Com. v. Boyer, R.

J-S40026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT FRANK BOYER :
:
Appellant : No. 98 WDA 2019
Appeal from the Judgment of Sentence Entered August 30, 2018
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000593-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 11, 2019
Robert Frank Boyer appeals from the judgment of sentence entered following
his guilty plea to multiple crimes involving child pornography. He challenges
discretionary aspects of his sentence. However, he waived those issues by
failing to include a Pa.R.A.P. 2119(f) statement in his brief, and in any event,
his issues are meritless. We therefore affirm.
The trial court aptly summarized the facts of the case as follows.
On June 17 and 19, 2017, [the Office of Attorney General’s Bureau
of Special Investigation,] BSI received notification from the
National Center for Missing and Exploited Children that numerous
images of child pornography had been uploaded to a Google email
account belonging to [Boyer]. The victims depicted in the
recovered images ranged between 3 to 15 years of age. When
confronted by investigators, [Boyer] stated that he was familiar
with the images and had attempted to disseminate them to an
unknown email address.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40026-19
Trial Court Opinion (“TCO”), filed 3/19/19, at 1.
Boyer entered an open guilty plea in February 2018 to 10 counts of
sexual abuse of children-child pornography; three counts of sexual abuse of
children-dissemination of photographs, videotapes, computer depictions and
films; and one count of criminal use of communication facility.1 The trial court
subsequently sentenced Boyer in August 2018 to a total of 10 to 20 years’
incarceration.2 Boyer filed a post-sentence motion arguing that he was
“entitled to the benefit of his bargain,” referencing the Commonwealth’s
agreement to recommend a sentence of 11½ to 23 months’ incarceration. See
Post-Sentence Motion, filed 8/31/18 at ¶¶ 3, 6. The trial court denied the
motion and this timely appeal followed.
Boyer asks us to review the following:
1. Whether the lower court abused its discretion in sentencing
[Boyer], such that the lower court did not consider [Boyer’s]
plea offer and the sentencing outlined therein, as well as
[Boyer’s] individual circumstances when fashioning the
sentence[?]
2. Whether [Boyer] was given the benefit of his bargain at the
time of sentencing?
Boyer’s Br. at 37.
____________________________________________
1 18 Pa.C.S.A. §§ 6312(c), (d), and 7512(a), respectively.
2 The trial court imposed consecutive sentences of two to four years’
incarceration for three counts of dissemination, one to two years’ incarceration
for four counts of child pornography, and no further penalty for the remaining
counts. See Sentence Order, filed 9/4/18.
-2-
J-S40026-19
Although Boyer at points in his brief couches his arguments in terms of
legality of sentencing,3 both of Boyer’s issues challenge the discretionary
aspects of sentence. Boyer’s right to have this Court entertain such challenges
is not absolute. Rather, before we may consider them, we must first
determine:
(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. [702]; (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 Moury).
The Commonwealth argues that Boyer has waived all issues on appeal
because his brief does not include a Rule 2119(f) statement. We agree.
If an appellant fails to include a Rule 2119(f) statement and the
Commonwealth objects, the appellant has waived his discretionary sentencing
claims. See Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa.Super. 2016).
Rule 2119(f) requires an appellant who challenges the discretionary aspects
of a sentence in a criminal matter to “set forth in a separate section of the
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f)
(emphasis added). The Rule 2119(f) statement must “immediately precede
____________________________________________
3 See, e.g., Boyer’s Br. at 44.
-3-
J-S40026-19
the argument on the merits with respect to the discretionary aspects of the
sentence.” Id. (emphasis added).
Although Boyer’s brief makes passing statements that he has raised a
substantial question, it does not contain “a separate section” that
“immediately precede[s] the argument on the merits” that sets forth “the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of [his] sentence.” Id. The Commonwealth has objected to his failure
to comply with Rule 2119(f). We therefore cannot ignore the violation. We
thus conclude that Boyer has waived his appellate issues.
Moreover, his issues are meritless. Boyer first maintains that “based on
the [trial court’s] imposition of consecutive periods of incarceration, the [trial
court] wholly dismissed the recommendation from both prosecution and
defense counsel for a concurrent period of incarceration.” Boyer’s Br. at 44.
He argues that the trial court “sentenced [Boyer] to a sentence other than
that agreed upon at the time of the entry of his guilty plea.” Id. (emphasis
added). This claim is meritless.
Boyer’s sentence was not a term of the plea bargain. Rather, both
parties acknowledged during the plea hearing that they “discussed prior to
[Boyer’s] plea of a potential offer of 11½ to 23 months. . . .” N.T.,
Sentencing Hearing, 8/30/18, at 7, 12 (emphasis added). Neither party said
that there was an agreement as to the sentence. The Commonwealth did say
that “[i]t was recommended that [the sentences] would run concurrent to
each other.” Id. at 8. However, any such “recommendation” was not a part of
-4-
J-S40026-19
the plea agreement. No one claimed during the plea hearing that serving
concurrent sentences was term of the plea bargain, and any such term is
conspicuously absent from Boyer’s written guilty plea colloquy.
As a matter of fact, and contrary to this claim, Boyer wrote “yes” on the
written colloquy form where it asked if he understood that the trial court was
“not bound by any plea bargain or agreement entered into by you and the
District Attorney and that the decision as to what your sentence will be
is solely that of the sentencing judge[.]” Written Guilty Plea Colloquy, filed
2/20/18 at ¶40 (emphasis added). Additionally, before accepting his plea, the
trial court asked Boyer if he had any questions about the contents of his
written guilty plea colloquy, and he responded “no.” See N.T., Guilty Plea
Hearing, 2/20/18 at 10. Boyer knew at the time he pled guilty that there was
no agreement as to his sentence. This argument fails.
For like reasons, Boyer’s second claim also fails. He maintains that he
did not get “the benefit of his bargain at the time of sentence.” Id. at 45. He
argues that he “would not have accepted the Attorney General’s Office plea
offer, had [Boyer] known that the recommended sentencing arrangement
would not have been followed by the [trial court.]” Id. at 46.
As above, there was no agreement as to sentencing. At no point during
the guilty plea hearing was there any mention of an agreed-upon sentence.
Boyer conceded as much through his signature on the written guilty plea
colloquy, as well as in speaking with the trial court, that the trial court was
free to sentence Boyer as it believed appropriate and was not bound by any
-5-
J-S40026-19
agreement between the parties. Boyer’s own statements during the plea
colloquy and on the written plea colloquy refute his claims on appeal. See
Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.Super. 2018) (“A person
who elects to plead guilty is bound by the statements he makes in open court
while under oath . . .”). No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2019
-6-