J-S71006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

MICHAEL IZADORE BONSIGNORE

                        Appellant                  No. 2917 EDA 2015


           Appeal from the Judgment of Sentence August 31, 2015
               In the Court of Common Pleas of Pike County
            Criminal Division at No(s): CP-52-CR-0000215-2012


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 06, 2017

     Michael Izadore Bonsignore appeals from the judgment of sentence of

twenty-five to fifty years incarceration imposed following his guilty plea to

two counts of rape of a child, one count of rape of a mentally disabled

person, and one count of corruption of a minor. We affirm.

     We previously set forth the pertinent background of this appeal.

            In a May 2011 indictment, the United States Attorney for
     the Middle District of Pennsylvania charged Appellant with one
     count of sexual exploitation of children and two counts of certain
     activities relating to material constituting or containing child
     pornography.      The events leading to the charges occurred
     between March 2007 and April 2011.             In February 2012,
     Appellant entered into a plea agreement with the federal
     prosecutor, pleading guilty to a violation of 18 U.S.C. § 2251(b)
     (Sexual Exploitation of Children-Production) [Appellant was
     sentenced to twenty-five years in prison].

     ...

* Former Justice specially assigned to the Superior Court.
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            In May 2012, the Commonwealth filed charges against
     Appellant in an Information listing 69 counts that involved 13
     separate crimes against three victims between November 2006
     and April 2011. The charges, listed in the order they appear in
     the Information, included rape, rape of a child, involuntary
     deviate sexual intercourse, aggravated indecent assault of a
     child, statutory sexual assault, aggravated indecent assault,
     incest, sexual abuse of children, sexual exploitation of children,
     indecent assault, and corruption of minors. The victims were
     identified as Appellant’s daughter K.B., approximately 9 years of
     age, who suffers from a mental disability; K.M., approximately 9
     years of age; and M.B., [Appellant’s son, who was under the age
     of 18].

Commonwealth v. M.I.B., 116 A.3d 678 (Pa.Super. 2014) (unpublished

memorandum at 1-3, footnotes omitted). In the state proceeding, Appellant

challenged the trial court’s denial of his motion to dismiss on double

jeopardy grounds.    We affirmed the trial court’s dismissal finding that,

although the conduct giving rise to the federal and state charges was the

same, the offenses required proof of different elements, and the statutes

were targeted towards substantially different harms.           Id. at 9-11.

Specifically, the state charges focused on Appellant’s physical conduct with

regard to the victims, while the federal charges were directed at the

production and dissemination of visual depictions of those physical acts. Id.

at 6 n.5. Thus, we concluded that the state prosecution was not barred by

double jeopardy as a result of the federal prosecution. Id. at 11.

     After the resolution of the prior appeal, at a hearing on August 31,

2015, Appellant pled guilty to two counts of rape of a child, one count of



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rape of a mentally disabled person, and one count of corruption of a minor.

Pursuant to an agreement with the Commonwealth, the sentence on one

count of rape of a child was to be five to ten years incarceration to run

concurrent to his federal sentence.    On the remaining two counts of rape,

the sentence was to be ten to twenty years incarceration, with those

sentences running consecutively to each other. The trial court retained the

discretion to impose the twenty to forty year term on these two rape

offenses consecutively to the federal sentence. On the corruption of a minor

charge, it was agreed that his sentence would run concurrent to the three

rape charges.

      The trial court conducted the mandated colloquy, and Appellant’s

written guilty plea statement was entered into the record. The court found

Appellant’s plea was given voluntarily, knowingly, and intelligently, and

specifically ensured that Appellant understood that the court had discretion

to run part of his sentence consecutive to his federal sentence.

      The matter proceeded directly to sentencing.     The court imposed an

aggregate standard range sentence in accordance with the terms of the plea

of twenty-five to fifty years incarceration, five of which were concurrent and

twenty to forty of which were consecutive to Appellant’s federal sentence.

Appellant did not file a post-sentence motion. This timely appeal followed.

Appellant complied with the court’s order to file a Rule 1925(b) concise




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statement of matters complained of on appeal. The court then authored its

Rule 1925(a) opinion, and this matter is now ready for review.

      Appellant offers a single contention for our consideration:

      Whether, where Appellant was sentenced in Federal Court on a
      charge of Sexual Exploitation of Children, arising from him
      videotaping minor children as he had sex with them, state
      sentences on charges of Rape, stemming from the same sexual
      encounters that he had with those minor children on tape, must
      have been run concurrent to the federal sentence?

Appellant’s brief at 7.

      Appellant initially frames his argument as challenging the legality of

his sentence. He asserts that the trial court erred in failing to run his state

sentence concurrently with his federal sentence since each punishment was

predicated upon identical conduct.     Thus, Appellant concludes, his state

offenses should have merged with his federal offenses for the purpose of

sentencing.    Alternatively, Appellant argues that the court abused its

discretion in failing to run his sentence concurrently to his federal sentence

since his federal and state offenses involved the same conduct, and the

court disregarded statements made by Appellant’s federal judge who opined

that “it is absurd for Appellant to get an additional sentence at the state

level.” Appellant’s brief at 15.

      Initially, we observe that this Court previously determined that

Appellant’s federal and state prosecutions were separate actions which did

not implicate double jeopardy concerns.     M.I.B., supra.    Notwithstanding



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the fact that Appellant’s charges arose from the same conduct, Appellant

was convicted and sentenced for separate and distinct offenses arising under

federal and state law.   Hence, this aspect of Appellant’s contention lacks

merit.   We thus evaluate his challenge to the court’s decision to impose the

term herein consecutive to the federal sentence.

      Our standard of review regarding challenges to the discretionary

aspects of a sentence is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, 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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted). We observe that “the right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered as a petition

for permission to appeal.” Id. In order to invoke the Court’s jurisdiction:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

Id.




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       Upon review of the certified record, we find that Appellant failed to

preserve his sentencing claim.   Appellant did not verbally object after the

judgment of sentence was imposed, nor did he file a written post-trial

motion requesting reconsideration or modification of his sentence.   Hence,

this matter was not properly preserved.

       Appellant contends in his concise statement pursuant to Pa.R.A.P.

2119(f) that his challenge to the discretionary aspects of his sentence was

“preserved ad nauseum on the record at sentencing.”      Appellant’s brief at

12.    He maintains that “counsel continuously reiterated this objection,

concern, and request at sentencing, thus preserving the issue.” Id. at 12 n.

2.    Nevertheless, Appellant does not cite to any portion of the record in

support of his averment.

       The sentencing transcript indicates that Appellant presented his

argument that his state sentence should run concurrent to his federal

sentence at the sentencing proceedings.      However, it belies Appellant’s

assertion that he preserved his current claim.   Following the imposition of

sentence, counsel did not make an oral motion for the court to either

reconsider or modify Appellant’s sentence. Rather, the following exchange

occurred:

       Sentencing Court: I have already provided the [post-sentence]
       rights issues. I believe that concludes our business. Is there
       anything else that anybody wants to make part of the record for
       today’s proceedings? [Appellant’s counsel]?



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      Appellant’s Counsel: No, Your Honor.

N.T. Sentencing, 8/31/15, at 113.      At the Commonwealth’s request, the

court then clarified the sentence imposed at each count, and sealed certain

documents related to the proceeding.         Id. at 113-117.     The hearing

concluded without any objection regarding Appellant’s sentence lodged on

the record.

      Appellant’s contention that his issue was preserved at sentencing

conflates his argument in favor of concurrent sentencing prior to the

imposition of sentence with the post-sentence motion necessary to preserve

this issue on appeal.   Although Appellant requested that the court impose

concurrent sentences, he did not object to the court’s denial of that request.

However, an objection or motion to reconsider was necessary to preserve his

challenge to the actual sentence imposed.       As such, Appellant has not

invoked this Court’s jurisdiction to hear this appeal. Zirkle, supra.

      Assuming, arguendo, that this matter is properly before us, Appellant

is not entitled to relief. An appeal to the discretionary aspect of a sentence

is permitted “only after this Court determines that there is a substantial

question that the sentence was not appropriate under the sentencing code.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citation

omitted). A defendant presents a substantial question when he “sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

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Id.   A claim that the sentencing court abused its discretion in imposing

consecutive sentences “may raise a substantial question where [the

defendant] receives consecutive sentences within the guideline ranges if the

case involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence.” Id. at 1270.

      Appellant’s claim that his sentences should run concurrently is

premised upon his assertion that his federal and state charges stem from

the exact same conduct, and the federal judge opined that Appellant would

not be subject to further punishment.     Notwithstanding the fact that this

Court has already determined that Appellant’s state and federal convictions

do not implicate double jeopardy concerns, M.I.B., supra, the consecutive

application of the guidelines ranges is not clearly unreasonable given the

heinous nature of Appellant’s crimes.      In addition, after reviewing the

pertinent sentencing reports, facts, and documents, the court thoroughly

explained its reasoning on the record. Therefore, the court did not abuse its

discretion in imposing Appellant’s state sentence consecutively to his federal

sentence. As such, had this issue been properly preserved, Appellant would

not be entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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