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[U] Commonwealth v. Jones

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEVEN JONES, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 12, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0010449-2011

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Steven Jones, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following the revocation of his probation. He claims that the sentence of one to five years is excessive. We affirm.

We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 7/9/13, at 1-2. On March 1, 2013, Appellant conceded he violated his probation and the court ordered a presentence investigation. On April 12, 2013, the court sentenced Appellant to one to five years' imprisonment. Appellant did not file a motion to modify his sentence, but timely appealed on May 1, 2013. On May 2, 2013, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement by May 24, 2013. Appellant untimely filed his Rule 1925(b) statement on June 5, 2013. The trial court filed a responsive Pa.R.A.P. 1925(a) opinion.

As a prefatory matter, we address Appellant's untimely filed Rule 1925(b) statement. In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc), the Court opined that if the Rule 1925(b) statement was untimely filed, "this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal." Burton, 973 A.2d at 433. Instantly, because the trial court filed a responsive opinion to Appellant's untimely Rule 1925(b) statement, we decline to find Appellant's issue waived on this basis. See id.

Appellant raises the following issue: "Was the revocation court's sentence manifestly excessive?" Appellant's Brief at 3. Appellant contends that the trial court erred by failing to adequately weigh his character prior to imposing sentence. Specifically, Appellant suggests the court should have weighed more heavily his mental health and substance abuse issues. We hold Appellant is not entitled to relief.

This Court has stated that

[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits of a discretionary sentencing issue:
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).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa.Super. 2006) (some citations and punctuation omitted).

Instantly, Appellant timely appealed but did not preserve his issue at the sentencing hearing or in a motion to modify his sentence. See Evans, 901 A.2d at 533. Appellant, therefore, has waived his issue for appellate review, and we are precluded from examining ...


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