Commonwealth v. Hazinsky

1

COMMONWEALTH OF PENNSYLVANIA v. FRANCIS HAZINSKY Appellant

No. 2124 EDA 2022

No. J-A21042-23

Superior Court of Pennsylvania

January 31, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered June 14, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002346-2020

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM

BENDER, P.J.E.

Appellant Francis Hazinsky, appeals nunc pro tunc from the aggregate judgment of sentence of 24 to 60 months' incarceration, followed by 48 months' probation, imposed after he pled guilty to one count each of possession of child pornography, 18 Pa.C.S. § 6312(d), and criminal use of a communication facility, 18 Pa.C.S. § 7512(a). On appeal, Appellant challenges the court's application of a sentencing guideline enhancement, as well as other, discretionary aspects of his sentence. After careful review, we affirm.

A detailed recitation of the facts of Appellant's case is unnecessary to our review of his sentencing claims. We need only note that a search warrant was served at Appellant's home and technology was seized, revealing "50 unique videos, equivalent to 2,500 images of child pornography." Trial Court Opinion (TCO), 2/2/23, at 2 (citation to the record omitted). The Commonwealth subsequently charged Appellant with 50 separate counts for possession of child pornography, and 50 separate counts for criminal use of a communication facility.

On January 4, 2021, Appellant entered an open guilty plea to one count of possession of child pornography and one count of criminal use of a communication facility. The Commonwealth nol prossed the remaining 98 charges. Notably, at the plea proceeding, the Commonwealth and Appellant's trial counsel agreed that the Affidavit of Probable Cause set forth the factual basis for Appellant's plea. See N.T. Plea, 1/4/21, at 10. In the Affidavit of Probable Cause, the affiant explicitly stated that the search of Appellant's computer "revealed over 25 unique images and over 50 unique videos equivalent to over 2,500 images under state law, all depicting child pornography." Affidavit of Probable Cause, 7/29/20, at 3.

Appellant's case proceeded to sentencing on June 14, 2021. There, the Commonwealth

submitted sentencing guidelines to the court that included an "Enhancement" element[,] which increased the standard range [for Appellant's possession of child pornography offense] from 12-24 months to 30-42 months. [Appellant's] counsel did not object to the enhanced guidelines. The court sentenced [Appellant], after considering those very guidelines along with the presentence information in support of [Appellant], to a mitigated range of 24-60 months[' incarceration,] and 48 months['] consecutive probation.

Appellant's Brief at 15.

Appellant did not file a timely post-sentence motion, or a direct appeal. Instead, on February 6, 2022, Appellant (via newly-retained counsel) filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541- 9546, seeking the reinstatement of Appellant's post-sentence motion rights. According to Appellant, "[a]fter discussions with [the Commonwealth], it was stipulated that [Appellant's] PCRA [petition] was of merit and that the court would permit the filing of a motion to modify/reconsider sentence…." Id. at 16. On April 27, 2022, the court entered an order stating that, "upon stipulation of the parties, [Appellant] is granted the right to file a Post[-]Sentence Motion to modify/reconsider the sentence within ten (10) days of the filing of this Order." Order, 4/27/22, at 1.

On May 5, 2022, Appellant filed a post-sentence motion to reconsider his sentence. Therein, Appellant raised, for the first time, that "there appears to be a discrepancy in the Sentencing Guidelines that were submitted to the court…." Post-Sentence Motion, 5/5/22, at 5 ¶ 4. Appellant explained: "As the guidelines form states, with an [offense gravity score] of '9' and a [prior record score] of '0[,'] the standard guidelines should have been 12-24 months, not the 30-42 [months] that are listed." Id. Appellant contended that because of this "discrepancy," the court "was inadvertently directed to a higher range of sentencing than it should have been." Id. Appellant also claimed the court failed to consider certain mitigating factors, such as Appellant's health issues and the fact that, as a result of his plea, Appellant "is now required to register with the [Pennsylvania] State Police … for fifteen (15) years upon his release from incarceration." Id. at ¶ 3(c). Accordingly, Appellant asked the court to reconsider and modify his sentence.

The Commonwealth filed a responsive brief. In regard to Appellant's challenge to the guideline enhancement, the Commonwealth explained:

The Commonwealth properly applied the sentencing enhancement to the Possession of Child Pornography charge in this case. Under, 42 Pa.C.S. § 9720.5(a), there is a sentence enhancement in accordance with the charge of Sexual Abuse of Children (18 Pa.C.S. § 6312) when aggravating circumstances include variations such as "the age of the child or a determination of prepubescence, the number of images possessed by the defendant, if the child depicted is known to the defendant and the nature and character of the abuse depicted in the images." According to 204 Pa. Code § 303.10(e)(1), when an offender has violated 18 Pa.C.S. § 6312 and possessed more than 500 images, 18 months can be added to the lower and upper limit of the standard range for the sentence recommendation.

In this case, [Appellant] pled guilty to one count of Possession of Child Pornography and one count of Criminal Use of Communication Facility. As part of his plea, [Appellant] also stipulated to the affidavit of probable cause[,] which states [Appellant] possessed over 2,500 unique images of child pornography, well over the 500 image quota for an 18[-]month enhancement.

The case is distinguishable from Commonwealth v. Christman, 225 A.3d 1104 (Pa. Super. 2019), which holds that the number of images for separate charges cannot be totaled to meet the criteria for a higher sentence enhancement, because in that instance, no such combination took place. Unlike in Christman, in which "there was no single violation for which defendant possessed more than 50 images[,"] the single Child Pornography charge in this case includes all of the discovered photos and videos. Id. at 1109. The Court had also noted that the Commonwealth could have solved the combination issue by reducing the number of charges and increasing the number of videos per charge--the exact action that took place in this case. Id. at 1110. Thus, the application of the 18[-]month enhancement for the stipulated 2,500 unique images was proper in this case.

Commonwealth's Response to Use of Guideline Enhancements, 7/11/22, at 3. Additionally, the Commonwealth observed that the sentencing court was aware of the mitigating circumstances of Appellant's medical condition and his registration requirement at the time it fashioned his sentence. Id. at 3-4. Accordingly, the Commonwealth requested the court deny Appellant's post-sentence motion.

On July 21, 2022, the court issued an order denying Appellant's post-sentence motion. He filed a nunc pro tunc notice of appeal on August 12, 2022, and he also 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 court filed a responsive Rule 1925(a) opinion on February 2, 2023. Herein, Appellant states two issues for our review:

1. Did the trial court commit error and abuse its discretion when it applied the sentencing enhancement of 204 Pa. Code 303.9(a)(3)^[1] to the charge of possession of child pornography when it aggregated all 2500 images to the one (1) count to which [Appellant] pled guilty?

2. Did the trial court abuse its discretion and/or commit error when it failed to apply those same mitigating factors to [Appellant's] motion to reconsider sentence that it had found in its original sentencing of [A]ppellant after being informed it had incorrectly used an enhancement guideline?

Appellant's Brief at 10.

Appellant's issues implicate the discretionary aspects of his sentence. See Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019) (considering Christman's challenges to the court's application of the sentencing guideline enhancement of 204 Pa. Code § 303.9(1)(1) as implicating the discretionary aspects of his sentence); Commonwealth v. Torres, 223 A.3d 715, 716 (Pa. Super. 2019) ("A claim [that] the trial court failed to consider mitigating circumstances is a challenge to the discretionary aspects of sentence.") (citation omitted).

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 [the] 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 [the] 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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing

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