Com. v. Auen, B.

J-A06045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON CHARLES AUEN :
:
Appellant : No. 581 WDA 2022
Appeal from the Judgment of Sentence Entered January 12, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002505-2020
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 15, 2023
Brandon Charles Auen (Auen) challenges the judgment of sentence
entered by the Court of Common Pleas of Erie County (trial court). After
pleading guilty to four counts relating to an armed kidnapping, Auen was
sentenced to an aggregate prison term of 13.5 to 27 years. He now argues
that the sentence is manifestly excessive; that the trial court ignored
mitigating factors and relied on unproven aggravating factors; and that the
trial court erroneously applied a “deadly weapon used” enhancement. Auen
also claims that his plea was involuntary because he had not been advised of
the possibility of a negotiated plea agreement. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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I.
In 2020, Auen entered a residential building and kidnapped two
individuals at gunpoint. One of the victims was Quinn Maloney, who was
Auen’s ex-girlfriend. The second victim was Anthony Nicarello, who Auen had
never met before. The two victims were put into a vehicle and Nicarello was
forced to drive several miles toward a remote property owned by Auen’s
family. Before they arrived at that destination, Nicarello deliberately crashed
the vehicle because he feared that he and Maloney would soon be murdered.
Auen called his father shortly after the crash. Soon after, Auen was arrested
and charged with 25 counts stemming from the incident.
With the aid of counsel, Auen waived his right to jury trial and agreed
to plead guilty to just four of the 25 counts. Prior to accepting Auen’s plea,
the trial court thoroughly explained the elements of the offenses, the potential
penalties, and the factual basis of each count. It was explained to Auen that
he would be pleading guilty to “Counts 3, 4, 5, and 8, incorporating the facts
of Counts 8 and 9. And in exchange, the Commonwealth [would] nolle pros
the remaining [21] counts [enumerated in the charging document.]” Plea
Hearing Transcript, 10/27/2021, at p. 8.
In Counts 3 and 4 of the Information, the Commonwealth alleged that
on September 24-25, 2020, Auen pointed a handgun at Nicarello and Maloney
and forced them into a vehicle. In Count 5, the Commonwealth alleged that
Auen entered a “residence through the unlocked door, and pointed a handgun
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at the victims[.]” Id. at p. 10. Auen accepted the factual basis of these
charges after they were read into the record.
The Commonwealth alleged in Counts 8 and 9 that Auen had committed
aggravated assault. In Count 8, the crime occurred when Auen pointed a
handgun at Nicarello “and/or threaten[ed] to kill the victim[.]” See Criminal
Information, 11/23/2020, at p. 3. The alleged offense in Count 9 occurred
when Auen pointed a handgun at “and/or” threatened to kill Maloney, “and/or
did hit the victim with the handgun and/or his fists[.]” Id. at p. 4. Once the
colloquy had concluded, the trial court accepted Auen’s plea and the
Commonwealth was permitted to nolle pros the remaining charges.
To determine the guideline ranges at Auen’s sentencing hearing, the
trial court queried the parties as to whether an enhancement for “deadly
weapon used would be the appropriate guideline for each count.” Sentencing
Hearing Transcript, 1/12/2022, at pp. 5-6. Auen’s counsel responded that it
was his impression that the “deadly weapon used” enhancement would apply
to each of the four counts. See id. at p. 6.
Following that clarification, the trial court referred to the sentencing
memorandums submitted by the Commonwealth and the defense, including
their numerous attachments. The trial court further stated that it had
reviewed the pre-sentence investigative report (PSI) and entered all of the
above filings into the record. Auen’s counsel informed the trial court that he
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was unable to furnish Auen with a copy of Maloney’s impact statement in
advance of the hearing, but no objection was lodged on that ground.
Auen’s father testified at the hearing as a character witness. He
recounted Auen’s work ethic, military service and strong academic record.
According to his father, Auen’s personality had markedly changed after he
returned from military deployment in the Middle East. This testimony echoed
countless letters from friends, family and military personnel who attested to
Auen’s many positive character traits.
The Commonwealth nevertheless sought a sentence in the aggravated
range of the sentencing guidelines, asserting that it was justified in part due
to the premeditated nature of Auen’s crimes, and because he had pistol
whipped Maloney and forced her to remove clothing at the time of the
kidnapping. These particular details were not included in the charging
document or the factual basis of the plea, but Maloney had described those
incidents in her victim impact statement and produced photos to corroborate
her account.
At the conclusion of the hearing, the trial court articulated the reasons
why it declined to sentence Auen in the aggravated range, citing his remorse,
rehabilitative needs and potential to be a productive member of society.
However, the trial court also commented on the severity of the offenses and
Auen’s “extreme indifference to human life” during the kidnapping episode.
The trial court stressed that Auen behaved in a “sadistic” manner, as
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evidenced by the way he humiliated and terrorized the victims. In fact, Auen
was described by the trial court as “the most dangerous person in Erie County”
at the time the crimes were committed. Id. at p. 45. Accordingly, the trial
court declined the defense’s request for concurrent sentences.
As to each of the two kidnapping counts, Auen was sentenced to a prison
term of 42 to 84 months. As to the burglary count, he was sentenced to a
term of 36 to 72 months. Furthermore, as to the aggravated assault count,
he was sentenced to a term of 42 to 84 months. The terms were all imposed
consecutively, resulting in an aggregate sentence of 13.5 to 27 years. All four
sentences were either within or below the standard ranges of the sentencing
guidelines.
Auen timely filed a post-sentence motion again requesting his prison
terms be made concurrent rather than consecutive. The grounds for the
motion were that Auen’s psychological evaluation indicated that his offenses
were isolated incidents that were unlikely to reoccur. The defense also
emphasized Auen’s rehabilitative needs, potential and remorse. The trial court
denied the post-sentence motion and stated in a written order that it had fully
considered all the mitigating factors advanced by the defense (which was why
a harsher sentence in the aggravated range was not imposed). The trial court
reasoned that concurrent sentences would be inappropriate due to the degree
of suffering endured by the victims. See Trial Court Order, 4/22/2022, at 2-
3. Auen timely appealed and the trial court filed a 1925(a) opinion stating the
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reasons why the judgment of sentence should be upheld. See Trial Court
1925(a) Opinion, 8/12/2022, at 4-9.
In his brief, Auen now raises the following sentencing issues for our
consideration:
1. The sentences in this case were manifestly excessive and
clearly unreasonable, particularly in their consecutiveness, when
the trial court did not consider mitigating factors.
2. The trial court abused its discretion in using the “deadly weapon
used” sentencing guidelines for the burglary charge.
3. [Auen’s] plea was unknowingly and involuntarily entered when
[he] misunderstood the possibility of a sentencing agreement in
this case.
Appellant’s Brief, at 2 (issues renumbered).
The heading of Auen’s first claim only refers to the trial court’s failure to
consider mitigating factors, but he also argues in his brief that the trial court
erred by considering several aggravating factors which Auen did not concede
to at his plea hearing. See Appellant’s brief, at 9-10. Auen argues further
that the trial court violated his due process rights by relying on evidence of
aggravating factors without affording him advance notice of the evidence prior
to the sentencing hearing. See id. at 8-9.
II.
Auen’s first two appellate claims concern discretionary aspects of his
sentence. Since such claims are not appealable as of right, we must at the
outset address whether our jurisdiction has been properly invoked. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). In
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order to invoke this Court’s jurisdiction to review such claims, an appellant
must satisfy a four-part test:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the [appellant’s brief] set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
A substantial question concerns whether the sentence imposed is (1)
appropriate under the Sentencing Code, or (2) otherwise contrary to the
fundamental norms which underlie the sentencing process. See
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). A claim that
the trial court considered impermissible factors when imposing sentence raises
a substantial question. See Commonwealth v. King, 182 A.3d 449, 454
(Pa. Super. 2018); Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.
Super. 2009). A substantial question may also be raised where it is asserted
that the trial court failed to consider a mitigating sentencing factor. See
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009).
In the present case, for reasons we will explain in greater detail below,
Auen has properly invoked this Court’s jurisdiction as to his claim that he
received a manifestly excessive sentence based on the trial court’s failure to
consider mitigating factors. However, Auen’s remaining grounds (including
the claim of an involuntary plea) are waived for lack of preservation at
sentencing or in his post-sentence motion.
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III.
A.
Auen’s first claim is that the trial court imposed a manifestly excessive
sentence as a result of not considering mitigating factors – i.e., a psychiatric
evaluation, Auen’s military service, lack of a prior criminal record and
academic accomplishment. This issue is preserved for appellate review
because Auen raised it in a post-sentence motion, he timely filed a notice of
appeal, and there are no defects in his brief. Moreover, a substantial question
has been raised. See Ventura, 975 A.2d at 1133.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and we will not disturb a sentence on appeal absent a manifest abuse
of discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006). In this context, “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.” Id. (quoting Commonwealth v. Fullin,
892 A.2d 843, 847 (Pa. Super. 2006)).
Additionally, since the trial court sentenced Auen to terms within the
standard-ranges of the guidelines, we may only vacate the sentence if we find
that “the case involves circumstances where the application of the guidelines
would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). When imposing
sentence, “the sentencing court must consider the factors set out in 42 Pa.C.S.
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§ 9721(b), that is, the protection of the public, gravity of offense in relation
to impact on victim and community, and rehabilitative needs of the
defendant[.]” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa. Super.
2011) (citation omitted).
“Where the sentencing court had the benefit of a presentence
investigation report (‘PSI’), we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation and internal quotation
marks omitted).
In the present case, Auen received a sentence that was within the
standard range of the sentencing guidelines and we find no abuse of discretion
on the part of the trial court. The mitigation evidence Auen refers to was
included in the PSI reviewed by the trial court, so we must assume that the
trial court was aware of that information. See Moury, 992 A.2d at 171. The
trial court’s decision to run the sentences consecutively was within its
discretion, especially in light of the violent nature of the offenses committed
against the victims.
The trial court also stated on the record that Auen’s rehabilitative needs
and potential were why he did not receive a sentence in the aggravated range
of the guidelines. Any dispute Auen may have with the weight assigned by
the trial court to mitigating and aggravating factors would not constitute a
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substantial question, much less an abuse of discretion by the trial court. See
generally Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013)
(“Accordingly, we conclude Appellant’s argument that the trial court failed to
give adequate weight to mitigating factors does not present a substantial
question appropriate for our review.”).
The remaining claims Auen asserts are unpreserved. He has argued in
his brief that the trial court improperly considered evidence in Maloney’s
impact statements and other materials which had not been made available to
Auen prior to the sentencing hearing. Because Auen did not object on those
grounds until after he had filed this appeal, the claims are waived and
unreviewable at this juncture.
B.
Auen’s second claim is that the trial court abused its discretion in
applying a “deadly weapon used” enhancement to the sentencing on the
burglary count. Under 204 Pa.Code § 303.10(a)(2), an enhancement applies
where “the defendant used a weapon to threaten or injure the victim while
committing the particular offense.”
According to Auen, the evidence showed that he only possessed a
firearm during the commission of the burglary, precluding the trial court from
relying on the subsequent use of the firearm after the offense was completed
to apply the deadly weapon used enhancement. See Commonwealth v.
Tavarez, 174 A.3d 7, 11 (Pa. Super. 2017) (holding that defendant completed
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a burglary by gaining entry into a structure, and that an enhancement based
on the subsequent use of the weapon after that point was improper). The
claim was waived.
In his plea colloquy, Auen admitted that during the commission of the
burglary, he “pointed a handgun at the victims.[]” Plea Hearing Transcript,
10/27/2021, at p. 10. Auen’s counsel agreed with the Commonwealth and
the trial court that the deadly weapon used enhancement was applicable as to
the burglary count. The enhancement was not challenged until after Auen
filed his appeal, precluding this Court from reviewing the substantive merits
of the claim. See Commonwealth v. Batterson, 601 A.2d 335, 336-37 (Pa.
Super. 1992) (challenge to weapon enhancement waived “because it has been
raised for the first time on appeal and was not preserved in the lower court
via a motion to modify sentence.”).
C.
Auen’s third and final claim is that he entered his open plea involuntarily
because he had not known it was possible to form a sentencing agreement
and he would have done so if he had been informed of that possibility.
In order to preserve a challenge to a guilty plea for direct appeal, a
defendant must file a motion to that effect within ten days of sentencing. See
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013).
However, Auen first raised his claim of an involuntary plea on direct appeal,
without having done so either at the sentencing or in his post-sentence
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motion. Accordingly, because Auen failed to preserve the issue for appellate
review, it is waived and we are precluded from considering the claim’s merits.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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