sentencing court.”

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2013) (citation

-9-

J-S29034-22

omitted). “In imposing a sentence, the trial judge may determine whether,

given the facts of a particular case, a sentence should run consecutive to or

concurrent with another sentence being imposed.” Commonwealth v.

Wright, 832 A.2d 1104, 1107 (Pa. Super. 2003).

Pursuant to Section 9725 of the Sentencing Code,

[t]he court shall impose a sentence of total confinement if, having

regard to the nature and circumstances of the crime and the

history, character, and condition of the defendant, it is of the

opinion that the total confinement of the defendant is necessary

because:

(1) there is undue risk that during a period of probation or

partial confinement the defendant will commit another

crime;

(2) the defendant is in need of correctional treatment that

can be provided most effectively by his commitment to an

institution; or

(3) a lesser sentence will depreciate the seriousness of the

crime of the defendant.

42 Pa.C.S. § 9725.

In addition, under Section 9721(b), a court must consider “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” 42 Pa.C.S. § 9721(b). Where the sentencing court has the

benefit of a PSI, we must presume that the court was aware of relevant

information regarding the defendant’s character and weighed those

considerations in light of the Section 9721(b) factors. Commonwealth v.

- 10 -

J-S29034-22

Knox, 165 A.3d 925, 930 (Pa. Super. 2017); Commonwealth v. Fowler,

893 A.2d 758, 767 (Pa. Super. 2006). As this Court has explained:

A pre-sentence report constitutes the record and speaks for itself.

In order to dispel 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. It would

be foolish, indeed, to take the position that if a court is in

possession of the facts, it will fail to apply them to the case at

hand.

Id. at 930-31 (citation omitted).

Here, while Appellant states in his brief that the trial court did not have

an updated PSI at his January 18, 2022 resentencing, this assertion is belied

by the record. The resentencing transcript makes clear that an updated PSI

was prepared that took into account Appellant’s post-incarceration conduct

and the revised report was referenced extensively at the hearing. N.T.,

1/18/22, at 2-3, 6-8, 10, 12-15. In addition, the trial court indicated that it

took the Section 9721(b) and 9725 factors into consideration when deciding

on Appellant’s sentence. Id. at 15, 18. Furthermore, the court stated that a

sentence of total confinement was appropriate under the third Section 9725

factor because “a lesser sentence will depreciate the seriousness of the crime

of the defendant.” Id. at 18 (quoting 42 Pa.C.S. § 9725(3)). Therefore, the

- 11 -

J-S29034-22

trial court discharged its obligation under Sections 9721(b) and 9725. 42

Pa.C.S. §§ 9721(b), 9725; Knox, 165 A.3d at 930; Fowler, 893 A.2d at 767.

In addition to the trial court’s consideration of the updated PSI and the

statutory sentencing factors, the trial court stated at the resentencing hearing

that it had reviewed the trial transcript and exhibits; the prior orders of the

trial court; the parties’ motions; our prior opinion remanding for resentencing;

and caselaw outlining a sentencing court’s obligations upon resentencing.

N.T., 1/18/22, at 6, 15. The court also considered the arguments of the

attorney for the Commonwealth and defense counsel and provided Appellant

with an opportunity to address the court. Id. at 2-6, 8-14. In imposing the

sentence, the trial court stated that consecutive sentences were appropriate

because the case involved an older man grooming a young minor girl for his

sexual pleasure over a long period of time and “each of the[] charges dealt

with separate actions and activities on the part of” Appellant. Id. at 16.

Upon review, we find no abuse of discretion by the trial court in its

January 18, 2022 resentencing of Appellant. The court adequately considered

the facts of Appellant’s crimes, the history of the case, the mitigating factors

as set forth in the PSI and by defense counsel at the sentencing hearing, and

the relevant provisions of the Sentencing Code. Appellant’s sentences fell

within the standard range of the sentencing guidelines, and Appellant has not

shown that the application of the guidelines to him was clearly unreasonable.

Id. at 3-4; see also 42 Pa.C.S. § 9781(c) (where sentence fell within

sentencing guidelines, appellate court should only vacate sentence if

- 12 -

J-S29034-22

application of guidelines would be clearly unreasonable). To the extent

Appellant challenges the imposition of consecutive sentences, the trial court

properly considered the fact that the crimes of which Appellant was convicted

involved multiple acts of abuse over a long period. See N.T., 1/18/22, at 16;

Wright, 832 A.2d at 1107.

Furthermore, we disagree with Appellant’s claim that his prior sentence

was “mechanically reimposed upon him.” Appellant’s Brief at 47. Although

we directed the trial court to “start afresh” and “reassess the penalty to be

imposed” upon Appellant, Morgan, 258 A.3d at 1159 (citation omitted), the

lower court was not required to ignore his prior sentences nor was it prohibited

from imposing the same sentence again. Indeed, we have held that

“preserving the integrity of a prior sentencing scheme” by resentencing a

defendant to the same aggregate sentence “is a legitimate sentencing

concern.” Barnes, 167 A.3d at 124. In this case, the trial court did not simply

defer to the prior sentencing order, but instead it conducted an independent

assessment of the record and made its own findings before determining

Appellant’s sentence. As the trial court acted within its discretion in imposing

Appellant’s new sentence, we conclude that Appellant has shown no basis for

relief on his discretionary sentencing claim.5

____________________________________________

5Appellant also finds fault with Judge McCune’s handling of the January 18,

2022 sentencing hearing to the extent he purportedly “took issue” with our

2021 opinion and dismissed as “hearsay upon hearsay” the fact that Appellant

had no misconducts during eight years of incarceration. Appellant’s Brief at

- 13 -

J-S29034-22

In his second issue, Appellant argues that his designation as an SVP

violates his right to reputation under Article I, Section 1 of the Pennsylvania

Constitution. This exact issue was addressed at length in our prior,

precedential opinion, in which we held that SVP designations under SORNA II

do not violate the right to reputation. Morgan, 258 A.3d at 1151-57. We

thus affirmed Appellant’s SVP designation, and we remanded to allow the trial

court to reassess the penalty to be imposed upon him but not for

reconsideration of his SVP status. Id. at 1159. The trial court stated at the

sentencing hearing that it was not addressing the SVP issue, and the

sentencing order does not mention Appellant’s SVP status. N.T., 1/18/22, at

19; Order, 1/19/22; see also Commonwealth v. Sepulveda, 144 A.3d

1270, 1280 n.19 (Pa. 2016) (“[I]t has long been the law in Pennsylvania that

following remand, a lower court is permitted to proceed only in accordance

with the remand order.”). Thus, Appellant has not identified any error with

respect to his SVP designation in the order currently under review.

____________________________________________

38, 43 (quoting N.T., 1/18/22, at 15). Both of these assertions misconstrue

the court’s statements at the sentencing hearing. First, Judge McCune did not

disagree entirely with our resolution of Appellant’s prior appeal but simply on

the issue of whether an updated PSI was available at the March 6, 2020

sentencing hearing; upon being advised by the attorney for the

Commonwealth that an updated PSI had not in fact been prepared for that

earlier hearing, the court acknowledged its error. N.T., 1/18/22, at 7-8.

Second, Judge McCune’s statement regarding “hearsay upon hearsay” did not

relate to Appellant’s prison disciplinary record but rather to Appellant’s

reasoning for not having completed sex offender counseling while in prison, a

factor that Judge McCune did not ultimately consider as a relevant factor for

resentencing. Id. at 14-15.

- 14 -

J-S29034-22

Furthermore, under the law of the case doctrine, we are bound by our

prior ruling that Appellant’s SVP designation does not violate Article I, Section

1 of our Constitution. See Zane v. Friends Hospital, 836 A.2d 25, 29 n.6

(Pa. 2003) (pursuant to the law of the case doctrine, “upon a second appeal,

an appellate court may not alter the resolution of a legal question previously

decided by the same appellate court”) (citation omitted). Appellant does not

identify any exceptional circumstances, such as an intervening change in the

law, that would require our departure from the law of the case doctrine. See

Commonwealth v. McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005)

(en banc). Therefore, as the trial court order from which Appellant appealed

does not reference his SVP designation and we could not, in any event, revisit

our prior ruling on the constitutionality of his SVP status due to the law of the

case doctrine, Appellant is entitled to no relief on this claim.6

Judgment of sentence affirmed.

____________________________________________

6 The Commonwealth argues that we should quash Appellant’s appeal in light

of the fact that we did not remand on the issue of his SVP designation, and he

did not file an application for reconsideration or a petition for allowance of

appeal from our 2021 decision. Commonwealth’s Brief at 16-17. However,

quashal of an appeal is appropriate only where the appellate court lacks

jurisdiction or otherwise cannot hear the appeal in the first instance. See In

re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007); Sahutsky v. H.H. Knoebel

Sons, 782 A.2d 996, 1001 n.3 (Pa. 2001). The appeal from Appellant’s

January 18, 2022 judgment of sentence is properly before this Court, albeit

we cannot reach the merits of Appellant’s SVP designation.

- 15 -

J-S29034-22

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2022

- 16 -