Com. v. Davis, B.

J-S33041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRADLEY DAVIS :

:

Appellant : No. 1484 MDA 2023

Appeal from the Judgment of Sentence Entered April 28, 2023

In the Court of Common Pleas of Lackawanna County Criminal Division at

No(s): CP-35-CR-0000380-2021

BEFORE: OLSON, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 22, 2024

Appellant Bradley Davis appeals the judgment of sentence imposed after

he pled guilty to corruption of minors.1 On appeal, Appellant challenges the

discretionary aspects of his sentence. We affirm.

The underlying facts are well known to the parties. See Trial Ct. Op.,

2/23/24, at 1-5. Briefly, Appellant was charged with multiple offenses in

connection with a sexual assault of a child. On January 9, 2023, Appellant

entered an open guilty plea to one count of corruption of minors, graded as a

felony of the third degree. The trial court deferred sentencing for the Sexual

Offenders Assessment Board (SOAB) to determine whether Appellant met the

criteria for classification as a sexually violent predator (SVP).

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1 18 Pa.C.S. § 6301(a)(1)(ii).

J-S33041-24

On April 27, 2023, the trial court conducted a sentencing and SVP

hearing. Ultimately, the trial court concluded that Appellant was an SVP and

ordered Appellant to comply with the lifetime registration requirements under

Subchapter H of the Sexual Offender Registration and Notification Act2

(SORNA). Additionally, the trial court sentenced Appellant to a term of

twenty-three months to seventy-two months less one day of incarceration,

followed by one year of probation. The trial court also ordered that Appellant

be paroled to house arrest. The following day, the trial court entered an order,

amending Appellant’s sentence to twenty-three months to sixty months less

one day of incarceration, followed by two years of probation. Trial Ct. Order,

4/28/23, at 1. The trial court indicated that its intent was to “correct the

sentence so as to abide by 42 Pa.C.S.[] § 9762(b)(2) and allow [Appellant’s]

sentence to be served at the Lackawanna County Prison.”3 Id. at 1 n.1.

Appellant subsequently filed a timely post-sentence motion, in which he

requested, among other things, that the trial court reconsider its sentence.

See Appellant’s Post-Sentence Mot., 5/2/23, at ¶¶ 12-13. The trial court

ultimately denied Appellant’s post-sentence motion.

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2 42 Pa.C.S. §§ 9799.10–9799.42.

3 The trial court’s amended order states that it is retroactive to April 27, 2023.

See Trial Ct. Order, 4/28/23, at 1. However, in cases where the trial court

amends the judgment of sentence during the period it maintains jurisdiction

pursuant to 42 Pa.C.S. § 5505, the direct appeal lies from the amended

judgment of sentence. See Commonwealth v. Garzone, 993 A.2d 1245,

1254 n.6 (Pa. Super. 2010). Therefore, the appeal is properly from the April

28, 2023 amended judgment of sentence, and we have amended the caption

accordingly.

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J-S33041-24

Appellant filed a timely notice of appeal and a court-ordered Rule

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing

Appellant’s issues.

On appeal, Appellant raises the following issue:

Whether the court abused its discretion by sentencing the

Appellant outside the sentencing guideline range without

providing either on the record or in writing, a statement setting

forth the reasons for the deviation in violation of the specific

provisions of the sentencing code and fundamental norms of the

sentencing process and the sentence is unreasonable as a result?

Appellant’s Brief at 3.4

Appellant challenges the discretionary aspects of his sentence.5

Specifically, Appellant argues that the trial court abused its discretion in

imposing an unreasonable sentence, which was outside of the standard range

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4 We note that in his Rule 1925(b) statement, Appellant also argued that the

Commonwealth failed to present clear and convincing evidence establishing

that he met the statutory criteria for an SVP and the SOAB evaluator’s

assessment did not comply with the applicable statutes for an SVP

assessment. See Rule 1925(b) Statement, 12/7/23, at 2 (unpaginated).

Appellant has not raised these claims in his appellate brief; therefore,

Appellant has abandoned these issues on appeal. See Pa.R.A.P. 2116(a),

2119(a); Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 (Pa. 2003)

(finding waiver where the appellant abandoned claim on appeal).

5 “It is well settled that a plea of guilty amounts to a waiver of all non-

jurisdictional defects and defenses.” Commonwealth v. Brown, 240 A.3d

970, 972 (Pa. Super. 2020) (citation omitted). Generally, after the defendant

enters a plea, he may only appeal “matters concerning the jurisdiction of the

court, the validity of the guilty plea, and the legality of the sentence.” Id.

(citation omitted). However, when a defendant enters an open plea

agreement with no bargain for a specific or stated term of sentence, such as

in the instant case, he is not precluded from appealing the discretionary

aspects of the sentence imposed. See id.

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J-S33041-24

of the sentencing guidelines, and also failed to provide reasons for its

sentence. Id. at 9-15. Appellant concedes that he “did not specifically state

that the [trial] court failed to give reasons for its sentencing outside the

sentencing guideline range[]” in his post-sentence motion. Id. at 9. However,

Appellant asserts that this claim was encompassed within his argument that

the trial court erred by imposing a sentence “without specification as to the

term of house arrest.” Id. (citation omitted).

The Commonwealth and the trial court both conclude that Appellant has

waived his challenge to the discretionary aspects of the sentence because he

did not raise this specific claim at sentencing nor in his post-sentence motion.

See Commonwealth’s Brief at 2-5; Trial Ct. Op., 2/23/24, at 15.

“[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

(1) whether the appeal is timely; (2) whether [the a]ppellant

preserved his issues; (3) whether [the a]ppellant’s brief includes

a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of sentence; and

(4) whether the concise statement raises a substantial question

that the sentence is inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted).

“To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

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J-S33041-24

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)

(stating that “[i]ssues not raised in the trial court are waived and cannot be

raised for the first time on appeal”).

Here, in his post-sentence motion, Appellant argued that the trial court

erred by imposing an indeterminate term of house arrest. See Appellant’s

Post-Sentence Mot., 5/2/23, at ¶¶ 12-13. Appellant additionally contended

that the trial court erred because the sentence does not provide “a process or

timeline” for his release from house arrest. Appellant’s Mem. of Law, 8/2/23,

at 10 (unpaginated). Appellant further challenged the sufficiency of the

evidence establishing that he met the statutory criteria for an SVP. See

Appellant’s Post-Sentence Mot., 5/2/23, at ¶¶ 10-11. However, Appellant did

not raise a claim that the trial court erred by imposing a sentence outside of

the standard guideline range without placing its reasons for the sentence on

the record. See id. at ¶¶ 1-13; Appellant’s Mem. of Law, 8/2/23, at 1-11

(unpaginated).

Based on our review of the record, we conclude that Appellant has

waived his claim on appeal because he failed to preserve it at sentencing or

in his post-sentence motion. See Malovich, 903 A.2d at 1251; see also

Pa.R.A.P. 302(a). Therefore, Appellant is not entitled to relief, and we affirm

the judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

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J-S33041-24

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/22/2024

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