J-S01035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    ERIC BORGER,                               :
                                               :
                       Appellant               : No. 2629 EDA 2019

              Appeal from the Judgment of Sentence July 29, 2019
                in the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001757-2018

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   Filed: March 18, 2020

       Eric Borger (Appellant) appeals from the July 29, 2019 judgment of

sentence1 of an aggregate term of 24 to 60 months of incarceration imposed

after he entered a negotiated guilty plea to felony charges of corrupt

organizations, possession with intent to deliver a controlled substance (PWID),

and sale or transfer of a firearm. We affirm.

       On or about July 26, 2018, Appellant was arrested and charged with

numerous offenses relating to his involvement in narcotics trafficking and

criminal activities that were investigated by the Commonwealth’s Office of the


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1 We note that Appellant purported to appeal from the August 1, 2019 order
denying his post-sentence motion. “In a criminal action, appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa. Super.
2001) (citation omitted). We have corrected the caption accordingly.

* Retired Senior Judge assigned to the Superior Court.
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Attorney General (OAG). On August 30, 2018, Appellant posted bail and was

released subject to conditions. On September 18, 2018, the OAG gave notice

of joinder of Appellant’s case with five other cases for all purposes, including

trial.

         On May 8, 2019, the Commonwealth moved to revoke Appellant’s bail

because he had been charged with criminal mischief on April 10, 2019, relating

to Appellant’s alleged spray painting of graffiti and obscene words on a

residential home.

         On May 10, 2019, Appellant entered into a written guilty plea colloquy

to one count each of corrupt organizations, PWID, and sale or transfer of a

firearm in the instant case.     In return, the Commonwealth agreed to the

following: a term of county incarceration with a lengthy probationary tail;

concurrent sentences; work release for Appellant; no mandatory sentences;

no aggravating circumstances; nolle pros all other charges; and a closed plea.

Written Guilty Plea Colloquy, 5/10/2019, at ¶ 4. Appellant agreed to testify

against a co-defendant if necessary. Id. Further, Appellant acknowledged he

was aware that his possible total maximum sentence was 27 years of

incarceration and a $140,000 fine, that there were no agreements for

sentencing except as stated supra, and that any agreement for sentencing

was not binding on the court. Id. at ¶¶ 4-5, 8. Appellant also entered into a

separate plea agreement with the Commonwealth, wherein he agreed, inter

alia, that should Appellant be charged with any offense alleged to have


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occurred after the date of the agreement, it will be used against him. Plea

Agreement, 5/10/2019, at ¶ 9. The court accepted Appellant’s guilty plea,

deferred sentencing pending a presentence investigation report, and

scheduled a hearing on the Commonwealth’s motion to revoke bail. Orders,

5/10/2019. Appellant failed to appear at the bail revocation hearing, and the

court issued a bench warrant for Appellant. On June 27, 2019, following a

hearing, the court granted the Commonwealth’s motion to revoke Appellant’s

bail, and remanded him to the county correctional facility pending sentencing.

       On July 29, 2019, Appellant was sentenced to a term of 24 to 60 months

of incarceration on each of his three convictions, to be served concurrently.

The court imposed drug and alcohol conditions, credited Appellant with time

served, and deemed him RRRI eligible.2,          3   Appellant timely filed a post-

sentence motion seeking reconsideration of his sentence, which the court

denied on August 1, 2019. This timely-filed appeal followed. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant challenges the discretionary aspects of his

sentence. Appellant’s Brief at 4-6. Specifically, Appellant claims the trial court

abused its discretion in failing to calculate properly his offense gravity score,


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2RRRI is an abbreviation for the Recidivism Risk Reduction Incentive program,
61 Pa.C.S. §§ 4501-4512.

3 On September 13, 2019, the court entered an amended order to correct a
typographical error on the July 29, 2019 sentencing order.


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in sentencing him in the aggravated range, in failing to consider that the

Commonwealth knew about one of the aggravating factors prior to the plea

agreement, and in failing to sentence him pursuant to the plea agreement.

Id. at 4-5. We consider his issues mindful of the following.

            When a defendant enters a guilty plea, the defendant waives
      the right to challenge on appeal all non-jurisdictional defects
      except the legality of the sentence and the validity of the plea.
      However, the defendant retains the right to challenge the
      discretionary aspects of his sentence:

            A defendant, who enters a guilty plea which does not
            involve a plea bargain designating the sentence to be
            imposed, cannot be said to have granted the
            sentencing court carte blanche to impose a
            discriminatory, vindictive or excessive sentence so
            long as the legal limits are not exceeded. Obviously,
            the entry of a guilty plea does not preclude a petition
            for allowance of appeal of discretionary aspects of a
            sentence subsequently imposed.

      Commonwealth v. Dalberto,[] 648 A.2d 16, 20 ([Pa. Super.]
      1994) (emphasis in original; citation omitted).

Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017)

(citation, internal quotation marks, and some brackets omitted). Therefore,

despite his guilty plea, Appellant may challenge the discretionary aspects of

his sentence because there was no agreement as to his sentence.

      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




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      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

                                    ***

            When imposing [a] sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.

2014)). “A sentencing court may consider any legal factor in determining that

a sentence in the aggravated range should be imposed.” Commonwealth v.

Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (citations omitted).           “In

addition, the sentencing judge’s statement of reasons on the record must

reflect this consideration, and the sentencing judge’s decision regarding the

aggravation of a sentence will not be disturbed absent a manifest abuse of

discretion.” Id.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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


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           from is not appropriate under the Sentencing Code,
           42 Pa.C.S.[] § 9781(b).

DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102 A.3d

1001, 1006-07 (Pa. Super. 2014)).

     Appellant has satisfied the first three requirements: he timely filed a

notice of appeal, preserved his issues in a post-sentence motion, and included

a Pa.R.A.P. 2119(f) statement in his brief.     See Appellant’s Brief at 6.

Therefore, we now consider whether Appellant has raised a substantial

question for our review.

           The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis.          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.

DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).

     In his Pa.R.A.P. 2119(f) statement, Appellant states only that the trial

court abused its discretion in sentencing Appellant to an excessive sentence

which was “in the high end of the aggravated range, a total aggregate

sentence of twenty-four months to sixty months.” Appellant’s Brief at 6. This

Court has held that a challenge to the imposition of an aggravated range

sentence without sufficient reasoning raises a substantial question.      See

Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (concluding

a claim that “the lower court failed to state on the record adequate reasons

for imposing sentences in the aggravated range” raises a substantial

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question). However, in the instant case, Appellant’s Rule 2119(f) statement

does not contend the court failed to give sufficient reasons for the aggravation

of sentence, nor does his statement offer any reason why he believes the

aggravated-range sentence is excessive.4 Thus, Appellant’s allegation that his

sentence was improperly imposed in the aggravated range, by itself, does not

raise a substantial question. See Commonwealth v. Minnich, 662 A.2d 21,

24 (Pa. Super. 1995) (noting appellant failed to raise substantial question

where trial court placed on the record its reasons for the aggravated-range

sentence).

       However, even if Appellant had raised a substantial question for our

review, we conclude his assertion that the trial court should not have

sentenced him in the aggravated range is without merit.

       Appellant first argues that the trial court failed to calculate properly his

offense gravity score. Appellant’s Brief at 12-14. According to Appellant, “his

prior record score should have been a one” instead of two because a prior

1994 conviction in New Jersey was to have been expunged from his record,

but was not. Id. at 14. As the Commonwealth notes, Appellant raises this



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4 To the extent Appellant argues issues outside his Rule 2119(f) statement to
support his claim that he has raised a substantial question, they are waived
and we do not review them. As the Commonwealth points out in its brief, if
an appellant “‘fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
review the claim.’” Commonwealth’s Brief at 6 n.1, quoting Commonwealth
v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012).

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issue for the first time on appeal. See generally, N.T., 7/29/2019; Petition

for Reconsideration of Sentence, 7/31/2019; Commonwealth’s Brief at 3.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”   Pa.R.A.P. 302(a).    Further, “‘issues challenging the

discretionary aspects of sentencing must be raised in a post-sentence motion

or by raising the claim during the sentencing proceedings.’” Commonwealth

v. Smith, 206 A.3d 551, 567 (Pa. Super. 2019), quoting Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa. Super. 2003). Accordingly, this issue is waived.

      Next, Appellant argues that mitigating circumstances outweigh his

aggravating factors, and that the trial court failed to consider that the

Commonwealth knew about one of the aggravating factors prior to the plea

agreement.    Appellant’s Brief at 15-21.    According to Appellant, the three

aggravating factors set forth in the presentence investigation report (i.e.,

failing to report as scheduled for his presentence investigation; testing

positive for an illicit drug when he finally did report for his presentence

investigation; and being arrested for criminal mischief while on bail), were

outweighed by Appellant’s “always [doing] extremely well when he was on

probation,” his “fifteen years without getting into any trouble after his first

run-in with the law,” his cooperation with the Commonwealth in the

prosecution of co-defendants, and his employment history.        Id. at 19-21.

Further, although not entirely clear, it appears Appellant argues that because

the Commonwealth was aware of Appellant’s arrest for criminal mischief while


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on bail before it entered into the plea agreement with him, that arrest should

not be considered an aggravating factor. Id. at 20.

       During Appellant’s sentencing hearing, the trial court heard from

Appellant, who accepted responsibility for his actions; heard argument from

Appellant’s counsel, who stated Appellant is 56 years old, does well on

probation, and had lost both of his parents, all of his siblings except one who

is “very ill,” his family home, and most of his belongings; and heard argument

from the Commonwealth, who highlighted the information in the presentence

investigation report, Appellant’s criminal history, and his behavior before and

after the plea agreement. N.T., 7/29/2019, at 2-6.

       The court then stated that it considered the presentence investigation

report, which made reference to the aforementioned aggravating factors.5 At

the hearing, the trial court stated the following.

       THE COURT:         I do find that there are aggravating
       circumstances in this case; they are set forth in the presentence
       investigation report. The fact that the defendant was arrested for
       subsequent criminal activity while on bail for this offense, the fact
       that he did fail to report for his presentence interview, and he
       tested positive [for methamphetamine] at a subsequent meeting
       on June 27, 2019.

N.T., 7/29/2019, at 10; see also id. at 6-8.



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5 Additionally, because the sentencing judge had the benefit of a presentence
investigation report, we presume that the judge “was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).

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      Further, the court considered that “there was some discussion about a

possible county-type sentence” for Appellant, but stated that “unfortunately

for him, after my review of the presentence investigation report, I am not

inclined to impose a county sentence.” Id. at 7. The court was troubled by

the fact that Appellant knew his plea agreement called for a county jail

sentence, yet he

      failed to report for his presentence interview; when he did come
      in, finally, he tested positive for methamphetamine. Again,
      remember he’s out on bail for distributing methamphetamine. And
      then on top of that, and this one, really, I found disturbing, he
      was arrested and charged with a felony offense while he was on
      bail for this offense. So the possibility for a county jail sentence
      went out the window with that type of conduct.

Id. at 7-8. The trial court stated that it further considered the seriousness of

the offenses, which are all felonies, and Appellant’s criminal history, including

a drug-related offense.

      The court did acknowledge the mitigating information of Appellant’s

employment history, commenting to Appellant: “[Y]ou really got yourself

involved deep into this. It looks like you were a talented guy. You have a

history of working … [as a] lineman, machine operator, building mechanic,

HVAC. You have skills. You were able to work. But you just got yourself dug

into this situation.” Id. at 8. Even so, for the reasons cited supra, the court

concluded that the imposition of an aggravated-range sentence was

appropriate.




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      Based on the foregoing, we conclude that the trial court did not abuse

its discretion in weighing all of the relevant factors and provided adequate

reasons on the record for sentencing Appellant in the aggravated range.

      Finally, Appellant argues that the trial court abused its discretion in not

sentencing him pursuant to the terms of the plea agreement. Appellant’s Brief

at 21-23. However, as discussed supra, in his written guilty plea colloquy,

Appellant specifically agreed to the following.

      8. NO SENTENCING AGREEMENT. I acknowledge that there are no
      agreements for sentencing except as may be set forth in
      paragraph 4 [relating to prosecution agreements] above. I
      understand that any agreement for sentencing is not binding on
      the Court and I have not been guaranteed a specific sentence in
      exchange for this plea. The Court retains the power to decide my
      sentence.

Written Guilty Plea and Colloquy, 5/10/2019, at ¶ 8.        Thus, this claim is

without merit.

      Accordingly, we find no reason to conclude that the lower court abused

its discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/20



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