Com. v. Mozeleski, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE MOZELESKI :
:
Appellant : No. 459 MDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0001178-2018
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 12, 2019
Jamie Mozeleski appeals from the aggregate judgment of sentence of
102 to 204 months of imprisonment followed by five years of probation
imposed after he pled guilty to aggravated assault and related charges.
Appellant’s counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw
and affirm the judgment of sentence.
On May 13, 2018, a Duryea police officer observed Appellant driving a
vehicle with registration linked to a different vehicle. The officer attempted to
initiate a traffic stop; however, Appellant increased his speed and began
driving away erratically. Police pursued Appellant for four and one-half miles,
as he reached speeds of up to seventy-five miles per hour in a thirty-five miles
per hour zone. Appellant repeatedly swerved in and out of traffic and struck
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into the same police vehicle multiple times. By the time Appellant was
apprehended, he had caused $19,697.06 in damage to the involved police
vehicle. Appellant was charged with five counts of aggravated assault, ten
counts of various summary traffic violations, and one count each of criminal
mischief, recklessly endangering another person, and fleeing or attempting to
elude an officer.
On December 3, 2018, Appellant entered a guilty plea to one count each
of aggravated assault, criminal mischief, and recklessly endangering another
person. The Commonwealth nolle prossed the remaining charges. There was
no agreement as to what sentence Appellant would receive. Sentencing was
deferred so that a presentence investigation report (“PSI”) could be prepared.
At the sentencing hearing, Appellant’s trial counsel requested that the court
note that there were discussions of boot camp eligibility during plea
negotiations, and advocated for the court to find Appellant eligible for the
motivational boot camp program.1 There was no further mention of boot camp
eligibility and the court imposed the aforementioned sentence, which fell
within the standard range.
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1 Motivational boot camp is:
A program in which eligible inmates participate for a period of six months in a
humane program for motivational boot camp programs which shall provide for
rigorous physical activity, intensive regimentation and discipline, work on
public projects, substance abuse treatment services licensed by the
Department of Health, continuing education, vocational training, prerelease
counseling and community corrections aftercare.
See 61 Pa.C.S. § 3903.
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Appellant filed a timely post-sentence motion, asking the court to
reconsider allowing him to participate in the boot camp program due to his
rehabilitative needs. The court entered an order denying the motion.
Appellant filed a timely notice of appeal and the court ordered him to file a
concise statement of errors complained of on appeal. In his concise
statement, Appellant again questioned the trial court’s finding of boot camp
eligibility. Concise Statement, 4/4/19, at unnumbered 1. The trial court
issued its Pa.R.A.P. 1925(a) opinion, explaining that it had denied Appellant’s
request for boot camp eligibility after it “determined that any sentence less
than a lengthy period of state incarceration depreciated the seriousness of the
Appellant’s actions.” Trial Court Opinion, 7/12/19, at 9.
In this Court, counsel filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review of
this matter:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
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directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above. As required by Santiago, counsel set
forth the case history, referred to an issue that arguably supports the appeal,
stated her conclusion that the appeal is frivolous, and cited to controlling case
law which supports that conclusion. See Anders brief at 4-14. Additionally,
counsel gave Appellant proper notice of his right to immediately proceed pro
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se or retain another attorney.2 See Santiago, supra; see also Application
for Leave to Withdraw, 8/28/19. Accordingly, we proceed with an independent
examination of the record in order to discern if any non-frivolous issues exist.
Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en
banc).
Counsel identified one issue that arguably supports this appeal:
“Whether the trial court erred when it failed to impose a boot camp eligible
sentence by waiving Appellant’s ineligibility due to an aggravated assault
charge?” Anders brief at 4.
This issue challenges the discretionary aspects of Appellant’s sentence.
Specifically, Appellant attacks the trial court’s failure to consider his need for
the “intense structure and discipline of boot camp” and, thus, waive his
ineligibility for the program. Anders brief at 5. The following principles apply
to our consideration of whether review of the merits of his claim is warranted.
“An appellant is not entitled to the review of challenges to the discretionary
aspects of a sentence as of right. Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this Court’s jurisdiction.”
Commonwealth v. Samuel, 102, A3d 1001, 1006-07 (Pa.Super. 2014). In
determining whether an appellant has invoked our jurisdiction, we consider
four factors:
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2 Appellant did not file a response to counsel’s petition.
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(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Id.
Appellant filed both a timely motion for reconsideration of his sentence
and a notice of appeal. In his motion, Appellant asked the court to reconsider
its boot camp ineligibility decision. He also raised this issue in his concise
statement of errors complained of on appeal. Therefore, Appellant properly
preserved this issue and we now proceed to determine whether Appellant has
raised a substantial question. Id.
Appellant’s brief contains a statement of reasons relied upon for his
challenge to the discretionary aspects of his sentence as required by Pa.R.A.P.
2119(f). In his statement, Appellant claims that a substantial question is
presented by the fact that the trial court failed to address his boot camp
eligibility at sentencing and did not state any reasons for why it would not
grant his request. Anders brief at 9. We find that this claim raises a
substantial question, as it challenges the adequacy of the reasons given by
the trial court for its sentencing choice. See Commonwealth v. Marts, 889
A.2d 608, 613 (Pa.Super. 2005). Accordingly, we now turn our attention to
the merits of Appellant’s challenge to his sentence.
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The following principles apply to our substantive review of Appellant’s
claim: “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,
we review the trial court’s determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
Appellant alleges that the trial court erred when it did not make him
eligible for boot camp. An eligible inmate is:
A person sentenced to a term of confinement under the
jurisdiction of the Department of Corrections who is serving a term
of confinement, the minimum of which is not more than two
years and the maximum of which is five years or less, or an
inmate who is serving a term of confinement, the minimum
of which is not more than three years where that inmate is
within two years of completing his minimum term, and who
has not reached 40 years of age at the time he is approved for
participation in the motivational boot camp program. . .
61 Pa.C.S. § 3903 (emphasis added). When a request for motivational boot
camp is noted, a sentencing court is required to:
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. . . employ the sentencing guidelines to identify those defendants
who are eligible for participation in a motivational boot camp. The
judge shall have the discretion to exclude a defendant from
eligibility if the judge determines that the defendant would be
inappropriate for placement in a motivational boot camp. The
judge shall note on the sentencing order whether the defendant
has been identified as eligible for a motivational boot camp
program.
61 Pa.C.S. § 3904(b).
A review of the eligibility provision of the motivational boot camp statute
reveals that the length of Appellant’s standard range sentence statutorily
precluded the possibility of his participation in boot camp. See 61 Pa.C.S.
§ 3903. Additionally, the sentencing court is not statutorily required to state
reasons on the record for its boot camp determination. 61 Pa.C.S. § 3904(b).
Thus, this aspect of Appellant’s claim fails. Therefore, we proceed to consider
whether the trial court complied with traditional sentencing consideration
requirements.
A trial court’s sentence “should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, supra at 761 (citations and
quotation marks omitted). Finally, when the trial court has been informed by
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a PSI report, it is presumed that the trial court is aware of and has been
informed by all appropriate sentencing factors and considerations.
Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017).
Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we
find: (1) that the court intended to sentence within the guidelines, but
“applied the guidelines erroneously;” (2) a sentence was imposed within the
guidelines, “but the case involves circumstances where the application of the
guidelines would be clearly unreasonable;” or (3) “the sentencing court
sentenced outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S. § 9781(c). The instant sentence is a standard-
range sentence. Therefore, it must be affirmed unless it is unreasonable.
While unreasonableness is not defined in the statute, it “commonly connotes
a decision that is ‘irrational’ or ‘not guided by sound judgment.’”
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
Appellant argues that his sentence was excessive because the court did
not consider his rehabilitative needs, or state on the record the reasons for its
sentence, when it failed to make him eligible for boot camp. Anders brief at
5, 13. However, Appellant fails to establish that the instant sentence is
unreasonable. The certified record demonstrates that the trial court properly
relied on several factors in electing to impose a lengthy sentence of
imprisonment, all of which demonstrated that the court followed the general
principles outlined in § 9721(b). In fashioning the judgment of sentence, the
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trial court referenced Appellant’s PSI report, arguments made by the defense
attorney, Appellant’s allocution, and the nature of the crime. N.T. Sentencing
Hearing, 2/26/19, at 1-4. In its opinion, the court went into further detail:
. . . In thoroughly reviewing the PSI, this [c]ourt became aware
of the Appellant’s relevant history and background, prior record
score of five (5) as well as the particular circumstances of the
offenses committed, specifically, that the Appellant fled from
police for over four and half (4.5) miles and put law enforcement
in danger by repeatedly ramming and hitting their vehicle, as well
as causing extensive damage. This [c]ourt also considered the
fact that the Appellant amassed a lengthy criminal history both as
a juvenile and as an adult, consisting of ten prior convictions,
including past convictions for fleeing and eluding police officers as
well as multiple probation/parole violations. This demonstrated
the Appellant’s failure to rehabilitate and continued criminal
behavior and defiance towards law enforcement and legal
authority. Considering the escalating nature of the Appellant’s
addiction, reckless driving, and danger to society, this Court
determined that any sentence less than a lengthy period of state
incarceration depreciated the seriousness of the Appellant’s
actions. Therefore, this Court did not recommend boot camp
eligibility, rather this Court imposed a standard range sentence
within the statutory maximums of each offense.
Trial Court Opinion, 7/12/19, at 9.
Our review confirms that the trial court weighed Appellant’s
rehabilitative needs, along with the seriousness of the crime and prior
unsuccessful attempts at probation and parole, when determining Appellant’s
sentence. We have no authority to reweigh the mitigating circumstances
against the aforementioned factors. Macias, supra, at 778. Also, the trial
court placed on the record its reasons for imposing the sentence Appellant
received. Accordingly, the trial court acted well within its discretion when it
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imposed a lengthy period of incarceration on Appellant, rendering him
ineligible for the motivational boot camp program.3
Further, we have conducted a “full examination of the proceedings” and
have determined that the appeal is not in fact “wholly frivolous,” or lacking
any basis in law or fact. Commonwealth v. Flowers, 113 A.3d 1246, 1248
(Pa.Super. 2015); see also Santiago, supra at 355-56 n. 10. To the extent
there is an exercise of discretion on the imposition of a sentence that
ultimately precludes boot camp we cannot say there is no basis in the law for
this argument.4 Therefore, we cannot grant counsel’s petition to withdraw.
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3To the extent Appellant wishes to challenge the court’s failure to make him
boot camp eligible as a violation of his plea agreement, the record belies this
argument. Anders brief at 12. A review of the written and oral guilty plea
colloquies reveals that boot camp was never discussed or included as a
condition of Appellant’s plea agreement. Accordingly, no relief is due.
Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (“A
person who elects to plead guilty is bound by the statements he makes in
open court while under oath and he may not later assert grounds of
withdrawing the plea which contradict the statements he made at his plea
colloquy.”) (citation omitted).
4 While we are not in possession of an advocate’s brief in this matter, we do
not believe that a remand is necessary. Since a review of the exercise of
discretion is a question of law, this court is capable of conducting a thorough
review of the record and we have done so here.
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However, since our review did not disclose any arguably meritorious claims, 5
we affirm the judgment of sentence. Dempster, supra at 273.
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2019
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5 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.
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