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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY THOMAS BOJNOSKI :
:
Appellant : No. 1930 MDA 2016
Appeal from the Judgment of Sentence November 2, 2016
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0000867-2014,
CP-35-CR-0001085-2016, CP-35-CR-0001211-2016
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 02, 2017
Jeffrey Thomas Bojnoski (Appellant) appeals from an aggregate
sentence of 19½ to 39 months’ incarceration imposed after: he pled guilty to
unsworn falsification to authorities and harassment, and the trial court
revoked his probation. After review, we vacate Appellant’s sentences and
remand this matter to the trial court for proceedings consistent with this
memorandum.
The trial court summarized the pertinent factual and procedural history
as follows.
On August 30, 2016, in case [number] 16-CR-1085,
[(Case 1085), Appellant] pled guilty to one count of unsworn
falsification to authorities, in place of the original charge of
failure to comply with registration of sexual offender
requirements. This charge arose when [Appellant] changed
residences but failed to inform sexual offender registration
authorities of this change. On October 5, 2016, [Appellant] pled
*Retired Senior Judge assigned to the Superior Court.
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guilty to one count of harassment in case [number] 16-CR-1211,
[(Case 1211)] and in exchange the other charges pending
against [Appellant] were [nolle prossed]. These charges arose
on April 16, 2016, when [Appellant] attacked and injured his
girlfriend.
On November 2, 2016, [Appellant] was sentenced in these
two cases and resentenced in case [number] 14-CR-867 [(Case
867)], (a prior case against [Appellant] for failure to provide
accurate sexual offender registration information that had been
replaced with a charge of providing a false statement to
authorities when he pled guilty). The [trial] court noted that
although [Appellant] was now expressing a desire to change his
ways and do what is right, the court had sentenced [Appellant]
in 2014 for simple assault, and that [Appellant] had maxed out
on that charge because he did not want to complete the
programs he was in at the prison. The [trial] court also noted
that [Appellant] provided his probation officer with an address
for his home plan, but that three days later, he was found to be
living at a different address. The court stated that [Appellant]
talks a good game but he does not act in a way that indicates
that he has any respect for the law. The court imposed a 6 to 12
month sentence in [Case 867], a 12 to 24 month sentence in
[Case 1085], and a 1[½] to 3 month sentence in [Case 1211].
His aggregate sentence was thus 19[½] to 39 months. The
court ordered a drug and alcohol and mental health evaluation.
The court noted that the sentence in [Case 1085] was in the
aggravated range since [Appellant] committed the crime while
he was on supervision and it was similar to a prior case against
him of failing to provide the proper residence to authorities so
that he certainly had to be aware of the obligation to provide a
proper address to authorities. The court noted that the other
sentences were within the standard range of the sentencing
guidelines.
On November 14, 2016 [Appellant] filed a motion for
reconsideration of sentence which was denied on November 17,
2016. On November 28, 2016, [Appellant] filed a [n]otice of
[a]ppeal, and on December 6, 2016, th[e trial] court ordered
[Appellant] to file a concise statement of the matters complained
of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). On
December 15, 2016, [Appellant] filed a [s]tatement of [m]atters
[c]omplained of on [a]ppeal.
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Trial Court Opinion, 1/17/2017, at 1-3 (citations omitted).
Initially, in this Court, in lieu of a brief in support of Appellant’s appeal,
counsel filed both an Anders brief and a petition to withdraw as counsel.
Upon review of the record, we found an apparent discrepancy that existed
with respect to Appellant’s sentence at Case 1085. Without the sentencing
guideline form and guilty plea transcript, this Court was unable to reconcile
the apparent confusion between the trial court and Appellant as to whether
Appellant’s sentence at Case 1085 fell within the aggravated range of the
sentencing guidelines or outside the range entirely.
Due to these deficiencies, we remanded this case for the trial court to
supplement the record and thereafter directed counsel to file either an
advocate’s brief or a supplemental Anders brief and petition to withdraw.
See Commonwealth v. Bojnoski, 1930 MDA 2016 (Pa. Super. 2017)
(unpublished memorandum). After the trial court supplemented the record,
counsel for Appellant elected to file an advocate’s brief on Appellant’s
behalf.1 Thus, this case is now ripe for our consideration.
On appeal, Appellant raises the following issues for this Court’s review.
[1.] Whether the sentences imposed were harsh and
unreasonable and an abuse of discretion and involved a
misunderstanding by the sentencing judge that was imposing a
sentence in the aggravated range on the unsworn falsification
charge?
1
The Commonwealth filed a response to Appellant’s advocate’s brief. In
relevant part, the Commonwealth conceded that Appellant’s sentence in
Case 1085 fell outside the sentencing guideline range. Commonwealth’s
Brief at 2.
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[2.] Whether the [trial] court failed to state on the record
reasons or sufficient reasons for imposing a sentence above the
aggravated range on the unsworn falsification charge and in the
aggravated range on the other charges?
[3.] Whether the [trial] court relied on impermissible factors,
such as its claim that Appellant had served the maximum
sentence on a prior offense believing that he did not want to
participate in the programs, when he was only enrolled in one
program due to prison overcrowding and was, therefore, unable
to be paroled and, consequently, was required to serve, through
no fault of his own, the maximum sentence?
Appellant’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).
Appellant’s questions challenge the discretionary aspects of his
sentence. Accordingly, we bear in mind the following.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely [filed]; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
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The record reflects that Appellant timely filed a notice of appeal and
that Appellant preserved the issues by timely filing a motion for
reconsideration of his sentence. Moreover, Appellant has included in his
brief a statement pursuant to Pa.R.A.P 2119(f). We now turn to consider
whether Appellant has presented substantial questions for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
Appellant’s first two issues, both of which wholly or in part involve
Case 1085, are interrelated. Specifically, Appellant contends that he was
sentenced to a term of incarceration that exceeded the aggravated range of
his sentencing guidelines in Case 1085, despite the fact that the trial court
believed that the sentence was within the aggravated range. Appellant’s
Brief at 11. See also Trial Court Opinion, 1/17/2017, at 2 (“The court noted
that the sentence in [Case 1085] was in the aggravated range[.]”).
Appellant avers the court erred by failing to set forth reasons for
sentencing him outside the guideline range. Such a claim raises a
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substantial question. See Commonwealth v. Garcia-Rivera, 983 A.2d
777, 780 (Pa. Super. 2009) (“This [C]ourt has found that a claim the trial
court failed to state its reasons for deviating from the guidelines presents a
substantial question for review.”).
Regarding the merits of Appellant’s claim, we are guided by this
Court’s opinion in Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super.
1995). In Byrd, the trial court stated, on the record, its reasons for
sentencing Byrd in the aggravated range of the sentencing guidelines.
However, the record reflected that the trial court actually sentenced Byrd in
excess of the aggravated range. Thus, on appeal to this Court, Byrd argued
that the trial court abused its discretion by misapplying the sentencing
guidelines and by failing to provide sufficient reasons for sentencing him
outside of the guidelines.
This Court responded to Byrd’s argument as follows.
While deviation from the guidelines is permitted, the
Sentencing Code requires that the court place of record its
reasons for such deviation. The Superior Court has held that
[a]t the minimum, the court must indicate that it
understands the sentencing guideline range, in those cases
in which the court deviates from the guidelines.
[I]n every case where sentence has been imposed, the
court then must make as part of the record and disclose in
open court at the time of sentencing, a statement [of] the
reasons for the sentence. However, the Sentencing Code
imposes an additional requirement where the sentence is
outside the guidelines and that is there must be a
contemporaneous written statement of the reasons for
deviation from the guidelines. Where the trial judge
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deviates from the sentencing guidelines ... he must set
forth on the record, at sentencing, in the defendant’s
presence, the permissible range of sentences under the
guidelines and, at least in summary form, the factual basis
and specific reasons which compelled the court to deviate
from the sentencing range. The Act states that failure to
provide an appropriate contemporaneous written
statement shall be grounds for vacating the sentence and
resentencing the defendant. In the instant case the court
did not advise the defendant what the sentencing
guidelines provided as far as the range of sentence, and
did not state why he deviated from the sentencing
guidelines.
[Byrd’s] sentencing transcript reveals that the sentencing
court failed to set forth in [his] presence the permissible range
of sentences under the guidelines. Moreover, while the
sentencing court did provide reasons for the sentence imposed,
these reasons were advanced to support a sentence in the
aggravated range. Nowhere did the court indicate that it was in
fact sentencing [Byrd] outside of the guidelines and provide a
contemporaneous statement of its reasons for such deviation….
Byrd, 657 A.2d at 963-64 (citations omitted). For these reasons, this Court
vacated Byrd’s sentence and remanded to the trial court for resentencing.
Here, based on the supplemental record received by this Court, it is
clear that Appellant was sentenced outside the guideline range in Case
1085.2 In addition to the trial court failing to set forth in Appellant’s
presence the permissible range of sentences under the guidelines, the court
maintained that it was sentencing Appellant in the aggravated range, when
2
Appellant was sentenced to 12 to 24 months’ incarceration for one count of
unsworn falsification to authorities, a misdemeanor of the second degree. At
the time of his sentencing, Appellant’s prior record score was two. Thus,
under the sentencing matrix the applicable standard guideline range was
restorative sanctions to three months and the aggravated range was six
months.
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in fact, Appellant’s sentence exceeded the guidelines. See N.T., 11/2/2016,
at 9.
Although the trial court provided reasons for the sentence it imposed
at Case 1085, those reasons were advanced to support a sentence in the
aggravated range. Id. (“That is in the aggravated range and that is due to
the fact it was committed while he was on supervision and that it was
directly related to a prior violation and similar to a prior violation when he
certainly had to be aware of his obligations at that point.”). Yet, the court
sentenced Appellant to 12 to 24 months’ incarceration for unsworn
falsification to authorities, which falls outside of the aggravated range. The
court never stated that it was sentencing Appellant outside of the
aggravated range nor did it provide a contemporaneous reason for such a
deviation.
Under Byrd, this is an error which the trial court must remediate.
Because Appellant was sentenced in all three of the above-referenced cases
at the same sentencing hearing, in which the court’s reasoning for these
sentences was intertwined, and because those sentences were to run
consecutively to one another, out of an abundance of caution, we vacate
Appellant’s sentences at Case 1085, 1211, and 867, and remand for
resentencing. In light of our disposition, we need not address Appellant’s
remaining arguments that the trial court failed to provide adequate reasons
on the record for his sentences at Cases 1211 and 867, and that the court
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relied on impermissible factors during sentencing, as these issues can be
properly addressed at a resentencing hearing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2017
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