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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT LEE SHAFFER, JR.
Appellant No. 1548 MDA 2015
Appeal from the Judgment of Sentence August 10, 2015
in the Court of Common Pleas of Clinton County Criminal Division
at No(s): CP-18-CR-0000461-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 20, 2016
Appellant, Robert Lee Shaffer, Jr., appeals from the judgment of
sentence entered in the Clinton County Court of Common Pleas following his
guilty plea to seven counts of possession of child pornography. 1 He claims
that the trial court erred by imposing an excessive sentence and failing to
consider mitigating factors. We affirm.
The trial court summarized the pertinent procedural history as follows:
Appellant was charged pursuant to a Criminal Complaint
filed on September 30, 2014 by Brittney J. Baughman of
the Office of Attorney General with . . . fifteen (15) counts
of Sexual Abuse of Children (Possession of Child
Pornography), a felony of the third degree; . . . Appellant
waived Appellant’s right to a Preliminary Hearing on
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6312(d).
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October 21, 2014 and pled guilty[2] before this Court on
May 8, 2015 to seven (7) counts of Sexual Abuse of
Children (Possession of Child Pornography), all graded as
felonies of the third degree. This Court on August 10,
2015 sentenced Appellant to a term of imprisonment of six
(6) months to thirty-six (36) months on each of the counts
and ordered that these sentences run consecutive.
Therefore, Appellant had an aggregate minimum sentence
of forty-two (42) months and an aggregate maximum
sentence of two hundred fifty-two (252) months.
Appellant filed a Motion to Modify Sentence on August 19,
2015,[3] which this Court denied by Order of August 20,
2015. Defendant filed a timely appeal on September 8,
2015 and pursuant to this Court’s Order of September 9,
2015, filed a Statement of Matters Complained of Pursuant
to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure on September 25, 2015.
Trial Ct. Op., 9/30/15, at 1-2.
On appeal, Appellant argues that his sentence is excessive and that
the trial court erred in not considering mitigating factors.4 Appellant’s Brief
2
Appellant and the Commonwealth agreed that he would be sentenced
within the standard range for each count. However, the trial court would
determine whether each sentence would run concurrently or consecutively.
Appellant’s Guilty Plea Statement, 5/7/15, at 7; N.T., 5/8/15, at 2.
3
Appellant filed a post-sentence motion to reduce and modify his sentence.
He noted mitigating factors that should have been considered. Appellant’s
Post-Sentence Mot., 8/19/15, at 1-2 (unnumbered).
4
Appellant raises the following four issues in his statement of the questions
involved:
A. Whether the trial court committed an abuse of
discretion in failing to adequately consider that the
Appellant was cooperative throughout the investigation of
the matter and waived his Preliminary Hearing and right to
trial and ultimately pled guilty?
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at 8-9. Appellant claims that the trial court abused its discretion. Id. at 7.
We hold that Appellant is not entitled to relief.
Claiming that a sentence is excessive is a challenge to the
discretionary aspects of sentencing. Commonwealth v. Pennington, 751
A.2d 212, 215 (Pa. Super. 2000). Appellants do not have an absolute right
to appeal the discretionary aspects. Commonwealth v. Evans, 901 A.2d
528, 533 (Pa. Super. 2006). In order to obtain review, Appellant must
satisfy a four-prong test. Id.
As a prefatory matter, however, we determine if Appellant is entitled
to seek permission to appeal. Ordinarily, when a guilty plea includes a
sentence agreement, and the agreed upon sentence is imposed, the plea
B. Whether the trial court committed an abuse of
discretion in failing to adequately consider Appellant’s life
history which includes only a single criminal conviction
from 1994?
C. Whether the trial court committed an abuse of
discretion in failing to adequately consider Appellant’s
cooperation and compliance with the officials and policies
of the Clinton County Correctional Facility during his pre-
trial incarceration for over ten (10) months?
D. Whether the trial court committed an abuse of
discretion in failing to adequately consider Appellant’s
close connection with his family, especially his eight-year-
old [sic] Mother and two children who reside locally in
Clinton County?
Appellant’s Brief at 5. However, because Appellant discusses all of the
issues in a single argument section of his brief, we address them as such.
Id. at 7.
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results in a waiver of a challenge to the discretionary aspects of the
sentence. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.
1991). After a guilty plea with a negotiated agreement is made, challenges
may only be brought to review the court’s jurisdiction, the legality of the
sentence, and the validity of the plea. Id. However, where a guilty plea is
open and made without a sentence agreement, the defendant has the right
to challenge the discretionary aspects of sentencing. Commonwealth v.
Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009). Where the guilty plea is a
hybrid, i.e., negotiated as to certain aspects of the sentence, but not all, this
Court can review the non-negotiated aspects of the sentence. See id. at
1019-20.
Instantly, Appellant pleaded guilty to seven counts of possession of
child pornography on May 8, 2015. Appellant and the Commonwealth
agreed that he would be sentenced within the standard range, but the
consecutive nature of the sentence would be left to the trial court.
Appellant’s Guilty Plea Statement, 5/7/15, at 7; N.T., 5/8/15, at 2. Because
this was a hybrid plea agreement, we conclude that he has not waived his
right to seek permission for appellate review of the discretionary aspects of
the non-negotiated portions of his sentence. See Brown, 982 A.2d at
1019-20.
Accordingly, we may proceed to determine if Appellant satisfies the
following four requirements for review:
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(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).
Evans 901 A.2d at 533. (citation omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm. . . . If the Rule 2119(f) statement
meets these requirements, we can decide whether a
substantial question exists.
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). If an
appellant fails to include a 2119(f) statement in his brief, and the
Commonwealth objects to the lack of the statement, this Court cannot
review the merits of the appellant’s claim. See Commonwealth v. Bruce,
916 A.2d 657, 666 (Pa. Super. 2007).
In this case, Appellant filed a timely appeal and preserved the issues
by filing a post-sentence motion. However, Appellant failed to comply with
the 2119(f) statement requirement because he did not include a 2119(f)
statement in his brief. See Appellant’s Brief at 1-10; accord Pa.R.A.P.
2119(f); Goggins, 748 A.2d at 727. The Commonwealth objected to
Appellant’s lack of a 2119(f) statement. See Commonwealth’s Brief at 8-9
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(“This Court should not review the merits of [Appellant’s] discretionary
aspects of sentencing claim because he has failed to comply with the
requirements to obtain review” including his omission of a 2119(f)
statement). Therefore, this Court cannot review Appellant’s challenge to the
discretionary aspects of his sentence. See Bruce, 916 A.2d at 666.
Accordingly, Appellant failed to comply with the requirements for
review. See Evans, 901 A.2d at 533. Therefore, we decline to examine the
merits of Appellant’s challenge to the discretionary aspects of his sentencing,
deny permission to appeal, and affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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Com. v. Shaffer, R., Jr.
Combined Opinion