J-S37007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD B. HOHMAN
Appellant No. 484 WDA 2015
Appeal from the Judgment of Sentence January 6, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002264-2014;
CP-02-CR-0017508-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 28, 2016
Appellant, Edward B. Hohman, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his guilty
plea to one (1) count of endangering welfare of children (“EWOC”), three (3)
counts of simple assault, and two (2) counts each of recklessly endangering
another person (“REAP”) and terroristic threats.1 We affirm Appellant’s
convictions but vacate the judgment of sentence and remand the case to the
trial court for the limited purpose of clarifying the record and imposing the
correct sentence.
The relevant facts and procedural history of this case are as follows.
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1
18 Pa.C.S.A. §§ 4304, 2701(a)(1), (a)(3), 2705, 2706(a)(1), respectively.
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On June 1, 2013, Appellant’s eight-year-old stepson called the police and
reported that Appellant was trying to enter the house to hurt the child’s
mother (Appellant’s wife). Appellant was intoxicated, broke into the house,
and argued with his wife. Appellant then grabbed his wife by the throat and
threatened to kill her and her son. Appellant refused to let his wife leave the
house. He also let the air out of her truck tires and took her car keys and
cell phone. In another incident on December 12, 2013, Appellant and his
wife were on their way home from a party when they began to argue with
each other. Appellant became physically abusive when they arrived home
and began to ransack the residence. Appellant held his wife over a sink and
bit her on the chin and mouth, causing puncture wounds, swelling, and
bleeding. Appellant then picked up a knife and chased his wife out of the
residence. Appellant’s stepson and twelve-year-old daughter tried to stop
the attack, at which point Appellant threw the knife and almost struck one of
the children.
On October 1, 2014, Appellant pled guilty to one count of EWOC, three
counts of simple assault, and two counts each of terroristic threats and
REAP. At the sentencing hearing on January 6, 2015, the court announced it
was sentencing Appellant to consecutive terms of incarceration of one-and-
a-half (1½) to three (3) years for EWOC and one (1) to two (2) years for
one count of simple assault, along with a concurrent term of one (1) to two
(2) years’ incarceration for one count of terroristic threats. No further
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penalty was imposed on the remaining convictions. The sentences indicated
on the guideline sentence forms were consistent with the court’s oral
pronouncement at sentencing. The court’s written sentencing order,
however, imposed a sentence of one-and-a-half (1½) to five (5) years’
incarceration for EWOC. The written order comported with the court’s oral
pronouncement of sentence in all other respects. On January 15, 2015,
Appellant filed timely post-sentence motions to reconsider sentence and to
withdraw plea. On January 23, 2015, the court denied the motion to
reconsider sentence. On February 19, 2015, the court denied Appellant’s
motion to withdraw plea. Appellant filed a timely notice of appeal on March
20, 2015. The court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). After the court granted an
extension, Appellant timely complied.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY
IMPOSING THREE SENTENCES THAT WERE EITHER IN THE
AGGRAVATED RANGE OR THE STATUTORY MAXIMUM
WHEN IT IS INCONSISTENT WITH THE NORMS
UNDERLYING THE SENTENCING CODE, IT FAILED TO
CONSIDER ALL RELEVANT FACTORS AND FOCUSED
ALMOST EXCLUSIVELY ON THE SERIOUSNESS OF THE
OFFENSES AND THE INJURY TO THE VICTIM TO THE
EXCLUSION OF OTHER PERTINENT FACTORS?
(Appellant’s Brief at 5).
Appellant argues the court sentenced him without considering all
relevant factors, including Appellant’s individual characteristics and
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rehabilitative needs. Appellant asserts he expressed remorse for his
behavior and indicated he wanted to seek treatment for his alcoholism,
which fueled the incidents. Appellant contends the court focused on the
gravity of the offenses, including the children’s involvement and the injuries
to Appellant’s wife, to the exclusion of other pertinent factors. Appellant
claims the court imposed an aggravated range sentence for EWOC and the
statutory maximum sentence for simple assault without any explanation of
how Appellant’s acts were more serious than typical cases involving those
offenses. Appellant submits the court improperly based his aggravated
range EWOC sentence on a factor (exposing children to harm) that is a basic
element of the crime. Appellant concludes his EWOC and simple assault
sentences were unreasonable, and this Court should vacate the judgment of
sentence and remand for resentencing.2 As presented, Appellant challenges
the discretionary aspects of his sentence.3 See Commonwealth v.
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2
Despite Appellant’s reference to all three sentences in his statement of
questions involved, he presents no argument regarding his sentence for
terroristic threats. Therefore, any challenge to that particular sentence is
waived. See Commonwealth v. Hakala, 900 A.2d 404 (Pa.Super. 2006)
(stating failure to develop argument in support of claim on appeal results in
waiver of issue).
3
“[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
(Footnote Continued Next Page)
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Dunphy, 20 A.3d 1215 (Pa.Super. 2011) (stating claim that sentencing
court failed to offer adequate reasons to support sentence challenges
discretionary aspects of sentencing); Commonwealth v. Fullin, 892 A.2d
843 (Pa.Super. 2006) (stating claim that court improperly based aggravated
range sentence on factor that constituted element of offense challenges
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995) (explaining claim that court did not consider
mitigating factors challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
_______________________
(Footnote Continued)
2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.
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Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.” Commonwealth v.
Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question
exists “only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 912-13.
Generally, “[a]n allegation that a sentencing court failed to consider or did
not adequately consider certain factors does not raise a substantial question
that the sentence was inappropriate.” Cruz-Centeno, supra at 545.
Nevertheless, a substantial question is raised where an appellant alleges the
sentencing court erred by imposing an aggravated range sentence without
consideration of mitigating circumstances. Commonwealth v. Felmlee,
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828 A.2d 1105 (Pa.Super. 2003) (en banc). Likewise, a claim that the court
imposed an aggravated range sentence without placing adequate reasons on
the record raises a substantial question. Commonwealth v. Bromley, 862
A.2d 598 (Pa.Super. 2004), appeal denied, 584 Pa. 684, 881 A.2d 818
(2005).
On appeal, this Court will not disturb the judgment of the sentencing
court absent an abuse of discretion. Commonwealth v. Walls, 592 Pa.
557, 564, 926 A.2d 957, 961 (2007). “[A]n abuse of discretion is more than
a mere error of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Id.
Instantly, at the sentencing hearing and in his motion to reconsider
sentence, Appellant failed to raise (1) his challenge to the simple assault
sentence, and (2) his specific contention that the court imposed an
aggravated range sentence for EWOC without consideration of mitigating
factors. Therefore, those issues are waived. See Mann, supra. Appellant
properly preserved his claim that the court failed to provide adequate
reasons for sentencing Appellant in the aggravated range of the Sentencing
Guidelines for EWOC. That claim presents a substantial question. See
Bromley, supra. Nevertheless, at sentencing, the court made the following
statement on the record:
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[Appellant], it’s not these last two incidents alone on which
I am basing my judgment. The truth is, is that you have
for the last twenty-five years been convicted of assaultive
behavior and you have ten prior convictions. Most of these
convictions involve violence. The previous conviction isn’t
only about wielding a knife at your daughter…. It’s also
about biting your wife’s face and leaving a permanent scar
there. You violated a PFA. I’ve reviewed your past periods
of probation, and you’ve always had a poor adjustment.
You were told not to contact her children and did so even
from the Allegheny County Jail. You’ve had prior—twice
you’ve been sent for prior alcohol rehabilitations, and you
never followed through. You continue your abusive
behavior.
The [c]ourt does not feel that you are a candidate for
county supervision, and I feel that you certainly are a
danger to the people that you have continued to avoid.
There was also another child involved in this I think but
was not your child.
(N.T. Sentencing, 1/6/15, at 8-9). The court also stated it had read and
considered Appellant’s presentence investigation (“PSI”) report, so we can
presume the court considered the relevant information and mitigating
factors. See Tirado, supra (stating where sentencing court had benefit of
PSI, law presumes court was aware of and weighed relevant information
regarding defendant’s character and mitigating factors). The court
emphasized the particularly violent and disturbing nature of Appellant’s
conduct toward the children and toward Appellant’s wife in the children’s
presence. The court’s remarks also reflected consideration of Appellant’s
personal circumstances and potential for rehabilitation. Based on the
foregoing, we conclude the trial court weighed all of the relevant factors and
provided adequate reasons on the record for sentencing Appellant in the
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aggravated range for EWOC, regardless of whether the court imposed a
maximum term of three or five years’ incarceration for that offense. See
204 Pa.Code § 303.16(a) n.4 (stating recommendations in Sentencing
Guidelines apply to minimum terms of incarceration only). Accordingly,
Appellant is not entitled to relief on his challenge to the discretionary aspects
of his sentence. See Walls, supra.
Nevertheless, a discrepancy exists between the written sentencing
order and the sentencing transcript/guideline sentence form with respect to
the maximum term for Appellant’s EWOC sentence. “[W]here there is a
discrepancy between the sentence as written and orally pronounced, the
written sentence generally controls.” Commonwealth v. Willis, 68 A.3d
997, 1010 (Pa.Super. 2013). Notwithstanding that general rule, “a trial
court has the inherent, common-law authority to correct ‘clear clerical errors’
in its orders. A trial court maintains this authority even after the expiration
of the 30 day time limitation set forth in 42 Pa.C.S.A. § 5505 for the
modification of orders.” Commonwealth v. Borrin, 12 A.3d 466, 471
(Pa.Super. 2011) (en banc) (internal citations omitted).
[F]or a trial court to exercise its inherent authority and
enter an order correcting a defendant’s written sentence to
conform with the terms of the sentencing hearing, the trial
court’s intention to impose a certain sentence must be
obvious on the face of the sentencing transcript. Stated
differently, only when a trial court’s intentions are clearly
and unambiguously declared during the sentencing hearing
can there be a “clear clerical error” on the face of the
record, and the sentencing order subject to later
correction.
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Id. at 473 (internal citations omitted).
Here, at the sentencing hearing, the trial court clearly and
unambiguously stated its intention to sentence Appellant to a term of one-
and-a-half (1½) to three (3) years’ incarceration for the EWOC conviction.
The guideline sentence form reflects the same sentence. The court’s written
sentencing order, however, indicates a sentence of one-and-a-half (1½) to
five (5) years’ incarceration for EWOC.4 Thus, there appears to be a patent
inconsistency or “clear clerical error” on the face of the record, which is
subject to correction by the trial court. See id. Accordingly, we affirm
Appellant’s convictions, but vacate the judgment of sentence and remand
the case to the trial court for the limited purpose of relieving the record of
any discrepancy regarding Appellant’s EWOC sentence and imposing the
correct sentence.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
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4
Appellant was convicted of EWOC as a first-degree misdemeanor, so either
sentence would be legal. See 18 Pa.C.S.A. § 1104(1) (setting maximum
term of incarceration of five years for first-degree misdemeanor).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
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