The opinion
J-A08030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW SCOTT STONE
Appellant No. 1438 MDA 2014
Appeal from the Judgment of Sentence entered on August 18, 2014
In the Court of Common Pleas of Tioga County
Criminal Division at No.: CP-59-CR-0000095-2014
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED JUNE 12, 2015
Matthew Scott Stone appeals the judgment of sentence entered
against him on August 18, 2014. On July 8, 2014, Stone pleaded guilty to
cruelty to animals, a misdemeanor of the first degree, see 18 Pa.C.S.
§ 5511(a)(2.1)(i)(a), and disorderly conduct, a summary offense, see
18 Pa.C.S. § 5503. We affirm.
Stone has provided only a very brief statement of the facts underlying
the charges that led to his conviction and the instant appeal. The trial court,
too, has not provided a factual summary in its opinion pursuant to
Pa.R.A.P. 1925(a). However, the following undisputed factual summary,
which was read into the record at Stone’s guilty plea hearing and was drawn
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A08030-15
nearly verbatim from the affidavit of probable cause included with the
underlying criminal complaint, suffices to establish the facts underlying this
matter:
[O]n January 22, 2014, at approximately 1:00[ ]pm, Trooper
[Steven] Moyemont of the Pennsylvania State Police was in full
uniform in a marked patrol unit when he returned to the
Mansfield State Police Barracks to handle this incident. An
animal cruelty case was referred to him by the State Dog
Warden, Warden Tinder,[1] on this date. At that time he was
advised that he—that there was information of an abandoned
dog near the Gee’s Historical Family Cemetery in Cummings
Creek Road in Farmington Township located here in Tioga
County.
Tinder went to the location, took the deceased dog into custody
from the—from that location; stated he received a phone call
from a Crystal Stone regarding the deceased dog.
Ms. Stone stated that the dog belonged to her former husband,
Joshua Stone, located at 624 East Main Street in the Borough of
Elkland, also in Tioga County.
Tinder relayed to Trooper Moyemont that Crystal Stone drove to
Wellsboro, identified the dog as her former husband[’s]. . . .
On January 24th of this year, 2014, a necropsy exam was
performed by Doctor Alaire Smith Miller from Troy[,] PA[,] and
that exam revealed the cause of the death was due to probably
starvation over a period of time.
On January 27th at approximately 9:30 pm Trooper Moyemont
interviewed [Matthew Stone] at the . . . Pennsylvania State
Police Barracks in Mansfield. At that time Mr. Stone was advised
of his rights, warning, and waiver and he agreed to answer
questions. He stated that his brother, Josh Stone, was working
out of town. Josh did not want the dogs. [Stone] stated that he
was told to get rid of the dogs. He could not afford to house the
____________________________________________
1
No first name for Warden Tinder appears in the record.
-2-
J-A08030-15
dogs and had to get rid of them.[2] [Stone] stated that on
October 3rd[,] 2013, at an unknown time he drove to Cummings
Creek Road . . . and placed the dog approximately twenty feet
from the roadway in a locked plastic crate. Matt stated that the
dog was still alive at the time he dropped it off; that he figured
someone would see the dog and take it after he left. . . .
Notes of Testimony (“N.T.”), 7/7/2014, at 2-4.
On August 18, 2014, after reviewing a presentence investigation and
considering the court’s sentencing options, the court imposed an
intermediate punishment of eleven months’ county incarceration to be
followed by one month of house arrest. Upon release, Stone was to serve
one year of probation.3 As well, the trial court assessed various monetary
sanctions in the form of restitution, fines, fees, and costs. See N.T.,
8/18/2014, at 11-16. This sentence substantially exceeded the standard
range of the sentencing guidelines, which recommended restorative
sanctions to thirty days’ incarceration. On August 27, 2014, Stone timely
filed a notice of appeal.4
____________________________________________
2
These are the only plural references in the record to dogs. However, it
is clear from the record that only one dog was killed.
3
In effect, the trial court imposed a sentence that approached the
statutory maximum sentence. See 18 Pa.C.S. § 5511(a)(2.1)(ii)
(prescribing a fine of not less than $1000 and incarceration of no more than
two years).
4
The trial court’s failure to sentence Stone to a minimum and a
maximum sentence of incarceration, with the former to be no longer than
one half the latter, see 42 Pa.C.S. § 9756(b)(1), is not inconsistent with the
Sentencing Code. In Commonwealth v. Pinko, 811 A.2d 576 (Pa. Super.
2002), this Court rejected a challenge to the legality of a sentence on this
(Footnote Continued Next Page)
-3-
J-A08030-15
On September 2, 2014, the trial court entered an order directing Stone
to file a concise statement of the errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), allowing Stone twenty-one days to do so. Thus, Stone
had until September 23, 2014 to comply. However, he did not file a concise
statement by that date. Consequently, on October 17, 2014, the trial court
entered a Rule 1925(a) opinion in which the court noted Stone’s failure to
comply with the trial court’s Rule 1925 order and correctly noted that an
appellant typically waives all issues on appeal when he fails to file his
concise statement in a timely manner. However, the trial court went on in
its opinion briefly to review Stone’s sentence, primarily citing the court’s
comments at sentencing as reflective of its reasoning. See Trial Court
Opinion, 10/17/2014, at 1-2.
Thereafter, on October 23, 2014, Stone filed what he called a “Nunc
Pro Tunc Defendant’s [Rule] 1925(b) Statement,” in which counsel for Stone
averred that he failed to file a timely Rule 1925(b) statement “[d]ue to an
error in coordinating with” Stone, and asked the court permit Stone to file a
_______________________
(Footnote Continued)
basis where the sentence in question expressly was identified as a sentence
of “intermediate punishment,” one of six sentencing alternatives provided to
the sentencing court pursuant to 42 Pa.C.S. § 9721(a). In Pinko we held
that a trial court need not enter a minimum and maximum sentence when
sentencing an offender under the County Intermediate Punishment Act,
42 Pa.C.S. §§ 9801-12. Consequently, the legality of this sentence, which
this Court may review sua sponte, see Commonwealth v. Pastorkovic,
567 A.2d 1089, 1091 (Pa. Super. 1989), is not at issue in this case.
-4-
J-A08030-15
concise statement nunc pro tunc. He attached to that document his
proposed concise statement. In that statement, in so many words, Stone
raised only a challenge to the discretionary aspects of sentence. On October
24, the trial court entered an order denying Stone’s request for nunc pro
tunc relief.
It is well-settled that the untimely filing of a 1925(b) statement usually
results in waiver of all issues on appeal. See Commonwealth v. Castillo,
888 A.2d 775, 776 (Pa. 2005). In Commonwealth v. Hill, 16 A.3d 484
(Pa. 2011), our Supreme Court explained as follows:
Rule 1925(b) sets out a simple bright-line rule, which obligates
an appellant to file and serve a Rule 1925(b) statement[] when
so ordered[. This bright-line rule provides that a]ny issues not
raised in a Rule 1925(b) statement will be deemed waived; the
courts lack the authority to countenance deviations from the
Rule’s terms; the Rule’s provisions are not subject to ad hoc
exceptions or selective enforcement; appellants and their
counsel are responsible for complying with the Rule’s
requirements; Rule 1925 violations may be raised by the
appellate court sua sponte, and the Rule applies notwithstanding
an appellee’s request not to enforce it; and, if Rule 1925 is not
clear as to what is required of an appellant, on-the-record
actions taken by the appellant aimed at compliance may satisfy
the Rule. We yet again repeat the principle first stated in
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), that must
be applied here: “[I]n order to preserve their claims for
appellate review, [a]ppellants must comply whenever the trial
court orders them to file a Statement of Matters Complained of
on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in
a Pa.R.A.P. 1925(b) statement will be deemed waived.”
719 A.2d at 309.
Id. at 494 (citation modified).
-5-
J-A08030-15
As set forth, supra, Stone filed no statement until October 23, 2014,
one month after the prescribed September 23, 2014 deadline for filing his
statement, and approximately one week after the trial court filed its
Rule 1925(a) opinion without the benefit of Stone’s statement. Thereafter,
the trial court denied Stone’s request for nunc pro tunc relief from the
consequences of his failure to do so. Now, the trial court cites this failure as
a basis for quashing Stone’s appeal.
In the context of criminal cases, however, the Castillo rule has been
qualified. Because defense counsel’s failure timely to file a Rule 1925(b)
statement constitutes per se ineffective assistance of counsel, see
Commonwealth v. Thompson, 39 A.3d 335, 340-41 (Pa. Super. 2012),
our Supreme Court formulated Pa.R.A.P. 1925(c)(3), which provides as
follows:
If an appellant in a criminal case was ordered to file a [concise
statement] and failed to do so, such that the appellate court is
convinced that counsel has been per se ineffective, the appellate
court shall remand for the filing of a [s]tatement nunc pro tunc
and for the preparation and filing of an opinion by the judge.
This Court also has held that “[w]hen counsel has filed an untimely
Rule 1925(b) statement and the trial court has addressed those issues we
need not remand and may address the merits of the issues presented.”
Thompson, 39 A.3d at 340 (citing Commonwealth v. Burton, 973 A.2d
428, 433 (Pa. Super. 2009)). Because that is precisely the situation
-6-
J-A08030-15
presented in the instant matter, we need not remand; instead, in the
interests of judicial economy, we will proceed to address Stone’s appeal.
Before this Court, Stone states the following issue:
Did [the] sentencing court err in sentencing [Stone] to
incarceration of a one[-]year imprisonment [sic] at the Tioga
County Prison based on factors that constitute elements of the
offense?
Brief for Stone at 2.
A claim that a sentence is excessive presents a challenge to the
discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d
884, 886 (Pa. Super 2008). “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.” Commonwealth v. McAfee, 849
A.2d 270, 274 (Pa. Super. 2004). To obtain review of the merits of a
challenge to the discretionary aspects of a particular sentence, an appellant
must include a Pa.R.A.P. 2119(f) statement in his or her brief.5 Therein,
____________________________________________
5
In pertinent part, Rule 2119 provides the following:
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall 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. The statement shall
immediately precede the argument on the merits with respect to
the discretionary aspects of sentence.
Pa.R.A.P. 2119(f).
-7-
J-A08030-15
“the appellant must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274. A substantial question requires a demonstration that “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.” Commonwealth v. Tirado, 870 A.2d 362, 365
(Pa. Super. 2005) (quoting Commonwealth v. Mouzon, 812 A.2d 617, 627
(Pa. 2002)). “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.” Id. (quoting Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in
Goggins).
In order to properly present a discretionary sentencing claim, a
defendant is required to preserve the issue in either a post-sentence motion
or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise
statement. Further, on appeal, a defendant “must provide a separate
statement specifying where the sentence falls in the sentencing guidelines,
what provision of the sentencing code has been violated, what fundamental
norm the sentence violates, and the manner in which it violates the norm.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010).
Stone’s Rule 2119(f) statement is perfunctory. Therein, Stone argues
that “[t]he record clearly demonstrates a substantial question that the
sentence[] was unfair and 12 times beyond [the] standard range, based on
-8-
J-A08030-15
18 Pa.C.S. § 5511(a)(2.1)(i)(a), this sentencing range could have sentenced
[sic] [Stone] to [Restorative Sanctions], Probation to a maximum of 30 days
in County Prison.” This statement does little more than allude to the
applicable sentencing guidelines and does not specify what provision of the
sentencing code or sentencing norm has been violated. However, if the
Commonwealth raises no objection to a violation of Rule 2119(f), this Court
may ignore the violation. Commonwealth v. Kiesel, 854 A.2d 530, 533
(Pa. Super. 2004); Commonwealth v. Raybuck, 915 A.2d 125, 127 n.3
(Pa. Super. 2006). Thus, were this the only flaw in Stone’s submission to
this Court, we would be free to consider his argument on the merits.
Unfortunately for Stone, it is not the only flaw.
In addition to the insufficiency of Stone’s Rule 2119(f) statement,
which is not necessarily fatal to his appeal, Stone also failed to raise any
objection to the discretionary aspects of his sentence during sentencing or in
a post-sentence motion. This Court has held that “[i]ssues challenging the
discretionary aspects of sentencing must be raised in a post-sentence
motion or by raising the claim during the sentencing proceedings. Absent
such efforts, an objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (quoting
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)).
Furthermore, “[t]his failure is not cured by submitting the challenge in a
Rule 1925(b) statement.” Id. (citing Commonwealth v. Kohan, 825 A.2d
702, 706 (Pa. Super. 2003)).
-9-
J-A08030-15
The sentencing transcript in this matter reveals nothing that might be
construed as a satisfactory objection to the trial court’s exercise of its
discretion in sentencing. Furthermore, the docket and the certified record
contain no reference to any post-sentence motion or to an order denying
same. Finally, in his brief, Stone does not indicate that he filed such a
motion. Consequently, Stone’s sentencing challenge is waived, and we may
consider it no further.
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Strassburger files a concurring statement in which Judge Wecht
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2015
- 10 -