Com. v. Cancel, D.

Opinion

J-S17027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL CANCEL : : Appellant : No. 3171 EDA 2017

Appeal from the Judgment of Sentence September 11, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002545-2016, CP-51-CR-0003457-2013

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED APRIL 11, 2019

Appellant, Daniel Cancel, appeals from the judgment of sentence

entered on September 11, 2017, as made final by the denial of his

post-sentence motion by order dated September 21, 2017. We affirm.

As our resolution of this appeal is based on the procedural posture of

the case, we need not set forth the factual background at length. In short,

while on probation for possession with intent to deliver (“PWID”) and

conspiracy at docket number 3457-2013,1 Appellant violently attacked and

robbed a young woman after she refused to have sex with him. On June 8,

2017, Appellant, at docket number 2545-2016, pled guilty to attempted

____________________________________________ 1 18 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively. J-S17027-19

murder,2 aggravated assault,3 robbery,4 theft by unlawful taking,5 receiving

stolen property,6 possession of an instrument of crime (“PIC”),7 simple

assault,8 and recklessly endangering another person.9 On September 11,

2017, the trial court sentenced Appellant to ten to 20 years of confinement

each for attempted murder and aggravated assault, to run concurrently, ten

to 20 years of confinement for robbery, to run consecutively, and two and

one-half to five years of confinement for PIC, to run consecutively. The trial

court also found Appellant to be in violation of his probation at docket number

3457-2013, and revoked his probationary sentence. In addition, the court

imposed a new sentence of five to ten years’ incarceration for both offenses

at docket number 3457-2013, to run consecutively to one another and

consecutively to the sentence imposed at docket number 2545-2016.

____________________________________________ 2 18 Pa.C.S.A. § 901(a).

3 18 Pa.C.S.A. § 2702(a).

4 18 Pa.C.S.A. § 3701(a)(1)(ii).

5 18 Pa.C.S.A. § 3921(a).

6 18 Pa.C.S.A. § 3925(a).

7 18 Pa.C.S.A. § 907(a).

8 18 Pa.C.S.A. § 2701(a).

9 18 Pa.C.S.A. § 2705.

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Appellant filed a post-sentence motion for reconsideration of sentence, which

the court denied on September 21, 2017. This appeal followed.10

Appellant presents one issue for our review:

Whether the trial court abused its discretion in ordering an aggregate sentence of 22 ½ to 45 years’ incarceration following a guilty plea where Appellant showed genuine remorse, was heavily under the influence of alcohol at the time of the crime, presented character witnesses, and did not have a significant criminal record[?]

Appellant’s Brief at 5.

In his single issue, Appellant argues that he received an excessive

sentence because the trial court did not adequately consider certain mitigating

factors. This issue challenges the discretionary aspects of his sentence.

Pursuant to statute, Appellant does not have an automatic right to appeal the

discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,

Appellant must petition this Court for permission to appeal the discretionary

aspects of his sentence. Id.

In order to reach the merits of a discretionary aspects claim,

we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his or her 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; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the Sentencing Code.

____________________________________________ 10 On October 18, 2017, the trial court issued an order requiring Appellant to file a concise statement of matters complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court filed its 1925(a) opinion on February 12, 2018.

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Commonwealth v. Foust, 180 A.3d 416, 438-439 (Pa. Super. 2018)

(cleaned up). Appellant filed a timely notice of appeal and preserved his issue

in a post-sentence motion. He failed, however, to include a Pennsylvania Rule

of Appellate Procedure 2119(f) statement in his appellate brief and the

Commonwealth objected to this omission in its brief. Thus, Appellant waived

the challenge to the discretionary aspects of his sentence. See

Commonwealth v. Heaster, 171 A.3d 268, 272 n.3 (Pa. Super. 2017),

appeal denied, 181 A.3d 1078 (Pa. 2018) (citation omitted). As Appellant

failed to preserve any discretionary challenge to his judgment of sentence, we

affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/19

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