Com. v. Cook, D.

Superior Court of Pennsylvania

Com. v. Cook, D.

DecidedAugust 30, 2016

Docket198 EDA 2016

StatusUnpublished

This text of Com. v. Cook, D. (Com. v. Cook, D.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Cook, D., (Pa. Ct. App. 2016).

Pincite

Opinion

J-S64035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DAVID M. COOK

Appellant No. 198 EDA 2016

Appeal from the Judgment of Sentence December 16, 2015 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003068-2013

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 30, 2016

Appellant David M. Cook appeals the judgment of sentence entered in

the Court of Common Pleas of Bucks County on December 16, 2015,

following the revocation of his parole.1 Following a review of the record, we

dismiss the appeal. As shall be discussed more fully infra, in his counseled

appellate brief, Appellant failed to comply substantially with the

requirements set forth in Pa.R.A.P. 2111-2140; therefore, we are unable to

conduct meaningful review. ____________________________________________

1 The cover page of Appellant’s brief incorrectly indicates he is appealing the January 4, 2016, Order denying his post-sentence motion for reconsideration of sentence. The caption correctly reflects that the appeal is taken from the judgment of sentence entered on December 16, 2015.

*Former Justice specially assigned to the Superior Court. J-S64035-16

Because a detailed recitation of the facts is not necessary to our

disposition, we briefly note that the instant matter arises following the trial

court’s revocation of Appellant’s parole due his direct and technical violations

thereof after he was found guilty of simple assault, disorderly conduct and

harassment on August 26, 2015. On December 16, 2015, a parole violation

hearing was held following which Appellant was sentenced to serve the

entirety of his back time of parole of nineteen (19) months and eighteen

(18) days consecutive to his remaining sentences without eligibility for

parole.2 On December 24, 2015, Appellant filed his “Motion to Modify and

Reconsider Sentence” wherein he averred the aforementioned sentence “was

excessive in this it exceeds what is necessary to protect the public and

rehabilitate [Appellant].” See Motion to Modify and Reconsider Sentence,

filed 12/24/16, at ¶ 6. The trial court denied Appellant’s motion in its Order

filed on January 4, 2016. Appellant filed a timely notice of appeal on

January 21, 2016, challenging the discretionary aspects of his sentence.

Initially, we note that appellate briefs must materially conform to the

requirements of the Pennsylvania Rules of Appellate Procedure and this

Court may quash or dismiss an appeal if a defect in the brief is substantial. ____________________________________________

2 On August 27, 2015, Appellant received a sentence of one (1) to two (2) years in prison on the Simple Assault conviction and a consecutive sentence of ninety (90) days imprisonment on the Disorderly Conduct conviction. The trial court also found Appellant to be in contempt of a PFA Order that was active at the time of the assault for which he was sentenced to a consecutive term of six (6) months’ incarceration.

-2- J-S64035-16

Commonwealth v. Adams, 882 A.2d 496, 497 (Pa.Super. 2005); Pa.R.A.P.

2101. Our review of Appellant’s brief exposes substantial violations of the

Rules of Appellate procedure.

In the “Scope and Standard of Review” portion of his appellate brief,

Appellant fails to state the appropriate scope and standard of review, for

while his is an appeal of the discretionary aspects of his sentence for a

parole violation, he cites this Court’s scope of review of appeals from a

judgment of sentence imposed following probation revocation. See

Pa.R.A.P. 2111(a)(3); Brief for Appellant at 5. In addition, Appellant

purports to appeal from the January 4, 2016, order denying his post-

sentence motion for reconsideration of sentence;3 however, in a criminal

context, an appeal properly lies from the judgment of sentence, not an order

denying post-sentence motions. See Commonwealth v. Dreves, 839 A.2d

1122, 1125 n.1 (Pa.Super. 2003) (en banc) (in a criminal action, appeal

properly lies from the judgment of sentence made final by the denial of a

post-sentence motion); Brief for Appellant at 4.

Next, Appellant presents the following statement of the question

presented:

____________________________________________

3 Specifically, although Appellant is a male, Appellant purports to appeal “her” denial of post-sentence motions. See Brief for Appellant at 4.

-3- J-S64035-16

A. Whether the trial court abused its discretion by imposing a sentence that was excessive in that it exceeds what is necessary to protect the public and rehabilitate Appellant.

Brief for Appellant at 5.

Appellant’s assertion the trial court’s sentence exceeded that which is

necessary to protect the public and rehabilitate him is a challenge to the

discretionary aspects of the sentence. Commonwealth v. Caldwell, 117

A.3d 763, 768 (Pa.Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015)

(stating claim the trial court failed to consider a defendant’s rehabilitative

needs and the consecutive imposition of his sentences resulted in an

excessive sentencing scheme challenges the discretionary aspects of

sentence). Challenges to the discretionary aspects of one’s sentence are not

appealable as of right, and in order for this Court to reach the merits of such

claims, Appellant first must have satisfied a four-part test. An essential

element of this test is a consideration of whether his appellate brief has a

fatal defect for his failure to comply with Pa.R.A.P. 2119(f).

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011).

Rule 2119 provides in relevant part that:

f) Discretionary aspects of sentence. An 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. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.

-4- J-S64035-16

Pa.R.A.P. 2119(f) (emphasis added). In this regard, this Court has

explained:

[t]he concise statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates. Additionally, the statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm. If the statement meets these requirements, we can decide whether a substantial question exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (internal

quotations and citations omitted). In the matter sub judice, Appellant

nowhere includes a separate designation pursuant to Pa.R.A.P. 2119(f).

In Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super.

2006) this Court indicated we may review an appellant’s discretionary

aspects of sentence claims in instances where the Commonwealth has not

objected to his or her failure to include a Rule 2119(f) statement in the

Free access — add to your briefcase to read the full text and ask questions with AI