DURBIN v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

Filing 19

MEMORANDUM OPINION & ORDER re 4 Petition for Writ of Habeas Corpus filed by JOSEPH E. DURBIN, dismissing the Petition as time barred or, in the alternative, as meritless. A certificate of Appealability is denied. Signed by Chief Magistrate Judge Maureen P. Kelly on 12/1/2017. (Attachments: # 1 Appendix). A copy of the Opinion with Appendix is being sent to Petitioner via first class mail at his address of record. (tmr)

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT 1.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,

IN, THE SUPERIOR COURT OF
PENNSYLVANIA

Appel lee

v.
JOSEPH DURBIN,
Appellant

No. 382 WDA 2003

Appeal from the Judgment of Sentence entered on October 28, 2002
in the Court of Common Pleas of Washington County,
Criminal Division, No. 1249 of 2001
,

COMMONWEALTH OF PENNSYLVANIA,

IN THE SUPERIOR COURT OF
PENNSYLVANIA

Appellee

v.

.: '

JOSEPH DURBIN,
Appellant

1

No. 383

WDA~003'?
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Appeal from the Judgment of Sentence entered on October 28, 2002
in the Court of Common Pleas of Washington County,
Criminal Division, No. 384 of 2002

BEFORE: JOHNSON, MUSMANNO, JJ. and McEWEN, P.J.E.
MEMORANDUM:

FlLED: NovemberlO, 2003

Joseph Durbin ("Durbin") appeals from the judgment of sentence
imposed after he was convicted, at two separate informations, of indecent
assault,. involuntary deviate sexual intercourse, corruption of minors, and
aggravated indecent assault (two counts). 1 We affirm.

1

18 Pa.CS.A. §§ 3126(a)(7), 3123(a)(6), 6301(a)(l), 3125(7).

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The charges arose as a result of sexual contact between Durbin and
M.R., the minor daughter of Durpin's girlfriend, Karen Renz, with whom
Durbin lived.

M.R., who was thirteen at the time of trial, alleged that the

incidents began in 1996 and continued over a period of years, until May
2001, when Karen Renz learned of the abuse. 2 After a jury trial; Durbin was
convicted of the above-cited' charges, and the trial court conducted a hearing
to determine if Durbin was a -sexually violent predator.

The trial court

determined that the evidence supported an assessment that Durbin is a
sexually violent predator, and sentenced Durbin to prison terms of one to
two years for indecent assault, six to twelve years for involuntary deviate
sexual intercourse,· one to two years for corruption of minors, and three to
six years for aggravated indecent assault. The trial court ordered all of the
sentences to run consecutively, for an aggregate sentence of eleven to
twenty-two years.
Durbin subsequently filed post-sentence Motions, which the trial court
denied.

Durbin then filed the instant timely

app~al

and a Statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), as ordered
by the trial court. Durbin raises the following issues on appeal, all of which
were raised in his Rule 1925(b) Statement:
1. vyhether the trial court erred in finding that the guilty

verdicts were not against the weight of the evidence?

2

The trial court set forth in detail the pertinent facts and procedural history
of this case. See Trial Court Opinion, 3/31/03, at 1-8.
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2. Whether the trial court erred in refusing to allow the
jury to hear a reading of M.R.'s testimony when the jury
requested such reading in a question to the court?
3. Whether the trial court erred in finding that it had not
abused its discretion in sentencing Durbin to an
aggregate prison term of 11-22 years?
See Brief of Appellant at 8.

We have reviewed the applicable law and the certified record in regard
to each of Durbin's contentions. With regard to Durbin's first two issues, we
rely on the trial court's well-reasoned Opinion, and affirm on that basis. See
Trial Court Opinion, 3/31/03, at 8-10. 3
In his third issue on appeal, Durbin contends that the trial court erred
in sentencing him to an aggregate prison term of 11 to 22 years.
appears to argue that the trial court erred

Durbin

in imposing consecutive

sentences. See Brief of Appellant at 16-17.
When a defendant raises an issue that implicates the discretionary
aspects of his sentence, the defendant must petition this Court for
permission to appeal and demonstrate that there is a substantial question
that the sentence imposed was not appropriate under the Sentencing Code
or was contrary to the fundamental norms that underlie the sentencing
process.

See 42 ·Pa.CS.A. § 9781(b); Commonwealth v. Tuladziecki,

522 A.2d 17 "(Pa.

1987).

In seeking such an appeal, a defendant

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3

The trial court has set forth the appropriate standards of review, for all
three issues on appeal; in its Opinion.
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J. S55018/03

must include in his brief a concise statement of the reasons relied upon in
support of his request for an appeal.

Pa.R.A.P. 2119(f). We will grant

permission to appeal only where the defendant has· advanced a colorable
argument that the sentence imposed is inconsistent with the Sentencing
Code, or is "contrary to the ·fundamental

norms which

underlie the

sentencing process." Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.
Super. 1999).

"To demonstrate that a substantial question exists, a party

must articulate reasons why a particular sentence raises doubts that the trial
court did not properly consider the general guidelines provided by the
legislature in 42 Pa.C.S.A. § 9781." Commonwealth v. Koehler, 737 A.2d
225, 244 (Pa. 1999).
In the instant case, Durbin failed to set forth the required Pa.R.A.P.
2119(f) statement. 4

However, such an omission "is not fatal to t~e

Appellant's claim if the presence or absence of a substantial question can
easily be ·determined from the Appellant's brief."

Davis, 734 A.2d 879, 882 (Pa. Super. 1999).

Commonwealth v.

Here, we discern from

Durbin's brief that he objects to the imposition of consecutive sentences,
and that the trial court "overlooked· pertinent facts ... and disregarded the
force of the evidence presented against him at the trial and the sentencing
in the matter." See Brief of Appellant at 17.

4

The Commonwealth did not fife a brief in this case, and did not object to
the defect in Durbin's brief.

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The Sentencing Code permits the trial court to i,mpose consecutive
·sentences. See Pa.C.S.A. § 9721(a). In addition, a claim that the trial court
did not adequately consider mitigating factors when imposing sentence does
I

not raise a substantial question.

Commonwealth v. Byrd, 657 A.2d 961,

· 963 (Pa. Super. 1995). Durbin's claim that the sentencing court "overlooked
pertinent facts" and "disregarded the force of the evidence" appears to be a
claim that the sentencing court did not adequately consider mitigating
factors. Thus, Durbin has not set forth a substantial question.

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Even, if Durbin had properly preserved his appeal of the discretionary
aspects of his sentence, we would affirm for the reasons stated in the trial
court's Opinion on this issue. See Trial Court Opinion, 3/31/03, at 10-12.
Judgment of sentence affirmed.

Judgment Entered:

e~t VaJnJ.o
Deputy Prothonotary
Date: November 10, 2003

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