Com. v. Roxberry, J.

J-S15044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB PAUL ROXBERRY :
:
Appellant : No. 1169 WDA 2020
Appeal from the Judgment of Sentence Entered September 21, 2020
In the Court of Common Pleas of Venango County Criminal Division at
Nos.: CP-61-CR-0000480-2020,
CP-61-CR-0000716-2019
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: AUGUST 27, 2021
Appellant, Jacob Roxberry, appeals from the aggregate judgment of
sentence of 28 months’ incarceration to 22 years’ incarceration, which was
imposed after he pleaded guilty at CP-61-CR-0000480-2020 (No. 480-2020)
to Burglary and at CP-61-CR-0000716-2019 (No. 716-2019) to two counts of
Simple Assault.1 We affirm.
The facts underlying this appeal are as follows. The victim (Victim) is
the same person in both Nos. 480-2020 and 716-2019. Appellant was
previously in a relationship with the Victim and they share children (Children).
On August 18, 2019, Appellant was arrested and charged with Simple Assault
for striking the Victim in the leg and threatening the Victim with a knife.
Information, No. 716-2019. On February 18, 2020, Appellant pleaded guilty
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3502(a)(1)(ii), 2701(a)(1) and 2701(a)(3), respectively.
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to two counts of Simple Assault at No. 716-2019. Appellant’s sentencing
hearing was delayed due to the Covid-19 pandemic.
On July 14, 2020, Appellant was arrested and charged with Burglary,
Stalking and Criminal Mischief for breaking into the Victim’s home and starting
a fire in her backyard, for the purpose of burning toys belonging to the
Children. Information, No. 480-2020. Appellant had a Protection From Abuse
order (PFA) to stay away from the Victim at the time of his arrest. N.T.
Sentencing, 9/21/20, at 32. On August 4, 2020, Appellant pleaded guilty to
Burglary at No. 480-2020.
On September 21, 2020, Appellant proceeded to a sentencing hearing
for both Nos. 716-2019 and 480-2020. At No. 480-2020, the trial court
sentenced Appellant to 22 months’ to 20 years’ incarceration for the Burglary
charge. Sentencing Order, 9/21/20. At No. 716-2019, the trial court
sentenced Appellant to six months’ to 24 months’ incarceration for each
Simple Assault charge, to run concurrent to each other and consecutive to the
sentence at No. 480-2020. Id. Appellant received a total aggregate sentence
of 28 months’ to 22 years’ incarceration. Id.
Appellant filed a timely post-sentence motion in both cases on October
1, 2020. Appellant asked the court to “reconsider the state sentence due to
his age, his prior record and the plea he entered into,” requested “a county
sentence,” and requested “the court reconsider the length of the parole due
to his age, his prior record score, and plea he entered into.” Post-Sentence
Motion, 10/1/20. The trial court denied Appellant’s post-sentence motion on
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October 13, 2020. Order, 10/13/20. Appellant filed a timely notice of appeal
on October 30, 2020.2
Before we address the merits of Appellant’s appeal, we must first
determine if Appellant has complied with Pa.R.A.P. 341(a) which requires the
filing of separate notices of appeal when a single order resolves issues arising
on more than one trial court docket. See Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (the Supreme Court of Pennsylvania has confirmed,
prospective to its decision filed June 1, 2018, a notice of appeal that fails to
comply with Rule 341 and its Note shall result in quashal of the appeal). This
Court issued a rule to show cause on November 23, 2020, directing Appellant
to show cause why the appeal should not be quashed in light of Walker
because Appellant filed one notice of appeal listing two docket numbers.
Appellant did not file an answer with this Court. This Court issued an order
discharging the rule to show cause and advising the parties that this issue
may be revisited by this panel. Order, 12/11/20.
Appellant filed one notice of appeal from the judgments of sentence at
No. 480-2020 and No. 716-2019. The notice of appeal contains the two docket
numbers No. 480-2020 and No. 716-2019. The certified record for this matter
includes only one notice of appeal listing both docket numbers.
Prior to Appellant’s sentencing in both cases, the trial court presented a
video containing the following appellate rights, which was transcribed as
follows:
____________________________________________
2 The trial court ordered Appellant to file a statement pursuant to Pa.R.A.P.
1925(b) on November 4, 2020. Appellant complied and filed a timely Rule
1925(b) statement.
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If your post sentence motion is denied you have the right to
appeal the Sentence Order to the Pennsylvania Superior Court.
. . . [T]he appeal to the Pennsylvania Superior Court must be
filed within 30 days either from the date of the sentence or 30
days from the date the Court acts finally on your post-sentence
motion, whichever is later. . . If you intend to appeal the
Sentence Order to the Superior Court, it is possible to remain on
bail pending appeal[.]
N.T. Sentencing, 9/21/20 at 3-6 (emphasis added).
Appellant was specifically told that he had the right to appeal “the
Sentencing Order.” N.T. Sentencing, 9/21/20, at 3-6. The trial court filed one
Sentencing Order containing both docket numbers. Order 9/21/20. The trial
court also filed one order denying Appellant’s post-sentence motion,
containing both docket numbers. Order, 10/13/20. Based on the above
colloquy we find that there was a breakdown in the court operations regarding
Appellant’s appellate rights, leading to Appellant filing one notice of appeal
containing both docket numbers. Therefore, this appeal will not be quashed.
See Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019) (where
the PCRA court entered a single order covering two docket numbers and
advised appellant that he could pursue appellate review by filing a single
notice of appeal, a breakdown in court operation occurred and this Court did
not quash appeal).
Appellant presents the following issues for our review:
Did the Trial Court error [sic] as a matter of law or abuse its
discretion in sentencing the defendant to an excessive
sentence specifically that the appellant was sentenced to the
top of the standard ranges.
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Did the Trial Court error [sic] as a matter of law or abuse its
discretion in sentencing the defendant to an excessive
sentence specifically that the appellant was sentenced to the
maximum of the statutory ranges.
Appellant’s Brief at 5.
Both of Appellant's issues on appeal relate to the discretionary aspects
of his sentence.3 A defendant does not have an automatic right to appeal the
discretionary aspects of a sentence and instead must petition this Court for
allowance of appeal, which “may be granted at the discretion of the appellate
court where it appears that there is a substantial question that the sentence
imposed is not appropriate under” the Sentencing Code. 42 Pa.C.S. §
9781(b); see also Commonwealth v. Luketic, 162 A.3d 1149, 1160 (Pa.
Super. 2017) (citation omitted).
Prior to reaching the merits of a discretionary sentencing issue, we must
engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his [or her] issue; (3) whether Appellant's brief
includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects
of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
whether the concise statement raises a substantial question
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3 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of . . . his . . . sentence
other than to argue that the sentence is illegal or that the sentencing court
did not have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n. 5 (Pa.
Super. 2005) (citation omitted). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. At 363 n. 1. Here, Appellant’s plea was
“open” as to sentencing, so he can challenge the discretionary aspects of his
sentence.
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that the sentence is [not] appropriate under the
[S]entencing [C]ode.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (citations omitted) (first
and fourth brackets in original).
Appellant satisfied the first three requirements; he filed a timely notice
of appeal, preserved the issue that his sentence is excessive in a timely post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
Appellant’s Brief at 11. Next, we turn to whether Appellant’s Rule 2119(f)
statement raised a substantial question that the sentence is not appropriate
under the Sentencing Code.
Whether a particular issue constitutes a substantial question
about the appropriateness of sentence is a question to be
evaluated on a case-by-case basis. . . . We have found that
a substantial question exists “when the appellant advances
a colorable argument that the sentencing judge's actions
were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.”
Commonwealth v. Radecki, 180 A.3d 441, 467-68 (Pa. Super. 2018)
(citations omitted). Appellant asserts in his Pa.R.A.P. 2119(f) statement,
Did the Trial Court error [sic] as a matter of law or abuse its
discretion in sentencing the defendant to an excessive
sentence specifically that the appellant was sentenced to the
top of the standard ranges.
Did the Trial Court error [sic] as a matter of law or abuse its
discretion in sentencing the defendant to an excessive
sentence specifically that the appellant was sentenced to the
maximum of the statutory ranges.
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Appellant’s Brief at 11. Appellant’s Rule 2119(f) statement raises the issue
that his sentences are excessive because his sentences are at the top of the
standard ranges and the maximum of the statutory ranges, but he does not
specify how the sentence is inconsistent with the Sentencing Code or why
Appellant believes it is contrary to the fundamental norms of the sentencing
process. See Radecki, 180 A.3d at 467-68. However, the Commonwealth
did not object to the adequacy of the Rule 2119(f) statement; in fact, the
Commonwealth did not file a brief. Failure to comply with Rule 2119(f) does
not bar consideration of an otherwise properly preserved challenge to the
discretionary aspects of sentence where it is obvious from the appellant’s brief
that a substantial question is raised and the Commonwealth does not object
to the absence of a Rule 2119(f) statement. Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014); Commonwealth v. Kneller, 999 A.2d
608, 614 (Pa. Super. 2010) (en banc).
In his brief, Appellant argues that his sentence at No. 480-2020 is
excessive because the trial court sentenced him to a minimum of 22 months’
incarceration which is in the aggravated range of the sentencing guidelines,
the trial court gave insufficient reasons for giving him an aggravated sentence
other than that the appellant was on bail and the cases involved the same
victim, and the Commonwealth only recommended a standard range minimum
sentence of 16 months. Appellant’s Brief at 9. Appellant also argues that his
sentence is excessive because the trial court sentenced him to the statutory
maximum at No. 480-2020, the combination of the two cases creates a
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maximum sentence that is excessive, he is young, and he previously
successfully completed a 5-year probationary sentence. Appellant’s Brief at
10-11.4
We find that Appellant raises a substantial question in arguing that the
individual sentence at No. 480-2020 is excessive because the trial court
sentenced him to an aggravated minimum sentence without giving adequate
reasons and the statutory maximum sentence without consideration of his
individual circumstances. See Commonwealth v. Thomas, 537 A.2d 9, 12
(1988) (appellant’s claim that the court failed to place sufficient reasons for
his judgment of sentence on the record presents a substantial question);
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (appellant
presented a substantial question by setting forth an argument that the trial
court failed to consider his individual circumstances); Commonwealth v.
Makin, No. 1609 WDA 2018, 2019 WL 3037576, at *2 (Pa. Super. Ct. July
11, 2019) (memorandum) (appellant presented a substantial question
because the trial court did not consider her rehabilitative needs.).
Accordingly, we address the merits of Appellant’s issues regarding the
individual sentence at No. 480-2020.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
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4 We note that Appellant does not challenge the individual sentences at No.
716-2019. In fact, he notes in his brief, that the issues on appeal “revolve
around the sentence at CR. No. 480-2020.” Appellant’s Brief at 6.
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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. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted).
[A]n appellate court [is permitted] to vacate a sentence . .
. where “the sentencing court sentenced within the
sentencing guidelines but the case involves circumstances
where the application of the guidelines would be clearly
unreasonable.”
Commonwealth v. Dodge, 77 A.3d 1263, 1269–70 (Pa. Super. 2013)
(quoting 42 Pa.C.S. § 9781(c)(2)). In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d); Dodge, 77 A.3d at 1274. Importantly,
sentencing lies “within the sole discretion of the trial court,
and the sentence imposed will not be reviewed by an
appellate court, unless it exceeds the statutorily prescribed
limits or is so manifestly excessive as to constitute too
severe a punishment.”
Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002) (emphasis in
original) (quoting Commonwealth v. Wrona, 275 A.2d 78, 81 (Pa. 1971)).
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The sentencing guidelines for No. 480-2020 were discussed at
Appellant’s sentencing hearing. Appellant had a prior record score of 1 for a
prior indecent assault, person under the age of 13, a first-degree
misdemeanor. N.T. Sentencing, 9/21/20, at 14. The Burglary charge carried
an offense gravity score of 7. Id. The standard range under the sentencing
guidelines for the Burglary charge was nine to 16 months, up to 22 months in
aggravated range, mitigated down to three months. Id. Appellant was
sentenced on the Burglary charge to a minimum of 22 months’ incarceration.
The trial court sentence Appellant to a maximum of 20 years’ (240 months’)
incarceration. See 18 Pa.C.S. § 1103 (1) (“a person who has been convicted
of a felony may be sentenced to imprisonment as follows . . . [i]n the case of
a felony of the first degree, for a term which shall be fixed by the court at not
more than 20 years.). At sentencing, the trial court stated,
The sentence imposed at C.R. 480-2020 is in the aggravated
range as the Defendant was on bail for his case at C.R. 716-
2019 in which the victim of that case is the exact same
victim in the case at C.R. 480-2020. And additionally the
Defendant had a Protection From Abuse order against him
at the time of the commission of that offense for the same
victim.
Any lesser sentence would depreciate the seriousness of the
offense.
N.T. Sentencing, 9/21/20, at 31-32. The trial court stated, during sentencing,
What is extremely disturbing on your case is the fact that
the victim of your earlier case the simple assault is the same
victim of your burglary and becomes the same victim of the
protection from Abuse, and then even though you’re
pending sentencing on simple assault you commit the same
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offenses against the same new victim, you also violate a PFA
against the same victim, you continue to violate the PFA
while you’re in jail. The communications that reference
anything to her is a continued violation of the Protection
From Abuse Order in the letters.
N.T. Sentencing, 9/21/20, at 25. The trial court stated that a pre-sentence
investigation report (PSI) had been prepared in the matter at hand. Id. at
13.
Where the sentencing judge had the benefit of a
presentence report, it will be presumed that he was aware
of relevant information regarding appellant's character and
weighed those considerations along with the mitigating
statutory factors.
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (citation
omitted).
After a thorough review of the record, including the briefs of the parties,
the applicable law, and the sentencing transcripts, we conclude Appellant's
issues do not merit relief. Appellant’s minimum sentence was within the
sentencing guidelines, albeit in the aggravated range. The trial court stated
that the sentence was based on the gravity of the offenses, which it found
particularly egregious as they involved the same victim, Appellant was on bail
for one case at the time he committed another and had in his possession the
PFA which he had been served with that same day. We find this adequate to
satisfy 42 Pa.C.S. 9721(b).5 We do not find that the minimum sentence,
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5In every case in which the court imposes a sentence for a felony or
misdemeanor . . . the court shall make as a part of the record, and disclose in
(Footnote Continued Next Page)
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within the sentencing guidelines, “involves circumstances where the
application of the guidelines would be clearly unreasonable.” Dodge, 77 A.3d
at 1269–70 (quoting 42 Pa.C.S. § 9781(c)(2)).
Regarding Appellant’s maximum sentence of 20 years, we find the trial
court had the benefit of the PSI, and therefore, we conclude that it considered
adequately Appellant’s individual and rehabilitative needs, including
Appellant’s age and the fact that he had previously successfully completed a
probationary term. This Court has made clear that when a presentence
investigation report (PSI) exists, there is a presumption that “the sentencing
judge was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020)
(quotation marks omitted) (quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988)). Additionally, we do not find that Appellant’s sentence,
within the statutory limits, is so excessive as to constitute too severe a
punishment. Mouzon, 812 A.2d at 624–25.
We find Appellant does not raise a substantial question in arguing that
his aggregate sentence of 28 months’ to 264 months’ incarceration is
excessive due to the consecutive nature of his charges.
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open court at the time of sentencing, a statement of the reason or reasons for
the sentence imposed. 42 Pa.C.S. § 9721(b).
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the preliminary substantial question inquiry . . . is “whether
the decision to sentence consecutively raises the aggregate
sentence to, what appears upon its face to be, an excessive
level in light of the criminal conduct at issue in the case.”
Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa. Super. 2010)
(quoting Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 598-99 (Pa.
Super. 2010)).
The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate
sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.
Commonwealth v. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010) (citing
Commonwealth v. Pass, 914 A.2d 442, 446–47 (Pa. Super. 2006)).
Appellant was sentenced for two separate incidents involving the same
victim. One of the incidents involved two violent acts toward the victim, first
when Appellant struck the victim and the second when Appellant threatened
the victim with a weapon, specifically a knife. The second separate incident
involved the same victim when Appellant broke into her home and set a fire
in her backyard with the intention of burning the children’s toys. The victim
also had a PFA order against the Appellant at the time he committed the
Burglary. Additionally, Appellant was on bail pending sentencing in the first
incident when he committed the Burglary.
In light of the above, we find the aggregate sentence of 28 months’ to
22 years’ incarceration is neither grossly disparate to appellant’s conduct nor
does it “viscerally appear as patently ‘unreasonable’” and Appellant is not
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entitled to a “volume discount” for multiple crimes committed. Gonzalez-
Dejusus, 994 A.2d at 599; See also Mastromarino, 2 A.3d 589.
Accordingly, Appellant does not raise a substantial question that his
consecutive sentences at No. 480-2020 and No. 716-2019 is excessive based
on the above criminal conduct involved. See Radecki, 180 A.3d at 470;
Gonzalez-Dejusus, 994 A.2d at 599 (appellant did not raise a substantial
question where he received aggregate sentence of 20-40 years’ incarceration
for his participation in armed robbery of two individuals, a kidnapping of a
father and infant daughter as well as car theft); Mastromarino, 2 A.3d at
588–89 (appellant did not raise a substantial question where he received 25
years to 58 years in prison for involvement in criminal enterprise involving
sale of human tissue); Moury, 992 A.2d at 175 (appellant did not raise
substantial question given the nature of the crimes when convicted of two
counts of discharge of a firearm into an occupied structure and received a
sentence of two to four years on one count and a consecutive one to two years
on the second count); Cf. Dodge, 77 A.3d 1263 (appellant raised substantial
question because consecutive sentences within the standard range of
sentencing guidelines amounted to virtual life sentence for nonviolent property
crimes).
Even if we found Appellant had raised a substantial question, we would
find the issue without merit. The trial court did not abuse its discretion in
sentencing Appellant to the aggravated range and statutory maximum at No.
480-2020, as discussed above. At No. 716-2019, Appellant was sentenced to
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a standard range sentence, six to 24 months’ incarceration, for each simple
assault charge, to run concurrent to each other.6 The trial court determined
that Appellant’s sentence at No. 480-2020 and No. 716-2019 were to run
consecutive to each other, which raised Appellant’s aggregate minimum
sentence by 6 months and the aggregate maximum sentence by two years.
We would find that this does not constitute an abuse of discretion. Based on
the foregoing, we will not disturb the trial court’s discretion, and Appellant is
not entitled to relief. See Lekka, 210 A.3d at 353; Conte, 198 A.3d at 1177.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2021
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6 At No. 716 of 2019, Count 2, simple assault, Misdemeanor 2, and Court
3, simple assault Misdemeanor 2, offense gravity scores are threes, prior
record score with a one, both of them are standard range restorative sanction
to six months up to nine in aggravated range, mitigated range not
indicated. Id.- 15 -