J. S20005/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JEFFREY BIDELMAN,                       :         No. 1982 WDA 2013
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, July 11, 2013,
            in the Court of Common Pleas of Cambria County
           Criminal Division at Nos. CP-11-CR-0000433-2012,
           CP-11-CR-0001900-2010, CP-11-CR-0001901-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 15, 2015

     Jeffrey Bidelman appeals from the judgment of sentence entered on

July 11, 2013, in the Court of Common Pleas of Cambria County. We affirm.

                  The charges filed at Docket Numbers
           1901-2010 and 433-2012 stem from an incident in
           which      [appellant]     and     Jason      Truscott
           [“Co-Defendant”] conspired to steal, inter alia, a ring
           and savings bond from a home. Several years later,
           [appellant] and Co-Defendant discussed cashing the
           stolen bonds during a conversation that was
           wire-tapped by police.      Subsequently, [appellant]
           was found to be in possession of the bonds. The
           charges filed at Docket Number 1900-2010 stem
           from an incident in which [appellant] and two other
           individuals were in possession of various stolen
           items, which were recovered at [appellant’s] place of
           employment. [Appellant] admitted his involvement
           to the investigating detective.

                 On May 30, 2013, [appellant] pleaded
           nolo contendere to Receiving Stolen Property (a
J. S20005/15


            Felony 3) (Docket No. 1901-2010); Criminal
            Conspiracy to Commit Theft by Unlawful Taking (a
            Misdemeanor 1) (No. 433-2012); and Receiving
            Stolen Property (a Misdemeanor 1) (No. 1900-2010).
            On July 11, 2013, this Court sentenced [appellant] to
            nine    months[’]    house     arrest    followed   by
            12 months[’] probation on the felony Receiving
            Stolen Property charge; 12 months[’] consecutive
            probation on Criminal Conspiracy to Commit Theft by
            Unlawful Taking; and 12 months[’] consecutive
            probation on the misdemeanor Receiving Stolen
            Property charge. On October 17, 2013, the Court
            conducted a restitution hearing in the case entered
            to Docket No. 433-2012 and ordered [appellant] and
            Co-Defendant to pay restitution in the amount of
            $14,917.50 jointly and severally. [Appellant] filed
            timely post-sentence motions, which were denied by
            Order dated November 12, 2013. [Appellant] now
            submits a Concise Statement of Matters Complained
            of on Appeal, raising five properly preserved issues.

Trial court opinion, 2/17/14 at 1-2 (citations and footnote omitted).

      The following claims have been presented for our review:

            A.    Whether the lower court erred in sentencing
                  Appellant to a period of house arrest rather
                  than a period of probation[?]

            B.    Whether the lower court erred by sentencing
                  Appellant without sufficient information as to
                  the facts of the case prior to imposing
                  sentence[?]

            C.    Whether the lower court erred by sentencing
                  Appellant to a period of home confinement
                  while a co-defendant received a probation
                  term[?]

            D.    Whether the lower court erred by failing to find
                  trial counsel ineffective by promising Appellant
                  he would only receive a probation term[?]




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              E.    Whether the lower court erred by failing to find
                    trial counsel ineffective because he failed to
                    withdraw Appellant’s nolo contendre plea[?]

Appellant’s brief at 4.

      Appellant’s first three claims challenge the discretionary aspects of his

sentence. Appellant’s plea of nolo contendere does not bar a discretionary

sentencing challenge because there was no agreement as to the sentence

appellant would receive. See Commonwealth v. Ritchey, 779 A.2d 1183,

1185 (Pa.Super. 2001) (acknowledging precedent that where there are no

sentencing restrictions in the plea agreement, the entry of a guilty plea will

not preclude a subsequent challenge to the discretionary aspects of

sentencing).

      “Issues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings.      Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. McAfee,

849 A.2d 270, 275 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa.

2004).      As noted, appellant filed a timely motion for reconsideration of

sentence.

      The right to appeal the discretionary aspects of a sentence is not

absolute.     Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa.Super.

2003).

              When challenging the discretionary aspects of the
              sentence imposed, an appellant must present a


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           substantial question as to the inappropriateness 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, [that] 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.

Commonwealth v. Ahmad, 961 A.2d 884, 886-887 (Pa.Super. 2008)

(citations, quotation marks, and footnote omitted).

     Appellant has included in his brief a concise statement of the reasons

relied on for allowance of appeal as to the discretionary aspects of his

sentence; thus, he has complied with the procedural requirement of

Pa.R.A.P. 2119(f).   Commonwealth v. Hornaman, 920 A.2d 1282, 1284

(Pa.Super. 2007).    Therefore, we proceed to determine whether appellant

has presented a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. Id.




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      In his Rule 2119(f) statement, appellant presents two claims. 1 First,

appellant argues the sentencing court abused its discretion in failing to take

into account all relevant information resulting in a disparate sentence of

home confinement for appellant while his co-defendant received probation.2

We conclude this claim raises a substantial question.    Commonwealth v.

Cleveland, 703 A.2d 1046 (Pa.Super. 1997) (holding substantial question

raised where the appellant averred an unexplained disparity between his

sentence and that of his co-defendant); Commonwealth v. Krysiak, 535

A.2d 165, 167 (Pa.Super. 1987) (“[D]isparate sentences between two or

more co-defendants constitutes a substantial question necessitating our

exercise of jurisdiction to review.”). This claim, however, is meritless and

we affirm based on the trial court’s Rule 1925(a) opinion. (See trial court

opinion, 2/17/14 at 3-4.)

      Appellant’s Rule 2119(f) statement also challenges the propriety of the

court’s restitution award.3 Specifically, he posits that the court determined



1
  At the outset, we note appellant’s Rule 2119(f) statement fails to describe
what the guidelines were or where appellant’s sentence falls in relation to
those guidelines.
2
   As noted, appellant filed a post-sentence motion which alleged that the
trial court abused its discretion when it sentenced appellant to house arrest
rather than probation which his co-defendant received.
3
  See In the Interest of M. W., 725 A.2d 729, 731 n.4 (Pa. 1999) (holding
that, while challenges concerning the amount of restitution involve the
discretionary aspects of sentencing, questions regarding the court’s authority
with respect to ordering restitution implicate the legality of a sentence).


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restitution based on speculation. (Appellant’s brief at 9.) We find this claim

to be waived as appellant failed to present this issue to the trial court in his

concise statement of errors complained of on appeal filed pursuant to

Pa.R.A.P. 1925(b). See Pa.R.A.P. 302(a) and Docket #68.

      Appellant’s next two claims concern the effective assistance of counsel.

We find these claims to be premature and should properly be raised, if

necessary, in a petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.       Our supreme court recently reaffirmed the

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Therein, the Holmes

court held “claims of ineffective assistance of counsel are to be deferred to

PCRA review; trial courts should not entertain claims of ineffectiveness upon

post-verdict motions; and such claims should not be reviewed upon direct

appeal.”    Id. at 576.      The court noted two narrow exceptions for

“extraordinary circumstances” to the broader rule, “where the trial court, in

the exercise of its discretion, determines that a claim (or claims) of

ineffective assistance is both meritorious and apparent from the record so

that immediate consideration and relief is warranted,” and allowing review

for “good cause,” such as the shortness of a sentence, or “multiple, and

indeed comprehensive, ineffectiveness claims if such review is accomplished

by a waiver of PCRA rights.” Id. at 577-578.




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      Instantly, the trial court did not find the claim to be meritorious,

appellant has not alleged any “good cause” for seeking unitary review, and

appellant has not stated his intention to waive collateral review.   Thus,

neither of the exceptions outlined in Holmes is applicable here, and the

instant claim is not reviewable on this direct appeal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2015




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                                                                              FEB 210 20f4

       IN THE COURT OF COMMON PLEAS OF CAMBIUA COUNTY, PENNSYLVANIA
                             CRIMINAL DIVISION

 COJ:vrMON\VEALTH OF PENNSYL VAL~IA,:                   Nos.     1900-2010;   1901·2010;
                                                                 433.2012            '•,          ~
                                                                                     ...          :;::                  1·.
               V.                                                                    •.:r:   Io   , • ...,.,            ,·-:~!
                                                                                    .,~'.:        r1                    ··:.1
                                                                                                  aJ                          :'';

 JEFFREY BIDELMAN;
                        Defendant/Appellant.

                                               ************'**
                                                                                                    (
                                                                                                        .. ,)
                                                                                                    ,:;::,
                                                                                                                         . -.
                                                                                                    N                    i.. .. ,
 APPEARANCES:

        For the Commonwealth:         SCOTT M. LILLY, ESQUIRE
                                      Chief Deputy, Appellate Division
                                      Office of the District Attorney

        For Defendant/Appellant:      KEVIN J. ROZICH, ESQUIRE

                                               **************

                   STATEMENT IN SUPPORT OF ORDER PURSUANT TO
                PENNSYLVANIA RULE OF APPELLATE PROCEDURE 192S(a)

        FLEMING,     J., February 17, 2014.        Pursuant to Pennsylvania Rule of Appellate
Procedure 1925( a), the .trial court P!esents the following Statement in_ Support of Orders dated
                       '-..


November:-12;· 2013; December 4, 2013; and December 13, 2013:


                                               BACKGROUND

       The charges filed at Docket Numbers 1901·2010 and 433-2012 stem from an incident in
which Jeffrey Bidelman ["Defendant')] and Jason Truscott ["Co-Defendant"] conspired lo steal;
inter alia, a ring and savings bonds from a home.         N.T. (May 30, 2013), p. 9; AMENDED
INFORMATIONS (May     23, 2013).   Several years later, Defendant and Co-~efendarit' discussed·
cashing the stolen bonds during a conversation that was wire-tapped by police. N.T. (May 30,
2013), p. 10. · Subsequently, Defendant
   '                                .
                                        was found to be in :possession of the bonds.
                                                          '
                                                                                                               Ii   '
                                                                                                                               The·
charges filed at Docket Number 1900-2010'stem from an incident in which Defendant and two
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         other individuals were in possession of various stolen items, which were recovered at
     Defendant's place of employment              Id. at p. 10. Defendant admitted his involvement to the
         investigating detective. Id.                                              ,
                 On May 30, 2013, Defendant pleaded nolo coniendre to Receiving Stolen Property (a
                       '                                                                                           .
         Felony 3) (Docket No. 1901-2010);       Criminal Conspiracy to Commit Theft by Unlawful Taking
    . (a Misdemeanor 1) (No. 433-2012); and Receiving Stolen Property (a Misdemeanor 1) (No.
         1900-2010).       See    generally, N.T. (May 30, 2013),       p 2; and Noui CONTENDRE' PLEA
         EXPLANATION OF DEFENDANT'S ~GHTS (May 3t 2013).                        On July 11, 2013,            this Court
         sentenced Defendant to nine months house arrest followed by 12 months probation on the
         felony Receiving        Stolen Property charge; 12 months consecutive probation on Criminal
    .Conspiracy to Commit Theft by Unlawful Taking; and 12 months consecutive probation on the
                                          .                                                            .
     misdemeanor Receiving Stolen Property charge. SENTENCES (July 1 t 2013).                          On October 17,
     2013, the Court conducted a restitution hearing in the case entered to Docket No. 433-2012,
     and ordered Defendant            and Co-Defendant to pay restitution in the amount of $14,917.50,
     jointly and severally.          ORDER   DATED DEC. 4, 2013.1      Defend~t filed timely. post-sentence
     motions, whichwere            denied by Order dated November 12, 2013. Defendant now submits a
     Concise Statement of Matters Complained of.on Appeal, raising five properly preserved issues.


                                                        · DISCUSSION

    Pumorted Error No. 1
              . First, Defendant argues the Trial Court erred .in sentencing Defendant to house arrest
    rather than probation in the case entered to Docket Number 1901-2010. CONCISE                          STATEMENT
                                                    .                                                                  '
    ,r    I. "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
    sentence will not be .disturbcd on appeal absent a manifest abuse of discretion."                      Commw. v.:
Rodda, 723 A.2d 212,.214                (Pa. Super. 1999) (internal citations and quotations omitted). At
De~endant's · sentencing, trial counsel and the Court reviewed the standard minimum range of
sentence with Defendant, i.e., restorative sanctions to nine months incarceration (RS-9). N.T.
(May 30, 2.013), p. 3; N.T. (July 11, .2013), pp. 3-4. Defendant's sentence of nine months
1                                                                           .                      .           .
 ~de Court also filed an Amended Order on December 13, 2013, which specified 'to whom restitution was to be
pm . ORDER DATED DEC. 13, 2013.

                                                          2
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incarceration is within the standard mLnimum            range of sentence.      Accordi:ngly,    Defend·ant's

first alleged error should be denied.



Purported Error No. 2
           Defendant argues the Trial 'Court lacked sufficient information to impose sentence.
 CONCISE STATEMENT,        1   2. Defe;}~ant pleaded nolo contendre to the fa~ts set forth by the
 Assistant District Attorney at the plea hearing.         N.T.. (May 30, 2013), pp. 9-10.            The Court
 reviewed the .elements of the crimes. and Defendant acknowle_dged that the facts.as presented,
 satisfied. the elements of the crimes. Id. at p. 11.     Regarding the restitution imposed, this Court
 relies on its Opinion d;ted December 41 2013. For the aforementioned reasons and the reasons
 set forth in its December       4, 2013 Opinion, Defendant's       second purported e1TOr should be

 denied.


 Elli:gorted Error No. 3
           Next, Defendant asserts that house arrest was not appropriate in light'Co-Defendant's
 probationary sentence.     CoNCIS.E STATEMENT,~ 3. Our appellate courts have provided guidance

· to trial courts regarding tbe sentencing of co-defendants as follows:
           b sentencing   court is not required to impose the same sentence on all participants
           in a crime. Moreover, when a defendant's accomplice is tried, or pleads guilty, in
           a separate proceeding! and is sentenced by a different judge, the sentencing court
           is not required to explain a disparity between the defendant's sentence and that of
           theaccomplice.

 Commw. v. Myers, 536 A.2d 428,_430 (Pa Super. i 988) (internal citations omitted).
           In the case at· bar, Co--Defendant pleaded       guilty in a separate proceeding and was
 sentenced by a different judge than D~fendant.             Thus, no explanation of the disparity in
sentencing is required." Nonetheless, there jg an obvious reason why Defendant's                      sentence
differs from that of his C_o-Defendant.     On June 6, 2013, Co-Defendant            pleaded guilty to three

first-degree misdemeanors.       On July 15, 2013,   he was   sentenced by President Judge Timothy P.

Creany to 54 months probation.         CAt.,IBRIA COUNTY DOCKE'f .NUMBERS'           737.2012; 1899-2010;
AND 1902-2010. It is axiomatic that Co-Defendant's sentence for three misdemeanor offenses
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                                                                                                                    For these
          ·       b              ared to Defendant's sentence foe two misdemeanors               and a felony.
     · cannot         e con1pu;.               v.l'     <


      reasons, Defendant's third purported error cannot succeed.


I.    Purported Error No. 4                                            ·                                              .      .
I             ·
              Next, Defendant asserts that trial counsel was ineffective in ''promising1'                           he would
I     receive. a probationary sentence. CONCISE STATEtv[ENT, ~ 4. At sentencing, Defendant was
      unequivocally advised that no such "promise" existed:              .
             Court:        Have any promises been made to you regarding the sentence you would
                           receive? There's a difference - I know you discussed the range of
                           sentences with your attorney and he explained to you the sentencing
                           matrix and how the offense gravity score of the offenses is combined
                           with your prior record, if any, to determine a permissible range of
                            sentences for me to impose.

                  Defendant:             Okay.
                  Court:                 That is not the same as aprornise to you that you would receive a certain
                                         sentence. So I know that 1Y1r. Sottile has discussed the sentence. with
                                         you. Has anyone promised you that you would get any certain senten~_e?

                                                                          2
                  Defendant:             If you mean with her, no.
                  Court.                 Anyone.
                  Defendant:             No.
      N.T. (May 30, 2013),                      p.      11-12;   see also NOLO     CONTENDRE    PLEA     EXPLANATION          OF
                            .                                                                     .
      DEFENDANT'S               RIGHTS   (May. 31, 2013 ). It is clear Defendant was aware no promise existed                  as
      to. sentencing. Accordingly, Defendant's fourth purported error should be denied.


      OOQ.rted Error No. 5
                  Finally, Defendant                  claims counsel wa~ ineffective for failing to file a motion to
                                                                                            -                             .
      withdraw the plea.             CONCISE -STAT~MENT,            is.   When considering a petition to withdraw a plea
      submitted after sentencing, "it is well-established that a showing of prejudice on the order of
      manifest injustice is required bef?re withdrawal is properly justified."                     Commw. v. Johns, 812
      A.2d 1260, 1262 (Pa. Super. 2002). Ostensibly, Defendant now argues that trial counsel was

      2
          Ostensibly, Defendant referred to Assistant District Attorney Tamara Bernstein.

                                                                          4
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     ineffective for failing to file a motion to withdraw the when Defendant did not receive the
     probationary sentence allegedly promised to h.im.     CONCISE STATE,MENT,     ,1,r 4, 5. For the
     reasons set forth above, no such promise existed. Therefore, Defendant's fifth purported error
     cannot succeed as he fails to demonstrate a "showing of prejudice on the order of manifest
I'   injustice."
11

I
                                                    CONCLUSION

             For the reasons set forth above, 'Defendant's appeal should be denied and the Trial
     Court's Orders of November 12, 2013; December 4, 2013; and December 13, 2013 should be
     affirmed.


                                                    RESPECTFULLY SUBMITTED,




                                              ,e"
