J-S59020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
JEREMY MICHAEL GORNEY,                    :
                                          :
                  Appellant               :   No. 136 WDA 2015

          Appeal from the Judgment of Sentence August 21, 2013,
                    Court of Common Pleas, Erie County,
           Criminal Division at No(s): CP-25-CR-0000085-2009,
            CP-25-CR-0000840-2013, CP-25-CR-0000843-2013
                       and CP-25-CR-0002339-2009

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 24, 2015

      Appellant, Jeremy Michael Gorney (“Gorney”), appeals from the

judgment of sentence entered on August 21, 2013 by the Court of Common

Pleas of Erie County, Criminal Division, following his guilty plea to attempted

escape, institutional vandalism, fleeing or attempting to elude a police

officer, driving while operating privilege is suspended or revoked, reckless

driving, and driving under the influence of alcohol or a controlled substance.1

For the reasons that follow, we affirm.

      A prior panel of this Court summarized the relevant facts and

procedural history of this case as follows:




1
  18 Pa.C.S.A. §§ 901(a), 5121(a), 3307(a)(5); 75 Pa.C.S.A. §§ 3733(a),
1543(a), 3736(a), 3802(c).

*Former Justice specially assigned to the Superior Court.
J-S59020-15


              Due to the nature of our disposition, we do not
           need to recite, in detail, the events that gave rise to
           the charges involved in this case. It is sufficient to
           state that on February 24, 2013, Gorney drove his
           1998 Oldsmobile Bravada while under the influence
           of alcohol. N.T., 7/8/13, at 12. When policed tried
           to pull him over, he attempted to flee, starting a
           high-speed police chase. Id. at 11. After police
           finally apprehended Gorney, he attempted to escape
           by damaging his handcuffs. Id. at 10.

              On July 8, 2013, Gorney pled guilty to the above-
           referenced crimes. On August 21, 2013, the trial
           court revoked Gorney’s five-year probation sentence
           for a prior burglary conviction, of which he had
           already served approximately three and a half years.
           On that date, the trial court re-sentenced Gorney on
           two separate dockets to both consecutive and
           concurrent sentences totaling 45 to 90 months of
           incarceration. On September 3, 2013, Gorney filed a
           motion to modify/reconsider sentence that the trial
           court denied the following day.

Commonwealth v. Gorney, 1578 WDA 2013 at 1-2 (Pa. Super. May 27,

2014) (unpublished memorandum).

     On May 27, 2014, this Court affirmed Gorney’s judgment of sentence,

finding each of the issues that he raised on appeal waived. See id. at 3-7.

Consequently, on June 16, 2014, Gorney filed a pro se motion for post-

conviction collateral relief in which he averred that he received ineffective

assistance of counsel from his appointed appellate counsel because his

defective appellate brief resulted in the waiver of all issues on appeal. See

Motion for Post-Conviction Collateral Relief, 6/16/14, ¶¶ 14-20.          On

September 23, 2014, Gorney filed a motion for waiver of counsel pursuant




                                    -2-
J-S59020-15


to Rule 121(A). On October 22, 2014, Gorney formally waived his right to

counsel.   On December 23, 2014, the PCRA court granted Gorney’s PCRA

petition and reinstated his direct appeal rights nunc pro tunc.

      On January 28, 2015, the trial court ordered Gorney to file a concise

statement of the errors complained of on appeal pursuant to Rule 1925(b) of

the Pennsylvania Rules of Appellate Procedure.        On February 12, 2015,

Gorney filed his timely pro se Rule 1925(b) statement.2

      From what we are able to discern from his pro se appellate brief,

Gorney raises the following issues for our review and determination. First,

Gorney argues that the trial court abused its discretion in sentencing him

because the consecutive nature of his sentence made his aggregate

sentence unreasonable.      See Gorney’s Brief at 9-10.       Second, Gorney

contends that the trial court did not consider Gorney’s rehabilitative needs in

sentencing him.   See id.   Third, Gorney challenges the trial court’s ruling

that he is ineligible for sentencing pursuant to the Recidivism Risk Reduction

Incentive Act, 61 Pa.C.S.A. § 4501, et seq. (“the RRRI Act”). See id. at 9-

10, 13-12.

      Both the trial court and the Commonwealth contend that Gorney has

not preserved any issue for appellate review because he did not raise them

with specificity in his Rule 1925(b) statement and that his Rule 1925(b)



2
   The trial court made a finding that Gorney stated on the record that he
wished to continue to act pro se on appeal. Trial Court Order, 12/23/14.


                                     -3-
J-S59020-15


statement is too vague.    Trial Court Opinion, 2/13/15; Commonwealth’s

Brief at 2-3. With respect to Gorney’s first two issues, which challenge the

discretionary aspects of his sentence, we agree.

     “If a Rule 1925(b) statement is too vague, the trial judge may find

waiver and disregard any argument.”       Commonwealth v. Reeves, 907

A.2d 1, 2 (Pa. Super. 2006). This Court has explained:

              [W]e observe generally that issues not raised in a
           Rule 1925(b) statement will be deemed waived for
           review. Commonwealth v. Castillo, [] 888 A.2d
           775, 780 ([Pa.] 2005) (quoting Commonwealth v.
           Lord, [] 719 A.2d 306, 309 ([Pa.] 1998)). An
           appellant’s concise statement must properly specify
           the    error    to   be    addressed     on   appeal.
           Commonwealth v. Dowling, 778 A.2d 683 (Pa.
           Super. 2001). In other words, the Rule 1925(b)
           statement must be “specific enough for the trial
           court to identify and address the issue [an appellant]
           wishe[s] to raise on appeal.” Commonwealth v.
           Reeves, 907 A.2d 1, 2 (Pa. Super. 2006), appeal
           denied, [] 919 A.2d 956 ([Pa.] 2007). “[A] [c]oncise
           [s]tatement which is too vague to allow the court to
           identify the issues raised on appeal is the functional
           equivalent of no [c]oncise [s]tatement at all.” Id.
           The court’s review and legal analysis can be fatally
           impaired when the court has to guess at the issues
           raised. Id. Thus, if a concise statement is too
           vague, the court may find waiver. Id.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).

     Gorney’s Rule 1925(b) statement provides as follows:

           The trial court abused its discretion and [Gorney]’s
           sentence was unreasonable in that at [docket
           number] 843-2013, Gorney received, at count one[,]
           a thirty (30) month to sixty (60) month sentence []
           and at count seventeen[,] a three (3) month to six



                                    -4-
J-S59020-15


            (6) month [sentence], consecutive to count one.
            This sentence at docket number 843-2013 was
            ordered to run consecutive to the sentence at docket
            number 85-2009[, where Gorney] received [a
            sentence of] twelve (12) months to twenty-four (24)
            months [of] incarceration.

Rule 1925(b) Statement, 2/12/15.

      Gorney did not specify any of the issues he raises on appeal in his Rule

1925(b) statement, which precluded the trial court’s review of those claims.

In response to Gorney’s Rule 1925(b) statement, the trial court stated:

“[Gorney] does not articulate or specify how or why his sentence was

unreasonable or the [c]ourt abused its discretion. This claim is boilerplate

and does not raise any issue with specificity and is therefore waived.” Trial

Court Opinion, 2/13/15. “[W]e do not accept bald assertions of sentencing

errors.   Rather, [an appellant] must support his assertions by articulating

the way in which the court’s actions violated the sentencing code.”

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

Accordingly, we must conclude that Gorney has waived his first two issues

on appeal. See Hansley, 24 A.3d at 415.

      Even if Gorney had preserved his discretionary aspects of sentencing

claims for review, we would conclude that they are meritless.                Gorney

asserts that the consecutive nature of his sentence made his aggregate

sentence    unreasonable   and   that    the   trial   court   did   not   take   into

consideration his rehabilitative needs in sentencing him. See Gorney’s Brief




                                        -5-
J-S59020-15


at 9-10. Section 9721(b) of the Sentencing Code provides, in pertinent part,

as follows:

              (b) General standards.-- … the court shall follow
              the general principle that the sentence imposed
              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. … In every case in which the
              court imposes a sentence for a felony or
              misdemeanor, modifies a sentence, resentences an
              offender following revocation of probation, county
              intermediate punishment or State intermediate
              punishment or resentences following remand, the
              court shall make as a part of the record, and disclose
              in open court at the time of sentencing, a statement
              of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b). “Generally, Pennsylvania law affords the sentencing

court discretion to impose its sentence concurrently or consecutively to other

sentences being imposed at the same time or to sentences already

imposed.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)

(quotations and citation omitted), appeal denied, 77 A.3d 1258 (Pa. 2013).

      In sentencing Gorney, the trial court indicated that it considered

Gorney’s “age, his background, his character and rehabilitative needs, the

nature, circumstances and seriousness of the offense, the protection of the

community and [Gorney]’s performance while under supervision.”           N.T.,

8/21/13, at 15-16.      The trial court further considered Gorney’s extensive

criminal history, that it previously sentenced Gorney for past crimes in the

mitigated range, his juvenile record, and his overall history of poor decision-



                                      -6-
J-S59020-15


making.     See id. at 16-18.       Despite determining a sentence in the

aggravated range may have been appropriate (because Gorney was on

probation at the time of the crimes, he started a high-speed police chase,

and he tried to escape policy custody), the trial court ultimately decided to

sentence Gorney in the standard guideline range. See id. at 19.

      Therefore,   Gorney’s   sentence    was   reasonable   in   light   of   the

circumstances of this case.    The trial court had the discretion to sentence

Gorney to consecutive sentences and the record reflects that the trial court

took into consideration Gorney’s rehabilitative needs in sentencing him. As

such, Gorney’s discretionary aspects of sentencing claims have no merit.

      We do not conclude, however, that Gorney has waived his third issue

on appeal, even though he has not properly preserved the issue for appeal

by including it in his Rule 1925(b) statement.     For his third issue, Gorney

challenges the trial court’s determination that he is not RRRI-eligible. The

failure to impose an RRRI sentence implicates the legality of the sentence

imposed.     Commonwealth v. Barbaro, 94 A.3d 389, 391 (Pa. Super.

2014).     Claims concerning the legality of a sentence are not waivable.

Commonwealth v. Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006).

Therefore, we will address the merits of Gorney’s third issue.

      Under the RRRI Act:

             (1) … a sentencing court must designate a sentence
             as an RRRI sentence whenever the defendant is
             eligible for that designation, and (2) … a defendant is



                                      -7-
J-S59020-15


            eligible for that designation if he has not been
            previously convicted of certain enumerated offenses
            and “[d]oes not demonstrate a history of present or
            past violent behavior.”

Commonwealth v. Gonzalez, 10 A.3d 1260, 1262 (Pa. Super. 2010)

(quoting 61 Pa.C.S.A. § 4503) (footnote omitted, emphasis in original).

Therefore, the RRRI Act requires the sentencing court to determine whether

the defendant is an “eligible offender.” 61 Pa.C.S.A. § 4505(a). The RRRI

Act defines an “eligible offender,” in relevant part, as:

            A defendant or inmate convicted of a criminal
            offense who will be committed to the custody of the
            department and who meets all of the following
            eligibility requirements:

                                 *      *     *

                  (3) Has not been found guilty of or previously
                  convicted of or adjudicated delinquent for or an
                  attempt or conspiracy to commit a personal
                  injury crime as defined under section 103 of
                  the act of November 24, 1998 (P.L. 882, No.
                  111), [18 P.S. § 11.103,] known as the Crime
                  Victims Act, except for an offense under 18
                  Pa.C.S. § 2701 (relating to simple assault)
                  when the offense is a misdemeanor of the third
                  degree, or an equivalent offense under the
                  laws of the United States or one of its
                  territories or possessions, another state, the
                  District of Columbia, the Commonwealth of
                  Puerto Rico or a foreign nation.

61 Pa.C.S.A. § 4503 (footnote omitted).           The Crime Victims Act defines

“personal injury crimes” as follows:




                                       -8-
J-S59020-15


            An act, attempt or threat to commit an act which
            would constitute a misdemeanor or felony under the
            following:

                            *     *     *

                    18 Pa.C.S. Ch. 27 (relating to assault).

18 P.S. § 11.103.

      Here, the certified record reflects that in 2010, Gorney was convicted

of criminal conspiracy to commit simple assault, 18 Pa.C.S.A. §§ 903(a),

2701(a), graded as a second-degree misdemeanor.            Under section 4503,

Gorney is therefore ineligible for an RRRI sentence, as his conspiracy to

commit simple assault conviction was not graded as a third-degree

misdemeanor.      See 61 Pa.C.S.A. § 4503; see also 18 P.S. § 11.103.

Accordingly, the trial court did not err in determining that Gorney was not

RRRI-eligible.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




                                       -9-
