Com. v. Bono, T.

• Court: Superior Court of Pennsylvania
• Decided: October 11, 2023
• Docket: 1754 MDA 2022
• Status: Unpublished

Opinion

J-S27010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS LEE BONO : : Appellant : No. 1754 MDA 2022

Appeal from the PCRA Order Entered December 8, 2022 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001067-2021

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2023

Appellant, Thomas Lee Bono, appeals from the post-conviction court’s

December 8, 2022 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

The facts underlying Appellant’s convictions are not pertinent to our

disposition of his present appeal. We need only note that on June 10, 2022,

Appellant pled guilty to various offenses, including driving under the influence

of alcohol (75 Pa.C.S. § 3802(b)) and unauthorized use of a motor vehicle (18

Pa.C.S. § 3928(a)). He was sentenced that same day to an aggregate term

of 6 to 18 months’ incarceration. The sentencing order directed that Appellant

would serve this sentence on house arrest with electronic monitoring, unless

he was not approved for house arrest, in which case he would report to the J-S27010-23

county prison by July 8, 2022. See Sentencing Order, 6/13/22, at 1 (single

page). Appellant did not file a direct appeal.

Instead, on September 7, 2022, Appellant filed a pro se PCRA petition.

Counsel was appointed, and filed an amended petition on Appellant’s behalf

on October 21, 2022. Therein, Appellant contended that he entered his guilty

plea with the understanding that he would serve his sentence on house arrest,

but he was ultimately denied approval for house arrest because his “out of

county address was not acceptable” for electronic monitoring. Amended

Petition, 10/21/22, at 2 (unnumbered). Appellant claimed that his trial

counsel acted ineffectively by leading Appellant to believe that counsel would

help Appellant find an in-county address so that he could be approved for

electronic monitoring and serve his sentence on house arrest. However,

counsel failed to do so, and Appellant was forced to serve his sentence of

incarceration in the county jail. Thus, Appellant averred that his trial counsel

acted ineffectively.

On December 2, 2022, the PCRA court conducted a hearing at which

Appellant and his trial counsel both testified. On December 8, 2022, the court

entered an order and opinion denying Appellant’s petition. Appellant filed a

timely notice of appeal. The court did not order him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On March 30, 2023, the

court issued a Rule 1925(a) opinion indicating that it was relying on the

rationale set forth in its December 8, 2022 opinion accompanying its order

denying Appellant’s petition. Herein, Appellant states one issue for our

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review: “Whether not affording [Appellant] further time to comply with the

standards of house arrest rather than be incarcerated resulted in an excessive

sentence to the degree that it amounted to an abuse of discretion?”

Appellant’s Brief at 4.

Initially, we note that:

“In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error.” Commonwealth v. Johnson, … 966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the findings of the PCRA court, “but its legal determinations are subject to our plenary review.” Id.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

Here, Appellant begins by discussing the law pertaining to appellate

review of the discretionary aspects of sentencing. See Appellant’s Brief at 10-

11. He then presents the following argument, in its entirety:

In the instant case, Appellant alleges that he should have been given a chance at house arrest/electronic monitoring. At sentencing, defense counsel requested a period of home confinement and it was agreed to. However, [Appellant] was not able to complete the requirements necessary to be fully approved for house arrest. He believed he needed an address in Schuylkill County and while it would seem that one was available to him, he seems to have lacked the ability to comprehend the steps he needed to take. He did call Adult Probation and he did call his attorney to try to fix the situation. His sentence was never meant to keep him in jail as long as he was. He suffered and did not initially make parole at his minimum.

Id. at 11.

Initially, Appellant’s argument is waived. As set forth above, Appellant

raised an ineffective-assistance-of-counsel claim in his PCRA petition.

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Therefore, he cannot raise a sentencing challenge for the first time on appeal.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Moreover, Appellant could

have raised this sentencing argument in a direct appeal from his judgment of

sentence, yet he failed to do so. Therefore, it is waived on this basis, as well.

See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for post conviction

relief, petitioner must plead and prove that a claim has not been waived); 42

Pa.C.S. § 9544(b) (stating “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state post[]conviction proceeding”).

Even if not waived, we would conclude that the PCRA court did not err

in denying Appellant’s petition. In its December 8, 2022 opinion, the court

noted that, prior to sentencing, it thoroughly explained to Appellant that he

“was not yet eligible for electronic monitoring[,] but that the [c]ourt would

provide him time to obtain a Schuylkill County address to become eligible.”

PCRA Court Opinion (PCO), 12/8/22, at 2. Appellant chose to proceed, aware

of the chance he might not be approved for electronic monitoring. Id. At the

PCRA hearing, Appellant’s trial counsel testified that he had informed

Appellant that he needed to obtain a Schuylkill County address to be approved

for electronic monitoring. Id. at 3. Counsel attempted to assist Appellant in

meeting this requirement, yet Appellant “failed to follow through on the

recommendations” offered by counsel. Id. Additionally, Lisa Conville, the

supervisor of Schuylkill County Adult Probation and Parole, “testified that

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subsequent to sentencing[,] she spoke with … [Appellant] and specifically

advised him that he needed to take the electronic monitoring orientation and

process an application for electronic monitoring[,]” yet Appellant “chose to do

neither.” Id.; see also N.T. PCRA Hearing, 12/2/22, at 22-23.

Considering the testimony at the PCRA hearing, the court concluded that

Appellant

chose to proceed knowing full well that he would be incarcerated if not eligible for electronic monitoring. [His trial counsel] did everything within his authority and power to make that happen; however, [trial counsel] is under no obligation to actually ensure that [Appellant] is compliant with the requirements of electronic monitoring. Both [trial counsel] and Ms. Conville specifically told [Appellant] exactly what he needed to do to become electronic monitoring eligible. [Appellant] chose, on his own, to ignore those recommendations and instead became incarcerated as opposed to house arrest. There were no errors or omissions of counsel and [Appellant’s] claim has little to no merit. Had [Appellant] followed the advice of counsel, his sentence would be being served on electronic monitoring.

PCO at 5.

Based on the record and the PCRA court’s rationale, we would discern

no error in the court’s denying Appellant PCRA relief, even had he preserved

his appellate claims for our review.

Order affirmed.

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Date: 10/11/2023

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