J-S33035-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
                  v.                     :
                                         :
JEFFREY THOMAS BOJNOSKI                  :
                                         :
                  Appellant              :      No. 1930 MDA 2016

          Appeal from the Judgment of Sentence November 2, 2016
            in the Court of Common Pleas of Lackawanna County,
            Criminal Division, at No(s): CP-35-CR-0000867-2014,
             CP-35-CR-0001085-2016, CP-35-CR-0001211-2016

BEFORE:       BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED NOVEMBER 02, 2017

      Jeffrey Thomas Bojnoski (Appellant) appeals from an aggregate

sentence of 19½ to 39 months’ incarceration imposed after: he pled guilty to

unsworn falsification to authorities and harassment, and the trial court

revoked his probation.    After review, we vacate Appellant’s sentences and

remand this matter to the trial court for proceedings consistent with this

memorandum.

      The trial court summarized the pertinent factual and procedural history

as follows.

              On August 30, 2016, in case [number] 16-CR-1085,
      [(Case 1085), Appellant] pled guilty to one count of unsworn
      falsification to authorities, in place of the original charge of
      failure to comply with registration of sexual offender
      requirements. This charge arose when [Appellant] changed
      residences but failed to inform sexual offender registration
      authorities of this change. On October 5, 2016, [Appellant] pled

*Retired Senior Judge assigned to the Superior Court.
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     guilty to one count of harassment in case [number] 16-CR-1211,
     [(Case 1211)] and in exchange the other charges pending
     against [Appellant] were [nolle prossed]. These charges arose
     on April 16, 2016, when [Appellant] attacked and injured his
     girlfriend.

            On November 2, 2016, [Appellant] was sentenced in these
     two cases and resentenced in case [number] 14-CR-867 [(Case
     867)], (a prior case against [Appellant] for failure to provide
     accurate sexual offender registration information that had been
     replaced with a charge of providing a false statement to
     authorities when he pled guilty). The [trial] court noted that
     although [Appellant] was now expressing a desire to change his
     ways and do what is right, the court had sentenced [Appellant]
     in 2014 for simple assault, and that [Appellant] had maxed out
     on that charge because he did not want to complete the
     programs he was in at the prison. The [trial] court also noted
     that [Appellant] provided his probation officer with an address
     for his home plan, but that three days later, he was found to be
     living at a different address. The court stated that [Appellant]
     talks a good game but he does not act in a way that indicates
     that he has any respect for the law. The court imposed a 6 to 12
     month sentence in [Case 867], a 12 to 24 month sentence in
     [Case 1085], and a 1[½] to 3 month sentence in [Case 1211].
     His aggregate sentence was thus 19[½] to 39 months. The
     court ordered a drug and alcohol and mental health evaluation.
     The court noted that the sentence in [Case 1085] was in the
     aggravated range since [Appellant] committed the crime while
     he was on supervision and it was similar to a prior case against
     him of failing to provide the proper residence to authorities so
     that he certainly had to be aware of the obligation to provide a
     proper address to authorities. The court noted that the other
     sentences were within the standard range of the sentencing
     guidelines.

           On November 14, 2016 [Appellant] filed a motion for
     reconsideration of sentence which was denied on November 17,
     2016. On November 28, 2016, [Appellant] filed a [n]otice of
     [a]ppeal, and on December 6, 2016, th[e trial] court ordered
     [Appellant] to file a concise statement of the matters complained
     of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). On
     December 15, 2016, [Appellant] filed a [s]tatement of [m]atters
     [c]omplained of on [a]ppeal.



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Trial Court Opinion, 1/17/2017, at 1-3 (citations omitted).

      Initially, in this Court, in lieu of a brief in support of Appellant’s appeal,

counsel filed both an Anders brief and a petition to withdraw as counsel.

Upon review of the record, we found an apparent discrepancy that existed

with respect to Appellant’s sentence at Case 1085. Without the sentencing

guideline form and guilty plea transcript, this Court was unable to reconcile

the apparent confusion between the trial court and Appellant as to whether

Appellant’s sentence at Case 1085 fell within the aggravated range of the

sentencing guidelines or outside the range entirely.

      Due to these deficiencies, we remanded this case for the trial court to

supplement the record and thereafter directed counsel to file either an

advocate’s brief or a supplemental Anders brief and petition to withdraw.

See Commonwealth v. Bojnoski, 1930 MDA 2016 (Pa. Super. 2017)

(unpublished memorandum). After the trial court supplemented the record,

counsel for Appellant elected to file an advocate’s brief on Appellant’s

behalf.1 Thus, this case is now ripe for our consideration.

      On appeal, Appellant raises the following issues for this Court’s review.

      [1.] Whether the sentences imposed were harsh and
      unreasonable and an abuse of discretion and involved a
      misunderstanding by the sentencing judge that was imposing a
      sentence in the aggravated range on the unsworn falsification
      charge?

1
  The Commonwealth filed a response to Appellant’s advocate’s brief. In
relevant part, the Commonwealth conceded that Appellant’s sentence in
Case 1085 fell outside the sentencing guideline range. Commonwealth’s
Brief at 2.

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     [2.] Whether the [trial] court failed to state on the record
     reasons or sufficient reasons for imposing a sentence above the
     aggravated range on the unsworn falsification charge and in the
     aggravated range on the other charges?

     [3.] Whether the [trial] court relied on impermissible factors,
     such as its claim that Appellant had served the maximum
     sentence on a prior offense believing that he did not want to
     participate in the programs, when he was only enrolled in one
     program due to prison overcrowding and was, therefore, unable
     to be paroled and, consequently, was required to serve, through
     no fault of his own, the maximum sentence?

Appellant’s Brief at 4 (unnecessary capitalization and suggested answers

omitted).

     Appellant’s questions challenge the discretionary aspects of his

sentence. Accordingly, we bear in mind the following.

     It is well settled that, with regard to the discretionary aspects of
     sentencing, there is no automatic right to appeal.

        Before [this Court may] reach the merits of [a challenge to
        the discretionary aspects of a sentence], we must engage
        in a four part analysis to determine: (1) whether the
        appeal is timely [filed]; (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.... [I]f the appeal satisfies each of
        these four requirements, we will then proceed to decide
        the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).




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       The record reflects that Appellant timely filed a notice of appeal and

that   Appellant   preserved   the   issues   by   timely   filing   a   motion   for

reconsideration of his sentence.     Moreover, Appellant has included in his

brief a statement pursuant to Pa.R.A.P 2119(f).        We now turn to consider

whether Appellant has presented substantial questions for our review.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only 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. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

       Appellant’s first two issues, both of which wholly or in part involve

Case 1085, are interrelated.    Specifically, Appellant contends that he was

sentenced to a term of incarceration that exceeded the aggravated range of

his sentencing guidelines in Case 1085, despite the fact that the trial court

believed that the sentence was within the aggravated range.              Appellant’s

Brief at 11. See also Trial Court Opinion, 1/17/2017, at 2 (“The court noted

that the sentence in [Case 1085] was in the aggravated range[.]”).

       Appellant avers the court erred by failing to set forth reasons for

sentencing him outside the guideline range.            Such a claim raises a



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substantial question.   See Commonwealth v. Garcia-Rivera, 983 A.2d

777, 780 (Pa. Super. 2009) (“This [C]ourt has found that a claim the trial

court failed to state its reasons for deviating from the guidelines presents a

substantial question for review.”).

      Regarding the merits of Appellant’s claim, we are guided by this

Court’s opinion in Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super.

1995).   In Byrd, the trial court stated, on the record, its reasons for

sentencing Byrd in the aggravated range of the sentencing guidelines.

However, the record reflected that the trial court actually sentenced Byrd in

excess of the aggravated range. Thus, on appeal to this Court, Byrd argued

that the trial court abused its discretion by misapplying the sentencing

guidelines and by failing to provide sufficient reasons for sentencing him

outside of the guidelines.

      This Court responded to Byrd’s argument as follows.

           While deviation from the guidelines is permitted, the
      Sentencing Code requires that the court place of record its
      reasons for such deviation. The Superior Court has held that

         [a]t the minimum, the court must indicate that it
         understands the sentencing guideline range, in those cases
         in which the court deviates from the guidelines.

            [I]n every case where sentence has been imposed, the
         court then must make as part of the record and disclose in
         open court at the time of sentencing, a statement [of] the
         reasons for the sentence. However, the Sentencing Code
         imposes an additional requirement where the sentence is
         outside the guidelines and that is there must be a
         contemporaneous written statement of the reasons for
         deviation from the guidelines.     Where the trial judge

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         deviates from the sentencing guidelines ... he must set
         forth on the record, at sentencing, in the defendant’s
         presence, the permissible range of sentences under the
         guidelines and, at least in summary form, the factual basis
         and specific reasons which compelled the court to deviate
         from the sentencing range. The Act states that failure to
         provide     an   appropriate   contemporaneous     written
         statement shall be grounds for vacating the sentence and
         resentencing the defendant. In the instant case the court
         did not advise the defendant what the sentencing
         guidelines provided as far as the range of sentence, and
         did not state why he deviated from the sentencing
         guidelines.

           [Byrd’s] sentencing transcript reveals that the sentencing
     court failed to set forth in [his] presence the permissible range
     of sentences under the guidelines.          Moreover, while the
     sentencing court did provide reasons for the sentence imposed,
     these reasons were advanced to support a sentence in the
     aggravated range. Nowhere did the court indicate that it was in
     fact sentencing [Byrd] outside of the guidelines and provide a
     contemporaneous statement of its reasons for such deviation….

Byrd, 657 A.2d at 963-64 (citations omitted). For these reasons, this Court

vacated Byrd’s sentence and remanded to the trial court for resentencing.

     Here, based on the supplemental record received by this Court, it is

clear that Appellant was sentenced outside the guideline range in Case

1085.2   In addition to the trial court failing to set forth in Appellant’s

presence the permissible range of sentences under the guidelines, the court

maintained that it was sentencing Appellant in the aggravated range, when

2
 Appellant was sentenced to 12 to 24 months’ incarceration for one count of
unsworn falsification to authorities, a misdemeanor of the second degree. At
the time of his sentencing, Appellant’s prior record score was two. Thus,
under the sentencing matrix the applicable standard guideline range was
restorative sanctions to three months and the aggravated range was six
months.


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in fact, Appellant’s sentence exceeded the guidelines. See N.T., 11/2/2016,

at 9.

        Although the trial court provided reasons for the sentence it imposed

at Case 1085, those reasons were advanced to support a sentence in the

aggravated range. Id. (“That is in the aggravated range and that is due to

the fact it was committed while he was on supervision and that it was

directly related to a prior violation and similar to a prior violation when he

certainly had to be aware of his obligations at that point.”). Yet, the court

sentenced Appellant to 12 to 24 months’ incarceration for unsworn

falsification to authorities, which falls outside of the aggravated range. The

court never stated that it was sentencing Appellant outside of the

aggravated range nor did it provide a contemporaneous reason for such a

deviation.

        Under Byrd, this is an error which the trial court must remediate.

Because Appellant was sentenced in all three of the above-referenced cases

at the same sentencing hearing, in which the court’s reasoning for these

sentences was intertwined, and because those sentences were to run

consecutively to one another, out of an abundance of caution, we vacate

Appellant’s sentences at Case 1085, 1211, and 867, and remand for

resentencing.    In light of our disposition, we need not address Appellant’s

remaining arguments that the trial court failed to provide adequate reasons

on the record for his sentences at Cases 1211 and 867, and that the court



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relied on impermissible factors during sentencing, as these issues can be

properly addressed at a resentencing hearing.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/2/2017




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