J-A23028-19

                                  2019 PA Super 369



    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    JOSEPH MICHAEL CHRISTMAN,

                             Appellant                  No. 149 WDA 2019


       Appeal from the Judgment of Sentence Entered October 21, 2018
                 In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0002038-2015

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY BENDER, P.J.E.:                        FILED DECEMBER 31, 2019

        Appellant, Joseph Michael Christman, appeals nunc pro tunc from the

judgment of sentence of an aggregate term of 36 to 72 months’ incarceration,

imposed after he pled guilty to 11 counts of sexual abuse of children

(possession of child pornography), 18 Pa.C.S. § 6312(d). Appellant contends

that the sentencing court abused its discretion by applying an 18-month

sentencing guideline enhancement on each count pursuant to 204 Pa. Code

§§ 303.10(e) and 303.9(l)(1).1 After careful review, we vacate Appellant’s

sentence and remand for resentencing.


____________________________________________


1 We observe that an amended version of the Sentencing Code, 204 Pa. Code
§§ 303.1-303.18(c), became effective on December 6, 2019. Although no
significant changes were made to the sections of the guidelines at issue herein,
we will review the prior version of the statute that was in effect at the time
Appellant was sentenced.
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      The facts underlying Appellant’s convictions are not germane to the

issue he raises on appeal.     We need only note that on January 11, 2016,

Appellant pled guilty to 11 counts of the above-stated offense based on his

possession of 11 videos depicting child pornography. Appellant was sentenced

on October 21, 2016, to an aggregate term of 36 to 72 months’ incarceration.

He did not file a post-sentence motion.

      On November 14, 2016, Appellant filed a timely notice of appeal, raising

the same sentencing claim as he presents herein. On July 27, 2017, this Court

affirmed Appellant’s judgment of sentence, concluding that his issue

constituted a challenge to the discretionary aspects of his sentence, which he

waived by failing to file a post-sentence motion and/or by omitting a Pa.R.A.P.

2119(f) statement from his appellate brief.        See Commonwealth v.

Christman, No. 1739 WDA 2016, unpublished judgment order at 2-4 (Pa.

Super. filed July 27, 2017).

      On March 12, 2018, Appellant filed a timely petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging that his

counsel had acted ineffectively by not preserving his sentencing claim. After

appointing counsel for Appellant and conducting an evidentiary hearing, the

court granted his petition and reinstated his post-sentence motion and direct

appeal rights by order entered December 10, 2018. On December 18, 2018,

Appellant filed a nunc pro tunc post-sentence motion raising his challenge to

the court’s application of the 18-month sentencing guideline enhancement.

On December 21, 2018, the court denied that motion.

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      Appellant filed a nunc pro tunc notice of appeal on January 18, 2019.

He then timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The trial court filed its

Rule 1925(a) opinion on February 14, 2019.       Herein, Appellant states two

issues for our review:

      1. Whether the sentencing court erred as a matter of law by
      applying the sentencing enhancement of 204 Pa.[]Code [§]
      303.9[(l)(1)] to the charges of sexual abuse of children
      (possession of child pornography)[,] 18 Pa.C.S.[] § 6312(d)[,] by
      aggregating all of the images pertaining to eleven (11) separate
      and separately sentencable [sic] counts of sexual abuse of
      children (possession of child pornography) … onto each single
      count?

      2. Whether the sentencing court abused its discretion by applying
      the sentencing enhancement of 204 Pa.[]Code [§] 303.9[(l)(1)]
      to the charges of sexual abuse of children (possession of child
      pornography)[,] 18 Pa.C.S.[] § 6312(d)[,] by aggregating all of
      the images pertaining to eleven (11) separate and separately
      sentencable [sic] counts of sexual abuse of children (possession
      of child pornography) … onto each single count?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      Appellant combines his two issues in his Argument section and, thus,

we will address his two claims together. This Court has previously determined,

in Appellant’s initial appeal from his judgment of sentence, that his issue

implicates the discretionary aspects of his sentence.    See Christman, No.

1739 WDA 2016, unpublished judgment order at 2 (citing Commonwealth

v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010) (treating Rhoades’ challenge

to the court’s application of the deadly weapon sentencing enhancement as




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implicating the discretionary aspects of his sentence)). As we explained in

Rhoades,

     [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. When challenging the
     discretionary aspects of the sentence imposed, an appellant must
     present a substantial question as to the appropriateness of the
     sentence. Two requirements must be met before we will review
     this challenge on its merits. First, an appellant must set forth in
     his brief a concise statement of the reasons relied upon for
     allowance of appeal with respect to the discretionary aspects of a
     sentence. Second, the appellant must show that there is a
     substantial question that the sentence imposed is not appropriate
     under the Sentencing Code. That is, the sentence violates either
     a specific provision of the sentencing scheme set forth in the
     Sentencing Code or a particular fundamental norm underlying the
     sentencing process.      We examine an appellant’s [Pa.R.A.P.]
     2119(f) statement to determine whether a substantial question
     exists. Our inquiry must focus on the reasons for which the appeal
     is sought, in contrast to the facts underlying the appeal, which are
     necessary only to decide the appeal on the merits.

Rhoades, 8 A.3d at 916 (internal citations, quotation marks, and footnote

omitted; emphasis in original).

     Here, Appellant has included a Rule 2119(f) statement in his appellate

brief, and we conclude that his claim that the court improperly applied a

sentencing guideline enhancement presents a substantial question for our

review. See id. (finding Rhoades’ challenge to the application of the deadly

weapon sentencing enhancement as constituting a substantial question for our

review).   Therefore, we will examine the merits of Appellant’s sentencing

claim, keeping in mind our following standard of review:

     [T]he proper standard of review when considering whether to
     affirm the sentencing court’s determination is an abuse of

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      discretion. ... [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment exercised
      was manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will. In more expansive terms, our Court recently
      offered: An abuse of discretion may not be found merely because
      an appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be clearly
      erroneous.

Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010)

(citation omitted).

      Appellant challenges the court’s application of an 18-month sentencing

enhancement under sections 303.10(e) and 303.9(l)(1).                 First, section

303.10(e) states, in pertinent part:

      (e) Sexual Abuse of Children Enhancement.

      (1) When the court determines that the offender violated 18
      Pa.C.S. § 6312 (relating to sexual abuse of children) and that the
      offender possessed more than 50 images, the court shall instead
      consider the sentence recommendations described in §
      303.9(l)(1). For purposes of this enhancement, the number of
      images is defined as follows:

         (i) Each photograph, picture, computer generated image, or
         any similar visual depiction shall be considered to be one
         image.

         (ii) Each video, video-clip, movie, or similar visual depiction
         shall be considered to have 50 images.

                                        ***

      (3) Sexual Abuse of Children Enhancement shall apply to each
      violation which meets the criteria above.

204 Pa. Code § 303.10(e).

      Additionally, section 303.9(l)(1) reads:



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      (l) Sexual Abuse of Children Enhancement sentence
      recommendations. If the court determines that aggravating
      circumstances described in § 303.10(e) are present, the court
      shall instead consider the applicable Sexual Abuse of Children
      Enhancement related to number of images possessed by the
      offender or the nature and character of the abuse depicted:

         (1) When applying enhancement based on the number of
         images possessed by the offender. If the offender possessed
         more than 50 images to 200 images, 6 months are added
         to the lower limit of the standard range and 6 months are
         added to the upper limit of the standard range. If the
         offender possessed more than 200 images to 500 images,
         12 months are added to the lower limit of the standard
         range and 12 months are added to the upper limit of the
         standard range. If the offender possessed more than 500
         images, 18 months are added to the lower limit of the
         standard range and 18 months are added to the upper limit
         of the standard range.

204 Pa. Code § 303.9(l)(1).

      The parties agree that the court properly considered each of the 11

videos possessed by Appellant as constituting 50 images pursuant to section

303.10(e)(ii). See Appellant’s Brief at 10; Commonwealth’s Brief at 10. They

dispute, however, whether the court erred by considering the total number

of images Appellant possessed at all 11 counts (i.e., 550 images) in

determining that the sentencing enhancement applies. Appellant contends

that, since the Commonwealth charged him separately for each video, the

court was required to consider only the number of images pertaining to each

count (i.e., 50 images). In support, he relies on the plain language of section

303.10(e)(3) that the “[e]nhancement shall apply to each violation which

meets the criteria above.” 204 Pa. Code § 303.10(e)(3) (emphasis added).

Because section 303.1(e) requires that an offender possess more than 50


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J-A23028-19



images, Appellant insists that his possession of 50 images at each count does

not trigger the sentencing guideline enhancement.

     The Commonwealth, on the other hand, maintains that,

     [t]here is no requirement in any of these sections of the
     [Sentencing] Code that the number of images be calculated
     separately for each charged count. The Code, by every indication,
     i[s] concerned only with the total number of images (or their
     statutory equivalent) that the defendant possessed.          The
     Commonwealth respectfully submits that “the number of images
     possessed by the offender” means exactly what it says for the
     purposes of this guideline enhancement. There is no ambiguity
     there.

Commonwealth’s Brief at 11. The trial court agrees with the Commonwealth,

concluding that,

     the plain reading of the language set forth in 204 Pa. Code §
     303.10(e)(1) states that if the court finds that “the offender
     possessed more than 50 images[,”] the court shall consider the
     sentencing recommendations of 204 Pa. Code § 303.9(l)(1).
     Nowhere in the statue does it direct the court to conduct separate
     calculations for each count. The statute directs the court to
     determine the total number of images possessed by an offender
     in order to decide whether the sentencing enhancements apply.

Trial Court Opinion, 2/14/19, at 12-13.

     It is clear that the issue before us “involves statutory interpretation,

which is a question of law, and our review is plenary and non-deferential.”

A.S. v. Pennsylvania State Police, 143 A.3d 896, 903 (Pa. 2016) (citation

and footnote omitted).

     In such cases, the Statutory Construction Act directs courts to
     ascertain and effectuate the intent of the General Assembly. The
     statute’s plain language generally provides the best indication of
     legislative intent. It is only when statutory text is determined to



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      be ambiguous that we may go beyond the text and look to other
      considerations to discern legislative intent.

Id. (internal quotation marks and citations omitted).

      In the present case, we disagree with the court and the Commonwealth

that the plain language of section 303.10(e) permits the court to consider the

total number of images possessed, across all convictions, in order to

determine if the sentencing enhancement applies.        Such a reading of the

statute wholly ignores the explicit language of section 303.10(e)(3), which

states: “Sexual Abuse of Children Enhancement shall apply to each violation

which meets the criteria above.” 204 Pa. Code § 303.10(e)(3) (emphasis

added). Pursuant to this provision, it is clear that the court must examine

each conviction to determine if it meets the requirement that the offender

possessed more than 50 images before the guideline enhancement may be

applied.

      Here, at each of Appellant’s 11 counts, he was convicted of possessing

one video, or 50 images. Accordingly, there was no single violation for which

he possessed more than 50 images, and the sentencing enhancement set

forth in section 303.9(l)(1) does not apply. Even without application of the

enhancement, Appellant is not receiving a “volume discount” for his offenses,

as he was convicted and sentenced separately for each of the 11 videos he

possessed.    See Commonwealth v. Davidson, 860 A.2d 575, 583 (Pa.

Super. 2004) (indicating that, because Davidson was convicted and sentenced

on 28 separate counts of possession of child pornography, he did not receive

“a volume discount on his multiple crimes”).      We also observe that the

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Commonwealth has discretion in how it charges criminal offenders. In this

case, it could have reduced the number of charges, and increased the number

of videos underlying each charge, thus triggering application of the sentencing

guideline enhancement.     However, because the Commonwealth chose to

charge Appellant with separate counts for each video he possessed, the

requirement of section 303.10(e) that the offender possess more than 50

images was not met for any of his convictions. Therefore, the trial court erred

by applying the 18-month guideline enhancement pursuant to section

303.9(l)(1). Consequently, we vacate Appellant’s judgment of sentence and

remand for resentencing without application of the enhancement.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2019




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