Com. v. Miller, A.

Opinion

J-S09012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN D. MILLER : : Appellant : No. 561 WDA 2018

Appeal from the Judgment of Sentence March 28, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0001002-2017

BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

JUDGMENT ORDER BY PANELLA, P.J.: FILED JUNE 28, 2019

Austin Miller appeals from the judgment of sentence entered in the

Crawford County Court of Common Pleas, following his negotiated guilty plea

to cruelty to animals. We find Miller has waived this issue for appeal purposes.

On February 15, 2018, Miller entered a negotiated plea of guilty to

cruelty to animals.1 In exchange, the Commonwealth nolle prossed charges

against him for aggravated cruelty to animals and neglect of animals.

At sentencing, the Commonwealth gave a brief recitation of the facts.

See N.T. Sentencing, 3/28/18 at 2-3. Miller did not contest the substance of

the Commonwealth’s factual recitation. See id., at 4.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 5533(a). J-S09012-19

Miller was given a dog by friends who could no longer care for it. See

id., at 3. He was subsequently evicted from his apartment in a rent dispute

with his landlord, who changed the locks while the dog was still inside. See

id., at 6-7. Miller claimed that he made numerous attempts to get in contact

with the landlord, all of which were unsuccessful. See id. When a maintenance

crew began cleaning out the apartment, they found the dog inside, dead. See

id., at 3. Miller had last been in the apartment at least nine days before. See

id. Miller alleged he left water for the dog, but police did not find evidence of

fresh water in the apartment. See id.

Though the standard sentencing guidelines called for probation, the

court sentenced Miller to three to six months of imprisonment. The court

explained this aggravated range sentence by highlighting the suffering of the

dog, as evidenced by frantic scratch marks near the door suggesting an

attempt to escape. See id. at 6-7.

On May 10, 2018, Miller timely filed a concise statement of matters

complained of on appeal, in accordance with Pa.R.A.P. 1925(b). See

Appellant’s Rule 1925(b) Statement, filed 5/10/18, at 1. In his Rule 1925(b)

statement, Miller listed two errors: counsel’s alleged ineffectiveness, and the

voluntariness of his guilty plea.

However, Miller’s brief addresses a different issue entirely. His brief

questions whether the court abused its discretion in sentencing Miller to three

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to six months’ imprisonment. See Appellant’s Brief at 7. Nowhere in Miller’s

brief does counsel address this inconsistency.

The right to challenge the discretionary aspects of a sentence is not

absolute. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.

2005). An appeal on discretionary aspects grounds must satisfy a four-

pronged test before this Court may consider it. See Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). We evaluate:

(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.A.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).

See id. (citation omitted). An appellant who wishes to challenge the

discretionary aspects of his sentence on appeal must have raised that issue at

sentencing or in a post-sentence motion. See Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc). Failure to do so results in

waiver. See id.

Here, Miller satisfied the first prong of the test by filing a timely notice

of appeal. However, Miller did not raise this challenge at sentencing, or in a

post-sentencing motion. As he has failed to satisfy the second prong, we are

constrained to find this issue waived.

Miller does not raise any additional issues in his brief. We therefore

affirm his judgment of sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2019

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