Com. v. Bohn, A.

• Court: Superior Court of Pennsylvania
• Decided: September 22, 2022
• Docket: 147 MDA 2022
• Status: Unpublished

Opinion

J-S26043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADAM NICHOLAS BOHN : : Appellant : No. 147 MDA 2022

Appeal from the Judgment of Sentence Entered October 12, 2021 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000046-2021, CP-50-CR-0000048-2021, CP-50-CR-0000049-2021

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

MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 22, 2022

Appellant, Adam Bohn, appeals from the judgment of sentence entered

by the Court of Common Pleas of Perry County after Appellant pleaded guilty

in each of the three separately docketed cases captioned above. Herein,

Appellant raises a challenge to the discretionary aspects of his sentence. We

affirm.

On October 12, 2021, Appellant was sentenced at the three trial court

docket numbers. Specifically, the trial court sentenced him to six to 15 years

of incarceration on one count of Criminal Attempt Robbery, 11 to 24 months’

incarceration on one count of Unauthorized Use of a Motor Vehicle, and one

to two years’ incarceration on one count of Simple Assault. The court elected

to run the three sentences concurrently to one another, but consecutively to ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S26043-22

any existing sentence he was then serving. At the time, Appellant was serving

an aggregate sentence of seven and one-half to 15 years’ incarceration. No

post-sentence motion or timely notice of appeal was filed on Appellant’s

behalf.

On December 15, 2021, Appellant’s counsel filed a motion to appeal

nunc pro tunc, which the trial court granted that same day. On January 12,

2022, Appellant’s counsel timely filed a notice of appeal. The notice, however,

failed to comply with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),

wherein the Pennsylvania Supreme Court held that, as of June 1, 2018,

appellants are required to file separate notices of appeal when a single order

resolves issues arising on more than one lower court docket. Here, counsel

filed a single notice of appeal that lists three trial court docket numbers.

While a Walker violation may result in quashal of an appeal, there are

exceptions to the rule. In Commonwealth v. Stansbury, 219 A.3d 157, 160

(Pa. Super. 2019), this Court concluded that a breakdown in the courts occurs

when a lower court advises a petitioner that he could pursue review by filing

a single notice of appeal, even though the order disposed of petitions pending

at two separate docket numbers. See also Commonwealth v. Larkin, 235

A.3d 350, 352-54 (Pa. Super. 2020) (en banc) (reaffirming Stansbury).

Here, in its December 15, 2021, order granting Appellant leave to appeal

nunc pro tunc, the trial court stated that Appellant would have no more than

30 days “to file his Notice of Appeal.” Trial Court Order, 12/15/21 (emphasis

added). Because the trial court’s order referenced a single notice of appeal,

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we find the exception to a Walker violation noted in Stansbury/Larkin

applies such that quashal does not pertain.

Appellant presents one question for this Court’s consideration:

Whether or not Appellant’s sentences should have run concurrently to existing out of county sentences or not [sic]?

Brief for Appellant at 7.

A challenge to the imposition of consecutive sentences implicates the

discretionary aspects of one’s sentence. See Commonwealth v. Austin, 66

A.3d 798, 808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013)

(considering challenge to imposition of consecutive sentences as claim

involving discretionary aspects of sentencing). “There is no absolute right to

appeal when challenging the discretionary aspect of a sentence.

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).

In order to challenge the discretionary aspects of his sentence,

Appellant must invoke this Court’s jurisdiction by satisfying a four-part test.

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010). In Moury, we

explained:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citation omitted).

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Here, Appellant failed to raise the present discretionary aspects

challenge at his sentencing hearing, nor did he file a post-sentence motion.

For this reason, alone, Appellant has waived his claim. See Pa.R.A.P. 302(a)

(providing that issues not raised in the lower court are waived and cannot be

raised for the first time on appeal); see also Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (holding that issues challenging the

discretionary aspects of a sentence must be raised at sentencing or in a post-

sentence motion or they are waived).

Even if Appellant had preserved his issue by raising it first with the trial

court, waiver would still apply because he also failed to include a Rule 2119(f)

statement in his brief and the Commonwealth has objected to its omission.

Pennsylvania Rule of Appellate Procedure 2119(f) directs that

[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f).

“[C]laims relating to the discretionary aspects of a sentence are waived

if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and

the opposing party objects to the statement's absence.” Commonwealth v.

Brougher, 978 A.2d 373, 375 (Pa. Super. 2009) (citation omitted); see also

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (holding that

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if an appellant fails to include a discretionary sentencing issue in his Rule

2119(f) statement and the Commonwealth objects, the issue is waived and

this Court may not address it). Here, the Commonwealth has objected to the

absence of a Rule 2119(f) statement in Appellant’s brief, which would preclude

us from reviewing Appellant’s issue even if he had first preserved it with the

trial court.

Finally, even had Appellant preserved his issue by raising it in both a

post-sentence motion and a Rule 2119(f) statement, we would have found it

failed to present a substantial question as to its appropriateness under the

Sentencing Code.

To obtain review of discretionary aspects of a sentence, the appellant

must raise a substantial question that the sentence violates either the

Sentencing Code or any fundamental sentencing norm. Commonwealth v.

Banks, 198 A.3d 391, 401 (Pa. Super. 2018). We make the substantial-

question determination based on the contents of the Rule 2119(f)

statement. Commonwealth v. Mouzon, 812 A.2d 617, 621-22 (Pa. 2002).

Only if the appellant has raised a substantial question may we turn to the

merits of the sentencing claims. See id.

It is well established that under 42 Pa.C.S. § 9721, the trial court has

discretion to impose its sentences consecutively or concurrently to other

sentences being imposed at the same time or to sentences already

imposed. See 42 Pa.C.S. § 9721(a). Although a bald claim of excessiveness

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due to consecutive sentences does not raise a substantial question, a claim

the imposition is unreasonable, with explanation of the facts and

circumstances, raises a substantial question. Commonwealth v. Dodge, 77

A.3d 1263, 1270 (Pa. Super. 2017).

Assuming, arguendo, that Appellant adequately developed his claim in

this regard, we discern from the record that the trial court reasonably ran

Appellant’s concurrently-run, standard range aggregate sentence of six to 15

years consecutively to his existing sentence of 7 ½ to 15 years’ incarceration.

Unlike in Dodge, a decision to which Appellant cites, if not discusses, in his

brief, the trial court in the present matter did not impose the functional

equivalent of a life sentence through consecutively-run, standard guideline

range sentences on non-violent offenses. Rather, the result here was an

aggregate sentence of 13½ to 31 years for multiple violent offenses.

As noted by the trial court, Appellant already had an extensive history

of violent crime including aggravated assault and stalking. Among the

offenses to which Appellant pleaded guilty in the present matter were

additional crimes of violence, namely, simple assault and criminal attempt

robbery.

Also, the trial court had the benefit of a pre-sentence investigation

report prior to imposing sentence. “When a sentencing court has reviewed a

pe-sentence investigation report, we presume that the court properly

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considered and weighed all relevant factors in fashioning the defendant's

sentence.” Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013).

Accordingly, our review of the record, party briefs, trial court opinion,

and relevant authority uncovers no reason to disturb the trial court's discretion

in imposing sentence. See Crump, supra (“Sentencing is a matter vested

within the discretion of the trial court and will not be disturbed absent a

manifest abuse of discretion.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/22/2022

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