J-A23028-19
2019 PA Super 369
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOSEPH MICHAEL CHRISTMAN,
Appellant No. 149 WDA 2019
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 BY BENDER, P.J.E.: FILED DECEMBER 31, 2019
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.
____________________________________________
1 We observe that an amended version of the Sentencing Code,
204 Pa. Code
§§ 303.1-303.18(c), became effective on December 6, 2019. Although no
significant changes were made to the sections of the guidelines at issue herein,
we will review the prior version of the statute that was in effect at the time
Appellant was sentenced.
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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Christman, No. 1739 WDA 2016, unpublished judgment order at 2-4 (Pa.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.
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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
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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
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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:
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(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
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images, Appellant insists that his possession of 50 images at each count does
not trigger the sentencing guideline enhancement.
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 of 204 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 before 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 generally provides the best indication of
legislative intent. It is only when statutory text is determined to
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be ambiguous that we may go beyond the text and look to other
considerations to discern legislative intent.
Id. (internal quotation marks and citations omitted).
In the present case, we disagree with the court and the Commonwealth
that the plain language of section 303.10(e) permits the court to consider the
total number of images possessed, across all convictions, in order to
determine if the sentencing enhancement applies. Such a reading of the
statute wholly ignores the explicit language of section 303.10(e)(3), which
states: “Sexual Abuse of Children Enhancement shall apply to each violation
which meets the criteria above.” 204 Pa. Code § 303.10(e)(3) (emphasis
added). Pursuant to this provision, it is clear that the court must examine
each conviction to determine if it meets the requirement that the offender
possessed more than 50 images before the guideline enhancement may be
applied.
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, and the sentencing enhancement set
forth in section 303.9(l)(1) does not apply. Even without application of the
enhancement, Appellant is not receiving a “volume discount” for his offenses,
as he was convicted and sentenced separately for each of the 11 videos he
possessed. See Commonwealth v. Davidson, 860 A.2d 575, 583 (Pa.
Super. 2004) (indicating that, because Davidson was convicted and sentenced
on 28 separate counts of possession of child pornography, he did not receive
“a volume discount on his multiple crimes”). We also observe that the
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Commonwealth has discretion in how it charges criminal offenders. In this
case, it could have reduced the number of charges, and increased the number
of videos underlying each charge, thus triggering application of the sentencing
guideline enhancement. However, because the Commonwealth chose to
charge Appellant with separate counts for each video he possessed, the
requirement of section 303.10(e) that the offender possess more than 50
images was not met for any of his convictions. Therefore, the trial court erred
by applying the 18-month guideline enhancement pursuant to section
303.9(l)(1). Consequently, we vacate Appellant’s judgment of sentence and
remand for resentencing without application of the enhancement.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
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