Com. v. Eckert, J.

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2023
• Docket: 1359 WDA 2022
• Status: Unpublished

Opinion

J-S28005-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN ECKERT, III : : Appellant : No. 1359 WDA 2022

Appeal from the Judgment of Sentence Entered October 13, 2022 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001196-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 20, 2023

John Eckert, III appeals from the judgment of sentence entered

following his open guilty plea to ten counts of possession of child pornography.

On appeal, Eckert challenges the discretionary aspects of his sentence,

specifically, that his sentences were imposed to run consecutively to each

other. After careful review, we affirm.

In 2021, Eckert was charged with thirty-five counts of possession of

child pornography and five counts of criminal use of a communication facility.

Eckert pleaded guilty to ten counts of possession of child pornography graded

as a second-degree felony and the remaining charges were dismissed. On

October 13, 2022, Eckert was sentenced to one to four years’ incarceration on

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S28005-23

each of the ten charges with the sentences on counts one through four to run

consecutively to each other and the remaining sentences to run concurrently.

Before addressing the merits of the appeal, we must consider whether

the appeal is timely filed. See Pa.R.A.P. 105(b). Eckert filed a notice of appeal

to this Court on November 22, 2022. Eckert noted he was appealing from the

sentence of October 13, 2022, and the denial of reconsideration of sentence

of October 25, 2022. See Notice of Appeal. The trial court docket does not

reflect a motion for reconsideration of sentence was ever filed however it does

indicate that one was denied on October 25, 2022. See Docket, at 16. The

trial court indicates that argument was heard on Eckert’s post-sentence

motion on the same day the order denying the motion was entered. See Trial

Court Opinion, 1/10/23 at 2.

This Court issued a rule to show cause directing Eckert to address why

the appeal should not be quashed as untimely as there is no motion for

reconsideration in the record. See Order, 1/20/23. Eckert’s counsel, newly

appointed on appeal, noted that the post-sentence motions were denied on

October 25, and the deadline for appeal was thirty days beyond that date.

See Response to Rule to Show Cause, 1/25/23. The issue was deferred to this

panel for analysis.

We note that post-sentence motions must be filed within ten days of the

imposition of sentence. See Pa.R.Crim.P. 720(A)(1). If a post-sentence

motion is filed, a notice of appeal must be filed within thirty days of the

resolution of the motion. See Pa.R.Crim.P. 720(A)(2).

-2- J-S28005-23

Here, new counsel entered his appearance on behalf of Eckert on

November 8, 2022. Counsel relied on the docket entry indicating that post-

sentence motions were denied on October 25, 2022, and filed a notice of

appeal within 30 days of that date. Rather than remand to the trial court to

clarify what happened, we conclude that, at the very least, a breakdown in

court operations occurred. Under these circumstances, counsel was entitled

to rely on the official docket entries which indicated that timely post-sentence

motions had been explicitly denied. As such, we will address the merits of the

appeal.

Eckert raises one claim on appeal, challenging the discretionary aspects

of his sentence. See Appellant’s Brief at 21. Eckert has no absolute right to

challenge the discretionary aspects of his sentence. See Commonwealth v.

Lee, 876 A.2d 408, 411 (Pa. Super. 2005). He is required to make a statement

in his brief of the reasons we should allow an appeal of the discretionary

aspects of his sentence. See id. He must also show that a substantial question

exists as to whether the sentence complies with the Sentencing Code. See id.

Eckert has complied with these requirements. He included his statement

for reasons to allow an appeal challenging the discretionary aspects of

sentencing in his brief pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, at

32-33. Eckert claims that the consecutive nature of his sentence is

unreasonable as the aggregate sentence is excessive given the totality of the

circumstances surrounding his crimes. See id. at 39. This claim constitutes a

substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1273

-3- J-S28005-23

(Pa. Super. 2013). We therefore turn to the merits of Eckert’s sentencing

claim.

The details of a sentence are left to the discretion of the sentencing

judge, and we will only disturb them if we find an abuse of discretion. See

Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). When

reviewing a sentence, we will vacate when we find the sentencing guidelines

were applied incorrectly, adhering to the sentencing guidelines is

unreasonable for the case, or a sentence outside the guidelines is

unreasonable. See Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.

2012). When fashioning a sentence, a trial court must consider the character

of the defendant and the specific circumstances of the offenses which includes

considering prior record score, age, and rehabilitative potential. See

Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021).

The basis of Eckert’s argument is that the trial court did not articulate

reasons on the record why Eckert’s sentences were ordered to run

consecutively, implying that his crimes were worse than similar crimes

committed by similarly situated defendants. See Appellant’s Brief at 49.

Eckert does not provide any citations to cases where defendants charged and

convicted with similar crimes were given concurrent sentences. A pre-

sentence investigation was conducted and Eckert submitted a sentencing

memorandum including many character references. At sentencing Eckert’s

daughters and wife spoke on his behalf, and Eckert spoke in allocution. See

N.T., 10/13/22 at 3, 9-22. Further, Eckert’s counsel provided a recitation of

-4- J-S28005-23

his rehabilitative attempts since his arrest. See id. at 23-29. The

Commonwealth argued at sentencing that the decision to withdraw 30 charges

against Eckert in exchange for his guilty plea was, in itself, consideration for

Eckert acknowledging his responsibility. See id. at 30-31. The trial court

stated that the maximum sentence for each of the ten counts was five to ten

years’ incarceration. See id. at 35. The trial court considered this information

along with the contents of the criminal complaint in fashioning a guideline

sentence. See id. at 36.

Eckert complains the record lacks specific reasons for his sentence. See

Appellant’s Brief at 51. In fact, it is well established that the sentencing court

can meet its requirement to state the reasons for sentence simply by

indicating that it has considered the pre-sentence report. See

Commonwealth v. Goodco Mechanical, Inc., 291 A.3d 378, 407 (Pa.

Super. 2023). The mere fact that the sentencing judge reviewed a pre-

sentence report creates a presumption that the sentencing judge meaningfully

weighed the sentencing factors and we will not find an abuse of discretion.

See id. Given the evidence presented at the hearing, and the court’s review

of the PSI, we find no abuse of discretion in the consecutive nature of the

sentence imposed.

Judgment of sentence affirmed.

-5- J-S28005-23

DATE: 11/20/2023

-6-