J-S16042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CHARLES F. NEALMAN, JR.

                            Appellant                   No. 1413 MDA 2014


              Appeal from the Judgment of Sentence July 30, 2007
                 In the Court of Common Pleas of Mifflin County
              Criminal Division at No(s): CP-44-CR-0000561-2006


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 26, 2015

         Charles F. Nealman, Jr. appeals nunc pro tunc from the judgment of

sentence imposed July 30, 2007, in the Mifflin County Court of Common

Pleas.     Nealman was sentenced to an aggregate term of 12 to 35 years’

imprisonment following his jury conviction of rape1 and related crimes for

the sexual assault of his ex-girlfriend.       On appeal, he challenges only the

discretionary aspects of his sentence. For the reasons set forth below, we

affirm.

         The facts underlying Nealman’s conviction are as follows.     Nealman

and the victim were involved in a relationship while both were married to

other people.      In March of 2006, they left their respective spouses and
____________________________________________


1
    18 Pa.C.S. § 3121(a)(1).
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moved into an apartment the victim was renting.         Soon thereafter, the

victim suspected Nealman was having an affair, and the relationship soured.

On August 1, 2006, they both decided Nealman would move out of the

apartment.2 However, he planned to return the next day and install an air

conditioner before the victim got home from work.

        On August 2, 2006, the victim got home around 2:30 p.m. She spoke

with Nealman on the phone and they argued again about his suspected

affair. Nealman told the victim that he wanted to come over and explain the

misunderstanding, but the victim told him not to come. While they were still

on the phone, the victim noticed her car, which Nealman had been driving,

in the driveway.       She then heard a “large bang,” after which Nealman

appeared in the kitchen.3 Id. at 63.

        Nealman tried to explain to the victim that her suspicions were

incorrect, and said that “he wasn’t leaving until [she] had sex with him.” Id.

at 64.     Although the argument escalated, the victim initially believed

Nealman was “just blowing smoke.” Id. at 65. However, when the victim

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2
 Nealman no longer had a key to the apartment because he had given his
key to his brother, who lived with him and victim for a short time in June of
2006. Nealman testified he never had another key made because there was
usually someone home when he returned from work. N.T., 5/17/2007, at
165. If no one was home, he would climb the low roof in the back of the
house onto a balcony and enter through an unlocked door off the balcony.
Id. at 166.
3
    Nealman had entered the apartment through the balcony door.



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went to the kitchen to refill her glass of iced tea, Nealman knocked it out of

her hand and the glass splattered everywhere. The victim testified that she

“started crying because that’s when [she] knew [she] was in trouble.” Id.

        Over the next several hours, Nealman (1) punched the front door; (2)

threatened to hit the victim over the head with a glass; (3) threatened to

“shove[]” a candle lighter down the victim’s throat;4 (4) held a butcher knife

to the victim’s throat while stating, “Do you know how easy it would be for

me to slit your throat right now?”5 (5) smashed a large metal flashlight into

the bedroom wall to threaten her to have sex with him; and (6) forced the

victim to engage in oral and vaginal sex in the bedroom and living room. 6

Eventually, Nealman led the victim outside toward his car that was broken

down on a nearby street, and directed her to fix it. 7 When she responded

“no,” he said, “Get out of here, bitch.          You ain’t worth it” and he walked


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4
    N.T., 5/17/2007, at 68.
5
    Id. at 69.
6
  While he was threatening the victim, Nealman brought up an incident that
had occurred a few months earlier when he almost killed the boyfriend of
victim’s stepdaughter. He told the victim to call their mutual friend, Nick
Heimbach, and ask Heimbach if he believed Nealman could have killed the
boy. The victim did so, and Heimbach answered “Yes, I think he [was]
capable of killing him.” Id. at 74.
7
 The victim had damaged the exhaust on Nealman’s vehicle earlier that day.
Id. at 60.




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away.     Id. at 80.    The victim then ran to a nearby house and called the

police.

          Nealman    was     arrested    and     charged   with   rape,    kidnapping,

aggravated     assault,    burglary,     involuntary   deviate    sexual   intercourse

(“IDSI”), sexual assault, aggravated indecent assault, unlawful restraint,

recklessly endangering another person (“REAP”) and terroristic threats.8 The

case proceeded to a jury trial, and, on May 17, 2007, a jury found him guilty

of all charges, except kidnapping and burglary.            The trial court ordered a

presentence investigation report, and directed that Nealman be assessed by

the Sexual Offenders Assessment Board (“SOAB”) to determine whether he

met the criteria for classification as a sexually violent predator under

Megan’s Law.9

        On July 26, 2007, Nealman was sentenced to a term of five to 15

years’ imprisonment for rape, a consecutive term of five to 15 years’

imprisonment for IDSI, and a consecutive term of two to five years’

imprisonment for aggravated assault, for an aggregate term of 12 to 35



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8
 18 Pa.C.S. §§ 3121(a)(1); 2901(a)(3); 2702(a)(i); 3502(a); 3123(a)(2);
3124.1; 3125(a)(3); 2902(a)(1); 2705; and 2706(a)(1), respectively.
9
  The Sexual Offenders Registration and Notification Act (“SORNA”), 42
Pa.C.S. §§ 9799.10-9799.14, replaced Pennsylvania’s Megan’s Law effective
December 20, 2012.




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years’ imprisonment.10        Based upon the SOAB assessment, the trial court

determined that Nealman did not meet the criteria for classification as a

sexually violent predator.        Nealman filed a pro se motion to modify his

sentence,11 and the trial court entered an amended sentencing order on

September 11, 2007.12          Thereafter, counsel filed an amended motion for

post-sentence relief, again challenging the trial court’s sentence.13 The court

conducted a hearing, and, on January 9, 2008, entered an order denying the

amended motion for reconsideration. Nealman filed a timely pro se notice of

appeal. However, on June 26, 2008, this Court dismissed the appeal when

Nealman failed to file an appellate brief.

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10
  Nealman’s convictions of sexual assault and aggravated indecent assault
merged with his convictions of rape and IDSI for sentencing purposes. On
each of the remaining convictions, the court assessed only a $300 fine.
11
   Nealman argued (1) the trial court failed to consider the sentencing
guidelines, (2) the court failed to provde adequate reasons on the record for
deviating from the guidelines; (3) the sentence was excessive; and (4) the
court failed to give “appropriate weight to [his] circumstances[.]” Motion to
Modify and Reduce Sentence, 8/2/2007, at 1. He also requested the court
run his sentences concurrently.
12
   The only change in the amended sentencing order was the trial court
awarded Nealman more credit for time-served.          Compare Order,
7/26/2007, at 1 (credit of 152 days for time-served), with Order,
9/11/2007, at 1 (credit of 222 days for time-served).
13
   Specifically, counsel incorporated by reference Nealman’s prior pro se
motion, and reiterated the same claims he made in that motion. Counsel
also asserted the trial court’s reliance on “the statements of the victim, was
an impermissible basis for deviation from the guidelines.” Amended Motion
for Post-Sentence Relief Pursuant to Pa.R.Crim.P. 720, 10/11/2007, at ¶ 7.



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        On June 30, 2009, Nealman filed a timely pro se PCRA petition,14

arguing the court erred in failing to appoint counsel to assist him in his direct

appeal.     PCRA counsel was appointed, and a hearing was conducted on

Nealman’s pro se petition on July 22, 2014.15 Thereafter, on July 24, 2014,

the trial court entered an order granting Nealman leave to file a direct

appeal nunc pro tunc. This timely appeal follows.16
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14
     See Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
15
    The delay between the filing of Nealman’s PCRA petition in June of 2009
and the PCRA hearing conducted in July of 2014 is the result of the following
circumstances. On July 24, 2009, David A. Goldman, Esq. was appointed to
represent Nealman for the PCRA proceedings. Goldman requested three
extensions of time to file an amended petition between October of 2009 and
March of 2010. On August 6, 2013, the PCRA court entered an order which
(1) noted that Goldman was on inactive status due to medical issues, and
(2) appointed present counsel, Stuart A. Clio, Esq., to represent Nealman in
this matter. Clio then requested, and was granted, an extension of time to
file an amended petition. However, he never filed an amended petition, but
rather, on November 25, 2013, filed a motion requesting a hearing on
Nealman’s original PCRA petition. After several continuances, that hearing
was finally held on July 22, 2014.
16
   On August 29, 2014, the trial court ordered counsel to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On October 6, 2014, counsel filed a late response stating that he “adopts the
Statement of Matters Complained of on Appeal filed pro se by [Nealman] on
February 27, 2008.”     Statement of Matters Complained of on Appeal,
10/6/2014. The trial court, thereafter, filed an opinion addressing the claims
in Nealman’s 2009 pro se Rule 1925(b) statement. See Commonwealth v.
Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (“When counsel has filed
an untimely Rule 1925(b) statement and the trial court has addressed those
issues we need not remand and may address the merits of the issues
presented”), citing Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.
2009) (en banc).




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      Nealman’s sole issue on appeal challenges the discretionary aspects of

his sentence.   Specifically, Nealman argues the trial court erred in relying

upon his purported lack of remorse as a reason to impose consecutive

sentences. Although he denied the allegations at trial, and testified that the

acts were consensual, Nealman did not make a statement at the sentencing

hearing.    Therefore, he contends “the court had no basis for [its]

determination that [he] had no remorse.” Nealman’s Brief at 14. Nealman

also asserts the trial court failed to take into account his rehabilitative

needs, and imposed a “cumulative sentence [which] exceeds by 40% the

aggravated guideline sentence for each of the … offenses.” Id. at 16.

      The standard of review for a claim challenging the discretionary

aspects of sentencing is well-established:

      Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.




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Super. 2007) (citation omitted).       To reach the merits of a discretionary

issue, this Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant
      preserved his 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; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Here, Nealman complied with the procedural requirements for this

appeal   by   filing   initial   and   amended   post-sentence   motions   for

reconsideration of sentence, by filing a timely a notice of appeal, and by

including in his appellate brief a statement of reasons relied upon for appeal

pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and

Pa.R.A.P. 2119(f). Therefore, we must determine whether Nealman raised a

substantial question justifying our review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

      With respect to Nealman’s contentions that (1) the trial court relied

upon an impermissible factor, i.e., his purported lack of remorse, in


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imposing an unreasonable sentence, and (2) the court failed to consider his

rehabilitative needs, we find both raise a substantial question for our review.

See Commonwealth v. Downing, 990 A.2d 788, 792-793 (Pa. Super.

2010) (claims that trial court relied on an improper factor in imposing

sentence, and failed to consider defendant’s rehabilitative needs raise

substantial questions). However, neither of these claims was raised in his

pro se or counseled post-sentence motion. Accordingly, they are waived for

our review. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.

2003) (holding appellant’s failure to raise “the specific claim regarding the

sentencing court’s alleged failure to state the reasons for his sentence on the

record” either at sentencing or in his post-sentence motion waives the claim

for appellate review), appeal denied, 831 A.2d 599 (Pa. 2003).

      Nevertheless,   we   acknowledge     that   PCRA   counsel   could   have

requested to file post sentence motions nunc pro tunc after Nealman’s direct

appeal rights were restored. If he had done so, he may have been able to

preserve these claims for our review. Accordingly, because of the problems

with appointed counsel’s representation, as detailed infra in footnote 17, we

will address these claims even though they are waived.

      With regard to his contention that the trial relied on an impermissible

factor at sentencing, Nealman cites Commonwealth v. Bowen, 975 A.2d

1120 (Pa. Super. 2009), for the proposition that a defendant’s silence at

sentencing “should not be used to make a determination that the defendant


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lacked remorse.”     Nealman’s Brief at 15.   However, the Bowman Court’s

holding was not as expansive as Nealman contends.

        In that case, Bowman did not testify either at trial, or at the

sentencing hearing.     In imposing sentence, the trial court considered the

fact “that [Bowman] failed to show any remorse for his crimes or take

responsibility for them, even after the jury’s decision.”   Id. at 1121-1122.

On appeal, this Court was more troubled by the trial court’s consideration of

Bowman’s “failure to take responsibility for crimes he never admitted to

committing[,]” than for its consideration of Bowman’s lack of remorse. Id.

at 1127. However, the Court held that a defendant’s “silence at sentencing

may not be the sole basis for finding that a defendant lacked remorse.” Id.

at 1127 (emphasis supplied). Nevertheless, the Bowman Court ultimately

affirmed the judgment of sentence after noting the trial court “cited

numerous other aggravating factors” to justify the sentence imposed. Id. at

1128.

        Conversely, in the present case, the trial court did not explicitly or

implicitly refer to Nealman’s failure to make a statement at sentencing.

Rather, it noted, among other things, that “[a]t the trial and at

sentencing, [Nealman] displayed no remorse whatsoever for the crimes

he committed.” Trial Court Order, 1/8/2008, at 2 (emphasis supplied). The

trial court had the opportunity to hear Nealman’s testimony at his jury trial,

and observe his behavior at both his trial and sentencing hearing.        We


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cannot say the trial court improperly found Nealman “displayed no remorse”

under the circumstances of this case, and, therefore, this claim fails.

     Furthermore, with regard to his claim that the trial court failed to take

into account his rehabilitative needs, Nealman does not specify what those

needs are, and what more the trial court could have done, save for impose a

shorter term of imprisonment. Moreover, we note that where, as here, the

trial court had the benefit of a presentence investigation report, we will

presume   it    was   “aware   of   all   appropriate   sentencing   factors   and

considerations.” Downing, supra, 990 A.2d at 794. Therefore, no relief is

warranted on this issue.

     Nealman also asserts the trial court abused its discretion in imposing

consecutive, rather than concurrent, sentences.         The decision whether to

impose consecutive sentences is generally left to the discretion of the trial

court, and raises a substantial question for our review “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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (quotation

omitted), appeal denied, 77 A.3d 1258 (Pa. 2013). Contrary to Nealman’s

contentions, we conclude no such “extreme circumstances” exist in the

present case.

     As the trial court explained in its order denying Nealman’s post-

sentence motion, Nealman’s convictions of rape, IDSI and aggravated


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assault were based on “separate acts which took place in different places

and at different times.”   Trial Court Order, 1/8/2008, at 1.     The Court

stated:

     As the record shows, [Nealman] held the Victim captive in her
     home for hours. While [Nealman] and the Victim were standing
     in Victim’s kitchen, [Nealman] held a knife to the Victim’s throat
     and said “Do you know how easy it would be for me to slit your
     throat right now?” This was sufficient for the jury to find
     [Nealman] guilty of Aggravated Assault. Some time later, in
     Victim’s bedroom, [Nealman] used a metal flashlight to force
     Victim to perform oral sex on [him]. This was sufficient for the
     jury to find [Nealman] guilty of Involuntary Deviate Sexual
     Intercourse. Some time after the incident in the bedroom,
     [Nealman] forced Victim to engage in vaginal intercourse with
     [him] downstairs on the couch. This was sufficient for the jury
     to find [Nealman] guity of Rape by Forcible Compulsion. As the
     record shows, each of these crimes took place at different times
     and in different places.     This fact alone justifies running
     [Nealman’s] sentences consecutively as opposed to concurrently.

Id. at 1-2. The court also noted that before deciding to impose consecutive

sentences, it considered the fact that Nealman “displayed no remorse” for

the crimes, either at trial or sentencing, and the victim suffered “severe

trauma” as a result of the incident. Id. at 2. See N.T., 7/26/2007, at 3-8

(victim’s statement at sentencing).

     We remind Nealman that he is not entitled to a “‘volume discount’ for

his crimes by having all sentences run concurrently.”   Commonwealth v.

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). See also Commonwealth

v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (42 Pa.C.S.A. § 9721

“affords the sentencing court discretion to impose its sentence concurrently

or consecutively to other sentences being imposed at the same time or to


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sentences already imposed.”). Accordingly, finding no abuse of discretion on

the part of the trial court, we conclude that Nealman is entitled to no relief,

and we affirm the judgment of sentence.17

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2015




____________________________________________


17
   We are compelled to address the utter lack of effort expended by
appointed counsel in this case. Present counsel was appointed on August 6,
2013, to represent Nealman in his PCRA proceedings. Although Nealman
was ultimately afforded relief in the form of a direct appeal nunc pro tunc,
counsel never amended Nealman’s PCRA petition prior to requesting a
hearing, even though he was granted an extension of time to do so, and he
never asked the trial court for leave to file post-sentence motions nunc pro
tunc after Nealman’s direct appeal rights were restored. Moreover, counsel
neglected to file a timely Rule 1925(b) concise statement, but rather, simply
adopted Nealman’s pro se statement.            While we ultimately conclude
Nealman is entitled to no relief, we remind counsel that his obligations to
represent his client entail more than simply his entry of appearance.



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