Com. v. Bankes, A.

J-S26020-22

                                   

2022 PA Super 212

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  AUSTIN EUGENE BANKES                         :
                                               :
                       Appellant               :   No. 541 MDA 2022

       Appeal from the Judgment of Sentence Entered March 16, 2022
   In the Court of Common Pleas of Columbia County Criminal Division at
                     No(s): CP-19-CR-0000923-2020


BEFORE:      KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY McCAFFERY, J.:                          FILED: DECEMBER 12, 2022

       Austin Eugene Bankes (Appellant) appeals from the judgment of

sentence entered in the Columbia County Court of Common Pleas, following

his guilty plea to one count of rape of a child, three counts of rape by forcible

compulsion, and two counts of involuntary deviate sexual intercourse (IDSI)

by forcible compulsion.1 The trial court imposed an aggregate sentence of 50

to 140 years’ incarceration. On appeal, Appellant claims the court abused its

discretion by imposing a purported de facto life sentence and by failing to

consider his mental health condition, need for rehabilitation, and expressed

remorse. We affirm.


____________________________________________


* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(c), 3121(a)(1), and 3123(a)(1), respectively.
J-S26020-22


        The parties are well-acquainted with the sordid facts that supported

Appellant’s convictions.      Accordingly, we need not recite in them in detail

herein. We briefly note that from July of 2018 to June of 2020, Appellant

repeatedly forced the victim to engage in oral, anal, and vaginal sexual

intercourse, beginning from the time the victim was 12 years old until she was

14 years old.2 Trial Ct. Op., 4/11/22, at 2.

        On November 17, 2020, Appellant was charged with 65 counts of rape

of a child, rape by forcible compulsion, ISDI by forcible compulsion, IDSI with

a complainant who is less than 16 years of age,3 IDSI with a child,4 and

statutory sexual assault.5 On November 5, 2021, he entered an open guilty

plea to one count of rape of a child, three counts of rape, and two counts of

IDSI. The remaining crimes were nolle prossed.

        The trial court held a sentencing/sexually violent predator (SVP) hearing

on March 16, 2022.6 An evaluation by the Sexual Offenders Assessment Board

(SOAB) indicated that Appellant was an SVP. Appellant stipulated to the SVP


____________________________________________


2 Appellant lived with the victim and her mother.    See Affidavit of Probable
Cause, 9/30/20, at 2.

3 18 Pa.C.S. § 3123(a)(7).


4 18 Pa.C.S. § 3123(b).


5 18 Pa.C.S. § 3122.1(b).


6 Appellant was 28 years old at the time of the hearing.   See Appellant’s Brief
at 9.


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classification at the hearing. The court then sentenced Appellant as follows:

20 to 40 years’ incarceration for the rape of a child conviction, and five

consecutive terms of six to 20 years’ imprisonment for the rape and IDSI

convictions.    Appellant filed a post-sentence motion for reconsideration on

March 24, 2022, alleging the court erred: (1) in sentencing him at the top of

the standard range to the statutory maximum sentence; (2) in sentencing him

to all consecutive sentences, thereby imposing a de facto life sentence; and

(3) by not considering his mental health conditions and need for rehabilitation

when crafting the sentence.          See Appellant’s Motion for Reconsideration,

3/24/22, at 2 (unpaginated). The court denied his motion one day later. The

timely appeal followed.7

       Appellant raises the following issues on appeal:

       1. Whether the trial court committed error and abused its
       discretion when it sentenced Appellant to consecutive sentences
       all at the top of the standard range to maximum sentence thereby
       giving Appellant a de facto life sentence?

       2. Whether the trial court erred in not considering Appellant’s
       mental health conditions and need for rehabilitation when crafting
       the sentence?

       3. Whether the trial court erred in not considering . . . Appellant’s
       admission of guilt and expressed remorse when sentencing . . .
       Appellant?



____________________________________________


7 Contemporaneous with his notice of appeal, Appellant filed a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. The trial court issued
a Pa.R.A.P. 1925(a) opinion on April 11, 2022.


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Appellant’s Brief at 3.

      We note that all three issues concern the discretionary aspects of

Appellant’s sentence; therefore, we will address them together. Appellant first

claims that the trial court erred and abused its discretion by sentencing him

to consecutive sentences, all at the top end of the standard range to the

statutory maximum sentence, which amounted to a de facto life sentence.

See Appellant’s Brief at 8. Appellant notes that even though the trial court

reviewed the pre-sentence investigation report (PSI), it “did not have any

background history on [him] other than seeing he had a minimal prior record

and the current charges.” Id. at 10. Moreover, he states:

      The PSI was void of any information as to how Appellant grew up,
      any mental health conditions, if/when he had any form of
      treatment, how he adjusted to supervision in the past or even
      what prior services county probation/parole previously
      recommended for Appellant.        The Court seemingly based
      sentencing on the acts committed and the impact on the victim
      alone and did not consider any other factors.

Id.

      Next, Appellant argues that the trial court did not consider his mental

health condition and the need for rehabilitation when it crafted the sentence.

See Appellant’s Brief at 12. He points to the following statement made by the

court at sentencing: “And I’ve said it before, mental health issues like bipolar




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do not ─ if you look at the DSM-5,8 you look at the materials. They do not

cause criminal conduct like this.        It’s independent.”   N.T., 3/16/22, at 14.

Appellant contends the court “was making broad assertions as to mental

health conditions as if said assertions are known/proven facts. There was no

testimony provided by a mental health care professional to support or counter

such an assertion by the [c]ourt.” Appellant’s Brief at 12.

       Lastly, Appellant alleges the court acted improperly when it stated it was

going to impose “in the standard range but all consecutive to ‘make sure

there’s never another victim that has to go through this.’” Appellant’s Brief at

13, citing N.T. at 15. Appellant states that there was only one victim in the

present matter and “no indication that there were any other victims.”          Id.

Moreover, he points out that he admitted guilt and expressed remorse and the

court failed to consider these factors. Id.

       There is no automatic right to review of a challenge to the discretionary

aspects of sentencing. Commonwealth v. White, 

193 A.3d 977, 982

 (Pa.

Super. 2018).



____________________________________________


8 DSM-5 refers to the American Psychiatrics’ publication, The Diagnostic and

Statistical Manual of Mental Disorders, Fifth Edition. “The DSM is a
categorical classification system that divides mental disorders into types based
on criteria sets with defining features. . . . [T]he DSM is an authoritative
compilation of information about mental disorders and represents the best
consensus of the psychiatric profession on how to diagnose mental disorders.”
Commonwealth v. Hollingshead, 

111 A.3d 186

, 190 n.4 (Pa. Super. 2015)
(citation and quotation marks omitted).


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      Before [this Court may] reach the merits of [a challenge to the
      discretionary aspects of a sentence], we must engage in a four
      part analysis to determine: (1) whether the appeal [was timely-
      filed]; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons relied
      upon for allowance of appeal with respect to the discretionary
      aspects of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
      whether the concise statement raises a substantial question that
      the sentence is appropriate under the sentencing code. [I]f the
      appeal satisfies each of these four requirements, we will then
      proceed to decide the substantive merits of the case.

Id.

 (citation omitted).

      Appellant has satisfied the first three prongs of this analysis, where he

raised this challenge in a post-sentence motion, filed a timely appeal, and

included in his brief a Rule 2119(f) statement. See Appellant’s Brief at 7-8.

Therefore, we now consider whether Appellant has raised a substantial

question for our review.

      In determining whether a substantial question exists, this Court
      does not examine the merits of whether the sentence is actually
      excessive.    Rather, we look to whether the appellant has
      forwarded a plausible argument that the sentence, when it is
      within the guideline ranges, is clearly unreasonable.
      Concomitantly, the substantial question determination does not
      require the court to decide the merits of whether the sentence is
      clearly unreasonable.

Commonwealth v. Swope, 

123 A.3d 333, 340

 (Pa. Super. 2015) (citation

omitted).

      This Court has previously determined that a substantial question exists

when the issue is “whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct[.]” Commonwealth v. Gonzalez-DeJusus,

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J-S26020-22

994 A.2d 595, 598-99

 (Pa. Super. 2010).        Moreover, a claim that a court

imposed an excessive sentence after not considering rehabilitative needs

raises a substantial question. Commonwealth v. Baker, 

72 A.3d 652, 662

(Pa. Super. 2013) (citation omitted) (concluding a challenge that the trial

court imposed a sentence that was “unreasonable and contrary to the

fundamental norms of the Sentencing Code” and did not consider the

appellant’s rehabilitative needs raised a substantial question) (record citation

omitted). Thus, we interpret Appellant’s claims to fall under these types of

substantial questions. Therefore, we may proceed to consider the merits of

his argument.

      We consider the relevant standard of review:

      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. Clemat, 

218 A.3d 944, 959

 (Pa. Super. 2019) (citation

omitted).   “[W]hen imposing sentence, the trial court is granted broad

discretion, as it is in the best position to determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it.” Commonwealth v. Mulkin, 

228 A.3d 913, 917

 (Pa. Super. 2020).

      This Court has also stated:




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J-S26020-22


       [W]hen 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
       the victim and community, and rehabilitative needs of the
       defendant. . . .

       Furthermore, [a] trial court judge has wide discretion in
       sentencing and can, on the appropriate record and for the
       appropriate reasons, consider any legal factor in imposing a
       sentence[.] The sentencing court, however, must also consider
       the sentencing guidelines.

Clemat, 

218 A.3d at 960

 (citation omitted & paragraph break added).

       When imposing sentence, the trial court is required to consider
       the particular circumstances of the offense and the character of
       the defendant. The trial court should refer to the defendant’s prior
       criminal record, age, personal characteristics, and potential for
       rehabilitation.

       However, 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.

Id. at 959-60

 (citations omitted & paragraph break added).

       Here, the trial court had the benefit of the PSI.9 See N.T. at 9-10; see

also Trial Ct. Op. at 4. Appellant had a prior record score of one, the offense

gravity score (OGS) for rape of a child was 14, and the OGS for rape and IDSI



____________________________________________


9 We note while the PSI was provided in Appellant’s brief, it was not included

in the certified record. Nevertheless, the trial court explicitly stated it had the
benefit of a PSI, and that it “was considered and made part of the record.”
Trial Ct. Op. at 4. We remind Appellant that it is his “burden to ensure that
the certified record is complete.” Commonwealth v. Landis, 

89 A.3d 694

,
697 n.5 (Pa. Super. 2014) (citations omitted).


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J-S26020-22


was 12. See N.T. at 15-19. The applicable sentencing guidelines provide that

the standard ranges were: (1) 7 to 20 years’ incarceration for rape of a child,

and (2) 4 1/2 to 6 years’ imprisonment for rape and IDSI. 

Id.

 As noted

above, the court sentenced Appellant to 20 to 40 years’ incarceration for the

rape of a child conviction, and consecutive terms of six to 20 years’

imprisonment for the three rape and two IDSI convictions, which were all at

the top end of the respective standard ranges. See 

id.

 “Where the sentencing

court impose[s] a standard-range sentence with the benefit of a pre-sentence

report, we will not consider the sentence excessive. In those circumstances,

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. Corley, 

31 A.3d 293, 298

 (Pa. Super. 2011) (citations and quotation marks omitted).

      Nonetheless, at sentencing, the Commonwealth pointed out that the

victim wrote a victim impact statement that was included in the PSI. See N.T.

at 12. In seeking the imposition of consecutive sentences, the Commonwealth

stated:

             [The victim] acknowledges she needs to get help and
      hopefully with that help she can learn something about healthy
      relationships and have some healing in her life. We [cannot]
      restore her childhood, but we can show the victim and the rest of
      society that we [do not] tolerate these kind[s] of crimes.

            But the plea offer was crafted with an eye towards the
      ongoing nature of the abuse and also various acts that took
      place. . . .


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J-S26020-22


Id. at 12-13.

      Appellant also invoked his right to allocution, testifying to the following:

             Your Honor, I am filled with so much guilt. I have hurt not
      only my victim, but others through my horrendous actions. I want
      to let my immediate victim know that I am truly sorry for what I
      have done and I also want to let everyone else that I have hurt
      through my actions regarding this whole situation know that I also
      have recognized the pain that I have caused everyone and that I
      feel horrible for it all and I’m sincerely sorry.

            I was the adult in this [relationship with the victim] and I
      should have known right from wrong. Instead, my desire or my
      own selfishness and immediate gratification turned me into what
      I consider the lowest life form. This past month I have had many
      days to see just how deep I hurt my victim and all the others I
      have affected.

              I know that I need help for the problems that I have and as
      undeserving as I am, I ask . . . the [trial c]ourt for mercy. I know
      I have hurt many and I’m truly deserving of prison time. Just
      please be merciful so I may some day have a second chance at
      life in this society.

N.T. at 11.

      At the conclusion of the proceeding, the trial court explained its rationale

as follows:

            [I]t’s just hard to imagine the barbarism and depravity of
      the people in the world and this case encompasses all of that. It’s
      so sad. That little girl had to go through this. I have no idea what
      would prompt this kind of conduct.

                                   *     *      *

             So it’s just hard to imagine there is no excuse. No excuse
      for this. And I’ve said it before, mental health issues like bipolar
      do not — if you look at the DSM-5, you look at the materials. They
      do not cause criminal conduct like this. It’s independent.




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J-S26020-22


             And regardless of [Appellant]’s ability to rehabilitate
       himself, we don’t know if that can happen. We don’t know how
       long that will take. I wish him the best. I wish everybody in this
       world the best. But by the same token, we in the criminal justice
       system have to protect [the general public] from those [like
       Appellant] who can’t control themselves.[10] That’s casting this in
       the best light.

             That’s why I pronounce this sentence. Everything is going
       to be in the standard range. But you’re going to notice that it’s
       all consecutive, and the purpose of this is to make sure there’s
       never another victim that has to go through this.

                                       *       *    *

       I want to note for the record that I have considered all the
       purposes of sentencing including punishment, rehabilitation,
       incapacitation, and those others which are outlined in Chapter 97
       of [the] Sentencing Code of Title 42.

N.T. at 14-15, 19.

       In its Pa.R.A.P. 1925(a) opinion, the trial court supplemented its

statements at sentencing with the following:

       To make it . . . painfully clear, [Appellant] forced oral, anal, and
       vaginal sexual intercourse upon the [v]ictim . . . for a period of
       about two . . . years, extending from the time [the victm] was 12
       years old and thereafter. No more needs to be said about the
       facts to justify consecutive sentences. [Appellant] should be
       punished for each event with respect to which he was convicted.
       A concurrent sentence on one count would be tantamount to a
       free pass to [Appellant] for the violent, abusive and devastating
       event that would be encompassed by that particular count.
       Concurrent sentences would ignore that each event was a
       separate, hellish event for the [v]ictim and would be an insult to
       the [v]ictim and the trauma brought upon her.



____________________________________________


10 The trial court subsequently corrected a typographical error in the
sentencing transcript. See Trial Ct. Op. at 3.

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J-S26020-22


            Th[e trial] court expressly confirmed on the record that [it]
      considered all of the purposes of sentencing, including
      punishment, rehabilitation and incapacitation.          Th[e] court
      considered the prospects of rehabilitating [Appellant] and found
      them to be too speculative. To be more bold, th[e] court does not
      have any level of confidence that [Appellant] can be “cured” of
      being a pedophilic Sexually Violent Predator.           Th[e] court
      considered [Appellant]’s mental illness and found that his bipolar
      condition did not “cause” [his] barbaric conduct. To conclude that
      or to accept that argument would be an insult to, and would add
      to the already unfair stigma attached to, the huge numbers of
      persons who suffer from mental illnesses in our country. It is false
      to claim, as [Appellant] does . . . in his “Concise Statement of
      Errors. . .,” that th[e] court did not consider [his] mental hea[l]th
      conditions or [his] prospect for rehabilitation. As cited herein to
      the record, [the court] most certainly did expressly consider those
      issues, but [it] did not accept [Appellant]’s counsel’s arguments
      and evidence as credible or of sufficient weight.

             As stated by th[e trial] court on the record, if a person is
      capable of such perverse violence upon a poor little girl, he must
      be incapacitated from perpetrating that violence on anyone
      else. . . . [The court] confirm[ed] that incapacitation, which is a
      sentence which takes away the capacity of [Appellant] to commit
      these crimes again by incarcerating him, was a significant reason
      behind the sentencing scheme.

            Prior to sentencing on each count, th[e trial] court made
      reference to the Sentencing Guidelines, reciting the Prior Record
      Score, the Offense Gravity Score and the Standard Range. Each
      sentence was [at the upper end, but still] within the Standard
      Range. . . .

Trial Ct. Op. at 2-4

      Under our standard of review, we conclude the trial court did not abuse

its discretion with regard to Appellant’s sentence. Contrary to his argument,

it is evident from the sentencing hearing and the Rule 1925(a) opinion that

the court considered the required factors under Section 9721(b). Likewise,




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J-S26020-22


the court acknowledged its understanding of the sentencing guidelines, and

articulated a sufficient statement of reasons for the sentence imposed.

       Appellant’s assertions fail for several reasons. First, the court was within

its discretion to impose consecutive sentences, even though it amounted to a

lengthy sentence. See Commonwealth v. Clary, 

226 A.3d 571, 581

 (Pa.

Super. 2020) (“[D]efendants convicted of multiple offenses are not entitled to

a ‘volume discount’ on their aggregate sentence.”) (citation omitted). Further,

we will not disturb consecutive sentences unless the aggregate sentence is

“grossly disparate” to the defendant’s conduct, or “viscerally appear[s] as

patently unreasonable.” Gonzalez-Dejusus, 

994 A.2d at 599

. As the trial

court pointed out in support of the imposition of consecutive sentences, “[O]ne

need only look to the violent, barbaric and traumatic nature of the offenses.

All of the offenses were conducted on different occasions.” Trial Ct. Op. at

5.11 Thus, we discern it was reasonable for the court to impose all consecutive

sentences.

       Second, we reiterate that when the court has the benefit of the PSI and

imposes standard range sentences, we “will not consider the sentence

excessive.” Corley, 

31 A.3d at 298

 (Pa. Super. 2011). To the extent that



____________________________________________


11 As mentioned in the affidavit of probable cause, a forensic interview of the

victim was conducted, and she described how Appellant was “violent and
volatile” and “how he had threate[ne]d her life and threatened violence on
numerous occasions.” Affidavit of Probable Cause, 9/30/20, at 3. She also
“provided detailed accounts of 21 separate sex acts with” Appellant. 

Id.

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J-S26020-22


Appellant contends the PSI was incomplete because it did not contain any

background history, we note that he failed to raise this claim at sentencing

and did not include it in his post-sentence motion. Rather, Appellant raised it

for the first time on appeal. It is well-settled that “[i]ssues not raised in the

trial court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). Therefore, it is waived.

      Third, contrary to Appellant’s argument, the trial court did consider his

mental health conditions and need for rehabilitation. See Trial Ct. Op. at 3.

Appellant fails to recognize that the court did not accept defense counsel’s

arguments and evidence concerning these factors “as credible or of sufficient

weight.” 

Id.

 Moreover, Appellant raises, again for the first time, that there

was no mental health expert testimony to support the court’s conclusion that

his mental health condition was independent of his criminal conduct. We again

find this assertion waived. See Pa.R.A.P. 302(a).

      Appellant also misinterprets the court’s statement about “another

victim.” Appellant’s Brief at 13 (record citation omitted). It is obvious that

the court was aware there was only one victim in the present case; it

emphasized the prevention of future victims as a reason for imposing

consecutive sentences. As such, that claim lacks merit.

      Lastly, with respect to Appellant’s allegation that the trial court failed to

consider his admission of guilt and expression of remorse, the court stated it

did consider them, “but found them to pale in comparison to the barbarism of


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J-S26020-22


[Appellant]’s two . . . year course of conduct of raping and traumatizing the

[v]ictim.” Trial Ct. Op. at 6. We conclude the court’s determination does not

amount to an abuse of discretion, and Appellant’s bald assertion does not

persuade us otherwise.

      For all of the foregoing reasons, Appellant’s challenge to the

discretionary aspects of his sentence fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2022




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