J-S96010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MAURICE A. DAVIS, JR.,

                         Appellant                  No. 21 WDA 2016


     Appeal from the Judgment of Sentence Entered November 9, 2015
              In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0000582-2014


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED JANUARY 23, 2017

      Appellant, Maurice A. Davis, Jr., appeals from the judgment of

sentence of an aggregate term of 225 to 450 months’ incarceration, imposed

after he was convicted of three counts of aggravated assault and one count

of endangering the welfare of a child. On appeal, Appellant solely contends

that his sentence was excessive because the trial court applied an incorrect

offense gravity score (OGS) for two of the aggravated assault offenses for

which he was convicted. After careful review, we affirm.

      The trial court set forth the pertinent facts and procedural history of

Appellant’s case, as follows:

            This case arises from an incident occurring between
      January 22, 2014 and January 24, 2014, where M.H., a female
      juvenile born [in] August [of] 2012, sustained a serious brain
      injury and broken right clavicle while in [Appellant’s] care.
      [Appellant] claimed M.H. fell down the stairs. [Appellant] was
      charged with Aggravated Assault1 (Counts 1 and 2), Endangering
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     the Welfare of Children2 (Count 3), and Simple Assault3 (Counts
     4 and 5).
       1
           18 P[a]. C.S.A. § 2702(a)(1) (Felony 1st Degree).
       2
           18 P[a]. C.S.A. § 4304(a)(1) (Misdemeanor 1st Degree).
       3
           18 P[a]. C.S.A. § 2701(a)(1) (Misdemeanor 2nd Degree).

           On September 28, 2015, the Commonwealth filed a Motion
     to Amend Criminal Information, which the trial court granted
     following oral argument. The Amended Information included two
     counts of Aggravated Assault - Victim less than 13 and
     Defendant being … 18 [or older]4 (Counts 1 and 2), one count of
     Aggravated Assault - Victim less than 6 and Defendant being 18
     or Older5 (Count 3), and Endangering the Welfare of Children
     (Count 4).6
       4
           18 P[a]. C.S.A. § 2702(a)(9) (Felony 1st Degree).
       5
           18 P[a]. C.S.A. § 2702(a)(8) (Felony 2nd Degree).
       6
           18 P[a]. C.S.A. § 4304(a)(1) (Misdemeanor 1st Degree).

           On October 6, 2015, a jury found [Appellant] guilty on all
     counts.   On November 3, 2015, the trial court sentenced
     [Appellant] on Count 1 to 114 … to 228 months[’] incarceration;
     on Count 2 to 114 … to 228 months[’] incarceration (consecutive
     to Count 1); on Count 3 to no further sentence; and on Count 4
     to 21 … to 42 months[’] incarceration (consecutive to Counts 1
     and 2). Following discovery of an error in the Offense Gravity
     Score [(OGS)] for Counts 1 and 2,9 the trial court resentenced
     [Appellant] on Count 1 to 102 … to 204 months[’] incarceration;
     on Count 2 to 102 … to 104 months[’] incarceration (consecutive
     to Count 1); on Count 3 to no further sentence, and on Count 4
     to 4 to 21 … to 42 months[’ incarceration] (consecutive to
     Counts 1 and 2).
       9
          On November 3, 2015, the trial court sentenced
       [Appellant] on both counts of Aggravated Assault - Victim
       less than 13 and Defendant being over 18 (Counts 1 and
       2) based on an … [OGS] of 12. The Cambria County Office
       of Adult Probation notified the trial court that the correct
       OGS was 11 based on the effective date of the applicable
       statute. The trial court promptly scheduled [Appellant] for
       resentencing on November 9, 2015.

          On November 19, 2015, [Appellant] filed [a] Post-
     Sentence Motion[] [(PSM)] seeking a new trial and new
     sentence. By Order dated November 24, 2015, the trial court

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     denied [Appellant’s PSM]. On December 22, 2015, [Appellant]
     filed a timely Notice of Appeal to the Superior Court of
     Pennsylvania. By Order dated December 30, 2015, the trial
     court directed [Appellant] to file a [Pa.R.A.P. 1925(b)] Concise
     Statement of [Errors] Complained of on Appeal…. [Appellant]
     timely filed his Concise Statement on January 22, 2016. On
     February 12, 2016, [Appellant] filed a “Motion for Leave to
     Proceed on Appeal In Forma Pauperis…” and a “Motion for
     Transcripts/Application for Order to Transcribe Record.” After
     [a] Hearing on March 10, 2016, the trial court denied
     [Appellant’s In Forma Pauperis] Motion.

Trial Court Opinion (TCO), 7/23/16, at 1-3 (citations to the record and some

footnotes omitted).

     On appeal, Appellant presents three issues in the “Statement of the

Questions Involved” section of his brief.              See Appellant’s Brief at 6.

However, in the “Argument” portion of his brief, Appellant concedes that his

first two claims are meritless.         See id. at 11 (admitting that his first two

claims,   in   which   he    challenges      the   court’s   decision    to   allow   the

Commonwealth to amend the criminal information, are meritless because he

cannot    demonstrate       that   he    was   prejudiced    by   that    amendment).

Accordingly, we will only address Appellant’s third issue, which he states as

follows: “Did the trial court give Appellant a sentence that is excessive and

manifestly unreasonable?” Id. at 6.

     Briefly, Appellant alleges that the court applied an incorrect OGS of 11

to his two aggravated assault convictions under section 2702(a)(9).

Appellant explains:

          Section 2702(a)(9) was enacted on December 18, 2013[,]
     and [was] scheduled to take effect on January 1, 2014. The
     sentencing guidelines provide that, when a law does not specify


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     the [OGS] for a new offense, the omnibus [OGS] applies. 203
     Pa. Code § 303.3(f). At the time of [Appellant’s] offense[s] [in
     February of 2014,] the [OGS] for Section 2702(a)(9) was [the
     omnibus OGS of] 8.          The amendment to the Sentencing
     Guidelines that changed the [OGS] from the omnibus provision
     of 8 to 12 did not take effect until September 26, 2014.

Appellant’s Brief at 12-13. Thus, Appellant argues that the court incorrectly

concluded   that   his   section   2702(a)(9)   aggravated   assault   offenses,

committed prior to the amendment of the OGS for that offense in September

of 2014, carried a score of 11, when they actually carried an OGS of 8.

     Appellant’s issue challenges the discretionary aspects of his sentence.

See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012)

(concluding that a sentencing court’s application of an allegedly incorrect

OGS implicates the discretionary aspects of sentencing). As this Court has

repeatedly explained:

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test:

        We 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).
     Objections to the discretionary aspects of a sentence are
     generally waived if they are not raised at the sentencing hearing


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      or in a motion to modify the              sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      In this case, Appellant filed a timely notice of appeal, and he has

included a Rule 2119(f) statement in his brief. However, we cannot assess

whether Appellant’s claim presents a substantial question for our review, as

he has clearly failed to preserve his sentencing challenge below.          At

Appellant’s initial sentencing hearing on November 3, 2015, he did not raise

any issue with the court’s decision to apply an OGS of 12 to his section

2702(a)(9) aggravated assault offenses.    After that proceeding, the court

determined that it had erred by applying that OGS, and it convened a

resentencing hearing on November 9, 2015.          There, the issue before the

court was what OGS applied to Appellant’s section 2702(a)(9) offenses,

given “the effective date of the statute and when the guideline increase was

applicable.”   N.T. Resentencing, 11/9/15, at 2.    Ultimately, both Appellant

and the Commonwealth agreed that the correct OGS for Appellant’s section

2702(a)(9) aggravated assault offenses was an 11.         Id. at 3.   In other

words, Appellant conceded that for those aggravated assault convictions,

which he committed prior to the amendment of the OGS for that offense in

September of 2014, the correct OGS was 11.            At no point during this

resentencing hearing did Appellant argue that the ‘omnibus’ OGS of 8

applied.


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      After his resentencing hearing, Appellant obtained new counsel. That

attorney filed a PSM on Appellant’s behalf on November 19, 2015. Therein,

counsel again failed to raise the claim that the court should have imposed an

OGS of 8 for Appellant’s section 2702(a)(9) offenses.           Instead, defense

counsel      challenged   Appellant’s   sentence   on   the   basis   that   it   “is

unconstitutional under Article I, Section 13 of the Pennsylvania Constitution

and under the Eighth Amendment of the United States Constitution[,]” and

also averred that “[t]he sentence is excessive and manifestly unreasonable.”

PSM, 11/19/15, at ¶ 5 (pages unnumbered). Again, Appellant did not argue

in his PSM that his section 2702(a)(9) aggravated assault convictions carried

an OGS of 8.

      Appellant contends, however, that we should excuse his failure to

preserve this claim in his PSM because, in that motion, he requested leave

to amend his PSM after he obtained the transcripts, but the court denied

that request. See Appellant’s Brief at 14. Appellant also seemingly blames

his failure to raise his OGS issue on the court’s decision to deny his motion

for in forma pauperis standing. For instance, Appellant states that,

      the trial court placed Appellant’s fiancée and mother on a $200
      per month payment plan that was to begin on May 1, 2016. No
      transcripts were released until the first two payments were
      made. Therefore, although Appellant attempted to obtain the
      resources that would have uncovered this precise claim at an
      earlier point, his access to those resources was hindered by his
      low-income status.

Id. at 15.



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       Appellant’s argument is not supported by the record. Notably, the trial

court’s docket evinces that the transcript of Appellant’s resentencing hearing

(at which the specific issue of what OGS applied to his aggravated assault

offenses was discussed and decided) was filed on December 11, 2015, which

was before Appellant filed his notice of appeal.1 Appellant did not file any

motion seeking to amend his PSM in light of that transcript’s becoming

available; instead, he simply filed a notice of appeal.

       More importantly, Appellant did not specifically assert his OGS claim in

his Rule 1925(b) statement, which was filed over one month after the

sentencing transcript became available.2          In that Rule 1925(b) statement,

Appellant presented the following sentencing issue: “Did the trial court give

Appellant a sentence that is excessive and manifestly unreasonable?” Rule

1925(b) Statement, 1/22/16, at ¶ 3 (pages unnumbered).             The trial court

concluded that Appellant’s boilerplate claim failed to present a substantial

question for review.       See TCO at 9.       However, the court also provided a

detailed and well-reasoned alternative analysis of why it did not abuse its




____________________________________________


1
   Nothing in the record before us confirms that this transcript was not
‘released’ to Appellant as of that date.
2
  We also point out that defense counsel did not request an extension of
time within which to file her Rule 1925(b) statement on the basis that
transcripts were unavailable to her.




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discretion in fashioning Appellant’s aggregate term of incarceration.3 At no

point did the court discuss the OGS for Appellant’s section 2702(a)(9)

aggravated assault convictions because his Rule 1925(b) statement did not

specifically identify that issue and, again, Appellant never raised that claim

at either of his two sentencing hearings or in his PSM.

       Based on this record, we conclude that Appellant has failed to preserve

his assertion that the trial court applied an incorrect OGS to his section

2702(a)(9) aggravated assault offenses.          See Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”);4 Griffin, 65 A.3d at
____________________________________________


3
  In particular, the court stressed the seriousness of Appellant’s offenses and
the impact on the “previously healthy” victim and her family. TCO at 11
(citations to the record omitted). For instance, the court explained that the
minor victim has been left to live “a life of serious health problems,
[including having] learning disabilities, the inability to walk unassisted,
lacking any verbal communication, [and having] feeding tubes probably for
the rest of her life.” Id. at 10. The court also noted that Appellant’s
“explanation for the events of that fateful day lacked credibility.” Id.
Finally, the court found “disturbing” Appellant’s complete lack of remorse
and his unwillingness to accept any responsibility for his “heinous actions….”
Id.
4
  We note that the trial court’s order directing Appellant to file a Rule
1925(b) statement correctly informed him that “[a]ny issue not properly
included in the Statement timely filed and served shall be deemed waived.”
See Trial Court Order, 12/30/15, at 1 (single page); see also Greater Erie
Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222,
225 (Pa. Super. 2014) (en banc) (holding that, “[i]n determining whether an
appellant has waived his issues on appeal based on non-compliance with
[Rule] 1925, it is the trial court’s order that triggers an appellant’s
obligation[;] … therefore, we look first to the language of that order”)
(citations omitted).



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935 (“Objections to the discretionary aspects of a sentence are generally

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

modify the sentence imposed.”) (citations omitted).         Appellant clearly

conceded at the resentencing hearing on November 9, 2015, that an OGS of

11 applied to his aggravated assault offenses that were committed prior to

the OGS amendment for that offense in September of 2014. He cannot now

argue, for the first time on appeal, that an ‘omnibus’ OGS of 8 applied to

those crimes. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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