Com. v. Keithline, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH KEITHLINE :
:
Appellant : No. 315 MDA 2022
Appeal from the Judgment of Sentence Entered October 14, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003151-2020
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JULY 10, 2023
Adam Joseph Keithline appeals from the judgment of sentence entered
in the Luzerne County Court of Common Pleas on October 14, 2021. On
appeal, Keithline attempts to challenge the discretionary aspects of his
sentence. However, as we find Keithline’s appellate brief is deficient in several
respects, we are constrained to affirm.
Due to our disposition a detailed recitation of the factual and procedural
history is not necessary. Briefly, on July 22, 2021, Keithline entered a guilty
plea to four counts each of possession of child pornography and dissemination
of photo/film of child sex acts. The trial court sentenced Keithline to an
aggregate term of two to six years’ incarceration, followed by five years’
probation. Keithline filed a timely post-sentence motion for reconsideration of
sentence, which the trial court denied. This timely appeal followed.
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Keithline challenges the discretionary aspects of his sentence on appeal.
We review discretionary sentencing challenges with great deference to the
sentencing court:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted). However, “[a] challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
To invoke this Court’s jurisdiction over this issue, Keithline must satisfy
a four-part test:
(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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
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Here, Keithline preserved his issues through a timely post-sentence
motion to modify his sentence, and filed a timely appeal. Further, counsel has
included the required Rule 2119(f) statement. We therefore review the Rule
2119(f) statement to determine if Keithline has raised a substantial question.
We must examine Keithline’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
and emphasis omitted); see also Pa.R.A.P. 2119(f).
Keithline “must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274 (citation omitted). That is, “the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365. “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano, 50
A.3d 148, 154 (Pa. Super. 2012).
Finally,
a Rule 2119(f) statement that simply “contains incantations of
statutory provisions and pronouncements of conclusions of law” is
inadequate.
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Rather, only where the appellant's Rule 2119(f) statement
sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme
set forth in the Sentencing Code or a particular fundamental
norm underlying the sentencing process, will such a
statement be deemed adequate to raise a substantial
question so as to permit a grant of allowance of appeal of
the discretionary aspects of the sentence.
Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa. Super. 2005) (citations
omitted).
Limiting our review to Keithline’s Rule 2119(f) statement, we conclude
he has failed to raise a substantial question. Keithline has included what
purports to be a Pa.R.A.P. 2119(f) statement in his brief. However, that
statement consists of a one paragraph summary of the procedural history of
this case, a one paragraph summary of boilerplate statutory provisions and
pronouncements of law, and a paragraph indicating that a substantial question
is raised in the argument section of the brief.
Nowhere in the statement does Keithline explain what specific provision
of the sentencing code or fundamental norm underlying the sentencing
process has been violated. While he includes citations to authorities relevant
to a challenge to the discretionary aspects of a sentence, he does not apply
those authorities or otherwise identify how the sentence imposed in this case
was inappropriate. Keithline has therefore failed to set forth a substantial
question to justify our review of the discretionary aspects of the sentence
imposed.
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Even if we had concluded that Keithline raised a substantial question,
we would nevertheless find Keithline is due no relief as his brief fails to
conform to other sections of Rule 2119 as well.
We recognize that
appellate briefs and reproduced records must materially conform
to the requirements of the Pennsylvania Rules of Appellate
Procedure. This Court may quash or dismiss an appeal if the
appellant fails to conform to the requirements set forth in the
Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Adams, 882 A.2d 496, 497 (Pa. Super. 2005) (citations
omitted).
Rule 2119 governs the argument section of an appellate brief. See
Pa.R.A.P. 2119. The rule provides:
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
(b) Citations of authorities. Citations of authorities in briefs
shall be in accordance with Pa.R.A.P. 126 governing citations of
authorities.
(c) Reference to record. If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter appearing
in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears (see
Pa.R.A.P. 2132).
(d) Synopsis of evidence. When the finding of, or the refusal to
find, a fact is argued, the argument must contain a synopsis of all
the evidence on the point, with a reference to the place in the
record where the evidence may be found.
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Pa.R.A.P. 2119(a)-(d).
“This Court will not consider the merits of an argument which fails to
cite relevant case or statutory authority. Failure to cite relevant legal authority
constitutes waiver of the claim on appeal.” In re Estate of Whitley, 50 A.3d
203, 209 (Pa. Super. 2012) (citations and quotation marks omitted).
While Keithline’s brief contains an argument section, it is not divided
“into as many parts as there are questions to be argued.” Pa.R.A.P. 2119(a).
Keithline raises 4 issues on appeal, but only divides the argument portion of
his brief into 2 sections; (1) propriety of sentences imposed and (2) due
process implications of sentences. While he makes reference to some of the
issues raised in his statement of issues presented under these two general
sections, at least one issue is abandoned entirely in the argument section.
Additionally, throughout the entirety of his argument section, Keithline
fails to cite to the record. See Pa.R.A.P. 2119(c)-(d). Further, while Keithline’s
brief contains numerous references to case law, it is devoid of references to
relevant case law. See Pa.R.A.P. 2119(a). The majority of Keithline’s citations
only serve to define legal concepts, or exist outside our jurisdiction. As with
his 2119(f) statement, Keithline’s argument fails to apply the authorities he
cites to the circumstances here in any meaningful manner. For example, he
discusses federal case law, but fails to establish its relevance here. See
Appellant’s Brief, at 21. The remainder of his citations do not support the legal
positions Keithline has taken in his brief. Keithline’s brief, unsupported by
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references to the record or citation to relevant authority, does not provide this
Court with any basis upon which to engage in meaningful appellate review.
Finally, the trial court reviewed a PSI report. Where the trial court had
the benefit of reviewing a pre-sentence report, we must
presume[] that he or she was aware of the relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.
Additionally, the sentencing court must state its reasons for the
sentence on the record. The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Commonwealth v. Akhmedov, 216 A.3d 307, 329 (Pa. Super. 2019),
appeal denied, 224 A.3d 364 (Pa. 2020) (en banc) (citation omitted).
As Keithline failed to present a substantial question in his Rule 2119(f)
statement, we may not review the merits of his claims. Further, Keithline’s
failure to follow the rules of appellate procedure would nevertheless foreclose
our review.1 Accordingly, we deny allowance of appeal.
Judgment of sentence affirmed. Jurisdiction relinquished.
____________________________________________
1 In addition to the discretionary aspects of sentence claims, Keithline asserted
in his statement of questions presented that the trial court erred in failing to
hold an evidentiary hearing on his post sentence motion. Due to the
procedural defects with Keithline’s brief, we do not reach this claim.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:07/10/2023
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