Com. v. Christman, J. ( 2017 )

J-S35027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH CHRISTMAN :
:
Appellant : No. 1739 WDA 2016
Appeal from the Order October 21, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002038-2015
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY RANSOM, J.: FILED JULY 27, 2017
Appellant, Joseph Christman, appeals from the judgement of sentence
of thirty-six to seventy-two months of incarceration, imposed October 21,
2016, following his open plea to eleven counts of Sexual Abuse of Children
(Possession of Child Pornography).1 We affirm.
The trial court summarized the relevant facts and procedural history as
follows:
This was an open plea, with the understanding that the
sentences imposed for each count would be concurrent. [The
court] ordered a Presentence Investigation, as well as
Assessment by the Pennsylvania Sexual Offenders Board. After
such assessment, the Appellant did not meet the criteria for
being classified as a sexually violent predator. [Appellant] also
from Concord, New Hampshire, who authored a written report
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §6312(d)
J-S35027-17
[Defendant’s Exhibit 1] and testified at the time of sentencing.
Counsel also submitted a Presentencing Memorandum
addressing the issue as to whether the enhancements under 204
Pa. Code §303.10(e) applied.
[The court] found that such enhancements applied, and on
October 21, 2016, imposed an aggregate sentence of no less
than thirty-six (36) months and no more than seventy-two (72)
months in the state correctional system.
Trial Court Opinion, 11/30/16, at 1-2 (internal formatting modified).
Appellant timely appealed the judgment of sentence and filed a court-
ordered statement of errors complained of on appeal pursuant to Pa. R.A.P.
1925(b). The trial court issued a responsive opinion. On appeal, Appellant
raises the following issue for review:
Whether the sentencing court erred as a matter of law by
applying the sentencing enhancement of 204 Pa. Code
303.9(1)(1) to the charges of sexual abuse of children
(possession of child pornography) 18 Pa.C.S.A. §6321(d) by
aggregating all of the images pertaining to eleven (11) separate
and separately sentencable [sic] counts of sexual abuse of
children (possession of child pornography) 18 Pa.c.S.A. §6312(d)
onto each single count?
Appellant’s Brief at 4.
Appellant contends that the trial court incorrectly applied the
sentencing enhancement. As such, Appellant’s claim challenges the
discretionary aspects of his sentence. Commonwealth v. Rhoades, 8 A.3d
912 (Pa. Super. 2010). “It is well settled that, with regard to the
discretionary aspects of sentencing, there is no automatic right to appeal.”
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. super. 2010).
-2-
J-S35027-17
To invoke this Court’s jurisdiction, an Appellant must satisfy a four-
part test: 1) whether the appeal is timely; 2) whether Appellant preserved
his issue; 3) whether Appellant’s brief contains a concise statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f);
and 4) whether that statement raises a substantial question that the
sentence is inappropriate under the Sentencing Code. See Commonwealth
v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
Appellant fails to meet the second and third prongs and, as such, fails
to invoke this Court’s jurisdiction. Initially we note that Appellant did not
seek reconsideration of his sentence at sentencing or in a post-sentence
motion.
Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal. [I]ssues challenging
discretionary aspects of sentencing must be raised in a post-
sentence motion or by raising the claim during the post
sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived. The failure is not
cured by submitting the challenge in a Rule 1925(b) statement.
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003)(internal
citations omitted).
Furthermore, Appellant failed to include in his brief a concise
statement of reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f), and the Commonwealth has objected to that omission.
See Brief for Appellee at 5-6. (stating that “[Appellant’s] failure to include a
Pa.R.A.P. 2119(f) statement in his brief precludes review of this claim”). As
-3-
J-S35027-17
such, this Court may not review the merits of the claim. See
Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa. Super. 2000) (“[W]e
may not reach the merits of [the] claims where the Commonwealth has
object[ed] to the omission of the statement.”)(quoting Commonwealth v.
Rodriguez, 673 A.2d 962 (Pa. Super 1996)).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
-4-