Com. v. Nolan, F.

• Court: Superior Court of Pennsylvania
• Decided: November 8, 2024
• Docket: 919 EDA 2024
• Status: Unpublished

Opinion

J-S31022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANCIS CYRIL NOLAN : : Appellant : No. 919 EDA 2024

Appeal from the Judgment of Sentence Entered January 10, 2024 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004567-2022

BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 8, 2024

Francis Cyril Nolan appeals from the judgment of sentence entered

following his convictions for harassment, simple assault, and disorderly

conduct.1 He challenges the discretionary aspects of his sentence. We affirm.

Nolan’s convictions stem from an altercation with his ex-wife’s

boyfriend. Following a bench trial, the court convicted Nolan of the above

offenses. The court sentenced Nolan to three to 23 months in jail and a

concurrent term of one year of probation. See N.T., Sentencing, 1/10/24, at

38. Nolan filed a post-sentence motion asking the court to “show him mercy.”

Post-Sentence Motion for Reconsideration of Sentence, filed 1/10/24, at ¶ 12.

He noted that he was “in the process of filing for bankruptcy and staying

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1 18 Pa.C.S.A. §§ 2709(a)(1), 2701(a)(1), and 5503(a)(1), respectively. J-S31022-24

foreclosure proceedings against his home.” Id. at ¶ 6. He maintained that if

he were not released from prison, he would become homeless. Id. at ¶ 7.

Nolan then filed on January 31, 2024, a pro se post-sentence motion,

which the court denied as untimely. See Order Denying Pro Se Motion for

Reconsideration of Sentence, filed 2/5/24. The court subsequently denied the

January 10 post-sentence motion, on February 23, 2024. See Order, filed

2/23/24. This timely appeal followed. See Notice of Appeal, filed 3/22/24;

Pa.R.Crim.P. 720(A)(2)(a) (stating defendant has 30 days after the entry of

an order deciding a timely post-sentence motion to file a notice of appeal);

Pa.R.Crim.P. 720(B)(3)(a) (stating a court has 120 days to decide a post-

sentence motion before it is deemed denied by operation of law).

Nolan raises the following issue: “Whether [Nolan’s] sentencing hearing

and sentence did not follow the Sentencing Code, sentencing norms and was

manifestly unreasonable and excessive[?]” Nolan’s Br. at 4. Nolan challenges

the discretionary aspects of his sentence. However, we do not address the

merits of his claim because he failed to preserve this claim.

Before reviewing the merits of a challenge to discretionary aspects of

sentence we must determine whether: 1) the appeal is timely; 2) the issue

was preserved at sentencing or a post-sentence motion; 3) the brief includes

a Rule 2119(f) statement; and 4) the issue raises a substantial question. See

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Claims not

raised at sentencing or in a post-sentence motion are waived for appellate

review. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super.

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2013) (en banc) (stating failure to raise challenge to discretionary aspects of

sentence at sentencing or in a post-sentence motion will result in waiver).

Here, Nolan waived appellate review of his claim of an excessive

sentence by not raising it at sentencing or in a timely post-sentence motion.

Therefore, we do not address his claim and affirm the judgment of sentence.

See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa.Super. 2015)

(rejecting review of claim challenging discretionary aspects of sentence where

issue was not preserved at sentencing or in a post-sentence motion).

Judgment of sentence affirmed.

Judge Beck joins the memorandum.

Judge Bowes concurs in the result.

Date: 11/8/2024

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