Com. v. Auen, B.

• Court: Superior Court of Pennsylvania
• Decided: February 15, 2023
• Docket: 581 WDA 2022
• Status: Unpublished

Opinion

J-A06045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDON CHARLES AUEN : : Appellant : No. 581 WDA 2022

Appeal from the Judgment of Sentence Entered January 12, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002505-2020

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 15, 2023

Brandon Charles Auen (Auen) challenges the judgment of sentence

entered by the Court of Common Pleas of Erie County (trial court). After

pleading guilty to four counts relating to an armed kidnapping, Auen was

sentenced to an aggregate prison term of 13.5 to 27 years. He now argues

that the sentence is manifestly excessive; that the trial court ignored

mitigating factors and relied on unproven aggravating factors; and that the

trial court erroneously applied a “deadly weapon used” enhancement. Auen

also claims that his plea was involuntary because he had not been advised of

the possibility of a negotiated plea agreement. We affirm.

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* Retired Senior Judge assigned to the Superior Court. J-A06045-23

I.

In 2020, Auen entered a residential building and kidnapped two

individuals at gunpoint. One of the victims was Quinn Maloney, who was

Auen’s ex-girlfriend. The second victim was Anthony Nicarello, who Auen had

never met before. The two victims were put into a vehicle and Nicarello was

forced to drive several miles toward a remote property owned by Auen’s

family. Before they arrived at that destination, Nicarello deliberately crashed

the vehicle because he feared that he and Maloney would soon be murdered.

Auen called his father shortly after the crash. Soon after, Auen was arrested

and charged with 25 counts stemming from the incident.

With the aid of counsel, Auen waived his right to jury trial and agreed

to plead guilty to just four of the 25 counts. Prior to accepting Auen’s plea,

the trial court thoroughly explained the elements of the offenses, the potential

penalties, and the factual basis of each count. It was explained to Auen that

he would be pleading guilty to “Counts 3, 4, 5, and 8, incorporating the facts

of Counts 8 and 9. And in exchange, the Commonwealth [would] nolle pros

the remaining [21] counts [enumerated in the charging document.]” Plea

Hearing Transcript, 10/27/2021, at p. 8.

In Counts 3 and 4 of the Information, the Commonwealth alleged that

on September 24-25, 2020, Auen pointed a handgun at Nicarello and Maloney

and forced them into a vehicle. In Count 5, the Commonwealth alleged that

Auen entered a “residence through the unlocked door, and pointed a handgun

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at the victims[.]” Id. at p. 10. Auen accepted the factual basis of these

charges after they were read into the record.

The Commonwealth alleged in Counts 8 and 9 that Auen had committed

aggravated assault. In Count 8, the crime occurred when Auen pointed a

handgun at Nicarello “and/or threaten[ed] to kill the victim[.]” See Criminal

Information, 11/23/2020, at p. 3. The alleged offense in Count 9 occurred

when Auen pointed a handgun at “and/or” threatened to kill Maloney, “and/or

did hit the victim with the handgun and/or his fists[.]” Id. at p. 4. Once the

colloquy had concluded, the trial court accepted Auen’s plea and the

Commonwealth was permitted to nolle pros the remaining charges.

To determine the guideline ranges at Auen’s sentencing hearing, the

trial court queried the parties as to whether an enhancement for “deadly

weapon used would be the appropriate guideline for each count.” Sentencing

Hearing Transcript, 1/12/2022, at pp. 5-6. Auen’s counsel responded that it

was his impression that the “deadly weapon used” enhancement would apply

to each of the four counts. See id. at p. 6.

Following that clarification, the trial court referred to the sentencing

memorandums submitted by the Commonwealth and the defense, including

their numerous attachments. The trial court further stated that it had

reviewed the pre-sentence investigative report (PSI) and entered all of the

above filings into the record. Auen’s counsel informed the trial court that he

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was unable to furnish Auen with a copy of Maloney’s impact statement in

advance of the hearing, but no objection was lodged on that ground.

Auen’s father testified at the hearing as a character witness. He

recounted Auen’s work ethic, military service and strong academic record.

According to his father, Auen’s personality had markedly changed after he

returned from military deployment in the Middle East. This testimony echoed

countless letters from friends, family and military personnel who attested to

Auen’s many positive character traits.

The Commonwealth nevertheless sought a sentence in the aggravated

range of the sentencing guidelines, asserting that it was justified in part due

to the premeditated nature of Auen’s crimes, and because he had pistol

whipped Maloney and forced her to remove clothing at the time of the

kidnapping. These particular details were not included in the charging

document or the factual basis of the plea, but Maloney had described those

incidents in her victim impact statement and produced photos to corroborate

her account.

At the conclusion of the hearing, the trial court articulated the reasons

why it declined to sentence Auen in the aggravated range, citing his remorse,

rehabilitative needs and potential to be a productive member of society.

However, the trial court also commented on the severity of the offenses and

Auen’s “extreme indifference to human life” during the kidnapping episode.

The trial court stressed that Auen behaved in a “sadistic” manner, as

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evidenced by the way he humiliated and terrorized the victims. In fact, Auen

was described by the trial court as “the most dangerous person in Erie County”

at the time the crimes were committed. Id. at p. 45. Accordingly, the trial

court declined the defense’s request for concurrent sentences.

As to each of the two kidnapping counts, Auen was sentenced to a prison

term of 42 to 84 months. As to the burglary count, he was sentenced to a

term of 36 to 72 months. Furthermore, as to the aggravated assault count,

he was sentenced to a term of 42 to 84 months. The terms were all imposed

consecutively, resulting in an aggregate sentence of 13.5 to 27 years. All four

sentences were either within or below the standard ranges of the sentencing

guidelines.

Auen timely filed a post-sentence motion again requesting his prison

terms be made concurrent rather than consecutive. The grounds for the

motion were that Auen’s psychological evaluation indicated that his offenses

were isolated incidents that were unlikely to reoccur. The defense also

emphasized Auen’s rehabilitative needs, potential and remorse. The trial court

denied the post-sentence motion and stated in a written order that it had fully

considered all the mitigating factors advanced by the defense (which was why

a harsher sentence in the aggravated range was not imposed). The trial court

reasoned that concurrent sentences would be inappropriate due to the degree

of suffering endured by the victims. See Trial Court Order, 4/22/2022, at 2-

3. Auen timely appealed and the trial court filed a 1925(a) opinion stating the

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reasons why the judgment of sentence should be upheld. See Trial Court

1925(a) Opinion, 8/12/2022, at 4-9.

In his brief, Auen now raises the following sentencing issues for our

consideration:

1. The sentences in this case were manifestly excessive and clearly unreasonable, particularly in their consecutiveness, when the trial court did not consider mitigating factors.

2. The trial court abused its discretion in using the “deadly weapon used” sentencing guidelines for the burglary charge.

3. [Auen’s] plea was unknowingly and involuntarily entered when [he] misunderstood the possibility of a sentencing agreement in this case.

Appellant’s Brief, at 2 (issues renumbered).

The heading of Auen’s first claim only refers to the trial court’s failure to

consider mitigating factors, but he also argues in his brief that the trial court

erred by considering several aggravating factors which Auen did not concede

to at his plea hearing. See Appellant’s brief, at 9-10. Auen argues further

that the trial court violated his due process rights by relying on evidence of

aggravating factors without affording him advance notice of the evidence prior

to the sentencing hearing. See id. at 8-9.

II.

Auen’s first two appellate claims concern discretionary aspects of his

sentence. Since such claims are not appealable as of right, we must at the

outset address whether our jurisdiction has been properly invoked. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). In

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order to invoke this Court’s jurisdiction to review such claims, an appellant

must satisfy a four-part test:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post-sentence motion; (2) the appellant filed a timely notice of appeal; (3) the [appellant’s brief] set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).

A substantial question concerns whether the sentence imposed is (1)

appropriate under the Sentencing Code, or (2) otherwise contrary to the

fundamental norms which underlie the sentencing process. See

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). A claim that

the trial court considered impermissible factors when imposing sentence raises

a substantial question. See Commonwealth v. King, 182 A.3d 449, 454

(Pa. Super. 2018); Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.

Super. 2009). A substantial question may also be raised where it is asserted

that the trial court failed to consider a mitigating sentencing factor. See

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009).

In the present case, for reasons we will explain in greater detail below,

Auen has properly invoked this Court’s jurisdiction as to his claim that he

received a manifestly excessive sentence based on the trial court’s failure to

consider mitigating factors. However, Auen’s remaining grounds (including

the claim of an involuntary plea) are waived for lack of preservation at

sentencing or in his post-sentence motion.

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III.

A.

Auen’s first claim is that the trial court imposed a manifestly excessive

sentence as a result of not considering mitigating factors – i.e., a psychiatric

evaluation, Auen’s military service, lack of a prior criminal record and

academic accomplishment. This issue is preserved for appellate review

because Auen raised it in a post-sentence motion, he timely filed a notice of

appeal, and there are no defects in his brief. Moreover, a substantial question

has been raised. See Ventura, 975 A.2d at 1133.

Sentencing is a matter vested in the sound discretion of the sentencing

judge, and we will not disturb a sentence on appeal absent a manifest abuse

of discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.

2006). In this context, “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.” Id. (quoting Commonwealth v. Fullin,

892 A.2d 843, 847 (Pa. Super. 2006)).

Additionally, since the trial court sentenced Auen to terms within the

standard-ranges of the guidelines, we may only vacate the sentence if we find

that “the case involves circumstances where the application of the guidelines

would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). When imposing

sentence, “the sentencing court must consider the factors set out in 42 Pa.C.S.

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§ 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[.]” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa. Super.

2011) (citation omitted).

“Where the sentencing court had the benefit of a presentence

investigation report (‘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.

Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation and internal quotation

marks omitted).

In the present case, Auen received a sentence that was within the

standard range of the sentencing guidelines and we find no abuse of discretion

on the part of the trial court. The mitigation evidence Auen refers to was

included in the PSI reviewed by the trial court, so we must assume that the

trial court was aware of that information. See Moury, 992 A.2d at 171. The

trial court’s decision to run the sentences consecutively was within its

discretion, especially in light of the violent nature of the offenses committed

against the victims.

The trial court also stated on the record that Auen’s rehabilitative needs

and potential were why he did not receive a sentence in the aggravated range

of the guidelines. Any dispute Auen may have with the weight assigned by

the trial court to mitigating and aggravating factors would not constitute a

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substantial question, much less an abuse of discretion by the trial court. See

generally Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)

(“Accordingly, we conclude Appellant’s argument that the trial court failed to

give adequate weight to mitigating factors does not present a substantial

question appropriate for our review.”).

The remaining claims Auen asserts are unpreserved. He has argued in

his brief that the trial court improperly considered evidence in Maloney’s

impact statements and other materials which had not been made available to

Auen prior to the sentencing hearing. Because Auen did not object on those

grounds until after he had filed this appeal, the claims are waived and

unreviewable at this juncture.

B.

Auen’s second claim is that the trial court abused its discretion in

applying a “deadly weapon used” enhancement to the sentencing on the

burglary count. Under 204 Pa.Code § 303.10(a)(2), an enhancement applies

where “the defendant used a weapon to threaten or injure the victim while

committing the particular offense.”

According to Auen, the evidence showed that he only possessed a

firearm during the commission of the burglary, precluding the trial court from

relying on the subsequent use of the firearm after the offense was completed

to apply the deadly weapon used enhancement. See Commonwealth v.

Tavarez, 174 A.3d 7, 11 (Pa. Super. 2017) (holding that defendant completed

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a burglary by gaining entry into a structure, and that an enhancement based

on the subsequent use of the weapon after that point was improper). The

claim was waived.

In his plea colloquy, Auen admitted that during the commission of the

burglary, he “pointed a handgun at the victims.[]” Plea Hearing Transcript,

10/27/2021, at p. 10. Auen’s counsel agreed with the Commonwealth and

the trial court that the deadly weapon used enhancement was applicable as to

the burglary count. The enhancement was not challenged until after Auen

filed his appeal, precluding this Court from reviewing the substantive merits

of the claim. See Commonwealth v. Batterson, 601 A.2d 335, 336-37 (Pa.

Super. 1992) (challenge to weapon enhancement waived “because it has been

raised for the first time on appeal and was not preserved in the lower court

via a motion to modify sentence.”).

C.

Auen’s third and final claim is that he entered his open plea involuntarily

because he had not known it was possible to form a sentencing agreement

and he would have done so if he had been informed of that possibility.

In order to preserve a challenge to a guilty plea for direct appeal, a

defendant must file a motion to that effect within ten days of sentencing. See

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013).

However, Auen first raised his claim of an involuntary plea on direct appeal,

without having done so either at the sentencing or in his post-sentence

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motion. Accordingly, because Auen failed to preserve the issue for appellate

review, it is waived and we are precluded from considering the claim’s merits.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/15/2023

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