Com. v. Martin, G.

• Court: Superior Court of Pennsylvania
• Decided: October 18, 2017
• Docket: 3842 EDA 2016
• Status: Unpublished

Opinion

J-S57032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : GREGG WESLEY MARTIN, : : Appellant : No. 3842 EDA 2016

Appeal from the Judgment of Sentence November 14, 2016 in the Court of Common Pleas of Monroe County, Criminal Division, No(s): CP-45-CR-0001106-2016

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017

Gregg Wesley Martin (“Martin”) appeals from the judgment of

sentence entered following his guilty plea to access device fraud, and simple

assault.1 We dismiss the appeal.

In its Opinion, the trial court set forth the factual and procedural

history underlying the instant appeal. See Trial Court Opinion, 2/1/17, at 1-

6. We adopt the trial court’s recitation for the purpose of this appeal. See

id.

Martin presents the following claims for our review:

1. Did the trial court abuse its discretion at sentencing when the court gave [Martin] a state sentence w[h]ere he had a prior record score of zero?

2. Did the trial court abuse its discretion when it gave [Martin] a state sentence when making the determination that[,] based on his history and saying [that Martin’s] rehabilitative prospects were zero when [Martin] had no history of a county sentence[,]

1 See 18 Pa.C.S.A. §§ 4106(a)(1)(ii), 2701(a)(1). J-S57032-17

making the state sentence clearly unreasonable under the circumstances?

Brief for Appellant at 6.

Martin’s claims challenge the discretionary aspects of his sentence.

With regard to the discretionary aspects of sentencing, there is no automatic

right to appeal:

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine[] (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; 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.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

Here, Martin timely filed his appeal and preserved his claims in a post-

sentence Motion. However, Martin’s appellate brief does not include a

concise statement of the reasons upon which he relies for allowance of

appeal, as required by Pa.R.A.P. 2119(f). The Commonwealth has objected

to this defect. See Brief for the Commonwealth at 4.

Where the appellant’s brief does not include a concise statement of

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f),

and the Commonwealth objects in its brief to the omission, the appellant’s

technical noncompliance represents a fatal defect within appellant’s appeal.

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See Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012)

(stating that, “[i]f a defendant fails to include an issue in his Rule 2119(f)

statement, and the Commonwealth objects, then the issue is waived and this

Court may not review the claim.”); see also Commonwealth v. Brougher,

978 A.2d 373, 375 (Pa. Super. 2009) (stating that “claims relating to the

discretionary aspects of a sentence are waived if an appellant does not

include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party

objects to the statement’s absence.”); Commonwealth v. Tuladziecki,

522 A.2d 17 (Pa. 1987) (holding that the failure to comply with procedural

requirements for review of discretionary aspects of sentence claims is fatal

to the appellant’s claim on appeal). Because Martin’s brief does not include

the required Pa.R.A.P. 2119(f) concise statement, his challenge to the

discretionary aspects of his sentence is waived.2 See Brougher, 978 A.2d

at 375. Accordingly, we deny allowance of appeal.

Appeal dismissed.

2 Even if Martin had properly preserved his claims, we would conclude that they lack merit for the reasons stated by the trial court in its Opinion. See Trial Court Opinion, 2/1/17, at 6-17.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/18/17

-4- Circulated 10/04/2017 01:15 PM