Com. v. Eckert, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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. :
:
:
JOHN ECKERT, III :
:
Appellant : No. 1359 WDA 2022
Appeal from the Judgment of Sentence Entered October 13, 2022
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001196-2021
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 20, 2023
John Eckert, III appeals from the judgment of sentence entered
following his open guilty plea to ten counts of possession of child pornography.
On appeal, Eckert challenges the discretionary aspects of his sentence,
specifically, that his sentences were imposed to run consecutively to each
other. After careful review, we affirm.
In 2021, Eckert was charged with thirty-five counts of possession of
child pornography and five counts of criminal use of a communication facility.
Eckert pleaded guilty to ten counts of possession of child pornography graded
as a second-degree felony and the remaining charges were dismissed. On
October 13, 2022, Eckert was sentenced to one to four years’ incarceration on
____________________________________________
* Former Justice specially assigned to the Superior Court.
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each of the ten charges with the sentences on counts one through four to run
consecutively to each other and the remaining sentences to run concurrently.
Before addressing the merits of the appeal, we must consider whether
the appeal is timely filed. See Pa.R.A.P. 105(b). Eckert filed a notice of appeal
to this Court on November 22, 2022. Eckert noted he was appealing from the
sentence of October 13, 2022, and the denial of reconsideration of sentence
of October 25, 2022. See Notice of Appeal. The trial court docket does not
reflect a motion for reconsideration of sentence was ever filed however it does
indicate that one was denied on October 25, 2022. See Docket, at 16. The
trial court indicates that argument was heard on Eckert’s post-sentence
motion on the same day the order denying the motion was entered. See Trial
Court Opinion, 1/10/23 at 2.
This Court issued a rule to show cause directing Eckert to address why
the appeal should not be quashed as untimely as there is no motion for
reconsideration in the record. See Order, 1/20/23. Eckert’s counsel, newly
appointed on appeal, noted that the post-sentence motions were denied on
October 25, and the deadline for appeal was thirty days beyond that date.
See Response to Rule to Show Cause, 1/25/23. The issue was deferred to this
panel for analysis.
We note that post-sentence motions must be filed within ten days of the
imposition of sentence. See Pa.R.Crim.P. 720(A)(1). If a post-sentence
motion is filed, a notice of appeal must be filed within thirty days of the
resolution of the motion. See Pa.R.Crim.P. 720(A)(2).
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Here, new counsel entered his appearance on behalf of Eckert on
November 8, 2022. Counsel relied on the docket entry indicating that post-
sentence motions were denied on October 25, 2022, and filed a notice of
appeal within 30 days of that date. Rather than remand to the trial court to
clarify what happened, we conclude that, at the very least, a breakdown in
court operations occurred. Under these circumstances, counsel was entitled
to rely on the official docket entries which indicated that timely post-sentence
motions had been explicitly denied. As such, we will address the merits of the
appeal.
Eckert raises one claim on appeal, challenging the discretionary aspects
of his sentence. See Appellant’s Brief at 21. Eckert has no absolute right to
challenge the discretionary aspects of his sentence. See Commonwealth v.
Lee, 876 A.2d 408, 411 (Pa. Super. 2005). He is required to make a statement
in his brief of the reasons we should allow an appeal of the discretionary
aspects of his sentence. See id. He must also show that a substantial question
exists as to whether the sentence complies with the Sentencing Code. See id.Eckert has complied with these requirements. He included his statement
for reasons to allow an appeal challenging the discretionary aspects of
sentencing in his brief pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, at
32-33. Eckert claims that the consecutive nature of his sentence is
unreasonable as the aggregate sentence is excessive given the totality of the
circumstances surrounding his crimes. See id. at 39. This claim constitutes a
substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1273
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(Pa. Super. 2013). We therefore turn to the merits of Eckert’s sentencing
claim.
The details of a sentence are left to the discretion of the sentencing
judge, and we will only disturb them if we find an abuse of discretion. See
Commonwealth v. W.H.M., Jr., 932 A.2d 155, 163 (Pa. Super. 2007). When
reviewing a sentence, we will vacate when we find the sentencing guidelines
were applied incorrectly, adhering to the sentencing guidelines is
unreasonable for the case, or a sentence outside the guidelines is
unreasonable. See Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.
2012). When fashioning a sentence, a trial court must consider the character
of the defendant and the specific circumstances of the offenses which includes
considering prior record score, age, and rehabilitative potential. See
Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021).
The basis of Eckert’s argument is that the trial court did not articulate
reasons on the record why Eckert’s sentences were ordered to run
consecutively, implying that his crimes were worse than similar crimes
committed by similarly situated defendants. See Appellant’s Brief at 49.
Eckert does not provide any citations to cases where defendants charged and
convicted with similar crimes were given concurrent sentences. A pre-
sentence investigation was conducted and Eckert submitted a sentencing
memorandum including many character references. At sentencing Eckert’s
daughters and wife spoke on his behalf, and Eckert spoke in allocution. See
N.T., 10/13/22 at 3, 9-22. Further, Eckert’s counsel provided a recitation of
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his rehabilitative attempts since his arrest. See id. at 23-29. The
Commonwealth argued at sentencing that the decision to withdraw 30 charges
against Eckert in exchange for his guilty plea was, in itself, consideration for
Eckert acknowledging his responsibility. See id. at 30-31. The trial court
stated that the maximum sentence for each of the ten counts was five to ten
years’ incarceration. See id. at 35. The trial court considered this information
along with the contents of the criminal complaint in fashioning a guideline
sentence. See id. at 36.
Eckert complains the record lacks specific reasons for his sentence. See
Appellant’s Brief at 51. In fact, it is well established that the sentencing court
can meet its requirement to state the reasons for sentence simply by
indicating that it has considered the pre-sentence report. See
Commonwealth v. Goodco Mechanical, Inc., 291 A.3d 378, 407 (Pa.
Super. 2023). The mere fact that the sentencing judge reviewed a pre-
sentence report creates a presumption that the sentencing judge meaningfully
weighed the sentencing factors and we will not find an abuse of discretion.
See id. Given the evidence presented at the hearing, and the court’s review
of the PSI, we find no abuse of discretion in the consecutive nature of the
sentence imposed.
Judgment of sentence affirmed.
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DATE: 11/20/2023
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