Com. v. Bubash, A. ( 2020 )

J-S11038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1382 WDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000414-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1383 WDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000415-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1384 WDA 2019
J-S11038-20
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000416-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1385 WDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000460-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1386 WDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000474-2018
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J-S11038-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM JOSEPH BUBASH, :
:
Appellant : No. 1387 WDA 2019
Appeal from the Judgment of Sentence Entered September 4, 2019
in the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000734-2018
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 27, 2020
In these consolidated appeals, Adam Joseph Bubash (“Bubash”) appeals
from the judgments of sentence imposed following his open guilty pleas to
one count each of burglary,1 at CP-56-CR-0000414-2018 (“No. 414-2018”);
burglary, at CP-56-CR-0000474-2018 (“No. 474-2018”); criminal trespass,2
at CP-56-CR-0000415-2018 (“No. 415-2018”); criminal trespass, at CP-56-
CR-0000416-2018 (“No. 416-2018”); criminal trespass, at CP-56-CR-
0000430-2018 (“No. 460-2018”); and criminal trespass, at CP-56-CR-
0000734-2018 (“No. 734-2018”). We affirm.
On July 26, 2018, Bubash entered open guilty pleas at Nos. 414-2018,
415-2018, 416-2018, 460-2018, and 474-2018. Bubash waived the
preparation of a pre-sentence report (“PSI”) and the trial court ordered a
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1 18 Pa.C.S.A. § 3502(a)(2).
2 18 Pa.C.S.A. § 3503(a)(1)(ii).
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modified pre-sentence report. Sentencing was deferred until October 26,
2018. At the sentencing hearing, Bubash entered an additional guilty plea at
No. 734-2018, and Bubash proceeded immediately to sentencing on all 6
dockets.
On October 26, 2018, the trial court sentenced Bubash, at No. 414-
2018, to 36 to 72 months in prison, plus restitution, fines, and costs. At No.
415-2018, the trial court sentenced Bubash to 21 to 42 months in prison, plus
restitution, fines, and costs. At No. 416-2018, the trial court sentenced
Bubash to 21 to 42 months in prison, plus restitution, fines, and costs. At No.
460-2018, the trial court sentenced Bubash to 21 to 42 months in prison, plus
restitution, fines, and costs. At No. 474-2018, the trial court sentenced
Bubash to 36 to 72 months in prison, plus restitution, fines, and costs. At No.
734-2018, the trial court sentenced Bubash to 12 to 42 months in prison, plus
restitution, fines, and costs. The trial court directed the sentences imposed
at Nos. 415-2018, 416-2018, 460-2018, and 734-2018 to run concurrently
with No. 414-2018. Bubash’s sentence at No. 474-2018 was imposed
consecutive to his sentence at No. 414-2018, resulting in an aggregate
sentence of 72 to 144 months in prison. Bubash was given credit for time
served at Nos. 460-2018, 474-2018, and 734-218, and all of Bubash’s
sentences were in the standard range of the sentencing guidelines.
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On December 20, 2018, Bubash filed a Petition pursuant to the Post
Conviction Relief Act (“PCRA”),3 requesting the reinstatement of his post-
sentence and appellate rights. The PCRA court granted Bubash permission to
file a post-sentence motion, nunc pro tunc. On May 28, 2019, Bubash filed a
timely post-sentence Motion, nunc pro tunc, asserting that the trial court failed
to consider Bubash’s mitigating circumstances of assisting the police,
struggling with addiction, his work history, and the lengthy amount of time
between his previous offense and the instant crimes. Bubash additionally
alleged that the trial court improperly referred to him as a “career criminal.”
The trial court denied Bubash’s Motion without a hearing.
Bubash filed timely Notices of Appeal,4 one at each docket number. The
trial court did not order Bubash to file a concise statement of errors
complained of on appeal.5 The trial court then issued a Rule 1925(a) Opinion.
This Court, sua sponte, consolidated Bubash’s appeals on September 20,
2019.
Bubash presents the following question for our review:
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3 42 Pa.C.S.A. §§ 9541-9546.
4 Bubash complied with the dictates of our Supreme Court in Commonwealth
v. Walker, 185 A.3d 969, 971, 977 (Pa. 2018) (holding that, prospectively
from the date of the Walker decision, “where a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case[,]” and that a failure to do so will result in quashal). See Pa.R.A.P.
341, note.
5However, it appears from the record that Bubash filed his Concise Statement
on January 9, 2020, after the trial court had issued its Opinion.
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Whether the [trial] court abused its discretion in sentencing
[Bubash], such that the [trial] court did not consider [Bubash]’s
individual circumstances in fashioning the sentence and the
sentence is unfair[?]
Brief for Appellant at 31.
In his Brief, Bubash claims that the trial court issued a “predetermined”
sentence “based on [Bubash’s] prior record score” and ignored the mitigating
circumstances of Bubash’s work history, request for rehabilitation, cooperation
with law enforcement, and the length of time between offenses. Brief for
Appellant at 37.
Bubash challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal.6 See Commonwealth. Sunealitis, 153
A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant challenges the
discretionary aspects of his sentence, we must consider his brief on this issue
as a petition for permission to appeal. Commonwealth v. Yanoff, 690, A.2d
260, 267 (Pa. Super. 1997); see also Commonwealth v. Tuladziecki, 522
A.2d 17, 18 (Pa. 1987). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, seePa.R.Crim.P. [720]; (3) whether appellant’s brief
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6 The open guilty pleas that Bubash entered into permit him to challenge his
sentence. See Commonwealth v. Tirado, 870 A.2d 362, 364 n.5 (Pa.
Super. 2005) (explaining that, when the plea agreement is open, containing
no bargain for a specific or stated term of sentence, the defendant will not be
precluded from appealing the discretionary aspects of his sentence).
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has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b)
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advance[s] a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Bubash filed timely Notices of Appeal, raised his claim in a post-
sentence Motion, but failed to include a Rule 2119(f) Statement in his brief.
However, the Commonwealth did not raise an objection and, thus, we will
determine whether Bubash has raised a substantial question in his brief. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (explaining
that “when the appellant has not included a Rule 2119(f) statement and the
appellee has not objected, this Court may ignore the omission and determine
if there is a substantial question that the sentence imposed was not
appropriate[.]”).
Bubash highlights specific mitigating factors that the trial court allegedly
failed to consider, and asserts that his right to an individualized sentence was
violated when the trial court focused on the seriousness of the offenses instead
of Bubash’s rehabilitative needs. We conclude that Bubash has presented a
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substantial question. See Commonwealth v. Serrano, 150 A.3d 470, 473
(Pa. Super. 2016) (stating that a substantial question has been presented
where an appellant alleged that the sentencing court failed to consider the
defendant’s individualized circumstances and rehabilitative needs); see also
Commonwealth v. Coulverson, 34 A.3d 135, 142-43 (Pa. Super. 2011)
(stating a substantial question has been presented where the trial court
focused on the seriousness of the offenses rather than the rehabilitative needs
of the defendant).
Our standard of review is as follows:
Sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias, or
ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
sentencing guidelines. Additionally, the court must impose a
sentence which is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and the community, and the rehabilitative needs of the
defendant.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted); see also 42 Pa.C.S.A.
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§ 9721(b). Moreover, “[w]here a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Moury, 992 A.2d at 171. Furthermore, “the trial judge
may determine whether, given the facts of a particular case, a sentence should
run consecutive to[,] or concurrent with[,] another sentence being imposed.”
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009).
Here, the record reflects that the trial court considered the particular
circumstances of the offense, Bubash’s prior criminal record, age, work
history, and potential for rehabilitation, as well as Bubash’s statement at
sentencing, and his general character. See N.T., 10/26/18, at 15, 19.
Further, the trial court considered the sentencing guidelines, Bubash’s prior
record score and criminal history, his rehabilitative needs, and the seriousness
of his crimes. Id.The trial court stated repeatedly that it considered that Bubash had
taken responsibility for his actions. Additionally, the trial court stated that it
considered Bubash’s request for help through the state system instead of the
county, and Bubash’s statements that he struggles with addiction. Id.Specifically, the trial court recognized that “[t]he defendant has taken the first
steps towards rehabilitation by accepting responsibility for his actions; and
consequently, these sentences fall at the lowest end of the standard range of
the sentencing guidelines.” Id. at 19. Additionally, we note that Bubash
requested that the trial court sentence him to “a state sentence” because he
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did not believe he would get the addiction help he needed from a county
facility. Id. at 13.
Moreover, because Bubash’s sentence was within the standard range, it
was appropriate under the Sentencing Code. See Moury, supra; Lilley,
supra. Accordingly, we conclude that the trial court did not abuse its
discretion when sentencing Bubash, and Bubash’s discretionary sentencing
challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2020
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