Commonwealth v. Christman, 149 WDA 2019

225 A.3d 1104

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph Michael CHRISTMAN, Appellant

No. 149 WDA 2019

Superior Court of Pennsylvania.

Argued September 18, 2019

Filed December 31, 2019

Brian V. Manchester, Bellefonte, for appellant.

Gregory J. Simatic, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY BENDER, P.J.E.:

Appellant, Joseph Michael Christman, appeals nunc pro tunc from the judgment of sentence of an aggregate term of 36 to 72 months' incarceration, imposed after he pled guilty to 11 counts of sexual abuse of children (possession of child pornography), 18 Pa.C.S. § 6312(d). Appellant contends that the sentencing court abused its discretion by applying an 18-month sentencing guideline enhancement on each count pursuant to 204 Pa. Code §§ 303.10(e) and 303.9(l)(1).¹ After careful review, we vacate Appellant's sentence and remand for resentencing.

The facts underlying Appellant's convictions are not germane to the issue he raises on appeal. We need only note that on January 11, 2016, Appellant pled guilty to 11 counts of the above-stated offense based on his possession of 11 videos depicting child pornography. Appellant was sentenced on October 21, 2016, to an aggregate term of 36 to 72 months' incarceration. He did not file a post-sentence motion.

On November 14, 2016, Appellant filed a timely notice of appeal, raising the same sentencing claim as he presents herein. On July 27, 2017, this Court affirmed Appellant's judgment of sentence, concluding that his issue constituted a challenge to the discretionary aspects of his sentence, which he waived by failing to file a post-sentence motion and/or by omitting a Pa.R.A.P. 2119(f) statement from his appellate brief. See Commonwealth v. Christman , No. 1739 WDA 2016, unpublished judgment order at 2-4, 2017 WL 3185309 (Pa. Super. filed July 27, 2017).

On March 12, 2018, Appellant filed a timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, alleging that his counsel had acted ineffectively by not preserving his sentencing claim. After appointing counsel for Appellant and conducting an evidentiary hearing, the court granted his petition and reinstated his post-sentence motion and direct appeal rights by order entered December 10, 2018. On December 18, 2018, Appellant filed a nunc pro tunc post-sentence motion raising his challenge to the court's application of the 18-month sentencing guideline enhancement. On December 21, 2018, the court denied that motion.

Appellant filed a nunc pro tunc notice of appeal on January 18, 2019. He then timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court filed its Rule 1925(a) opinion on February 14, 2019. Herein, Appellant states two issues for our review:

1. Whether the sentencing court erred as a matter of law by applying the sentencing enhancement of 204 Pa.[ ]Code [§] 303.9 [ (l)(1) ] to the charges of sexual abuse of children (possession of child pornography)[,] 18 Pa.C.S.[ ] § 6312(d) [,] by aggregating all of the images pertaining to eleven (11) separate and separately sentencable [sic ] counts of sexual abuse of children (possession of child pornography) ... onto each single count?

2. Whether the sentencing court abused its discretion by applying the sentencing enhancement of 204 Pa.[ ]Code [§] 303.9 [ (l)(1) ] to the charges of sexual abuse of children (possession of child pornography)[,] 18 Pa.C.S.[ ] § 6312(d) [,] by aggregating all of the images pertaining to eleven (11) separate and separately sentencable [sic ] counts of sexual abuse of children (possession of child pornography) ... onto each single count?

Appellant's Brief at 2 (unnecessary capitalization omitted).

Appellant combines his two issues in his Argument section and, thus, we will address his two claims together. This Court has previously determined, in Appellant's initial appeal from his judgment of sentence, that his issue implicates the discretionary aspects of his sentence. See Christman , No. 1739 WDA 2016, unpublished judgment order at 2 (citing Commonwealth v. Rhoades , 8 A.3d 912, 915 (Pa. Super. 2010) (treating Rhoades' challenge to the court's application of the deadly weapon sentencing enhancement as implicating the discretionary aspects of his sentence)). As we explained in Rhoades ,

[a] challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the appropriateness 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, 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.

Rhoades , 8 A.3d at 916 (internal citations, quotation marks, and footnote omitted; emphasis in original).

Here, Appellant has included a Rule 2119(f) statement in his appellate brief, and we conclude that his claim that the court improperly applied a sentencing guideline enhancement presents a substantial question for our review. See id. (finding Rhoades' challenge to the application of the deadly weapon sentencing enhancement as constituting a substantial question for our review). Therefore, we will examine the merits of Appellant's sentencing claim, keeping in mind our following standard of review:

[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion.... [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. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Moury , 992 A.2d 162, 169–70 (Pa. Super. 2010) (citation omitted).

Appellant challenges the court's application of an 18-month sentencing enhancement under sections 303.10(e) and 303.9(l)(1). First, section 303.10(e) states, in pertinent part:

(e) Sexual Abuse of Children Enhancement.

(1) When the court determines that the offender violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that the offender possessed more than 50 images, the court shall instead consider the sentence recommendations described in § 303.9(l)(1). For purposes of this enhancement, the number of images is defined as follows:

(i) Each photograph, picture, computer generated image, or any similar visual depiction shall be considered to be one image.

(ii) Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.

* * *

(3) Sexual Abuse of Children Enhancement shall apply to each violation which meets the criteria above.

204 Pa. Code § 303.10(e).

Additionally, section 303.9(l)(1) reads:

(l) Sexual Abuse of Children Enhancement sentence recommendations. If the court determines that aggravating circumstances described in § 303.10(e) are present, the court shall instead consider the applicable Sexual Abuse of Children Enhancement related to number of images possessed by the offender or the nature and character of the abuse depicted:

(1) When applying enhancement based on the number of images possessed by the offender. If the offender possessed more than 50 images to 200 images, 6 months are added to the lower limit of the standard range and 6 months are added to the upper limit of the standard range. If the offender possessed more than 200 images to 500 images, 12 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range. If the offender possessed more than 500 images, 18 months are added to the lower limit of the standard range and 18 months are added to the upper limit of the standard range.

204 Pa. Code § 303.9(l)(1).

The parties agree that the court properly considered each of the 11 videos possessed by Appellant as constituting 50 images pursuant to section 303.10(e)(ii). See Appellant's Brief at 10; Commonwealth's Brief at 10. They dispute, however, whether the court erred by considering the total number of images Appellant possessed at all 11 counts (i.e. , 550 images) in determining that the sentencing enhancement applies. Appellant contends that, since the Commonwealth charged him separately for each video, the court was required to consider only the number of images pertaining to each count (i.e. , 50 images). In support, he relies on the plain language of section 303.10(e)(3) that the "[e]nhancement shall apply to each violation which meets the criteria above. " 204 Pa. Code § 303.10(e)(3) (emphasis added). Because section 303.1(e) requires that an offender possess more than 50 images, Appellant insists that his possession of 50 images at each count does not trigger the sentencing...