J

- A15026

- 22

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

COMMONWEALTH OF PENNSYLVANIA

v.

JON RAYMOND SERIANNI

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1071 WDA 2020

Appeal from the Judgment of Sentence Entered May 19, 2020 , i n the Court of Common Pleas of Cameron County , Criminal Division at No(s): CP

- 12

- CR

- 0000023

- 2019

.

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J. MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 29, 2022 Jon Serianni appeals pro se from the judgment of sentence imposed after he plead guilty to possession of child pornography and related charges. 1

We affirm.
In early 2019, the Pennsylvania Office of Attorney General ( OAG ) discovered that an IP address associated with Serianni was routing and
requesting blocks of digital files containing child pornography. OAG agents executed a search warrant at Serianni’s house and uncovered a computer

cont aining 15 video file s depicting the sexual abuse of children.

The OAG , through a criminal complaint filed April 24, 2019, charged Serianni with 15 counts of possession of child pornography and 1 count of criminal use of a communication facility

. Seriann i waived his right to a

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § § 6312(d) and 7512(a).J

- A15026

- 22

- 2

-

preliminary hearing, the charges were held for court, and the OAG filed a criminal information on May 9, 2019, reasserting all 16 charges. Serianni did not challenge the information before the trial court.
On January 21, 2020, Ser ianni agreed to plead guilty to C ounts 1

– 6 of the information for possession of child pornography and to Count 16 of the
information for criminal use of a communication facility. Serianni agreed that Counts 1 through 6 would each carry consecutive two

- to

- four

- year sentences of incarceration, and that count 16 would carry a sentence of one

- to

- two years to run concurrently with Counts 1

– 6, for an aggregate sentence of 12

– 24

years. The OAG agreed to nolle pros the remaining charges . Serianni

effectuated the agreement through a written guilty plea colloquy dated January 21, 2020. The trial court accepted Serianni’s guilty plea, concluding
that the plea was made knowingly, intelligently, and voluntarily. Serianni appeared for a scheduled s entencing hearing o n May 19, 2020. His attorney advised the trial court that Serianni wanted to consult with other attorneys. Following a recess, Serianni formally moved to continue, which the court denied. Serianni stated that he was not requesting to withdraw his plea.

The trial court then sentenced Serianni to the agreed term of imprisonment

under the plea deal , as well as a total fine of $17,500.00.
Serianni filed a post

- sentence motion arguing that the trial court should have granted his motion for a continuance or should have allowed him to withdraw his guilty plea. The trial court heard and denied this motion on September 4, 2020

. Seranni appealed.J

- A15026

- 22

- 3

-

Serianni raises the following issues on appeal:

I. The Criminal Information is Constitutionally defective and fails to comport with due

- process as it fails to differentiate between the fifteen criminal offenses which are identical and indistinguishable, thus denying his Constitutional right to prepare a defense, notice of the offense, protection from double jeopardy, fa ir trial, and due

- process

. II. Appellant was denied his Sixth amendment guarantee of a speedy trial, denied right to due

- process and equal protection of the law, thereby making it impossible for the court to have jurisdiction of the Criminal Action/Criminal In formation

. III. Appellant’s (6) six consecutive sentences are devoid of reflecting six distinct and separate criminal acts that violate 18 [ Pa.C.S.A. ] § 6312 (d) thereby violating his right to be free from double jeopardy, as the other (9) counts of § 6312(d) were nolle prossed, also were not separate, distinct, or differentiated in any way.
IV. The criminal fines of $17,500.00 imposed by the court violate the Apprendi [ 2 ] rule. Criminal fines, like other forms of punishment, are penalties inflicted by the state and are substantial enough to trigger the sixth amendment’s jury

trial guarantee. Apprendi applies.
V. The guilty plea is invalid as it was not knowingly and intelligently entered. It was impossible to understand the elements of each offense as there was a possible (9) different offenses in each count because of vague offenses filed in the criminal information. The plea contained (6) offenses that are identical and undiffe rentiated. The remaining (9) offenses were nolle prossed and which were exactly the same as the plead offenses, thus violating double jeopardy. It cannot be proved beyond doubt that the plead offenses are not the same ones that were nolle prossed.

_________________ __________ ______ ____ _______

2 Apprendi v. New Jersey , 530 U.S. 466 (2000).J

- A15026

- 22

- 4

-

Serianni’s Brief at V.
In evaluating each of Serianni’s issues, we will first determine whether
they have been preserved for appellate review. The Commonwealth maintains

that Serianni has waived all five issues because he raises them for the first

time on appeal. Under our rules of appellate procedure , issues raised for the
first time on appeal are waived. Pa.R.A.P. 302. “[A] 1925(b) statement can

therefore never be used to raise a claim in the first instance. Steiner v.

Markel , 968 A.2d 1253, 1257 ( Pa. 2009)

. “[T]o preserve an issue for
appellate review, a party must make a timely and specific objection at the
appropriate stage of the proceedings before the trial court. Failure to timely
object to a basic and fundamental error will result in waive r of that issue .”

State Farm Mut

. Auto
. Ins
. Co
. v. Dill , 108 A.3d 882, 885 (Pa. Super.
2015). We cannot address the merits of a waivable issue that has not b e en preserved for appellate review.

In his first issue , Serianni claims that the Criminal Information in this

case is defective. Under our Rules of Criminal Procedure, a request to quash

or dismiss an information must be made in an omnibus pretrial motion.
Pa.R.Crim.P. 578(5). This Court has further clarified that “ [a] request to
quash an information must be made in an omnibus pretrial motion for relief

or it is considered waived.” Commonwealth v. Martin , 694 A.2d 343, 344
(Pa. Super. 1997) (quoting Commonwealth v. Rishel , 658 A.2d 352, 358
(Pa. Super. 1995 ) ).J

- A15026

- 22

- 5

-

H ere , Serianni failed to challenge any aspect of the information in an
omnibus pretrial motion. Serianni entered into a negotiated plea deal with
the OAG on January 21, 2020, 218 days after the information was filed.
Similarly, the tria l court sentenced Seria nni on May 19, 2020, 119 days after

Serianni pleaded guilty. Despite having ample time to challenge the

information , Serianni failed to do so at either the plea or sentencing stage.

Since Serianni failed to raise the issue at the appropriate stage in the
proceeding before the trial court and cannot challenge an information for the
first time on appeal, this claim is waived.

In his second issue , Serianni claims that he was denied his right to a
speedy trial. A speedy trial claim is waived when raised for the first time on
appeal. Commonwealth v. Cain , 906 A.2d 1242, 1244 (Pa. Super. 2006).
Since Serianni raises a speedy trial issue for the first time in his 1925(b)
statement, he waived this claim as well

. In his third issue, Serianni makes a double jeopardy claim, arguing that

his “ six consecutive sentences are devoid of reflecting six distinct and separate

criminal acts .” Serianni’s Brief at V

. Although Serianni failed to raise a double
jeopardy claim prior to his 1925(b) statement, double jeopardy claims that
challenge the legality of one’s sentence can be raised for the first time on
appeal. Commonwealth v. Hill , 238 A.3d 399, 409 (Pa. 2020). Thus, we

consider the merits of this claim.J

- A15026

- 22

- 6

-

“[A]n appeal grounded in double jeopardy raises a qu estion of
constitutional law. This [C]ourt’s scope of review in making a determination
on a question of law is, as always, plenary. As with all questions of law, the
appellate standard of review is de novo .” Commonwealth. v. Kearns , 70
A.3d 881, 884 (Pa . Super. 2013) (quoting Commonwealth v. Vargas , 947
A.2d 777, 780 (Pa. Super. 2008)).
By statute , ” [a] ny person who intentionally views or knowingly
possesses or controls any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material” which depicts a minor

“ engaging in a prohibited sexual act or in the simulation of such act commits

an offense

. ” 18 Pa.C.S.A. § 6312

. With respect to double jeopardy challenges, o ur Supreme Court
explained that “each photograph or co mputer depiction constitutes a distinct
occurrence of offensive conduct in violation of Section 6312(d).”

Commonwealth v. Davidson , 938 A.2d 198, 219 ( Pa. 2007)

. Thus, a conviction of multiple counts of child pornography stemming from a single
possession does not implicate double jeopardy. Id.
Here, Serianni pled guilty to six counts of possession of child
pornography. Subsequently , the trial court sentenced him on all six counts.
Each count of child pornography corresponds to a separate illegal video file
possessed by Serianni. Since the possession of each video represents a

distinct offense under Section 6132(d), double jeopardy does not barJ

- A15026

- 22

- 7

-

Serianni’s six consecuti ve sentences. Therefore, Serianni is not entitled to

relief on this issue.
In his fourth issue, Serianni argues that the fines imposed by the trial

court violate the Apprendi r ule because the amounts were determined by the
trial court and not a jury. “ B ecause a challenge to a sentence premised

upon Apprendi implicates the legality of that sentence, it cannot

be waived on appeal. ” Commonwealth v. Snyder , 251 A.3d 782, 795 (Pa.
Super. 2021) . Thus, we must also consider the merits of Serianni’s Apprendi
challenge.
A challenge to the legality of a sentence is a question of law , for which

this court’s standard of review is de novo and its scope of review is plenary.

Commonwealth v. Wolfe , 106 A.3d 800, 801 (Pa. Super. 201 4).

Under the Apprendi rule, “ any fact [other than a prior conviction] that
increases a maximum sentence must be found by the factfinder beyond a
reasonable doubt or admitted by the defendant during his guilty plea. ”
Commonwealth v. Riggle , 119 A.3d 1058, 1064 (Pa. Super. 2014). The
United States Supreme Court held that the Apprendi rule applies to sentences

of criminal fines. S
. Union Co

. v. United States , 567 U.S. 343, 346 (2012).
However, this Court explained that the Apprendi rule is not implicated when

an actual sentence for an offense falls below its statutory maximum

. Commonwealth v. Lowery , 784 A.2d 795, 800 (Pa. Super. 2001).J

- A15026

- 22

- 8

-

Here, the criminal fines at issue do not violate the Apprendi rule

. The
trial court imposed a fine of $17,500.00, an amount far below the statutory
maximum amount of $165,000.00. For that reason alone, Serianni’s
Apprendi challenge fails. Furthermore, the maximum sentence for Serianni’s
offenses was based entirely on his guilty plea

. The court d id not determine
any fact that increased Seriann i ’s maximum sentence. The only facts at issue
here were incorporated and admitted in Serianni’s guilty plea.
We also do not agree with Serianni that the Apprendi rule requires his

sentence to be determined b y a jury. Under our statutes, trial courts are generally responsible for determining sentences within statutory parameters.

See 42 Pa.C.S.A. § 9721

. The Apprendi rule preserves the criminal jury trial
right only with respect to those facts that increase maximum sentences. The
Apprendi rule does not undermine the trial court’s ability to impose sentences

below the statutory maximum. Serianni’s fourth issue fails.
In his fifth issue, Serianni contends that his “g uilty plea is invalid as it
was not knowingly and intelligently entered.” Serianni’s Brief at V . Since
Serianni filed a timely post

- sentence motion to withdraw his plea, we find his
challenge to the validity of his guilty plea preserved on appeal. Pa. R. Crim.P.

720 ( A ) (1) , ( B ) (1)(a)(i).
A trial court should only grant a post

- sentence motion to withdraw a
guilty plea to prevent a manifest injustice. Commonwealth v. Shaffer , 712
A.2d 749, 75 6

– 57 ( Pa. 1998) . Manifest injustice occurs if the trial courtJ

- A15026

- 22

- 9

-

acc epts a guilty plea that was not tendered knowingly, intelligently, and
voluntarily. Id. at 757. In determining the validity of a guilty plea, a court
must examine the totality of the circumstances. Id. “Pennsylvania law
presumes a defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.”

Commonwealth v. Jabbie , 200 A.3d 500, 505 (Pa. Super. 2018).
An appellate court’s standard of revie w is distinct from that of a trial
court. We will only intervene when the trial court’s denial of a post

- sentence
motion to withdraw a guilty plea amounts to an abuse of discretion. Schaffer ,
712 A.2d at 757. “Discretion is abused when the course pursue d represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Id.
Here, we discern no ab use of discretion. In his written guilty plea
colloquy, Serianni confirmed that his guilty plea was entered voluntarily,
knowingly, and intelligently. Written Guilty Plea Colloquy, 1/22/20 , at 2. The
trial court, in turn, found that Seriann i entered th e plea voluntarily, knowingly,

and intelligently

. Furthermore, t he Commonwealth provided Seriann i with
proper notice of the charge s against him. The c rimina l i nformation, which
Serianni now seeks to challenge on appeal, full y complies with our Rules of

C riminal Procedure, as it contains the proper signature, caption, name,
applicable dates, county at issue, offense elements, and concludingJ

- A15026

- 22

- 10

-

statement. Pa.R. Crim.P. 560(B). Before the trial court, Serianni testified that
he had adequate time to consult wit h his attorney regarding the guilty plea

and that he fully understood the written guilty plea colloquy. Thus, we find
that the trial court did not abuse its discretion in denying Serianni’s post

sentence motion to withdraw his guilty plea.

Serianni also contends throughout his brief that his sentence was

excessive . However, Serianni failed to challenge the discretionary aspects of
his sentencing in either the sentencing proceeding or in a post

- sentence
motion to modify sentence. Thus, we f ind t his claim waived on appeal.

Commonwealth v

. Reeves , 778 A.2d 691, 692 (Pa. Super. 2001).
Judgment of sentence affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2022