Opinion
262 WDA 2021 263 WDA 2021 264 WDA 2021 265 WDA 2021 J-S07013-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM KENNETH BOSLEY JR. Appellant COMMONWEALTH OF PENNSYLVANIA v. WILLIAM KENNETH BOSLEY, JR. Appellant COMMONWEALTH OF PENNSYLVANIA v. WILLIAM KENNETH BOSLEY, JR. Appellant v. WILLIAM KENNETH BOSLEY JR. Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered February 7, 2020 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000040-2019, CP-26-CR-0000039-2019, CP-26-CR-0000041-2019, CP-26-CR-0000042-2019
Joseph D. Seletyn, Esq. Prothonotary
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.[*]
MEMORANDUM
OLSON, J.:
Appellant, William Kenneth Bosley, Jr., appeals from the judgment of sentence following his general guilty plea to various sexually related charges targeting three female victims under the age of 16, sexual intercourse with an animal, possession of illegal narcotics and drug paraphernalia, and multiple firearm violations. We affirm.
The specific criminal offenses and statutes are set forth by the trial court in detail below.
The trial court summarized the facts of this case as follows:
[] Appellant came into contact with [three] young girls when he acted as their coach and trainer in a Mixed Martial Arts program that he ran in Fayette County. After disclosure [by] the victims of the sexual assaults, the investigation revealed that [ ] Appellant had been sexually assaulting the minor girls[, ] who were under sixteen years of age[, ] for a period of years. [Two firearms were] located in his residence along with [hypodermic needles and] body building drugs which [ ] Appellant was not authorized to possess. A prior felony conviction made [ ] Appellant an individual who was not permitted to possess a firearm. As part of the investigation, [ ] Appellant had repeatedly communicated with the victims by
use of his cell[ular tele]phone to arrange contact and request[] sexually explicit photographs from the girls. After a review of the cell[ular tele]phone, [police] officers located pictures [] of [Appellant] sexually assaulting a dog. As a result of the investigation, the following cases were filed:
At Case No. 39 of 2019, the victim (hereinafter "FN") was fourteen (14) years of age when she joined the Uniontown Fight Club. [] Appellant was her trainer and mentor. When she was fifteen years of age, she was at [] Appellant's residence, took a shower and he entered the shower and began fondling her breasts and vagina. He performed oral sex on her despite her requests for him to stop. [] Appellant admitted he performed oral sex on the victim. He admitted to touching her breasts and vagina [while she was naked].
At Case No. 39 of 2019, [] Appellant was charged with involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S.A. §3123(a)(1); unlawful contact with minor, 18 Pa.C.S.A. § 6318(a)(1); aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(2); criminal use of communication facility, 18 Pa.C.S.A. § 7512(a); and two counts of indecent assault[, 18 Pa.C.S.A. § 3126(a)(1).] He was sentenced to a term of confinement of six to twelve years to run consecutive to his other cases.
At Case No. 40 of 2019, when the victim (hereinafter "EL") was fifteen (15) years of age, [ ] Appellant [] asked her to send him photographs of her body. Within a month, Appellant was engaging in sexual intercourse with the victim, he performed oral sex on the victim and had her perform oral sex on him in a vehicle. [] Appellant admitted to these actions and that they occurred at least eight (8) times.
At Case No. 40 of 2019, [] Appellant was charged with statutory sexual assault, 18 Pa.C.S.A. § 3122.1; involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123(a)(1); [] corruption of minors, 18 Pa.C.S.A. § 6301(a)(1); [and, ] criminal use of a communication facility, 18 Pa.C.S.A. § 7512(a). The [trial] court sentenced [] Appellant to six (6) to twelve (12) years['] incarceration to run consecutive to the other charges.
At Case No. 41 of 2019, [] Appellant admitted that on September 12, 2018, he possessed a twenty-two-caliber pistol and a Ruger [] rifle with scope. He admitted that he had a prior felony conviction for possession with intent to deliver [narcotics] and thus was a person prohibited from possessing a firearm. He also
admitted to possessing hypodermic needles, and ten vials of anabolic steroids but he had no prescription for this drug. He also had several other body building medications [that required a physician's prescription, which he lacked.]
At Case No. 41 of 2019, [] Appellant was charged with possession of a firearm prohibited, 18 Pa.C.S.A. § 6105(a)(1); possession of drug paraphernalia, 35 [P.S.] §780-113(a)(32); possession of a controlled substance - anabolic steroid, 35 [P.S.] §780-113(a)(37); and possession of a controlled substance [pursuant to] 35 [P.S.] § §780-113(a)(16).
[] Appellant admitted to possession of needles and ten vials of steroids as well as a pistol and a rifle. [] Appellant was sentenced to a term of incarceration of four to eight years at a state correctional institution.
At Case No. 42 of 2019, the victim (hereinafter "KT"), was under sixteen years of age when [] Appellant began performing oral sex on her. He engaged in intercourse with her at least three times per week continuing from 2011 to 2014. From 2014 to 2016, it continued one time per week. He also admitted to inserting his fingers in her vagina when she was less than sixteen years of age. He further admitted to performing oral sex on her and having her perform oral sex on him.
At Case No. 1879 of 2019, [] Appellant had photos on his cell[ular tele]phone that depicted him engaging in a sexual act with a dog. [] Appellant admitted that he had a dog lick peanut butter off of his penis and that he [e]aculated] in the dog's mouth. [For this charge the trial court imposed a sentence of three to six months' imprisonment, consecutive to the other sentences imposed.]Trial Court Opinion, 6/1/2021 at *3-5 (unpaginated; superfluous capitalization and record citations omitted).
Procedurally, the case progressed as follows:
[] Appellant entered into a general plea agreement to a reduction in the number of charges imposed against him and to a dismissal of some of the higher graded charges with the understanding that the [trial c]ourt would determine and impose a sentence in [] Appellant's cases. On December 19, 2010, [] Appellant entered his [guilty] pleas to the reduced charges as agreed. At the time
of the plea and for sentencing, Appellant was represented [by privately retained counsel]. The three victims presented victim impact statements to the court either in person or by correspondence. Prior to the sentencing occurring, the [trial c]ourt was presented with a mitigation report prepared and presented to the [trial c]ourt by defense counsel. At the time of sentencing, witnesses were presented by the defense including, Dr. Scott Tracy, who presented information about an evaluation of [] Appellant. The family of [] Appellant provided testimony as did [] Appellant. The [trial c]ourt imposed consecutive sentences at each of the cases[.] [] Appellant was sentenced to six to twelve years [of] incarceration at Nos. 39, 40, and 42 of 2019. At No. 41 of 2019, he received a sentence of four (4) to [eight] (8) years [of incarceration]. At No. 1879 of 2019, [Appellant] received a sentence of three (3) to six (6) months['] imprisonment. The total [aggregate] sentence imposed was twenty-two (22) years [and] three (3) months to forty-four (44) years [and] six (6) months [of imprisonment]. Thereafter, [private counsel filed] a timely post[-]sentence motion [], as well as a motion to withdraw. Counsel was permitted to withdraw based on his agreement with [] Appellant that his services would cease at sentencing. The Public Defender's Office entered [] appearance and argued the post[-]sentence motion filed by prior defense counsel.
***
After [a] hearing on the motion, it was denied by the [trial] court.
Thereafter, a direct appeal was filed in the case by the Office of the Public Defender. Subsequently, [Appellant retained new private counsel who] filed a motion [pursuant to the] Post[-]Conviction Relief [Act] (hereinafter "PCRA"). The motion requested an appeal nunc pro tunc. The motion was granted and a direct appeal nunc pro tunc was subsequently filed. A concise statement [of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)] was ordered and [Appellant] filed [a timely Rule 1925(b) statement] in response.Id. at *8-9 (unpaginated). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 1, 2021, explaining its reasons for denying requested relief and finding certain portions of Appellant's sentencing challenge waived for failure to present these issues in his original post- sentence motion or for failure to join the claims by way of supplemental or amendatory filings. By order entered on March 15, 2021, this Court consolidated the appeals sua sponte pursuant to Pa.R.A.P. 513.
Counsel for Appellant never requested permission to file a new post-sentence motion nunc pro tunc and does not challenge the trial court's decision finding waiver of certain claims concerning the discretionary aspects of sentencing. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) ("issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived"). Furthermore, Appellant has abandoned those sentencing claims on appeal and we find them waived for this additional reason. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citation omitted) ("where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.").
On appeal, Appellant presents the following issue for our review:
Did the trial court abuse its discretion in sentencing by (a) imposing a manifestly excessive aggregate sentence consisting of four consecutive terms of incarceration, a de facto life sentence considering [Appellant's] age, and (b) imposing sentence on improper factors as a result of insinuation by the Commonwealth[] of facts that were completely unsupported by the record?Appellant's Brief at 3.
Regarding the first portion of Appellant's claim, in sum, he contends:
The trial court imposed a manifestly excessive aggregate sentence of 22 to 44 years, consisting of four consecutive terms of total confinement. Although it is within a sentencing court's discretion to order concurrent or consecutive sentences, the consecutive nature of each sentence of incarceration imposed here - in light of the particular facts and circumstances of the cases and [Appellant's] personal history and characteristics - has resulted in a manifestly excessive aggregate sentence. Indeed, considering [Appellant's] age, now 52, such a sentence exceeds any reasonable life expectancy making it a de facto life sentence. […]
Having received time credit of approximately one year, [Appellant] will not be eligible for parole until he is approximately 71½ years old and he will not complete his sentence until he is 93½ years old. Such a sentence is manifestly excessive on its face and additionally fails to account for the numerous mitigating factors presented on [Appellant's] behalf.
[…Appellant] notes that the crimes he committed are extremely serious offenses, which, he readily acknowledges, will have lasting effects on the lives of the victims and those close to them. [Appellant] in no way intends to diminish the seriousness of his offenses. Indeed, [Appellant] has at all times accepted responsibility for his conduct, demonstrated extreme remorse for his conduct, and demonstrated an understanding that such conduct is worthy not only of condemnation but of incarceration.Id. at 32-33 (original emphasis and footnotes omitted). Appellant also contends that the trial court failed to consider mitigating factors including, inter alia, his service in the United States Navy, his diagnosis of Post-Traumatic Stress Disorder (PTSD), his community contributions, his remorse, and his willingness to participate in treatment. Id. at 37-39.
Regarding the second aspect of the issue presented, Appellant contends that although he pled guilty to possession of controlled substances, "the trial court considered and relied on, at least in part, the Commonwealth's unsupported insinuation that [Appellant] was an unlawful user of steroids and that such use motivated the commission of his offenses. This is so despite the fact that there was not even a scintilla of evidence to support that conclusion [before] the trial court." Id. at 41-42. We find Appellant waived this portion of his current claim by failing to raise it either at sentencing or in his post-sentence motion. See Cartrette supra; see also Pa.R.Crim.P. 720 and Pa.R.A.P. 302(a).
We have previously determined:
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct 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, see Pa.R.Crim.P. 720; (3) whether appellant's brief 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).Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal citations and quotations omitted).
Here, Appellant has satisfied the first three requirements of the above cited test. Appellant filed a timely notice of appeal. He preserved a general claim that his sentence was manifestly excessive and that the trial court failed to consider mitigating evidence included within his post-sentence motion. Appellant also included a separate statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. We, therefore, proceed to determine whether Appellant has raised a substantial question.
We have explained:
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 advances 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.Moury, 992 A.2d at 170 (internal citations and quotations omitted). "[T]his Court does not accept bald assertions of sentencing errors. An appellant must articulate the reasons the sentencing court's actions violated the sentencing code." Id. (internal citations omitted). "Under 42 Pa.C.S.A. § 9721, the court has discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion does not raise a substantial question." Id. at 171; see also Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (this Court has consistently recognized that excessiveness claims premised on the imposition of consecutive sentences do not raise a substantial question for our review). "The imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment." Moury, 992 A.2d at 171-72; compare Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008) (Dodge was sentenced to an aggregate term of 58 ½ to 124 years' imprisonment after he was convicted of numerous, largely property offenses and we viewed his challenge to the sentencing court's exercise of discretion as raising a substantial question). However, we further recognized that the substantial question raised in Dodge was "an extreme case" and, thus, the preliminary substantial question inquiry focuses on "whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino, 2 A.3d 581, 588 (Pa. Super. 2010). Finally, we note that "[a]n allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question." Moury, 992 A.2d at 171.
Here, Appellant does not claim that any of the individual sentences imposed for his convictions were excessive or in violation of the sentencing code. Instead, he argues that his aggregate sentence is a de facto life sentence and is premised solely on the imposition of consecutive sentences and failure to consider mitigation evidence. However, as Appellant concedes, "the crimes he committed are extremely serious offenses" and, therefore, we find Dodge inapplicable. Appellant was convicted of multiple acts of sexual assault with three distinct victims under the age of 16 over a course of years. He was also convicted of multiple firearms violations despite having a prior disqualifying conviction, as well as several narcotics-related convictions. As such, we conclude that the consecutive nature of the sentences does not raise Appellant's aggregate sentence to, what appears upon its face to be, an excessive level or unduly harsh in light of the criminal conduct at issue in the case. Appellant baldly challenges the consecutive nature of the sentences imposed and alleges that the trial court failed to consider the above-mentioned mitigation evidence. These challenges do not raise a substantial question for our review.
Regardless, upon review of the record, we find Appellant's discretionary sentence challenge unavailing. "[S]entencing 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. Brown, 249 A.3d 1206, 1211 (Pa. Super. 2021). Furthermore:
Long standing precedent recognizes that the Sentencing Code affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. We will not disturb consecutive sentences unless the aggregate sentence is grossly disparate to the defendant's conduct, or viscerally appears as patently unreasonable. Moreover, it is well-settled that when the trial court has the benefit of a presentence investigation ("PSI") report, it is presumed that the court was both aware of and appropriately weighed all relevant information contained therein.Id. at 1212 (internal citations, quotations, brackets, and ellipses omitted).
Here, before imposing Appellant's sentence, the trial court considered Appellant's prior record score, the sentencing guidelines, the nature of the crimes, victim impact evidence, a presentence investigation report, a mitigation report prepared by Appellant, expert defense testimony, and testimony from Appellant's family members. See N.T., 2/7/2020, at 68; see also Trial Court Opinion, 6/1/2021, at *11 (unpaginated). We presume that the trial court was aware of and appropriately weighed all of the relevant evidence before imposing sentence. Furthermore, as discussed above, the aggregate sentence is not grossly disproportionate to Appellant's criminal conduct. Finally, Appellant was not entitled to a "volume discount" for his multiple offenses . See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation omitted). For all of the foregoing reasons, we conclude that the trial court did not abuse its discretion in sentencing Appellant. Accordingly, we conclude that Appellant fails to raise a substantial question, but that his discretionary aspect of sentencing claim is otherwise without merit.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.