COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSEPH MICHAEL CHRISTMAN, Appellant
No. 149 WDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED DECEMBER 31, 2019
2019 PA Super 369
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
J-A23028-19
Appeal from the Judgment of Sentence Entered October 21, 2018
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002038-2015
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 (possessiоn of child pornography),
On November 14, 2016, Appellant filed a timely notice of appeal, rаising 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 See Commonwealth v. Christman, No. 1739 WDA 2016, unpublished judgment order at 2-4 (Pa. Super. filed July 27, 2017).
On March 12, 2018, Appellant filed a timely petition under the Post Conviction Relief Act (PCRA),
- 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 аbuse of children (possession of child pornography) ... onto each single count? - 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 pornogrаphy)[,]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 (unnecessаry 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 оf 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
[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 appеllant 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 Codе. 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 determinе 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 thе 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 appliсation of an 18-month sentencing enhancement under sections
(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.
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(3) Sexual Abuse of Children Enhancement shall apply to each violation which meets the criteria above.
Additionally, section
(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 thе 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.
The parties agree that the court properly considered each of the 11 videos possessed by Appellant as constituting 50 images pursuant to section
The Commonwealth, on the other hand, maintains that,
[t]here is no requirement in any of these sections of the [Sentencing] Code that the number of images be calculated separately for each charged count. The Code, by every indication, i[s] concerned only with the total number of images (or their statutory equivalent) that the defendant possessed. The Commonwealth respectfully submits that “the number of images possessed by the offender” means exactly what it says for the purposes of this guideline enhancement. There is no ambiguity there.
Commonwealth’s Brief at 11. The trial court agrees with the Commonwealth, concluding that,
the plain reading of the language set forth in
204 Pa. Code § 303.10(e)(1) states that if the court finds that “the offender possessed more than 50 images[,“] the court shall consider the sentencing recommendations of204 Pa. Code § 303.9(l)(1) . Nowhere in the statue does it direct the court to conduct separate calculations for each count. The statute directs the court to determine the total number of images possessed by an offender in order to decide whether the sentencing enhancements apply.
Trial Court Opinion, 2/14/19, at 12-13.
It is clear that the issue beforе us “involves statutory interpretation, which is a question of law, and our review is plenary and non-deferential.” A.S. v. Pennsylvania State Police, 143 A.3d 896, 903 (Pa. 2016) (citation and footnote omitted).
In such cases, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. The statute’s plain language genеrally provides the best indication of legislative intent. It is only when statutory text is determined to
In the present case, we disagree with the court and the Commonweаlth that the plain language of section
Here, at each of Appellant’s 11 counts, he was convicted of possessing one video, or 50 images. Accordingly, there was no single violation for which he possessed more than 50 images, аnd the sentencing enhancement set forth in section
Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019