Com. v. Bono, T. ( 2023 )

J-S27010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS LEE BONO :
:
Appellant : No. 1754 MDA 2022
Appeal from the PCRA Order Entered December 8, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001067-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2023
Appellant, Thomas Lee Bono, appeals from the post-conviction court’s
December 8, 2022 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts underlying Appellant’s convictions are not pertinent to our
disposition of his present appeal. We need only note that on June 10, 2022,
Appellant pled guilty to various offenses, including driving under the influence
of alcohol (75 Pa.C.S. § 3802(b)) and unauthorized use of a motor vehicle (18
Pa.C.S. § 3928(a)). He was sentenced that same day to an aggregate term
of 6 to 18 months’ incarceration. The sentencing order directed that Appellant
would serve this sentence on house arrest with electronic monitoring, unless
he was not approved for house arrest, in which case he would report to the
J-S27010-23
county prison by July 8, 2022. See Sentencing Order, 6/13/22, at 1 (single
page). Appellant did not file a direct appeal.
Instead, on September 7, 2022, Appellant filed a pro se PCRA petition.
Counsel was appointed, and filed an amended petition on Appellant’s behalf
on October 21, 2022. Therein, Appellant contended that he entered his guilty
plea with the understanding that he would serve his sentence on house arrest,
but he was ultimately denied approval for house arrest because his “out of
county address was not acceptable” for electronic monitoring. Amended
Petition, 10/21/22, at 2 (unnumbered). Appellant claimed that his trial
counsel acted ineffectively by leading Appellant to believe that counsel would
help Appellant find an in-county address so that he could be approved for
electronic monitoring and serve his sentence on house arrest. However,
counsel failed to do so, and Appellant was forced to serve his sentence of
incarceration in the county jail. Thus, Appellant averred that his trial counsel
acted ineffectively.
On December 2, 2022, the PCRA court conducted a hearing at which
Appellant and his trial counsel both testified. On December 8, 2022, the court
entered an order and opinion denying Appellant’s petition. Appellant filed a
timely notice of appeal. The court did not order him to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On March 30, 2023, the
court issued a Rule 1925(a) opinion indicating that it was relying on the
rationale set forth in its December 8, 2022 opinion accompanying its order
denying Appellant’s petition. Herein, Appellant states one issue for our
-2-
J-S27010-23
review: “Whether not affording [Appellant] further time to comply with the
standards of house arrest rather than be incarcerated resulted in an excessive
sentence to the degree that it amounted to an abuse of discretion?”
Appellant’s Brief at 4.
Initially, we note that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
Here, Appellant begins by discussing the law pertaining to appellate
review of the discretionary aspects of sentencing. See Appellant’s Brief at 10-
11. He then presents the following argument, in its entirety:
In the instant case, Appellant alleges that he should have been
given a chance at house arrest/electronic monitoring. At
sentencing, defense counsel requested a period of home
confinement and it was agreed to. However, [Appellant] was not
able to complete the requirements necessary to be fully approved
for house arrest. He believed he needed an address in Schuylkill
County and while it would seem that one was available to him, he
seems to have lacked the ability to comprehend the steps he
needed to take. He did call Adult Probation and he did call his
attorney to try to fix the situation. His sentence was never meant
to keep him in jail as long as he was. He suffered and did not
initially make parole at his minimum.
Id. at 11.
Initially, Appellant’s argument is waived. As set forth above, Appellant
raised an ineffective-assistance-of-counsel claim in his PCRA petition.
-3-
J-S27010-23
Therefore, he cannot raise a sentencing challenge for the first time on appeal.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Moreover, Appellant could
have raised this sentencing argument in a direct appeal from his judgment of
sentence, yet he failed to do so. Therefore, it is waived on this basis, as well.
See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for post conviction
relief, petitioner must plead and prove that a claim has not been waived); 42
Pa.C.S. § 9544(b) (stating “an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state post[]conviction proceeding”).
Even if not waived, we would conclude that the PCRA court did not err
in denying Appellant’s petition. In its December 8, 2022 opinion, the court
noted that, prior to sentencing, it thoroughly explained to Appellant that he
“was not yet eligible for electronic monitoring[,] but that the [c]ourt would
provide him time to obtain a Schuylkill County address to become eligible.”
PCRA Court Opinion (PCO), 12/8/22, at 2. Appellant chose to proceed, aware
of the chance he might not be approved for electronic monitoring. Id. At the
PCRA hearing, Appellant’s trial counsel testified that he had informed
Appellant that he needed to obtain a Schuylkill County address to be approved
for electronic monitoring. Id. at 3. Counsel attempted to assist Appellant in
meeting this requirement, yet Appellant “failed to follow through on the
recommendations” offered by counsel. Id. Additionally, Lisa Conville, the
supervisor of Schuylkill County Adult Probation and Parole, “testified that
-4-
J-S27010-23
subsequent to sentencing[,] she spoke with … [Appellant] and specifically
advised him that he needed to take the electronic monitoring orientation and
process an application for electronic monitoring[,]” yet Appellant “chose to do
neither.” Id.; see also N.T. PCRA Hearing, 12/2/22, at 22-23.
Considering the testimony at the PCRA hearing, the court concluded that
Appellant
chose to proceed knowing full well that he would be incarcerated
if not eligible for electronic monitoring. [His trial counsel] did
everything within his authority and power to make that happen;
however, [trial counsel] is under no obligation to actually ensure
that [Appellant] is compliant with the requirements of electronic
monitoring. Both [trial counsel] and Ms. Conville specifically told
[Appellant] exactly what he needed to do to become electronic
monitoring eligible. [Appellant] chose, on his own, to ignore those
recommendations and instead became incarcerated as opposed to
house arrest. There were no errors or omissions of counsel and
[Appellant’s] claim has little to no merit. Had [Appellant] followed
the advice of counsel, his sentence would be being served on
electronic monitoring.
PCO at 5.
Based on the record and the PCRA court’s rationale, we would discern
no error in the court’s denying Appellant PCRA relief, even had he preserved
his appellate claims for our review.
Order affirmed.
-5-
J-S27010-23
Date: 10/11/2023
-6-