J-S83031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               : IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER ALAN COBBS,                    :
                                               :
                       Appellant               :      No. 858 WDA 2018

              Appeal from the Judgment of Sentence May 7, 2018
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009202-2017

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED MARCH 15, 2019

        Christopher Alan Cobbs (“Cobbs”) appeals from the judgment of

sentence entered following his guilty plea to one count each of carrying a

firearm without a license and person not to possess firearms.1 We dismiss

Cobbs’s appeal.

        In its Opinion, the trial court summarized the relevant procedural history

underlying the instant appeal as follows:

               On May 7, 2018, [Cobbs] plead guilty to the above
        referenced charges and proceeded directly to sentencing. The
        parties stipulated to the facts of the Affidavit of Probable Cause in
        its entirety. [The] Commonwealth supplemented the factual basis
        with crime lab results regarding the operability and barrel length
        of the firearm[,] and information that [Cobbs] was ineligible to
        possess a firearm as a result of an active warrant.[FN] [Cobbs]
        waived a pre-sentence report and proceeded directly to
        sentencing, wherein [the trial court] imposed a mitigated[-]range
        sentence of two (2) to four (4) years of incarceration at Count
____________________________________________


1   See 18 Pa.C.S.A. §§ 6106(a)(1), 6105(c)(1).
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      (1)[,] with a consecutive two (2) year period of probation at Count
      (2). After imposition of sentence, defense counsel requested a
      recommendation for Motivational Boot camp ([see] 61 Pa.C.S.[A.]
      §§ 3900-3905)[,] which was rejected by [the trial court]. [Cobbs]
      filed a timely Post Sentence Motion on May 8, 2018[,] asking the
      [c]ourt to modify sentence and enter a recommendation for boot
      camp[,] again outlining [Cobbs’s] eligibility. This was denied on
      May 9, 2018. [Cobbs’s] Notice of Appeal was filed on June 8,
      2018. By Order of Court dated June 13, 2018, [Cobbs] was
      directed to file a Concise Statement of Matters Complained of on
      Appeal. Due to counsel’s failure to request the appropriate
      transcript[,] the [c]ourt granted an extension to file the Concise
      Statement on July 10, 2018. On August 1, 2018[,] [Cobbs] filed
      the Statement of Errors Complained of on Appeal….


         The warrant was for a simple assault charge filed at CC
      [FN]

      201808788[,] which was nolle prossed the same date, May 7,
      2018.

Trial Court Opinion, 11/5/18, at 2-3 (citation omitted, footnote in original).

      In this appeal, Cobbs presents the following claim for our review:

      DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN FINDING
      THAT [] COBBS WAS NOT STATUTORILY ELIGIBLE FOR BOOT
      CAMP[,] WHEN [] COBBS SATISFIED THE TERM OF CONFINEMENT
      AND AGE CRITERIA AND WAS NOT SENTENCED FOR ANY OF THE
      ENUMERATED OFFENSES WHICH MAKE AN INMATE STATUTORILY
      INELIGIBLE[,] AS SET FORTH IN 61 PA.C.S.A. §§ 3901-3908?

Brief for Appellant at 4.

      Before examining the merits of the above claim, we must initially

address whether Cobbs has preserved the claim for our review. “If the judge

entering the order giving rise to the notice of appeal desires clarification of

the errors complained of on appeal, the judge may enter an order directing

the appellant to file of record in the trial court and serve on the judge a concise

statement of the errors complained of on appeal.”             Pa.R.A.P. 1925(b)

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(parentheticals omitted).   Any issues not raised in a Rule 1925(b) concise

statement will be deemed waived.         See Pa.R.A.P. 1925(b)(4)(vii). “Our

Supreme Court intended [Rule 1925(b)] to operate as a bright-line rule, such

that ‘failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will

result in automatic waiver of the issues raised.’” U.S. Bank, N.A., v. Hua,

193 A.3d 994, 997 (Pa. Super. 2018) (quoting Greater Erie Indus. Dev.

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014)

(en banc) (citation omitted)).

      In his Pa.R.A.P. 1925(b) Concise Statement, Cobbs preserved the

following challenge to his sentence:

      The lower court abused its discretion in finding that [] Cobbs was
      not statutorily eligible for Boot Camp when [] Cobbs satisfied the
      term of confinement and age criteria set forth in the statute. See
      61 P.S. § 1123. Further, [] Cobbs was not sentenced for a
      violation of any of the enumerated offenses which make an inmate
      statutorily ineligible for Boot Camp; rather, he was sentenced for
      person not to possess a firearm. Thus, he was not rendered
      statutorily ineligible because of the offense to which he pleaded
      guilty.

Pa.R.A.P. 1925(b) Concise Statement, 8/1/18, at ¶ 12(a). Cobbs’s present

claim, which challenges the trial court’s exercise of its discretion in not

authorizing Cobbs for motivational boot camp, is presented for the first time

in this appeal. Thus, his claim is waived. See Pa.R.A.P. 1925(b)(4)(vii).

      Even if Cobbs had included this issue in his Rule 1925(b) Concise

Statement, he would not be entitled to relief. Cobbs’s claim challenges the

discretionary aspects of his sentence.       “A challenge to the discretionary


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aspects of sentencing is not automatically reviewable as a matter of

right.” Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017).

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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Although Cobbs timely filed his Notice of Appeal, he did not raise this

claim in his post-sentence Motion. Thus, we would dismiss his sentencing

claim on this basis, as well. See id.

      Even if Cobbs had preserved this claim, and even if his claim raised a

substantial question, Cobbs’s claim would not entitle him to relief.       Cobbs

claims in his brief the trial court improperly failed to fully consider his

rehabilitative needs. Brief for Appellant at 10. Cobbs further asserts that the

trial court failed to indicate why placement in motivational boot camp would

be inappropriate.   Id.   At sentencing, Cobbs’s counsel did not specify any

specific rehabilitative needs for the trial court’s consideration. Rather, counsel

pointed out that

      Cobbs was working at the time he was arrested. He has two kids.
      He has a wife he has been with for going on two years. Mr. Cobbs
      isn’t the type of person who is going to be a persistent problem in
      the criminal justice system. He just simply had a very bad year.


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N.T., 5/7/18, at 11.    The sentencing transcript reflects that the trial court

specifically considered these factors when sentencing Cobbs:

      THE COURT: … You are 32 years old now. It is long overdue for
      you to decide to change the direction that you are going to go.
      You have young children. You have a wife. You have skills that
      could take you in a different direction, okay, but for whatever
      reason[,] you chose not to do that.

Id.   In denying Cobbs’s request for boot camp, the trial court stated the

following:

      THE COURT: All right. I believe that boot camp is for a younger
      individual, not someone that has accumulated three or four
      misdemeanors and now a felony.         So I am not going to
      recommend boot camp in this case.

Id. Because the record does not support the claim raised by Cobbs, and we

discern no abuse of discretion by the trial court, we would have denied him

relief on this claim.

      Appeal dismissed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




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