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[U] Commonwealth v. Jordan

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAMAR LAMONT JORDAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence June 20, 2013, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0003348-2012

Joseph D. Seletyn, Esq.

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT, JJ. [*]

MEMORANDUM

DONOHUE, J.

Damar Lamont Jordan ("Jordan") appeals from the June 20, 2013 judgment of sentence entered by the Court of Common Pleas, Erie County, following his plea of guilty to third-degree murder (18 Pa.C.S.A. § 2502(c)) and aggravated assault (18 Pa.C.S.A. § 2702(a)(1)). After careful review, we affirm.

On September 30, 2012, in the 600 block of Wallace Street, Jordan shot and killed Kendall Bryant and seriously wounded Ramone Lemon. N.T., 4/ 25/ 13, at 7-8. Thereafter, the Commonwealth charged Jordan with murder (18 Pa.C.S.A. § 2501(a)), attempted murder (18 Pa.C.S.A. §§ 901, 2501(a)), two counts of aggravated assault (18 Pa.C.S.A. § 2702(a)(1)), two counts of recklessly endangering another person (18 Pa.C.S.A. § 2705), possessing an instrument of crime (18 Pa.C.S.A. § 907(a)) and firearms not to be carried without a license (18 Pa.C.S.A. § 6106(a)(1)).

Jordan pled guilty pursuant to an open plea to third-degree murder and aggravated assault. I n exchange, the Commonwealth withdrew all other charges. On June 20, 2013, the trial court sentenced Jordan to serve 180 to 360 months of imprisonment for his conviction of third-degree murder and 66 to 132 months of imprisonment for his conviction of aggravated assault. The trial court imposed the term of imprisonment for aggravated assault consecutively to the term of imprisonment for third-degree murder.

On July 2, 2013, the trial court denied Jordan's motion tomodify his sentence.[1] Thereafter, Jordan filed a timely notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed its Pa.R.A.P. 1925(a) opinion on September 6, 2013.

On appeal, Jordan presents the following issue for our review:

Whether the sentencing court committed a manifest abuse of discretion when it imposed a sentence in the middle to high end of the weapon enhanced standard guideline range and ordered the sentence[ s] for counts one and two to run consecutively, where the court focused only on the serious nature of the offenses and added significant weight to [ Jordan's] prior summary offense record to the exclusion of various mitigating circum stances that were applicable to [ Jordan] ?

Appellant's Brief at 4.

Jordan's claim presents a challenge to the discretionary aspects of his sentence. With respect to our review of a discretionary sentencing claim, this Court has stated:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. I n 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. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012), appeal denied, __ Pa. __, 63 A.3d 774 (2013)).

A challenge to the discretionary aspects of a sentence is not appealable as of right. Id. at 902. In order to invoke this Court's jurisdiction, the appellant must satisfy the following four-part analysis:

(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [ see Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.... [ I ] f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Id. (quoting Commonwealth v. Austin, 66 A.3d 798, 807–08 (Pa.Super. 2013)).

Jordan satisfied the first requirement by filing a timely notice of appeal. The second prong required Jordan to preserve his discretionary sentencing claim . I n order to preserve a challenge to the discretionary aspects of a sentence, the claim must be raised at the time of sentencing or in a motion to modify the sentence. Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa.Super. 2013), appeal denied, __ Pa. __, 76 A.3d 538 (2013). The failure to do so results in waiver of the claim. Id. at 936. Our review of the sentencing transcript reveals that Jordan did not raise his discretionary challenge at the time of sentencing. See N.T., 6/ 20/ 13, at 2-15. While the trial court denied Jordan's motion to modify sentence on July 2, 2013, the motion to modify his sentence is not contained in the certified record, nor does the docket reflect that it was ever filed.[2] "Generally, the failure to file a post-sentence motion results in waiver of challenges to the discretionary aspects of sentencing." Commonwealth v. Wellor, 731 A.2d 152, 154 n.2 (Pa.Super. 1999). Thus, Jordan's discretionary challenge has been waived for his failure to file a post sentence motion to preserve his claim for appellate review.

Even if we could overlook the fatal omission in the record, Jordan's Pa.R.A.P. 2119(f) statement is wholly inadequate to invoke our review. In the Rule 2119(f) statement, the appellant must set forth the reasons why the discretionary challenge raises a substantial question. Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.Super. 2013), appeal denied, __ Pa. __, 77 A.3d 636 (2013). "I n order to raise a substantial question, an appellant's Pa.R.A.P. 2119(f) statement must argue the manner in which 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. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal denied, __ Pa. __, 63 A.3d 776 (2013) (citation omitted). "Additionally, we cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists." Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) (citation omitted).

Instantly, Jordan's Rule 2119(f) statement provides this Court with nothing m ore than bald allegations that the trial court abused its discretion in imposing Jordan's sentence. See Appellant's Brief at 9. Jordan makes no argument as to why his challenge presents a substantial question for our review. Nor does Jordan cite any authority for the proposition that his claim raises a substantial question. Instead, Jordan claim s that the trial court "failed to consider any mitigating facts in favor of [ Jordan] including [ his] age, [his] lack of significant prior record, the character of [Jordan], and the fact that the victims pursued [Jordan] to engage in a fight […] ." Id. Jordan further asserts that the trial court "placed substantial weight on the fact that [Jordan] had summary offenses occurring over the previous four years, " and "focused exclusively on the severity of the charges, that [Jordan] was apprehended in Atlanta, Georgia, [and] that [Jordan] carried and used a loaded gun." Id. Finally, Jordan claims that the trial court's decision to impose the terms of imprisonment consecutively demonstrates that his punishment is severe and the result of a manifest abuse of discretion. Id. Because Jordan fails to assert, let alone cite to authority that demonstrates "the manner in which 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" Riggs, 63 A.3d at 786, he has failed to raise a substantial question for our review. For this additional reason, we do not reach the merits of Jordan's discretionary claim.

Judgment of sentence affirmed.

Judgment Entered.


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