J-S57008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMIE MOZELESKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 459 MDA 2019

Appeal from the Judgment of Sentence Entered February 26, 2019

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

No(s): CP-35-CR-0001178-2018

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 12, 2019

Jamie Mozeleski appeals from the aggregate judgment of sentence of 

102 to 204 months of imprisonment followed by five years of probation

imposed after he pled guilty to aggravated assault and related charges. 

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw 

and affirm the judgment of sentence.

On May 13, 2018, a Duryea police officer observed Appellant driving a 

vehicle with registration linked to a different vehicle. The officer attempted to 

initiate a traffic stop; however, Appellant increased his speed and began 

driving away erratically. Police pursued Appellant for four and one-half miles, 

as he reached speeds of up to seventy-five miles per hour in a thirty-five miles 

per hour zone. Appellant repeatedly swerved in and out of traffic and struck 
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into the same police vehicle multiple times. By the time Appellant was 

apprehended, he had caused $19,697.06 in damage to the involved police 

vehicle. Appellant was charged with five counts of aggravated assault, ten 

counts of various summary traffic violations, and one count each of criminal 

mischief, recklessly endangering another person, and fleeing or attempting to 

elude an officer. 

On December 3, 2018, Appellant entered a guilty plea to one count each 

of aggravated assault, criminal mischief, and recklessly endangering another 

person. The Commonwealth nolle prossed the remaining charges. There was 

no agreement as to what sentence Appellant would receive. Sentencing was 

deferred so that a presentence investigation report (“PSI”) could be prepared. 

At the sentencing hearing, Appellant’s trial counsel requested that the court 

note that there were discussions of boot camp eligibility during plea 

negotiations, and advocated for the court to find Appellant eligible for the 

motivational boot camp program.

1

 There was no further mention of boot camp 

eligibility and the court imposed the aforementioned sentence, which fell 

within the standard range.

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1 Motivational boot camp is:

A program in which eligible inmates participate for a period of six months in a 

humane program for motivational boot camp programs which shall provide for 

rigorous physical activity, intensive regimentation and discipline, work on 

public projects, substance abuse treatment services licensed by the 

Department of Health, continuing education, vocational training, prerelease 

counseling and community corrections aftercare.

See 61 Pa.C.S. § 3903.
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Appellant filed a timely post-sentence motion, asking the court to 

reconsider allowing him to participate in the boot camp program due to his 

rehabilitative needs. The court entered an order denying the motion. 

Appellant filed a timely notice of appeal and the court ordered him to file a 

concise statement of errors complained of on appeal. In his concise 

statement, Appellant again questioned the trial court’s finding of boot camp 

eligibility. Concise Statement, 4/4/19, at unnumbered 1. The trial court 

issued its Pa.R.A.P. 1925(a) opinion, explaining that it had denied Appellant’s 

request for boot camp eligibility after it “determined that any sentence less 

than a lengthy period of state incarceration depreciated the seriousness of the 

Appellant’s actions.” Trial Court Opinion, 7/12/19, at 9.

In this Court, counsel filed both an Anders brief and a petition to 

withdraw as counsel. Accordingly, the following principles guide our review of 

this matter:

Direct appeal counsel seeking to withdraw under Anders

must file a petition averring that, after a conscientious 

examination of the record, counsel finds the appeal to be wholly 

frivolous. Counsel must also file an Anders brief setting forth 

issues that might arguably support the appeal along with any 

other issues necessary for the effective appellate presentation 

thereof . . . .

Anders counsel must also provide a copy of the Anders

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any additional 

points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions (e.g., 
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directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our own 

review of the appeal to determine if it is wholly frivolous. If the 

appeal is frivolous, we will grant the withdrawal petition and affirm 

the judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) 

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

[I]n the Anders brief that accompanies court-appointed counsel’s 

petition to withdraw, counsel must: (1) provide a summary of the 

procedural history and facts, with citations to the record; (2) refer 

to anything in the record that counsel believes arguably supports 

the appeal; (3) set forth counsel’s conclusion that the appeal is 

frivolous; and (4) state counsel’s reasons for concluding that the 

appeal is frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statues on point that have led 

to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has substantially complied with the 

technical requirements set forth above. As required by Santiago, counsel set 

forth the case history, referred to an issue that arguably supports the appeal, 

stated her conclusion that the appeal is frivolous, and cited to controlling case 

law which supports that conclusion. See Anders brief at 4-14. Additionally, 

counsel gave Appellant proper notice of his right to immediately proceed pro 
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se or retain another attorney.2 See Santiago, supra; see also Application 

for Leave to Withdraw, 8/28/19. Accordingly, we proceed with an independent 

examination of the record in order to discern if any non-frivolous issues exist. 

Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en 

banc).

Counsel identified one issue that arguably supports this appeal: 

“Whether the trial court erred when it failed to impose a boot camp eligible 

sentence by waiving Appellant’s ineligibility due to an aggravated assault 

charge?” Anders brief at 4. 

This issue challenges the discretionary aspects of Appellant’s sentence. 

Specifically, Appellant attacks the trial court’s failure to consider his need for 

the “intense structure and discipline of boot camp” and, thus, waive his 

ineligibility for the program. Anders brief at 5. The following principles apply 

to our consideration of whether review of the merits of his claim is warranted. 

“An appellant is not entitled to the review of challenges to the discretionary 

aspects of a sentence as of right. Rather, an appellant challenging the 

discretionary aspects of his sentence must invoke this Court’s jurisdiction.” 

Commonwealth v. Samuel, 102, A3d 1001, 1006-07 (Pa.Super. 2014). In 

determining whether an appellant has invoked our jurisdiction, we consider 

four factors:

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2 Appellant did not file a response to counsel’s petition.
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(1) whether appellant has filed a timely notice of 

appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence; (3) whether appellant’s brief has a fatal 

defect; and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate 

under the Sentencing Code.

Id. 

Appellant filed both a timely motion for reconsideration of his sentence 

and a notice of appeal. In his motion, Appellant asked the court to reconsider 

its boot camp ineligibility decision. He also raised this issue in his concise 

statement of errors complained of on appeal. Therefore, Appellant properly 

preserved this issue and we now proceed to determine whether Appellant has 

raised a substantial question. Id. 

Appellant’s brief contains a statement of reasons relied upon for his 

challenge to the discretionary aspects of his sentence as required by Pa.R.A.P. 

2119(f). In his statement, Appellant claims that a substantial question is 

presented by the fact that the trial court failed to address his boot camp 

eligibility at sentencing and did not state any reasons for why it would not 

grant his request. Anders brief at 9. We find that this claim raises a 

substantial question, as it challenges the adequacy of the reasons given by 

the trial court for its sentencing choice. See Commonwealth v. Marts, 889 

A.2d 608, 613 (Pa.Super. 2005). Accordingly, we now turn our attention to 

the merits of Appellant’s challenge to his sentence.
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The following principles apply to our substantive review of Appellant’s 

claim: “When reviewing sentencing matters, this Court must accord the 

sentencing court great weight as it is in the best position to view the 

defendant’s character, displays of remorse, defiance or indifference, and the 

overall effect and nature of the crime.” Commonwealth v. Ventura, 975 

A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing 

factors and impose our judgment in the place of the sentencing court.” 

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead, 

we review the trial court’s determination for an abuse of discretion.

In this context, an abuse of discretion is not shown merely by an 

error in judgment. Rather[,] the appellant must establish, by 

reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

Appellant alleges that the trial court erred when it did not make him 

eligible for boot camp. An eligible inmate is:

A person sentenced to a term of confinement under the 

jurisdiction of the Department of Corrections who is serving a term 

of confinement, the minimum of which is not more than two 

years and the maximum of which is five years or less, or an 

inmate who is serving a term of confinement, the minimum 

of which is not more than three years where that inmate is 

within two years of completing his minimum term, and who 

has not reached 40 years of age at the time he is approved for 

participation in the motivational boot camp program. . .

61 Pa.C.S. § 3903 (emphasis added). When a request for motivational boot 

camp is noted, a sentencing court is required to:
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. . . employ the sentencing guidelines to identify those defendants 

who are eligible for participation in a motivational boot camp. The 

judge shall have the discretion to exclude a defendant from 

eligibility if the judge determines that the defendant would be 

inappropriate for placement in a motivational boot camp. The 

judge shall note on the sentencing order whether the defendant 

has been identified as eligible for a motivational boot camp 

program.

61 Pa.C.S. § 3904(b).

A review of the eligibility provision of the motivational boot camp statute 

reveals that the length of Appellant’s standard range sentence statutorily 

precluded the possibility of his participation in boot camp. See 61 Pa.C.S. 

§ 3903. Additionally, the sentencing court is not statutorily required to state 

reasons on the record for its boot camp determination. 61 Pa.C.S. § 3904(b). 

Thus, this aspect of Appellant’s claim fails. Therefore, we proceed to consider 

whether the trial court complied with traditional sentencing consideration 

requirements. 

A trial court’s sentence “should call for confinement that 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 on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing 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.” Antidormi, supra at 761 (citations and 

quotation marks omitted). Finally, when the trial court has been informed by 
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a PSI report, it is presumed that the trial court is aware of and has been 

informed by all appropriate sentencing factors and considerations. 

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017).

Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we 

find: (1) that the court intended to sentence within the guidelines, but 

“applied the guidelines erroneously;” (2) a sentence was imposed within the 

guidelines, “but the case involves circumstances where the application of the 

guidelines would be clearly unreasonable;” or (3) “the sentencing court 

sentenced outside the sentencing guidelines and the sentence is 

unreasonable.” 42 Pa.C.S. § 9781(c). The instant sentence is a standardrange sentence. Therefore, it must be affirmed unless it is unreasonable. 

While unreasonableness is not defined in the statute, it “commonly connotes 

a decision that is ‘irrational’ or ‘not guided by sound judgment.’” 

Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).

Appellant argues that his sentence was excessive because the court did 

not consider his rehabilitative needs, or state on the record the reasons for its 

sentence, when it failed to make him eligible for boot camp. Anders brief at 

5, 13. However, Appellant fails to establish that the instant sentence is 

unreasonable. The certified record demonstrates that the trial court properly 

relied on several factors in electing to impose a lengthy sentence of 

imprisonment, all of which demonstrated that the court followed the general 

principles outlined in § 9721(b). In fashioning the judgment of sentence, the 
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trial court referenced Appellant’s PSI report, arguments made by the defense 

attorney, Appellant’s allocution, and the nature of the crime. N.T. Sentencing 

Hearing, 2/26/19, at 1-4. In its opinion, the court went into further detail:

. . . In thoroughly reviewing the PSI, this [c]ourt became aware 

of the Appellant’s relevant history and background, prior record 

score of five (5) as well as the particular circumstances of the 

offenses committed, specifically, that the Appellant fled from 

police for over four and half (4.5) miles and put law enforcement 

in danger by repeatedly ramming and hitting their vehicle, as well 

as causing extensive damage. This [c]ourt also considered the 

fact that the Appellant amassed a lengthy criminal history both as 

a juvenile and as an adult, consisting of ten prior convictions, 

including past convictions for fleeing and eluding police officers as 

well as multiple probation/parole violations. This demonstrated 

the Appellant’s failure to rehabilitate and continued criminal 

behavior and defiance towards law enforcement and legal 

authority. Considering the escalating nature of the Appellant’s 

addiction, reckless driving, and danger to society, this Court 

determined that any sentence less than a lengthy period of state 

incarceration depreciated the seriousness of the Appellant’s 

actions. Therefore, this Court did not recommend boot camp 

eligibility, rather this Court imposed a standard range sentence 

within the statutory maximums of each offense. 

Trial Court Opinion, 7/12/19, at 9.

Our review confirms that the trial court weighed Appellant’s 

rehabilitative needs, along with the seriousness of the crime and prior 

unsuccessful attempts at probation and parole, when determining Appellant’s 

sentence. We have no authority to reweigh the mitigating circumstances 

against the aforementioned factors. Macias, supra, at 778. Also, the trial 

court placed on the record its reasons for imposing the sentence Appellant 

received. Accordingly, the trial court acted well within its discretion when it 
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imposed a lengthy period of incarceration on Appellant, rendering him 

ineligible for the motivational boot camp program.3

Further, we have conducted a “full examination of the proceedings” and 

have determined that the appeal is not in fact “wholly frivolous,” or lacking 

any basis in law or fact. Commonwealth v. Flowers, 113 A.3d 1246, 1248 

(Pa.Super. 2015); see also Santiago, supra at 355-56 n. 10. To the extent 

there is an exercise of discretion on the imposition of a sentence that 

ultimately precludes boot camp we cannot say there is no basis in the law for 

this argument.4 Therefore, we cannot grant counsel’s petition to withdraw. 

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3 To the extent Appellant wishes to challenge the court’s failure to make him 

boot camp eligible as a violation of his plea agreement, the record belies this 

argument. Anders brief at 12. A review of the written and oral guilty plea 

colloquies reveals that boot camp was never discussed or included as a 

condition of Appellant’s plea agreement. Accordingly, no relief is due. 

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (“A 

person who elects to plead guilty is bound by the statements he makes in 

open court while under oath and he may not later assert grounds of 

withdrawing the plea which contradict the statements he made at his plea 

colloquy.”) (citation omitted). 

4 While we are not in possession of an advocate’s brief in this matter, we do 

not believe that a remand is necessary. Since a review of the exercise of 

discretion is a question of law, this court is capable of conducting a thorough 

review of the record and we have done so here. 
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However, since our review did not disclose any arguably meritorious claims,5

we affirm the judgment of sentence. Dempster, supra at 273.

Judgment of sentence affirmed. 

Judge Musmanno joins the memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2019

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5 We undertook our review mindful of the fact that “upon entry of a guilty 

plea, a defendant waives all claims and defenses other than those sounding 

in the jurisdiction of the court, the validity of the plea, and what has been 

termed the ‘legality’ of the sentence imposed.” Commonwealth v. 

Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on 

those subjects are apparent from the record before us.