J-S83031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ALAN COBBS, :
:
Appellant : No. 858 WDA 2018
Appeal from the Judgment of Sentence May 7, 2018
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009202-2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 15, 2019
Christopher Alan Cobbs (“Cobbs”) appeals from the judgment of
sentence entered following his guilty plea to one count each of carrying a
firearm without a license and person not to possess firearms.1 We dismiss
Cobbs’s appeal.
In its Opinion, the trial court summarized the relevant procedural history
underlying the instant appeal as follows:
On May 7, 2018, [Cobbs] plead guilty to the above
referenced charges and proceeded directly to sentencing. The
parties stipulated to the facts of the Affidavit of Probable Cause in
its entirety. [The] Commonwealth supplemented the factual basis
with crime lab results regarding the operability and barrel length
of the firearm[,] and information that [Cobbs] was ineligible to
possess a firearm as a result of an active warrant.[FN] [Cobbs]
waived a pre-sentence report and proceeded directly to
sentencing, wherein [the trial court] imposed a mitigated[-]range
sentence of two (2) to four (4) years of incarceration at Count
____________________________________________
1 See 18 Pa.C.S.A. §§ 6106(a)(1), 6105(c)(1).
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(1)[,] with a consecutive two (2) year period of probation at Count
(2). After imposition of sentence, defense counsel requested a
recommendation for Motivational Boot camp ([see] 61 Pa.C.S.[A.]
§§ 3900-3905)[,] which was rejected by [the trial court]. [Cobbs]
filed a timely Post Sentence Motion on May 8, 2018[,] asking the
[c]ourt to modify sentence and enter a recommendation for boot
camp[,] again outlining [Cobbs’s] eligibility. This was denied on
May 9, 2018. [Cobbs’s] Notice of Appeal was filed on June 8,
2018. By Order of Court dated June 13, 2018, [Cobbs] was
directed to file a Concise Statement of Matters Complained of on
Appeal. Due to counsel’s failure to request the appropriate
transcript[,] the [c]ourt granted an extension to file the Concise
Statement on July 10, 2018. On August 1, 2018[,] [Cobbs] filed
the Statement of Errors Complained of on Appeal….
The warrant was for a simple assault charge filed at CC
[FN]
201808788[,] which was nolle prossed the same date, May 7,
2018.
Trial Court Opinion, 11/5/18, at 2-3 (citation omitted, footnote in original).
In this appeal, Cobbs presents the following claim for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN FINDING
THAT [] COBBS WAS NOT STATUTORILY ELIGIBLE FOR BOOT
CAMP[,] WHEN [] COBBS SATISFIED THE TERM OF CONFINEMENT
AND AGE CRITERIA AND WAS NOT SENTENCED FOR ANY OF THE
ENUMERATED OFFENSES WHICH MAKE AN INMATE STATUTORILY
INELIGIBLE[,] AS SET FORTH IN 61 PA.C.S.A. §§ 3901-3908?
Brief for Appellant at 4.
Before examining the merits of the above claim, we must initially
address whether Cobbs has preserved the claim for our review. “If the judge
entering the order giving rise to the notice of appeal desires clarification of
the errors complained of on appeal, the judge may enter an order directing
the appellant to file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal.” Pa.R.A.P. 1925(b)
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(parentheticals omitted). Any issues not raised in a Rule 1925(b) concise
statement will be deemed waived. See Pa.R.A.P. 1925(b)(4)(vii). “Our
Supreme Court intended [Rule 1925(b)] to operate as a bright-line rule, such
that ‘failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised.’” U.S. Bank, N.A., v. Hua,
193 A.3d 994, 997 (Pa. Super. 2018) (quoting Greater Erie Indus. Dev.
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014)
(en banc) (citation omitted)).
In his Pa.R.A.P. 1925(b) Concise Statement, Cobbs preserved the
following challenge to his sentence:
The lower court abused its discretion in finding that [] Cobbs was
not statutorily eligible for Boot Camp when [] Cobbs satisfied the
term of confinement and age criteria set forth in the statute. See
61 P.S. § 1123. Further, [] Cobbs was not sentenced for a
violation of any of the enumerated offenses which make an inmate
statutorily ineligible for Boot Camp; rather, he was sentenced for
person not to possess a firearm. Thus, he was not rendered
statutorily ineligible because of the offense to which he pleaded
guilty.
Pa.R.A.P. 1925(b) Concise Statement, 8/1/18, at ¶ 12(a). Cobbs’s present
claim, which challenges the trial court’s exercise of its discretion in not
authorizing Cobbs for motivational boot camp, is presented for the first time
in this appeal. Thus, his claim is waived. See Pa.R.A.P. 1925(b)(4)(vii).
Even if Cobbs had included this issue in his Rule 1925(b) Concise
Statement, he would not be entitled to relief. Cobbs’s claim challenges the
discretionary aspects of his sentence. “A challenge to the discretionary
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aspects of sentencing is not automatically reviewable as a matter of
right.” Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017).
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).
Grays, 167 A.3d at 815-16 (citation omitted).
Although Cobbs timely filed his Notice of Appeal, he did not raise this
claim in his post-sentence Motion. Thus, we would dismiss his sentencing
claim on this basis, as well. See id.
Even if Cobbs had preserved this claim, and even if his claim raised a
substantial question, Cobbs’s claim would not entitle him to relief. Cobbs
claims in his brief the trial court improperly failed to fully consider his
rehabilitative needs. Brief for Appellant at 10. Cobbs further asserts that the
trial court failed to indicate why placement in motivational boot camp would
be inappropriate. Id. At sentencing, Cobbs’s counsel did not specify any
specific rehabilitative needs for the trial court’s consideration. Rather, counsel
pointed out that
Cobbs was working at the time he was arrested. He has two kids.
He has a wife he has been with for going on two years. Mr. Cobbs
isn’t the type of person who is going to be a persistent problem in
the criminal justice system. He just simply had a very bad year.
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N.T., 5/7/18, at 11. The sentencing transcript reflects that the trial court
specifically considered these factors when sentencing Cobbs:
THE COURT: … You are 32 years old now. It is long overdue for
you to decide to change the direction that you are going to go.
You have young children. You have a wife. You have skills that
could take you in a different direction, okay, but for whatever
reason[,] you chose not to do that.
Id. In denying Cobbs’s request for boot camp, the trial court stated the
following:
THE COURT: All right. I believe that boot camp is for a younger
individual, not someone that has accumulated three or four
misdemeanors and now a felony. So I am not going to
recommend boot camp in this case.
Id. Because the record does not support the claim raised by Cobbs, and we
discern no abuse of discretion by the trial court, we would have denied him
relief on this claim.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2019
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