J-S37007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWARD B. HOHMAN

                            Appellant                No. 484 WDA 2015


            Appeal from the Judgment of Sentence January 6, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002264-2014;
                            CP-02-CR-0017508-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED APRIL 28, 2016

        Appellant, Edward B. Hohman, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his guilty

plea to one (1) count of endangering welfare of children (“EWOC”), three (3)

counts of simple assault, and two (2) counts each of recklessly endangering

another person (“REAP”) and terroristic threats.1       We affirm Appellant’s

convictions but vacate the judgment of sentence and remand the case to the

trial court for the limited purpose of clarifying the record and imposing the

correct sentence.

        The relevant facts and procedural history of this case are as follows.

____________________________________________


1
    18 Pa.C.S.A. §§ 4304, 2701(a)(1), (a)(3), 2705, 2706(a)(1), respectively.
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On June 1, 2013, Appellant’s eight-year-old stepson called the police and

reported that Appellant was trying to enter the house to hurt the child’s

mother (Appellant’s wife). Appellant was intoxicated, broke into the house,

and argued with his wife. Appellant then grabbed his wife by the throat and

threatened to kill her and her son. Appellant refused to let his wife leave the

house. He also let the air out of her truck tires and took her car keys and

cell phone.     In another incident on December 12, 2013, Appellant and his

wife were on their way home from a party when they began to argue with

each other. Appellant became physically abusive when they arrived home

and began to ransack the residence. Appellant held his wife over a sink and

bit her on the chin and mouth, causing puncture wounds, swelling, and

bleeding. Appellant then picked up a knife and chased his wife out of the

residence.    Appellant’s stepson and twelve-year-old daughter tried to stop

the attack, at which point Appellant threw the knife and almost struck one of

the children.

      On October 1, 2014, Appellant pled guilty to one count of EWOC, three

counts of simple assault, and two counts each of terroristic threats and

REAP. At the sentencing hearing on January 6, 2015, the court announced it

was sentencing Appellant to consecutive terms of incarceration of one-and-

a-half (1½) to three (3) years for EWOC and one (1) to two (2) years for

one count of simple assault, along with a concurrent term of one (1) to two

(2) years’ incarceration for one count of terroristic threats.     No further


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penalty was imposed on the remaining convictions. The sentences indicated

on the guideline sentence forms were consistent with the court’s oral

pronouncement at sentencing.            The court’s written sentencing order,

however, imposed a sentence of one-and-a-half (1½) to five (5) years’

incarceration for EWOC. The written order comported with the court’s oral

pronouncement of sentence in all other respects.           On January 15, 2015,

Appellant filed timely post-sentence motions to reconsider sentence and to

withdraw plea.         On January 23, 2015, the court denied the motion to

reconsider sentence.       On February 19, 2015, the court denied Appellant’s

motion to withdraw plea. Appellant filed a timely notice of appeal on March

20, 2015. The court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). After the court granted an

extension, Appellant timely complied.

      Appellant raises the following issue for our review:

           DID THE SENTENCING COURT ABUSE ITS DISCRETION BY
           IMPOSING THREE SENTENCES THAT WERE EITHER IN THE
           AGGRAVATED RANGE OR THE STATUTORY MAXIMUM
           WHEN IT IS INCONSISTENT WITH THE NORMS
           UNDERLYING THE SENTENCING CODE, IT FAILED TO
           CONSIDER ALL RELEVANT FACTORS AND FOCUSED
           ALMOST EXCLUSIVELY ON THE SERIOUSNESS OF THE
           OFFENSES AND THE INJURY TO THE VICTIM TO THE
           EXCLUSION OF OTHER PERTINENT FACTORS?

(Appellant’s Brief at 5).

      Appellant argues the court sentenced him without considering all

relevant    factors,    including   Appellant’s   individual   characteristics   and


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rehabilitative needs.        Appellant asserts he expressed remorse for his

behavior and indicated he wanted to seek treatment for his alcoholism,

which fueled the incidents.         Appellant contends the court focused on the

gravity of the offenses, including the children’s involvement and the injuries

to Appellant’s wife, to the exclusion of other pertinent factors.     Appellant

claims the court imposed an aggravated range sentence for EWOC and the

statutory maximum sentence for simple assault without any explanation of

how Appellant’s acts were more serious than typical cases involving those

offenses.    Appellant submits the court improperly based his aggravated

range EWOC sentence on a factor (exposing children to harm) that is a basic

element of the crime.        Appellant concludes his EWOC and simple assault

sentences were unreasonable, and this Court should vacate the judgment of

sentence and remand for resentencing.2 As presented, Appellant challenges

the discretionary aspects of his sentence.3           See Commonwealth v.

____________________________________________


2
  Despite Appellant’s reference to all three sentences in his statement of
questions involved, he presents no argument regarding his sentence for
terroristic threats. Therefore, any challenge to that particular sentence is
waived. See Commonwealth v. Hakala, 900 A.2d 404 (Pa.Super. 2006)
(stating failure to develop argument in support of claim on appeal results in
waiver of issue).
3
  “[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
(Footnote Continued Next Page)


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Dunphy, 20 A.3d 1215 (Pa.Super. 2011) (stating claim that sentencing

court failed to offer adequate reasons to support sentence challenges

discretionary aspects of sentencing); Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006) (stating claim that court improperly based aggravated

range sentence on factor that constituted element of offense challenges

discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,

668 A.2d 536 (Pa.Super. 1995) (explaining claim that court did not consider

mitigating factors challenges discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.              Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).           Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. 720; (3) whether
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the
          sentence appealed from is not appropriate under the
          Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
                       _______________________
(Footnote Continued)

2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.



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Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f).    “The determination of what constitutes a substantial

question must be evaluated on a case-by-case basis.” Commonwealth v.

Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). 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.”          Sierra, supra at 912-13.

Generally, “[a]n allegation that a sentencing court failed to consider or did

not adequately consider certain factors does not raise a substantial question

that the sentence was inappropriate.”        Cruz-Centeno, supra at 545.

Nevertheless, a substantial question is raised where an appellant alleges the

sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances.     Commonwealth v. Felmlee,


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828 A.2d 1105 (Pa.Super. 2003) (en banc). Likewise, a claim that the court

imposed an aggravated range sentence without placing adequate reasons on

the record raises a substantial question. Commonwealth v. Bromley, 862

A.2d 598 (Pa.Super. 2004), appeal denied, 584 Pa. 684, 881 A.2d 818

(2005).

      On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion.      Commonwealth v. Walls, 592 Pa.

557, 564, 926 A.2d 957, 961 (2007). “[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.”

Id.

      Instantly, at the sentencing hearing and in his motion to reconsider

sentence, Appellant failed to raise (1) his challenge to the simple assault

sentence, and (2) his specific contention that the court imposed an

aggravated range sentence for EWOC without consideration of mitigating

factors. Therefore, those issues are waived. See Mann, supra. Appellant

properly preserved his claim that the court failed to provide adequate

reasons for sentencing Appellant in the aggravated range of the Sentencing

Guidelines for EWOC.      That claim presents a substantial question.         See

Bromley, supra. Nevertheless, at sentencing, the court made the following

statement on the record:


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        [Appellant], it’s not these last two incidents alone on which
        I am basing my judgment. The truth is, is that you have
        for the last twenty-five years been convicted of assaultive
        behavior and you have ten prior convictions. Most of these
        convictions involve violence. The previous conviction isn’t
        only about wielding a knife at your daughter…. It’s also
        about biting your wife’s face and leaving a permanent scar
        there. You violated a PFA. I’ve reviewed your past periods
        of probation, and you’ve always had a poor adjustment.
        You were told not to contact her children and did so even
        from the Allegheny County Jail. You’ve had prior—twice
        you’ve been sent for prior alcohol rehabilitations, and you
        never followed through.         You continue your abusive
        behavior.

        The [c]ourt does not feel that you are a candidate for
        county supervision, and I feel that you certainly are a
        danger to the people that you have continued to avoid.
        There was also another child involved in this I think but
        was not your child.

(N.T. Sentencing, 1/6/15, at 8-9).    The court also stated it had read and

considered Appellant’s presentence investigation (“PSI”) report, so we can

presume the court considered the relevant information and mitigating

factors. See Tirado, supra (stating where sentencing court had benefit of

PSI, law presumes court was aware of and weighed relevant information

regarding defendant’s character      and mitigating   factors).    The   court

emphasized the particularly violent and disturbing nature of Appellant’s

conduct toward the children and toward Appellant’s wife in the children’s

presence.   The court’s remarks also reflected consideration of Appellant’s

personal circumstances and potential for rehabilitation.       Based on the

foregoing, we conclude the trial court weighed all of the relevant factors and

provided adequate reasons on the record for sentencing Appellant in the

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aggravated range for EWOC, regardless of whether the court imposed a

maximum term of three or five years’ incarceration for that offense.        See

204 Pa.Code § 303.16(a) n.4 (stating recommendations in Sentencing

Guidelines apply to minimum terms of incarceration only).           Accordingly,

Appellant is not entitled to relief on his challenge to the discretionary aspects

of his sentence. See Walls, supra.

      Nevertheless, a discrepancy exists between the written sentencing

order and the sentencing transcript/guideline sentence form with respect to

the maximum term for Appellant’s EWOC sentence.            “[W]here there is a

discrepancy between the sentence as written and orally pronounced, the

written sentence generally controls.”    Commonwealth v. Willis, 68 A.3d

997, 1010 (Pa.Super. 2013).       Notwithstanding that general rule, “a trial

court has the inherent, common-law authority to correct ‘clear clerical errors’

in its orders. A trial court maintains this authority even after the expiration

of the 30 day time limitation set forth in 42 Pa.C.S.A. § 5505 for the

modification of orders.”    Commonwealth v. Borrin, 12 A.3d 466, 471

(Pa.Super. 2011) (en banc) (internal citations omitted).

         [F]or a trial court to exercise its inherent authority and
         enter an order correcting a defendant’s written sentence to
         conform with the terms of the sentencing hearing, the trial
         court’s intention to impose a certain sentence must be
         obvious on the face of the sentencing transcript. Stated
         differently, only when a trial court’s intentions are clearly
         and unambiguously declared during the sentencing hearing
         can there be a “clear clerical error” on the face of the
         record, and the sentencing order subject to later
         correction.

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Id. at 473 (internal citations omitted).

       Here,    at   the   sentencing     hearing,   the   trial   court   clearly   and

unambiguously stated its intention to sentence Appellant to a term of one-

and-a-half (1½) to three (3) years’ incarceration for the EWOC conviction.

The guideline sentence form reflects the same sentence. The court’s written

sentencing order, however, indicates a sentence of one-and-a-half (1½) to

five (5) years’ incarceration for EWOC.4 Thus, there appears to be a patent

inconsistency or “clear clerical error” on the face of the record, which is

subject to correction by the trial court.          See id.    Accordingly, we affirm

Appellant’s convictions, but vacate the judgment of sentence and remand

the case to the trial court for the limited purpose of relieving the record of

any discrepancy regarding Appellant’s EWOC sentence and imposing the

correct sentence.

       Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.




____________________________________________


4
  Appellant was convicted of EWOC as a first-degree misdemeanor, so either
sentence would be legal. See 18 Pa.C.S.A. § 1104(1) (setting maximum
term of incarceration of five years for first-degree misdemeanor).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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