J-S11038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 ADAM JOSEPH BUBASH,                 :
                                     :
                   Appellant         :      No. 1382 WDA 2019

    Appeal from the Judgment of Sentence Entered September 4, 2019
            in the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000414-2018

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 ADAM JOSEPH BUBASH,                 :
                                     :
                   Appellant         :      No. 1383 WDA 2019

    Appeal from the Judgment of Sentence Entered September 4, 2019
            in the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000415-2018

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 ADAM JOSEPH BUBASH,                 :
                                     :
                   Appellant         :      No. 1384 WDA 2019
J-S11038-20



    Appeal from the Judgment of Sentence Entered September 4, 2019
            in the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000416-2018

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ADAM JOSEPH BUBASH,                   :
                                       :
                   Appellant           :      No. 1385 WDA 2019

    Appeal from the Judgment of Sentence Entered September 4, 2019
  in the Court of Common Pleas of Somerset County Criminal Division at
                     No(s): CP-56-CR-0000460-2018

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 ADAM JOSEPH BUBASH,                   :
                                       :
                   Appellant           :      No. 1386 WDA 2019

    Appeal from the Judgment of Sentence Entered September 4, 2019
            in the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000474-2018




                                 -2-
J-S11038-20


    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    ADAM JOSEPH BUBASH,                          :
                                                 :
                       Appellant                 :      No. 1387 WDA 2019

       Appeal from the Judgment of Sentence Entered September 4, 2019
               in the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000734-2018

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED APRIL 27, 2020

        In these consolidated appeals, Adam Joseph Bubash (“Bubash”) appeals

from the judgments of sentence imposed following his open guilty pleas to

one count each of burglary,1 at CP-56-CR-0000414-2018 (“No. 414-2018”);

burglary, at CP-56-CR-0000474-2018 (“No. 474-2018”); criminal trespass,2

at CP-56-CR-0000415-2018 (“No. 415-2018”); criminal trespass, at CP-56-

CR-0000416-2018 (“No. 416-2018”); criminal trespass, at CP-56-CR-

0000430-2018 (“No. 460-2018”); and criminal trespass, at CP-56-CR-

0000734-2018 (“No. 734-2018”). We affirm.

        On July 26, 2018, Bubash entered open guilty pleas at Nos. 414-2018,

415-2018, 416-2018, 460-2018, and 474-2018.                   Bubash waived the

preparation of a pre-sentence report (“PSI”) and the trial court ordered a

____________________________________________


1   18 Pa.C.S.A. § 3502(a)(2).

2   18 Pa.C.S.A. § 3503(a)(1)(ii).


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modified pre-sentence report.     Sentencing was deferred until October 26,

2018. At the sentencing hearing, Bubash entered an additional guilty plea at

No. 734-2018, and Bubash proceeded immediately to sentencing on all 6

dockets.

      On October 26, 2018, the trial court sentenced Bubash, at No. 414-

2018, to 36 to 72 months in prison, plus restitution, fines, and costs. At No.

415-2018, the trial court sentenced Bubash to 21 to 42 months in prison, plus

restitution, fines, and costs.   At No. 416-2018, the trial court sentenced

Bubash to 21 to 42 months in prison, plus restitution, fines, and costs. At No.

460-2018, the trial court sentenced Bubash to 21 to 42 months in prison, plus

restitution, fines, and costs.   At No. 474-2018, the trial court sentenced

Bubash to 36 to 72 months in prison, plus restitution, fines, and costs. At No.

734-2018, the trial court sentenced Bubash to 12 to 42 months in prison, plus

restitution, fines, and costs. The trial court directed the sentences imposed

at Nos. 415-2018, 416-2018, 460-2018, and 734-2018 to run concurrently

with No. 414-2018.      Bubash’s sentence at No. 474-2018 was imposed

consecutive to his sentence at No. 414-2018, resulting in an aggregate

sentence of 72 to 144 months in prison. Bubash was given credit for time

served at Nos. 460-2018, 474-2018, and 734-218, and all of Bubash’s

sentences were in the standard range of the sentencing guidelines.




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        On December 20, 2018, Bubash filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”),3 requesting the reinstatement of his post-

sentence and appellate rights. The PCRA court granted Bubash permission to

file a post-sentence motion, nunc pro tunc. On May 28, 2019, Bubash filed a

timely post-sentence Motion, nunc pro tunc, asserting that the trial court failed

to consider Bubash’s mitigating circumstances of assisting the police,

struggling with addiction, his work history, and the lengthy amount of time

between his previous offense and the instant crimes.        Bubash additionally

alleged that the trial court improperly referred to him as a “career criminal.”

The trial court denied Bubash’s Motion without a hearing.

        Bubash filed timely Notices of Appeal,4 one at each docket number. The

trial court did not order Bubash to file a concise statement of errors

complained of on appeal.5 The trial court then issued a Rule 1925(a) Opinion.

This Court, sua sponte, consolidated Bubash’s appeals on September 20,

2019.

        Bubash presents the following question for our review:

____________________________________________


3   42 Pa.C.S.A. §§ 9541-9546.

4 Bubash complied with the dictates of our Supreme Court in Commonwealth
v. Walker, 185 A.3d 969, 971, 977 (Pa. 2018) (holding that, prospectively
from the date of the Walker decision, “where a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case[,]” and that a failure to do so will result in quashal). See Pa.R.A.P.
341, note.

5However, it appears from the record that Bubash filed his Concise Statement
on January 9, 2020, after the trial court had issued its Opinion.

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       Whether the [trial] court abused its discretion in sentencing
       [Bubash], such that the [trial] court did not consider [Bubash]’s
       individual circumstances in fashioning the sentence and the
       sentence is unfair[?]

Brief for Appellant at 31.

       In his Brief, Bubash claims that the trial court issued a “predetermined”

sentence “based on [Bubash’s] prior record score” and ignored the mitigating

circumstances of Bubash’s work history, request for rehabilitation, cooperation

with law enforcement, and the length of time between offenses.         Brief for

Appellant at 37.

       Bubash challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal.6 See Commonwealth. Sunealitis, 153

A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the

discretionary aspects of his sentence, we must consider his brief on this issue

as a petition for permission to appeal. Commonwealth v. Yanoff, 690, A.2d

260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522

A.2d 17, 18 (Pa. 1987).          Prior to reaching the merits of a discretionary

sentencing issue,

       [this Court conducts] a four-part analysis to 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, seePa.R.Crim.P. [720]; (3) whether appellant’s brief
____________________________________________


6 The open guilty pleas that Bubash entered into permit him to challenge his
sentence. See Commonwealth v. Tirado, 870 A.2d 362, 364 n.5 (Pa.
Super. 2005) (explaining that, when the plea agreement is open, containing
no bargain for a specific or stated term of sentence, the defendant will not be
precluded from appealing the discretionary aspects of his sentence).

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      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)

                                      ***

            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists only when the appellant advance[s] 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation

marks and some citations omitted).

      Here, Bubash filed timely Notices of Appeal, raised his claim in a post-

sentence Motion, but failed to include a Rule 2119(f) Statement in his brief.

However, the Commonwealth did not raise an objection and, thus, we will

determine whether Bubash has raised a substantial question in his brief. See

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (explaining

that “when the appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this Court may ignore the omission and determine

if there is a substantial question that the sentence imposed was not

appropriate[.]”).

      Bubash highlights specific mitigating factors that the trial court allegedly

failed to consider, and asserts that his right to an individualized sentence was

violated when the trial court focused on the seriousness of the offenses instead

of Bubash’s rehabilitative needs. We conclude that Bubash has presented a



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substantial question. See Commonwealth v. Serrano, 150 A.3d 470, 473

(Pa. Super. 2016) (stating that a substantial question has been presented

where an appellant alleged that the sentencing court failed to consider the

defendant’s individualized circumstances and rehabilitative needs); see also

Commonwealth v. Coulverson, 34 A.3d 135, 142-43 (Pa. Super. 2011)

(stating a substantial question has been presented where the trial court

focused on the seriousness of the offenses rather than the rehabilitative needs

of the defendant).

      Our standard of review is as follows:

      Sentencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias, or
      ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

(citation omitted).

            When imposing a 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.      It must be
      demonstrated that the court considered the statutory factors
      enunciated for determination of sentencing alternatives, and the
      sentencing guidelines. Additionally, the court must impose a
      sentence which 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 the community, and the rehabilitative needs of the
      defendant.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted); see also 42 Pa.C.S.A.


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J-S11038-20


§ 9721(b). Moreover, “[w]here a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code.” Moury, 992 A.2d at 171. Furthermore, “the trial judge

may determine whether, given the facts of a particular case, a sentence should

run consecutive to[,] or concurrent with[,] another sentence being imposed.”

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009).

      Here, the record reflects that the trial court considered the particular

circumstances of the offense, Bubash’s prior criminal record, age, work

history, and potential for rehabilitation, as well as Bubash’s statement at

sentencing, and his general character.       See N.T., 10/26/18, at 15, 19.

Further, the trial court considered the sentencing guidelines, Bubash’s prior

record score and criminal history, his rehabilitative needs, and the seriousness

of his crimes. Id.

      The trial court stated repeatedly that it considered that Bubash had

taken responsibility for his actions. Additionally, the trial court stated that it

considered Bubash’s request for help through the state system instead of the

county, and Bubash’s statements that he struggles with addiction.             Id.

Specifically, the trial court recognized that “[t]he defendant has taken the first

steps towards rehabilitation by accepting responsibility for his actions; and

consequently, these sentences fall at the lowest end of the standard range of

the sentencing guidelines.”    Id. at 19.   Additionally, we note that Bubash

requested that the trial court sentence him to “a state sentence” because he


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did not believe he would get the addiction help he needed from a county

facility. Id. at 13.

      Moreover, because Bubash’s sentence was within the standard range, it

was appropriate under the Sentencing Code.     See Moury, supra; Lilley,

supra.    Accordingly, we conclude that the trial court did not abuse its

discretion when sentencing Bubash, and Bubash’s discretionary sentencing

challenge fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2020




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