Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Christman

Superior Court of Pennsylvania

December 31, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSEPH MICHAEL CHRISTMAN, Appellant

          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

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

          OPINION

          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(1)(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 See Commonwealth v. Christman, No. 1739 WDA 2016, unpublished judgment order at 2-4 (Pa.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[(1)(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[(1)(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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.