Com. v. Canongo, G.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2023
• Docket: 485 EDA 2022
• Status: Unpublished

Opinion

J-A24015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERARDO CANONGO, JR. : : Appellant : No. 485 EDA 2022

Appeal from the Judgment of Sentence Entered December 13, 2021 In the Court of Common Pleas of Monroe County Criminal Division at No(s): 53 CR 2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2023

Gerardo Canongo, Jr. (“Appellant”) appeals from the judgment of

sentence of 15 to 30 months’ imprisonment, followed by 3 years’ probation,

imposed after he pled guilty to one count of driving under the influence

(“DUI”).1 Appellant solely challenges the discretionary aspects of his

sentence. We affirm.

On November 25, 2019, Appellant was arrested for DUI following a

traffic stop. A criminal information was filed on February 21, 2020, charging

Appellant with DUI and one count each of the following summary offenses:

driving an unregistered vehicle;2 driving while license suspended with blood

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1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 1301(a). J-A24015-22

alcohol content of .02% or greater;3 careless driving;4 fraudulent use/removal

of plate;5 reckless driving;6 and restrictions on alcoholic beverages.7 On

August 4, 2021, Appellant pled guilty to DUI, his fourth offense within ten

years, with all other charges to be nolle prossed. A sentencing hearing was

held on December 13, 2021, at which the court imposed Appellant’s sentence

of 15 to 30 months’ incarceration, followed by a 3-year consecutive period of

probation. Appellant filed a timely post-sentence motion for reconsideration,

which was denied; however, the court indicated that the sentencing order shall

reflect that Appellant was entitled to a time credit of 21 days. See Trial Court

Order, 1/13/22 (single page).

On February 11, 2022, Appellant filed a timely notice of appeal, followed

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal. The trial court filed its Rule 1925(a) opinion on

March 18, 2022. Herein, Appellant presents the following questions for our

review:

I. Did the trial court abuse its discretion by sentencing … Appellant to a fifteen (15) to thirty (30) month state sentence, followed by three (3) years[’] probation, because of its own concern for treatment, where Appellant may or ____________________________________________

3 74 Pa.C.S. § 1543(b)(1)(1.1).

4 75 Pa.C.S. § 3714(a).

5 75 Pa.C.S. § 7124.

6 75 Pa.C.S. § 3736(a).

7 75 Pa.C.S. § 3908(a).

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may not be accepted into the new [s]tate [d]rug [t]reatment [p]rogram, and said sentence was given because that length of sentence was suggested to the [c]ourt as giving … Appellant a better chance to be placed in the program?

II. Did the trial court abuse its discretion by sentencing … Appellant to a fifteen (15) to thirty (30) month state sentence, followed by three (3) years[’] probation, because [Appellant] had a prior record … score [of] three, two points of which were DUI[-]related, [and where] Appellant avers that the intent of the Legislature, when the Legislature has made the mandatory minimum for said offense ten days, was that the suggested standard guideline range did not need to be adhered to because there was specific DUI sentencing guidelines?

Appellant’s Brief at 6.

Appellant does not contend that his sentence is illegal but, rather, that

it was an abuse of discretion. As such, Appellant’s challenge implicates the

discretionary aspects of his sentence. “The right to appellate review of the

discretionary aspects of a sentence is not absolute and must be considered a

petition for permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d

1247, 1265 (Pa. Super. 2014) (en banc).

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determined: (1) whether [the] 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 [the] 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.[] § 9781(b).

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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotation marks omitted). In accordance with Rule 2119(f), “[a]n

appellant who challenges the discretionary aspects of a sentence in a criminal

matter shall set forth in a separate section of the brief a concise statement

of the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Pa.R.A.P. 2119(f) (emphasis added).

While Appellant filed a timely notice of appeal and properly preserved

his claims in his post-sentence motion, he failed to include a concise Rule

2119(f) statement in his appellate brief. It is well-established that when an

appellant fails to include a Rule 2119(f) statement and the appellee has not

objected, we may ignore the omission. Commonwealth v. Kiesel, 854 A.2d

530, 533 (Pa. Super. 2004). “However, this option is lost if the appellee

objects to a [Rule] 2119(f) omission. In such circumstances, this Court is

precluded from reviewing the merits of the claim and the appeal must be

denied.” Id. (citing Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa.

1987)). Here, the Commonwealth has expressly objected to Appellant’s

failure to include a Rule 2119(f) statement in his brief. See Commonwealth’s

Brief at 2, 6.

Because Appellant failed to comply with Rule 2119(f) and the

Commonwealth objected to the omission, this Court may not review the merits

of Appellant’s claims.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

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